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Patients often confuse positive findings on diagnostic imaging studies and what the findings mean for their personal health. For example, many studies demonstrate that asymptomatic persons who undergo MRI scans of their shoulder, knee, neck, or back frequently demonstrate positive findings, especially in persons over 40. In the case of a shoulder this may be in the form of shoulder impingement or rotator cuff pathology. A knee scan may demonstrate a torn meniscus. A neck or back scan may show a herniated disk. The question for the healthcare market generally is whether positive findings in asymptomatic individuals lead to increased healthcare costs.
Unfortunately but not surprisingly, much research finds that positive findings on diagnostic imaging scans of asymptomatic persons lead to increased medical interventions and costs. This is particularly problematic in the context of back and neck pain. According to the Journal of the American Board of Family Medicine, spine surgery rates are highest where spine imaging rates are highest. www.jabfm.org/content/22/1/62.full.pdf. As the authors note
One problem with inappropriate imaging is that it may result in findings that are irrelevant but alarming. Positive findings, such as herniated disks, are common in asymptomatic people. In a randomized trial there was a trend toward more surgery and higher costs among patients receiving early spinal MRI than those receiving plain films, but no better clinical outcomes.
Another study (subscription required) compared early MRI use versus no MRI use in low back pain patients and found significantly higher costs among those receiving early MRIs. “The early-MRI groups had similar outcomes regardless of radiculopathy status: much lower rates of going off disability and, on average, $12,948 to $13,816 higher medical costs than the no-MRI groups.” As a result of studies such as these that demonstrate increased interventions and costs following positive findings on diagnostic imaging, the American College of Physicians and the American Pain Society “recommend against routine imaging in patients with nonspecific back pain …”
In addition to the costs associated with a positive finding on MRI in an asymptomatic person, the actual cost of the MRI may itself be unnecessary. A study published in the American Journal of Sports Medicine (subscription required) compared the effectiveness of standard clinical examinations versus MRI scans for various conditions. Remarkably, the clinical examination outperformed the MRI in diagnosing ACL pathology, meniscal pathology, and articular cartilage pathology (osteoarthritis). With respect to diagnosing articular cartilage pathology, clinical assessment was 100% sensitive while MRI was only 33% sensitive. This study seems to suggest that MRI would not even be necessary for knee pain without a correspondingly positive clinical finding.
A large part of the problem may be due to a misunderstanding of pain and an overconfidence in the abilities of medicine to manage it. Most people who suffer from chronic or recurrent pain assume that if a specific cause of the pain can be identified and once identified the specific cause can be ‘fixed,’ which will remove the pain. Unfortunately, chronic or recurrent conditions often do not work this way. For example, degenerative arthritis is not susceptible to easy fixes and requires a strategy of management and tolerance rather than futile and expensive searches for cures. As the JABFM article points out, “there are no ‘magic bullets’ for chronic back pain, and expecting a cure from a drug, injection, or operation is generally wishful thinking.”
The fact of life is that there are often no panaceas for age-, genetic-, or disease-related degenerative conditions. “Patients need realistic expectations despite product marketing, media reports, and medical rhetoric that promise a pain-free life.” It is hard to keep expectations realistic when being besieged by marketing, media reports, and medical rhetoric. Our desire for efficiency, to find the fastest, easiest solution to any problem, further complicates the ability to maintain realistic expectations. Not only are we inundated with messages that tell us the answer to our problem is easy, we are also biologically programmed to seek the easiest solution. This is most unfortunate because with chronic conditions like joint pain or back pain, the most effective treatment is usually one that requires lifestyle changes, which indubitably is not the easiest solution. Hence, losing weight, increasing activity, pursuing a targeted home exercise program, and psychologically conditioning oneself to deal with persistent pain will bring the most relief but is probably the last option most persons will want to pursue.
