At Medical Systems, we don’t often see separated shoulder cases, known to medical professionals as acromioclavicular (“AC”) joint dislocations, because the injuries are acute and painful. Hence, there usually isn’t much dispute about whether the injuries are work/accident-related or not. Still, these injuries happen at workplaces and in personal injury accidents. They are painful and, if severe, usually treated surgically (read, “expensively”).
New research suggests that this is probably the wrong approach. A recent study in the Journal of Orthopaedic Trauma found that surgical repair of moderate and severe AC joint dislocations did not result in improved outcomes versus non-surgical repair, bucking what has been considered common knowledge among doctors. Not only did surgery not improve patient outcomes, but patients that did not have surgery actually recovered faster. In fact, 75% of the non-surgical patients returned to work within 3 months of the injury while only 43% of the surgical patients did. According to the study’s author, "For severe AC joint dislocations, surgery is the common practice but there's not much evidence to suggest this is actually the best treatment." An additional benefit is that those treated non-surgically (use of a sling and rehabilitation) suffered much lower rates of complication. The only noticeable benefit to surgery was that the AC joint appeared more normal after surgery.
One hopes that the medical community will pay attention to the findings and stop recommending surgery for every moderate to severe AC joint dislocation. It would seem that this would be the best result for both claimants with AC joint dislocations and claims professionals managing their claims.
We have all seen the statistics on the explosion of nonmedical opioid use, abuse, and overdose that occurred with the proliferation of opioid use to treat chronic pain conditions. A new study further calls into question the wisdom of using opioids to treat chronic pain in women. According to research published in the Journal of Women’s Health, only 20% of women using opioids over the long term to treat chronic pain reported low levels of pain and high levels of function. In other words, using opioids over the long term to treat chronic pain is ineffective for 8 out of every ten women using them for that purpose. With the risk of opioid addiction, misuse, and overdose as high as it is, it is frankly mind-boggling that they continue to be prescribed to treat chronic pain in a population for whom the drugs are overwhelmingly ineffective. One hopes that continued research such as Journal of Women’s Health study and growing awareness of the ineffectiveness of long-term opioid use to treat chronic pain will eventually lead to more sensible prescription guidelines and more judicious behavior among prescribing physicians.
Ankle fractures are not the most common injury in worker’s compensation or personal injury claims, but they do happen. The standard protocol for uncomplicated ankle fractures is immobilization (casting) followed by a supervised exercise program (physical therapy). Results from a recent JAMA study question whether supervised exercise improves outcomes for patients with uncomplicated ankle fractures. In the study, the control followed the standard protocol (supervised exercise after cast removal) while the experimental group received instructions on home exercises but did not participate in a supervised exercise program. The results demonstrated that the control group had no better outcomes in terms of activity limitations or quality of life. The authors conclude that “findings do not support the routine use of supervised exercise programs after removal of immobilization for patients with isolated and uncomplicated ankle fracture.”
Eliminating unnecessary physical therapy from uncomplicated ankle fracture claims presents a good opportunity to reduce claim costs. If treating physicians are unwilling to follow the recommendations of the JAMA study’s authors, setting up an IME or a record review could be a smart move, especially if it can be done before the cast comes off.
Everyone seeks the talisman that will mysteriously cause every claim to be resolved favorably. Sometimes we want the IME report to be that talisman. Unfortunately, IME reports do not possess supernatural influence over the outcome of claims; however, well-written reports are key elements to successfully administering claims. And fortunately, claim administrators can take steps to help ensure they receive well-written IME reports. Most importantly, claim administers should take care in drafting IME cover letters because well-written cover letters lead to well-written IME reports.
The goal in obtaining an IME report is to have the expert clearly and persuasively resolve specific issues or questions about the claim. It follows from this that communicating the issues or questions to be answered in a clear and coherent manner to the expert is necessary for the expert to understand the claim and the specific matters that need to be addressed. Claim administrators communicate this information to the expert via the cover letter. Hence, the cover letter must be well-written to achieve the goals of clearly communicating the specific matters to be addressed to the expert.
