One of the hardest things for anyone to understand is that two things occurring near in time and sequentially does not imply a causal relationship between them. This is a particularly difficult problem in the IME because often no evidence of a preexisting condition or an intervening cause can be found. Assuming that the condition is legitimate and there is no intervening, traumatic cause, convincing the trier of fact that the condition is unrelated to the accident is challenging. No solution to this problem is perfect; however, a combination of linguistic framing and stealth education through analogy offers a possible opportunity to change the trier of fact’s perception of how causation works.
“Cause,” when used as a transitive verb, means, “to make (something) happen or exist.” The legal definition of “cause” is similar, “something that precedes and brings about an effect or a result.” The medical definition of “cause” cannot be reduced to a simple statement because medicine has classes of cause, which includes direct causes, indirect causes, endogenous causes, exogenous causes, necessary causes, etc. In fact, as the understanding of disease has advanced, the notion that there is a direct cause-and-effect relationship between an event and a disease state has often been abandoned in favor of looser notions of causation such as “disease determinants” or “causal association.”
So how do we convince a trier of fact who is conditioned to view causation in simple, linear terms to understand and embrace a more nuanced view? First, it is useful to address the causation fallacy with the trier of fact. The fallacy ascribes cause to events simply because they occur sequentially in time. A good example is the recent series of television commercials that aired during football games that posited, “It’s only weird if it doesn’t work.” The commercials had persons doing variously goofy things because they experienced a good outcome once when doing the same thing. Hence, a guy consigns himself to the basement during a football game because once when he was getting beer downstairs the team scored. Obviously, walking downstairs to get a beer has no impact on an NFL game. This is the causation fallacy in action: despite occurring sequentially in time, getting a beer from the basement does not cause a football team to score.
A good example that can be raised before a trier of fact is arthroscopic treatment of knee arthritis. For many years orthopedic surgeons performed arthroscopic surgery to treat osteoarthritis of the knee. The surgery involved smoothing the fibrillated (ragged) cartilage lining the surface of the knee joint. The reason surgeons performed the operation is that when a joint surface is free of arthritis, it is smooth. When osteoarthritic change occurs, the joint surface becomes fibrillated or frayed. The assumption was that if a non-arthritic knee is smooth and an arthritic knee is fibrillated, the arthritic knee will become better (and less painful) if it is made smooth. The error in causation was ascribing pain to the fibrillation.
A number of studies eventually demonstrated that arthroscopic smoothing of knee cartilage is no better than conservative management for treating symptomatic osteoarthritis of the knee. It turned out that while pain and fibrillation are both symptoms of osteoarthritis, fibrillation does not cause arthritic pain. In fact, we have learned that many persons have degenerative changes present in their knee, such as meniscal tears and fibrillated cartilage, without having any symptoms of osteoarthritis. The same is often true of degenerative conditions that appear to arise in the context of a traumatic incident. Simply because a traumatic incident occurred and a degenerative condition manifested itself some time afterwards does not mean that the incident caused that condition to manifest any more than fibrillated cartilage causes arthritic knee pain. This offers a powerful example of the errors that can arise out of conventional, linear thinking on causation for the trier of fact.
Second, embrace the impossible, or at least accept the fact that even if you can’t conceive of it doesn’t mean it didn’t happen. I used to lament the lack of a preexisting condition or an intervening cause with my worker’s compensation defense clients. In a nutshell, our complaint went like this: The claimant has no symptoms, the accident occurs, and then there are symptoms so of course the ALJ is going to find the condition is work-related. Unfortunately I subscribed to the causation fallacy and, to the extent that triers of fact make this (il)logical leap, triers of fact are wrong. The problem, though, is that the causation fallacy’s logic is intuitive and difficult to overcome. To prevail in such a situation, you must convince the judge that the intuitive is not necessarily correct. Like the artist or the director, you must convince the trier of fact to willingly suspend their disbelief, not because you are asking them to accept a falsehood but rather because you are asking them to accept a truth that runs counter to their intuition.
Is this possible? Can you convince someone to accept something that seems to them intuitively to be wrong? Yes it is possible to convince someone to accept what seems intuitively to be wrong to them. A fertile place to start is with optical illusions. We know that moon is the same size and distance from the earth when it is low to the horizon as it is when it is high in the sky. Nevertheless, the moon appears smaller to us as it rises higher in the sky. We are willing to accept that our senses deceive us in this instance.
Other famous optical illusions include the arrow/inverse arrow (Muller-Lyer illusion), the growing person/shrinking room (Ames room illusion), the shifting color/brightness phenomenon (Chubb illusion), etc. The list goes on. The point being that our intuition can and does deceive us. What we think of as a normal relation between cause and effect can instead be the product of an illusion, of our mind searching for and imposing the order in which it perceives the world to unfold onto the world, even where no causal relationship exists, where the actual order of things is not what we think.
This is essentially the nature of the relationship between degenerative conditions, symptoms, and accidents. We want to believe that something (other than simply getting older) causes conditions to become symptomatic. We want the world to be rational, for B to flow from A, for injury to be the product of accident rather than genetics and time.
This being the case, what do we do about it? Remind the trier of fact of the Ames room; that she sees the room and she sees the identical twins. She knows the twins are identical, but it looks like they are not. She knows the room is not a cube, but her brain tells her it is. She accepts that the message her brain is getting from her perception is wrong. We can learn to overcome our biases and perceptual assumptions. The trier of fact can too, but only if the evidence is framed properly to offer a clear, concise, and cogent explanation of why what is real does not seem real and what seems real is not. The IME can help lay the foundation for this argument. Ask the doctor to explain how, despite appearances to the contrary, the injury and accident are not related despite occurring sequentially in time. A persuasive and coherent explanation from a medical expert with thousands of hours of experience can at least begin to get the trier of fact to think differently about medical causation, which is the first step to bringing her to accept your point of view.
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