The medicolegal world often confronts the difficulty of imaging studies creating problems where none previously existed. This can be devastating in the context of chronic pain because, as noted above, increased imaging tends to lead to increased surgical intervention. And if the imaging study finds an asymptomatic lesion, operating on an asymptomatic lesion or condition will not fix the chronic pain. It is important that we in the medicolegal world ask healthcare professionals to follow evidence-based standards for performing imaging studies in the context of musculoskeletal complaints. If imaging studies are not indicated, they should not be performed for the simple reason that the likelihood of an asymptomatic lesion or pathology being discovered is substantial, which is likely to merely induce the patient to fixate on the lesion or pathology as causative of his or her problem. This fixation often results in increased medical expenses, unnecessary interventions, and increased disability. To the extent that medicolegal professionals can require treating physicians follow evidence-based treatment guidelines, they should. One mechanism for doing this is through the IME. To be most effective in this regard, it may be advisable to ask the IME physician a specific question related to what evidence-based treatment guidelines apply and should be followed.
Stratified or targeted care of back pain implemented by family doctors leads to 'significant' improvements for patients and a 50% reduction in work absence - without an increase in healthcare costs...
To accomplish the targeted care, general practitioners participating in the study gave patients a 9 part questionnaire to evaluate the severity of their back problems. Patients were then placed low risk, medium risk, and high risk categories, with treatment individualized based on the level of risk. Importantly, the low risk patients were not given intensive treatment but were simply reassured about their back pain and given strategies for managing it. Medium and high risk patients received "more intensive treatments led by [physical therapists]."
Prior research found that targeted treatment of back pain was effective, but this is the first evidence that targeted care is effective at the family practice level of care. Medical News Today quotes Professor Alan Silman, medical director of Arthritis Research UK:
This exciting research shows that stratified or targeted approach to managing back pain in primary care is effective, and challenges the 'one-size fits all' strategy that is currently recommended by national guidelines in which everyone with nonspecific back is offered the same treatment, irrespective of their risk of persistent problems.
Critically, the research found that the targeted approach to back pain does not increase costs. Whether the results can be duplicated remains to be seen, but the study offers a promising method for early, cost-effective intervention in persons suffering from back pain. The fact that the protocol resulted in a 50% reduction in workplace absence is remarkable and reason enough to attempt to replicate the findings so they can be implemented as standard care in general medical practices. Professor Silman put it to Medical News Today best:
Back pain is one of the leading causes of work place absence, and to be able to reduce this burden on society by getting more people back to work, as well as giving benefit to individuals is a fantastic outcome.
Successful management of a claim or case, whether plaintiff or defense, requires logical analysis. The essence of the tort and worker’s compensation systems is monetizing injury and allocating responsibility for payment. Essentially, claims and cases are just a fight over money, over who should bear the cost of a particular illness, injury, or condition. In a perfect world, we would analyze cases carefully and assign value dispassionately and with the rational precision of Mr. Spock. Unfortunately, ours is not a perfect world. We are not perfectly rational and emotion often infuses how we analyze and manage claims.
Human beings, though possessing remarkable cognitive capacities, are creatures of emotion. And no matter how hard we try, we cannot divorce emotion from reasoning. This presents particular problems for those of us in the medico-legal world because we are asked to administer, defend, and prosecute claims using pure, objective reason while being almost biologically incapable of doing so. For example, in our system of risk perception, instinctive reaction moves faster than conscious thought, “The system is set up to be fast rather than smart. Our brains are hardwired to feel first and think second.” Not only that, but “in those cases where the outputs from the two processing systems disagree, the affective, association-based system usually prevails.” (full paper can be downloaded from linked site).
So what do we do given that, “no matter how hard we try to reason carefully and objectively, our brains are hardwired to rely on feelings as well as facts to figure out how to keep us alive?” For starters, it helps to acknowledge that our decision making is less rational and objective than we think. We want to analyze claims with as little emotional response as possible. In making decisions, we should strive to push reason forward so that the quick-response, emotional system does not dominate and overpower more deliberate, rational thought. We can implement strategies to give the conscious, rational part of our brain more influence over our decisions:
When analyzing and managing claims, taking a few simple steps to slow down and let reason come to the fore can help minimize the role emotion and bias plays. And the clearer we think, the better we are at analyzing liability, causation, and the nature and extent of injury.
A University of Minnesota Carlson School of Management professor recently published a study on PLOS ONE that concluded that working while on a treadmill boosts productivity. Yes, you read that right, working while on a treadmill. The lead author, Professor Avner Ben-Ner anticipated that the findings would be objected to because of the cost of retrofitting or building a workspace with a treadmill:
It's a health-improving option that costs very little. I think there will be an increasing number of employers who will invest $1,000 or $2,000 in outfitting a persons' workstation… The employer benefits from the employee being active and healthy and more smart [sic] because more blood is flowing to the brain.