But what does it mean for a cover letter to be well-written? First, a well-written cover letter must be consistent. For example, a cover letter should not ask about the possibility of an occupational injury or disease if the only claim being alleged is a specific, traumatic, acute injury. If the cover letter is inconsistent, it can create ambiguity or vagueness that may confuse the expert as to the precise issues that need to be addressed. In the occupational injury or disease example, the expert may conclude that the alleged acute injury did not cause the condition complained of, but that the job activities generally caused the condition. Hence, the claim administrator will buy a claim that would otherwise have remained dormant. The cover letter should be both internally consistent and consistent with the actual claim being made. Otherwise, the expert may very well issue a confusing opinion or, worse yet, find an injury compensable that the claimant didn’t even raise.
Second, cover letters should be organized in a standard format. Using a standard form for cover letters benefits both the writer and the expert. The writer benefits because the standard form acts as an implicit checklist of the information that needs to be communicated to the expert. This reduces the likelihood that necessary information will be left out. Using a standard form also increases the writer’s efficiency because the writer does not have waste mental energy thinking about how he is going to format or structure every letter he writes. Finally, the expert benefits because she will know where to look to find information on what the case is about, the noteworthy medical records, and the specific questions to be answered. Thus, if the expert has a question about the date of injury, she will know precisely where to look in the cover letter to find it. Likewise, the standard form will minimize the likelihood that the expert will leave questions unanswered because she will know exactly where to look to the questions being asked.
Third, cover letter writers should use clear, direct, and simple language whenever possible. You may need to know what a ‘calumny’ is if you are taking the SAT, but you are probably better off describing the claimant’s version of events as ‘difficult to believe’ in an IME letter. The goal of the cover letter is to communicate to the expert exactly what she needs to know and what questions she needs to answer. The goal is most effectively accomplished with simple and direct language.
This was driven home for me recently in an IME that arose out of a claim with multiple respondents. The cover letter writer explained to the expert that they were ‘impleaded’ into the case by one of the insurance companies. The expert was confused and had to ask us what the cover letter writer meant by ‘impleaded.’ The client was fortunate that the expert was not afraid to ask the question and that we knew the answer. The problem is the cover letter writer used legal jargon that is commonly understood among attorneys and claims administrators, but is not a concept that a medical expert would have any reason to know. A more simple and direct way to explain the case to the doctor would have been to state:
We represent XYZ. The employee claims she hurt her right shoulder while working for ABC; however, ABC got an IME report from Dr. Doe who concluded that the employee injured her shoulder while working for our client XYZ. As a result of Dr. Doe’s opinion, ABC claims that XYZ is responsible for the employee’s right shoulder condition and brought us into the case.
If the cover letter writer used simple and direct language, the expert would have understood exactly what the claim was about and why he was being asked for his opinion. Failing to use straightforward language greatly increases the risk that the expert will be confused and issue a confusing report.
Fourth, good writing is good editing. Time is always at a premium for claims professionals and attorneys, but every IME cover letter writer should take the time to reread and edit the letter before sending it to the expert. Editing the cover letter is the only way to ensure that the cover letter is clear and coherent. When we are busy, we may be tempted to release IME cover letters without editing them, but the cost of doing so far exceeds the benefit of the time saved. For example, it is easy to misstate the side of the body to which an injury occurred when hurrying to get out a cover letter. While experts will often correct the mistake when they review the records, sometimes the impression from the cover letter sticks in the expert’s mind and she perpetuates the mistake in the IME report. An IME report that misstates the side of the body actually injured loses credibility, even if it appears that the mistake was one of nomenclature rather than intent.
As noted above, there are no talismans in claims administration. Nevertheless, claims administrators can take steps to improve the likelihood that they will be able to resolve claims favorably. Crafting a well-written cover letter is one such step. A well-written cover letter will insure that the expert will understand the case, know what issues need to be addressed, and will be aware of the writer’s role in the case. As a result, the expert will be able to address all the relevant issues from a position of knowledge and understanding. And when good questions are answered by knowledgeable experts, good IME reports result.
