Obtaining better outcomes in medical litigation – Lesson 5

Explore what the doctor did not test for

Excerpted from Exposing Deceptive Defense Doctors by Dorothy Sims

Typically, the DME determines there is nothing psychiatrically wrong with your client by not testing for a particular conclusion; not asking questions about the symptoms; ignoring all other data to the contrary; and, finally, failing to conduct a complete examination and address all issues in his report.

Ask if the DME did a multiaxial evaluation.[1]A multiaxial evaluation is a psychiatric evaluation that assesses a variety of issues:

Axis I       Mental disorders other than retardation and personality disorders.

Axis II      Personality disorders and/or retardation.

Axis III     General medical conditions (like pain due to car crash).

Axis IV     Psycho social and environmental problems (e.g., loss of job due to crash, wife leaving the patient due to crash).

Axis V      Global assessment of functioning. This is a scale of l – l00. A score of l00 is perfect, meaning the patient has no psychological problems whatsoever. The lower the number, the more disturbed your client might be. For example, a score of 41-50 reflects “serious symptoms OR any serious impairment in social, occupational, or school functioning”[2] An excellent online source that explains the various numbers is (believe it or not) Wikipedia. See http://en.wikipedia.org/wiki/Global_Assessment_of_Functioning.

Both the American Medical Association Guide to Evaluation of Permanent Impairment and the Florida Impairment Rating Schedule (and probably your state’s impairment rating schedule) suggest using a multiaxial format. As stated in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM-IV): “The use of the multiaxial system facilitates comprehensive and systemic evaluation with attention to various mental disorders and general medical conditions, psycho-social environmental problems and level of functioning that might be overlooked if the focuses were on assessing single presenting problems.”[3]

Practice Point:

Invest in a copy of the DSM

The Diagnostic and Statistical Manual of Mental Disorders is the “bible” of psychotherapists. Most doctors will agree it is the most commonly accepted treatise used by their peers for classifying disorders. Buy this book now. You can order a copy of the DSM-IV from the American Psychiatric Association (www.apa.org) or buy a used one on Amazon.com.

Did the defense doctor do a global assessment of functioning? Why not? Was it in an effort to honestly conclude significant psychopathology? If the doctor did do a GAF, did he give an unrealistically high number associated with mental health? If the doctor also diagnoses your client with, for example, somatoform disorder (seeChapter 10), look the disorder up in the Diagnostic and Statistical Manual (DSM-IV). Any psychological disorder in the DSM typically will have some significant interference in social and/or occupational functioning associated with it. Therefore, to give a GAF number consistent with mental health and well-being is inconsistent with any DSM diagnosis, whether it is due to an accident or not. Point out this inconsistency.

The DSM contains helpful instructions, in an algorithm format, to advise practitioners on how to diagnose patients.[4] You can use this algorithm to point out the DME’s lack of logic and failure to follow standard diagnostic criteria. You will find many doctors who write a report addressing Axis I and Axis II, but going no further. Why would a DME do this? Because if the DME assessed the remainder, he would be forced to consider the effect of the injury on the individual (Axis III), and the stress of litigation (Axis IV), and the individual’s overall functioning (Axis V). It is much easier to pretend these issues don’t exist (and hope the plaintiff’s counsel won’t ask about it).

Practice Point:

Look to see what the doctor didn’t do

Many DMEs avoid diagnosing conditions related to trauma by intentionally avoiding any tests that were designed to assess the condition in question. For example, the patient may be diagnosed with depression, and the doctor may test only for anxiety. Is it any wonder the doctor finds no evidence of depression when he doesn’t even test for it?

§6:02   Sample Questions

The following sample questions assume your client is depressed, but you can use this method of questioning for any psychiatric diagnosis.

Q:    Doctor, did you conduct any personality assessment inventories?

Q:    Please show me where you specifically tested for depression and anxiety.

Q:    Doctor, can you show me where, in the test manual, it indicates that this test you just pointed out was created to test specifically for depression [anxiety, PTSD, etc.]?

Q:    Doctor, did you go through the particular symptoms of depression with my client?

Q:    Doctor, did you weigh my client? [A change in weight (loss or gain) of more than 5% of total body weight in a month is a symptom of depression.][5]

Q:    Did you ask my client if she was depressed?

Q:    Did you administer any tests to determine if my client had a depressed mood?

Q:    Doctor, show me where you documented that you asked my client how often she cries?

Q:    Can you show me in your report where you discuss the family members’ statements about how my client has changed since the accident?

Q:    Can you show me in your report where you asked my client how the accident affected him emotionally?

Q:    Show me in your handwritten notes or written report where you conducted a suicide assessment.

Practice Point:

Ask where it is documented

Notice that these questions are not phrased, “Did you ask…,” but “Where is it documented that you asked…” Why? Because it puts the DME on the defensive. Also, it prevents the doctor from taking a free pass by claiming he “remembers,” 2 years and 2000 patients ago, specifically asking your client that question. You don’t care what he claims he remembers. All you want are the facts. Where is it documented?

Q:    Did you ask my client if she was taking any medication?

Q:    You will agree, doctor, that the narcotics used to treat my client’s pain can also cause or increase depression, won’t you?

Q:    Where did you document that in your report?

Q:    Where did you document in your report or handwritten notes that you asked my client whether or not she was having any side effects due to the medication?

[The following series of questions focuses on symptoms of depression. If your client has 5 or more of these symptoms then, according to the DSM-IV, your client may suffer from major depression.]

Q:    Did you ask my client about her hobbies, etc., before the incident?