While it is hard not to look at this study without tongue firmly planted in cheek, the study noted that the participants were walking rather slowly while working and that there was an adjustment period during which productivity declined. The obvious side benefit of working on a treadmill is that it reduces the deleterious effects of being sedentary while on the job which certainly could result in substantial cost-savings to employers. Regardless, I personally look forward to my office space resembling this:
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.
An Australian study published in JAMA Psychiatry (subscription required) found that "compensation claimants who have stressful claims recover more slowly than those who have less stressful experiences." This probably comes as no surprise to those involved in worker's compensation and liability claims. Interestingly though, the lead author's take was unexpected. “Reducing the stress claimants experience in claims processes has the potential to help to improve their recovery, and result in better outcomes,” said Dr. Genevieve Grant. The question for those involved in worker's compensation and personal injury claims is how to balance the benefits of streamlining claims (and hence reducing stress and costs) with the obligation to accept only legitimate claims. While there is no easy answer to this problem, the results of the Australian study, if replicated, will at least add objective evidence to the calculation. And objective decision-making is always better than the alternative.
Whiplash-caused neck injuries are some of the most highly contested personal injury claims. Properly understood, 'whiplash' is used to describe the mechanism of injury to the occipital region of the head and the cervical region of the spine that occurs to a seated occupant of a motor vehicle that is struck from behind by another motor vehicle. Whiplash does not occur in front-end collisions and does not describe low back or other injuries that also may occur in rear end collisions. Whiplash-caused neck injuries are highly contested because the resulting injuries often do not show up on standard diagnostic imaging tests. In addition, whiplash injuries often occur in low speed collisions where the involved vehicles are undamaged or minimally damaged. For this reason, claims professionals and defense attorneys view these claims with almost universal skepticism. On the plaintiffs' side, the lack of objective imaging studies and the [often] low speeds involved can make convincing juries to award even nominal damages difficult.Unfortunately, science has not reached common consensus regarding how whiplash causes injury or what precise forces are necessary to cause whiplash neck injuries in low speed collisions. However, researchers have come to a consensus on how the body reacts in rear-end collision which is important to understand when prosecuting or defending whiplash claims.When a rear end collision occurs, the head, neck, lower torso/pelvis, and upper torso actually act independently of one another. When the collision first occurs, the lower torso and pelvis are pushed forward relative to the upper torso, neck, and head. This motion causes "an initial flexion of the neck, even though the head is still effectively stationary…" Then the upper torso accelerates forward before the head begins moving. This is called "retraction" and "causes the lower vertebrae of the cervical spine to extend." At this point, the cervical spine and its musculature is not sufficiently strong to overcome the forces of the lower and upper torso movement so the upper cervical spine segments flex. The flexion and extension of the cervical spine allows it "to support the horizontal forces, and these forces both accelerate the base of the skull forward and set up a rearward rotation (extension) of the head." Interestingly, when the lower torso moves forward, the "upward thrust of the trunk compresses the cervical spine." Also noteworthy is that peak strains on the neck occur before the human body is able to activate the neck muscles in response.The manner in which the human body moves during a rear-end traffic accident is significant for a number of reasons. First, the forces generated on the cervical spine and occipital regions happen before the human body reacts to them. This means that a person who is in a rear-end collision cannot accurately describe what happened to their body during the collision. To occupants, it will feel like their head snapped forward and then back when in effect, the head remained stationary relative to the forward translation of the body. The difference in acceleration between upper and lower torso causes the upper and lower cervical spine to react by flexing and extending before the person is aware that anything is happening. In addition to horizontal shearing (forward motion of the torso vis-à-vis the stationary head), the upward motion of the torso also compresses the anterior portion of the cervical vertebrae (against which "the facet joints offer little or no protection") before the human body is capable of being aware of the motion. No claimant will be able to describe the mechanics accurately because sense data are generated and processed in the brain slower than the body's actual physical response. What a person in a rear-end collision feels is markedly different than what actually happens to the body.Second, the motion of the head and neck during a rear-end collision will more than likely be within the normal range of tolerance