Few things are as frustrating as preparing an IME cover letter and getting a report back that doesn’t answer all of the questions. Most people drafting IME cover letters use a standard form letter that starts by explaining the case then summarizes the relevant records and finishes with a section setting out the specific questions the expert is to answer. The purpose of using standardized form letters is to communicate as effectively as possible. Form letters have a number of qualities that make them effective. Chief among these qualities are form letters’ consistency and predictability. In the case of an IME cover letter, the expert knows where to look to find the case summary, a recitation of relevant records, and the specific questions the writer wants answered. The letter is drafted in this predictable and stylized way so the expert doesn’t have to waste any time figuring out what is going on and what they are being asked to do about it.
Problems ensue when cover letter writers depart from the standard form because the expert cannot rely on finding the relevant information where she expects to find it. This is especially problematic when writers intersperse questions for the expert throughout the cover letter rather than placing all of the questions in the specific questions section. The main problem in placing questions outside the specific question section is that experts often overlook or forget to answer questions buried in the body of cover letters.
It can be frustrating when a question in the IME cover letter goes unanswered, but the process of how most experts prepare IME reports explains how and why this happens. Most experts receive a cover letter with the relevant records attached to it. Usually the expert will read the cover letter to learn about the case and why they are being retained. Some experts will go through and dictate the record review portion of the report when they receive the records, especially if the records are voluminous. At a later date, the expert will meet with and examine the subject. Only after the expert examines the subject will she dictate the history, examination, impressions, and specific interrogatives portion of the report. When the expert gets to the specific interrogatives, she will typically review the specific questions section of the cover letter to determine what questions the client wants answered. Ordinarily the expert will not reread the entire cover letter before answering the specific questions asked. Finally, the expert will dictate her answer to the specific questions and with that the report is completed.
Experts tend to miss questions posed in the body of cover letters because they follow a specific method of preparing reports that relies on the assumption that cover letters, as standardized form letters, will stay true to the form. In particular, experts assume that if a cover letter has a section in which specific questions are asked, all the specific questions they are expected to answer will appear there (a reasonable assumption given the fact that a separate section is being devoted specifically to the questions the writer wants answered). The very purpose of the form is to make clear to the expert what the case is about and what questions need to be answered. Departures from the form defeat its purpose.
To minimize the likelihood that a question will go unanswered, the cover letter writer should include all questions in the specific questions section of the letter. For example, if the writer summarizes an MRI scan report that demonstrates no evidence of an acute injury process despite the scan being taken within 48 hours of the alleged injury, the writer may point to this and ask the expert about the significance of the MRI findings. However, to limit the possibility that the question will go unanswered, the writer should repeat the question in the specific questions section. Doing so may seem like overkill, but repeating the question in the specific questions section of the cover letter will practically guaranty that the expert will answer the question. The standardized form of cover letters puts all the questions in a specific questions section in large part so that the expert neither has to guess at what opinions the client wants nor reread the cover letter numerous times to be sure she has answered all the questions the client wants answered.
Cover letters are effective when they are consistent and predictable. Asking every question the writer wants answered in the section devoted to the specific questions hews to this consistency and predictability. Interspersing questions throughout cover letters makes them inconsistent and unpredictable, which creates a significant risk that some of the questions will go unanswered. Avoid the risk. Put the questions where the expert expects to find them.
Last week we reported on research finding that taking short breaks to move during the day have beneficial effects on blood pressure. Even more encouraging is research published in the American Journal of Preventative Medicine finding that simply fidgeting during the day has similar and beneficial health effects. While this may be bad news to our least favorite elementary school teachers who seemingly equated intelligence with the ability to sit still, it is good news for all of us who find ourselves working in sedentary jobs. And there are a lot of us working sedentary jobs. The American Heart Association estimates that less than 20% of U.S. jobs can be characterized as “physically active.” According to the study’s authors, “there was no increased mortality risk from longer sitting time” among study participants who reported fidgeting a moderate or high amount during the day. So don’t sit still! It appears that all movement is good for us, even such trivial types as fidgeting. While everyone can benefit from regular exercise, don’t count out the little things we can do during the day to counteract the negative effects of being sedentary. They might be just as important as the big things.