Q:    Were you aware of the fact that my client was a black belt in kung fu, and played soccer every single weekend?

Q:    Were you aware that my client’s orthopedic surgeon advised him to avoid those activities?

Q:    Can we agree that it can be extremely depressing to give up a hobby that one loves?

Q:    Show me where in your notes you documented that you asked my client how it felt or affected him to give up those hobbies.

Q:    Doctor isn’t it true that exercise can help reduce depression?

Q:    Can you show me where in your report you discussed the fact that my client is no longer able to exercise in the same fashion and in the same manner because of his injury?

Q:    Doctor, isn’t it true that going from being able to exercise significantly and frequently to being unable to exercise to any significant degree at all can increase or even cause depression?

Q:    Doctor, if you were made aware of the fact that my client was busy, active and engaged in hobbies prior to the accident, and now rarely goes out, does not want to be with people, and frequently sits alone in a dark room, would you agree that is an indication of anhedonia—a pervasive lack of interest in the enjoyment of life?

Q:    Doctor, isn’t it true that anhedonia is a symptom of major depression?

Q:    Doctor, show me where you documented that you asked my client about her sleep patterns? Is she sleeping too much or too little? [Insomnia/hypersomnia nearly every day.]

Q:    Show me where you documented that you asked my client if she is experiencing fatigue.

Q:    Show me where you documented that you asked about her feelings of worthlessness.

Q:    Is my client having trouble concentrating?

Q:    Show me where you documented that you administered any tests of concentration with scores.

Q:    Does my client have recurrent thoughts of death?

Q:    Show me where you documented that you even asked this question.

Q:    Did you ask my client if she was suicidal? [Even the most basic interview should include this. Often, they do not. The DME should ask about both active and passive suicidal ideation. Active: The patient has a plan to kill herself. Passive: The patient wishes she would not wake up in morning.]

Q:    Doctor, show me where in your evaluation you documented whether or not my client was suffering from any psychomotor agitation or retardation.

Q:    You claim you did not document psychomotor agitation or retardation because there was none. Are you saying you actually remember that my client was not suffering from psychomotor agitation or retardation?

Q:    Is it your testimony under oath that you specifically remember my client’s evaluation separate and apart from your notes?

Q:    Doctor, what color are my client’s eyes?

Q:    What color is my client’s hair? Can you describe it—short, wavy,curly, straight?

Q:    Doctor, did you ask my client, specifically, if she had any of those symptoms? [Many doctors will scoff at this, claiming that asking the patient about specific symptoms is basically tipping off the patient as to what her complaints should be. This is absurd. This is like asking a person if she experiences pain while palpating to see if her leg is broken.]

Q:    So, doctor, as I understand it, you concluded my client is not suffering from depression by: a) not testing her for it; b) not asking questions about the diagnosis of major depression and; c) ignoring the tests conducted by other physicians.

[If the doctor is a psychiatrist, also ask:]

Q:    Doctor, are you an expert in the administration and interpretation of psychometric measures, such as the Beck Depression Inventory and the MMPI because I am going to ask you questions about scoring? [The doctor will say no.]

Q:    So, Doctor, as I understand it, your testimony reveals:

  1. You are not an expert in the administration and interpretation of these tests that were conducted by my expert, correct?
  2. My expert administers tests which reveal depression.
  3. Even though you don’t understand them, you still conclude nodepression.

Is that correct?

Q:    Doctor, isn’t that like receiving a mammogram suspicious for breast cancer and, because you are not an expert at reading and interpreting mammograms, concluding the patient doesn’t have breast cancer?

Q:    Why didn’t you just defer to the doctor who administered the test and concluded they represented depression?

Q:    Can you show me where in your report you even mention those test results?

Q:    Show me in your code of ethics where it instructs you to ignore objective test data prior to reaching conclusions?

Q:    Doctor, isn’t it true that the following symptoms experienced by my client are, in fact, symptoms that of major depression, as set forth in the Diagnostic and Statistical Manual? [Look up your client’s condition in the DSM-IV. Go through the checklist. Give the doctor specific examples of each, and then ask the following question.]

Q:    Doctor, if my client’s symptoms are legitimate, then wouldn’t you agree that according to those symptoms she meets the definition of depression?

The above advice came from…

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Why do so many defense doctors lie?

At a conference for medical experts the audience was asked, “How many times can you reach a conclusion contrary to insurance interests and still be hired by the carriers?”   The audience response was nearly unanimous: “Twice.”

A DME can be candid two times.  After a third contrary assessment, the doctor can forget those big-fee referrals.

How to reveal the deceit

Use the techniques for overcoming common defenses, the pattern questions, secondary resources, and sophisticated tactics detailed in Dorothy Clay Sims’ Exposing Deceptive Defense Doctors Her strategies have proven effective in hundreds of depositions and trials in challenging the DME on:

  • Incomplete and biased defense medical exams. Chapter 2

  • Negative results on psychological tests.  Chapter 5

  • Junk psychological defenses.  Chapter 6

  • Claims of malingering and exaggeration.  Chapter 7

  • Ignoring symptoms of depression.  Chapter 8

  • Failure to test or investigate for post-traumatic stress disorder.  Chapter 9

  • Poor results on neurological or radiological tests. Chapters 15 and 16

  • Denying causation in neck and back injuries. Chapter 17

  • Minimizing pain.  Chapter 18

  • Overlooking complex regional pain syndrome.  Chapter 19

  • Contradictory functional capacities evaluations. Chapter 20

  • Unfavorable long-term disability medical record. Chapter 21

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