Hearing that exercise is good for us is worse than a broken record. Sometimes it actually feels painful to read it, as if the purveyors of this information are on some sort of sadistic quest to make their readers feel bad. Fortunately, this post will actually tell you that less is more and that you don’t have to kill yourself to not kill yourself. The New York Times wellness blog has a short piece worth reading on just what kind of exercise helps reduce blood pressure. This is important information because high blood pressure is a precursor to a vast array of conditions and diseases that shorten lifespans and reduce quality of life. What is also significant about the information is that it should actually make exercise easier. First and foremost, the article points to research finding that “’exercise intensity does not appear to play any significant role’ in helping people control blood pressure.” This is good news for anyone who blanches at the notion that exercise has to be strenuous to be beneficial. According to the article, “movement is what matters” and improvements in blood pressure readings were seen in persons who engaged in such simple activities as taking standing breaks or walking 1 mph for 10 minutes an hour at desk treadmills. In addition, the article pointed to research demonstrating that small movement breaks during sedentary periods are more beneficial than extended periods of exercise. This should be encouraging for all of us who have demands on our time that make scheduling an extended period of time for daily exercise difficult. At a minimum, most of us can manage to find 10 minutes here and there where we can simply stand while we work. And the good news is that even this modest intervention has been proven to substantially improve blood pressure readings. And employers should take note because this simple strategy could have significant effects on the health of employees, which is good for just about everything, including the bottom line.
I do beguile the thing I am by seeming otherwise.
-Iago in Othello, II.2.122-3.
Shakespeare’s Othello, while ostensibly about the titular character and his wife, Desdemona, centers on English literature’s most notorious and effective liar, Iago, a character so perplexingly foul as to cause Samuel Taylor Coleridge to describe him as “motiveless malignity,” evil for only evil’s sake. Since most of us have long since forgotten our high school and college lit classes, a brief recap: Othello saves Venice from a Genoan invasion and is elevated to general. He also wins the heart of the Doge’s daughter, Desdemona, and marries her. Iago ostensibly hates Othello because he passed him over for a promotion to lieutenant. He hatches a plan to convince Othello that Desdemona is unfaithful, which he successfully executes through a series of lies and half-truths, manipulating the other characters like a puppeteer. Iago ultimately convinces Othello that Desdemona is unfaithful, whereupon he kills her and commits suicide (the play being, after all, a tragedy).
To Coleridge, the greatest imaginable horror is not the overtly hostile brute, but rather the deceiver. The reason is that the challenge of the hostile brute, while perhaps significant, is open and obvious. We know what to expect and can prepare to deal with it. The deceptive person is exponentially worse because we often have no idea that we are being deceived or that the person is deceptive. We have no chance to prepare because we have no expectation of malfeasance or misbehavior. Hence, in the play Othello unwittingly considers Iago to be his truest friend while Iago leads him to his demise.
Human biology suggests Coleridge was right to fear liars. We became spectacularly successful because of our ability to cooperate and trust one another. It is how we went from hunter-gatherers to denizens of today’s massive and massively complex technological society. Deceit directly assaults our social nature and causes us to question the motives of everyone with whom we interact. This is particularly harmful for social beings whose existential success depends on cooperation. As a result, our inherently social nature makes us particularly poor at detecting deception.
Despite the fact that we are not very good lie detectors, we often think that we are. While liars are popularly depicted as either furtive bundles of nerves and sweat or overconfident and suave psychopaths, in truth all persons lie to varying degrees and there is no one personality type that is particularly adept at being deceitful. Studies generally find that we are poor lie detectors. We often think that traits like Machiavellianism, psychopathy, or narcissism make a person a more effective liar; however, research finds that persons having these personality traits are neither particularly effective liars nor particularly effective lie detectors. About the only things we know for sure about lying are that, “the ability to lie well correlates with an ability to better detect deception in others; and the control of response latency difference when lying may be the key to producing successful lies and detecting those lies in others.” Contrary to media portrayals, liars cannot be stereotyped. Also, the popular belief that persons lying give off telltale signs of deception is simply untrue. If a person wants to lie, chances are no one will notice.
The problem of deceit in traumatic brain injury is particularly vexing since there are limited objective measures available to differentiate between legitimate claims and malingering or symptom magnification. To give an idea of the scope of the problem, research has demonstrated symptom magnification or malingering likely occurs in about 40% of mild head injury claims. This presents difficulties for both insurers and legitimately injured claimants. Insurers are understandably wary of paying claims for which little or no objective evidence exists and high rates of symptom magnification and malingering exist. Claimants get frustrated when insurers question their claims because they suffered an injury for which limited diagnostic tests are available. Both insurers and claimants would be served best if there was a reliable way to differentiate legitimate traumatic brain injury from malingering or symptom magnification. The question is whether there is such a reliable way to do so.
The good news is that advances in neuroimaging are beginning to differentiate how physically injured brains function versus uninjured brains and brains of persons with psychological conditions. For example, a July 2015 study published at PLoS ONE described differences in single photon emission computed tomography (“SPECT”) scans between persons suffering from traumatic brain injury versus posttraumatic stress disorder. The study specifically concluded that “hypoperfusion in the orbitofrontal cortex, temporal poles, and anterior cingulum are consistent with the most frequent findings in the TBI literature” while “increases in the limbic structures, cingulum, basal ganglia, insula, thalamus, prefrontal cortex, and temporal lobes” were noted in subjects with PTSD. The authors report that SPECT scans may be able “to differentiate TBI from PTSD with sufficient sensitivity, specificity and accuracy to incrementally enhance clinical decision-making.”
The bad news is that we are just at the cusp of the neuroimaging revolution. This means doctors cannot simply order a SPECT scan (or any other imaging study) and state to a reasonable degree of medical certainty whether a particular patient is suffering from a particular condition based on the results of the scan. More research will be needed before imaging studies can be relied on to differentiate between the fact of injury and the type of injury being claimed. Though the news on the neuroimaging front is encouraging, until it becomes medically accepted as a diagnostic tool we will have to rely on clinical examination and testing to assess whether a particular patient is suffering from a TBI, a psychological injury, or is attempting to deceive us.
So can we determine if a claimant is trying to deceive us with clinical examination and testing? First, it is useful to define exactly what malingering is. According to the American Psychiatric Association, malingering is “the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives…” In the case of malingering in a personal injury claim, the external incentive is to obtain compensation from the tort system. It is also useful to know that the vast majority of mild traumatic brain injury resolves within 6 months. Most mild traumatic brain injuries are unremarkable events that are self-limiting and require little active care. In most cases, a person suffering a mild traumatic brain injury will get better no matter what they do and whether they seek treatment or not.
The symptoms of traumatic brain injury are nonspecific and include memory loss, attention deficits, mood changes, anxiety, and headache. These symptoms are also present in psychological conditions such as depression and PTSD and are so nonspecific as to be easily feigned. Fortunately, neuropsychological testing “can identify those who exaggerate or fake with moderately high levels of sensitivity and specificity.” One of the chief ways of detecting feigners is through the use of tests or indices that measure effort or intentional failure. These include the Test of Memory Malingering (“TOMM”), the Word Memory Test, the Computerized Assessment of Response Bias, the Portland Digit Recognition Test, and the Victoria Symptom Validity Test. For example, the TOMM has been found to have a 100% positive predictive power (the likelihood that a person has the condition when a test detects the condition) and a 90% negative predictive power (probability that a person does not have the condition when a test does not detect the condition). Researchers noted that “these statistics indicate that we can be 90% confident that a person gave good effort when he or she scored above the suggested cutoff value (for suboptimal performance). On the other hand, when a participant scored below the cutoff, we can have 100% confidence that he or she performed suboptimally.”
Interested in learning more about traumatic brain injuries and how to tell legitimate claims from illegitimate ones? Attend Medical Systems’ Advanced Medical Topics in Civil Litigation Symposium where Dr. Marc Novom and Dr. Brad Grunert will tackle traumatic brain injury from medical and psychological perspectives to give you their insights on how they analyze these claims and what you can do to manage them more effectively.
We have written many times about the pitfalls of conventional, linear thinking. Another development in the world of biomedical science confirms the peril of this type of thinking. In this case Ruth Massey, a biologist and biochemist at the University of Bath, describes research she performed with colleagues on staphylococcus aureus bacteria (the SA in MRSA), the found, contrary to conventional wisdom, that staph infections causing bacteremia in humans, the worst and most deadly staph infection (up to a 40% mortality rate), produce relatively few toxins. For decades, scientists thought “the more toxins a bacteria produces, the worse infection it causes.” Massey’s research demonstrates that the exact opposite is true: the worst infections in humans are caused by bacteria that produce less toxins.
How Massey and her colleagues discovered this information is a good example of why it is perilous to apply assumptions across categories without testing them. In this case, the problem had to do with how bacteremia research was conducted. Generally, bacteremia experiments are conducted on rodents. Massey et al. discovered that this is problematic because staph bacteria have much more difficulty establishing infection in rodent blood than in human blood. As Massey notes, as few as 100 staph bacteria can cause bacteremia in humans while 10-100 million staph bacteria must be injected into the rodent blood stream to establish infection. It turns out that this difference is crucial to how infections develop humans versus rodents. In humans, the way staph causes bacteria is by overwhelming the body’s defenses numerically. In order to do this, the bacteria need to be most efficient at reproducing. Having fewer toxins allows the bacteria to reproduce more efficiently than if the bacteria had many toxins, which requires energy be siphoned away from reproduction. In rodents this is less of an issue because bacterial loads large enough to overwhelm the rodent immune system are being injected into the blood stream. Human staph infections follow a typical organic course that starts with seeding by significantly fewer bacteria cells.
What is most significant is that untested assumptions often have real deleterious consequences. In the case of the bacteria staphylococcus aureus, research directed at treating and preventing staph infections, especially antibiotic resistant MRSA infections, has focused on staph bacteria that produce high levels of toxins. And this research was conducted because scientists assumed staph that secreted higher levels of toxins caused the worst infections. The problem is that Massey and colleagues have found that these strains of staph are not the ones that cause severe and deadly infections. The assumption was perilously wrong. As Massey writes, “identifying the limitations to our knowledge, rather than blindly pursuing hypothesis based on misleading animal experiments has got to be a better starting point for the future of infectious disease research.”
The same can be said of medico-legal claims: blindly pursuing claims strategies based on conventional wisdom can lead to bad results. Identify what you know and what you need to know. Gather the evidence. Ask what conclusions can be drawn from the facts? Form a claims strategy from the conclusions drawn from the facts, even if the strategy runs afoul of conventional wisdom. And if you find ignoring conventional wisdom uncomfortable (even when the facts of the claim are telling you to do so), ask yourself: Would I rather be comfortable or right?
We have written about the beneficial effects of getting enough sleep in this blog before. Yet again, researchers demonstrate that sleep is a vital component of health (and productivity). Science reports that a recent study published in the journal SLEEP confirming that people who don’t get enough sleep are more susceptible to the common cold. Scientists conducting the study inoculated healthy volunteers with rhinovirus, the most commonly implicated virus in causing colds, then quarantined the participants on a segregated hotel floor for 5 days after inoculation to limit the possibility of picking up rhinovirus from the environment. The study’s authors found that participants who slept less than 5 hours per night were 4.5 times more likely to get sick than participants who slept seven hours or more per night, proving once more that getting adequate sleep is crucial for maintaining health. And as any employer during cold and flu season can attest, maintaining health is crucial for productivity (and attendance).