for the human neck if the occupant is belted with a normal and operable shoulder/lap belt combination. Hence, evidence of tissue disruption is unlikely to appear on diagnostic imaging studies. For claim handlers and attorneys (on both sides), the lack of objective imaging evidence creates enormous difficulties. Although the lack of objective evidence seems to favor the defense, the commonplace nature of whiplash injuries (and the fact that large portions of the medical and scientific communities accept that whiplash is a mechanism that can legitimately cause injury) would seem to favor the plaintiff. The bottom line is that these cases end up in a medico-legal morass because of the seemingly contradictory nature of the evidence which does not necessarily favor one side or the other.A key to managing whiplash claims successfully is understanding the biomechanics involved. For example, there is general consensus that gender matters in whiplash accidents: female gender increases the likelihood of injury. In addition, height is predictive of injury. Taller persons are likelier to be injured than shorter persons of the same gender because taller persons are less likely to have the headrest set at the proper height. Many other factors such as body positioning and pre-impact awareness influence the likelihood of neck injury in whiplash accidents. It behooves the parties to understand how the facts of the claim fit into the biomechanics.Stay tuned as we will address strategies for using biomechanics to your advantage in whiplash claims in our next whiplash post. [Attention: shameless plug warning!] Also, two internationally renowned experts in the biomechanical analysis of whiplash, Raj Rao, M.D., Ph.D and Brian Stemper, Ph.D. (who happen to be located at the Medical College of Wisconsin right in our backyard) will be speaking at the upcoming Medical Systemspersonal injury conference. Anyone interested in a detailed analysis of factors that influence injury in automotive rear impacts and the medical aspects of whiplash syndrome should consider attending.
When it comes to memory, it turns out that timing is everything. "What happened in the accident?" seems like a straight forward question; however, when you ask the question is likely to have a significant impact on the answer you get. Researchers at Northwestern University Feinberg School of Medicine recently published findings of a study on memory in The Journal of Neuroscience (subscription required) in which they found that the hippocampus implants new information into our memories when we recall older events. The findings were discussed in a Feinberg School of Medicine news release.
In an ingenious experiment, researchers had subjects study object locations on a computer screen against various backgrounds in step one. In the second step, the subjects were asked to place the object in its original location on the screen, but against a different background. The subjects were uniformly inaccurate. In the third step, the subjects were given three object locations against the original background (the original object location, the location where they placed the object in step two, and a wholly new location) and asked to identify the object location from step one. The subjects "always chose the location they picked in part two" which "shows their original memory of the location has been changed to reflect the location they recalled on the new background screen. Their memory has updated the information by inserting the new information into the old memory," said Donna Jo Bridge, Ph.D., one of the study's authors.
The researchers were able to gauge the part of the brain involved in this process because the subjects completed the experiment while being scanned with an fMRI. As lead researcher Joel Voss said, "The notion of a perfect memory is a myth." Or as Bridge put it:
The implications for personal injury and worker's compensation claims are obvious. Bridge succinctly sums up the issue in the legal setting, "Our memory is built to change, not regurgitate facts, so we are not very reliable witnesses." The findings in this study highlight the critical importance of obtaining statements from the claimant and any witnesses as soon as possible after a claim is brought. The study's finding lends support to the notion that the earliest reported history is the most reliable not only because memory gets stale but also because memory literally changes over time. "Our memory is not like a video camera … Your memory reframes and edits events to create a story to fit your current world. It's built to be current," according to Bridge.
Researchers at the University Of Texas Health Sciences Center at Houston, Rice University, and Shriners Hospital for Children-Houston recently published findings in the Journal of Bone and Joint Surgery (subscription required) regarding use of antibiotic-containing microspheres that could lead to their use in joint replacement surgeries. Researchers found that antibiotic-containing microspheres could significantly reduce the rate of infection in joint replacement surgery:
Porous metal implants that were coated with the microspheres prevented infection in 100 percent of the 11 specimens. In the tissue and bone surrounding implants that were not coated with the antibiotic delivery system, infection occurred at a rate of 64 percent. (Emphasis added).
According to a press release announcing the findings, the infection rate in joint replacement surgery is between 1% and 3%. While this is a low figure, one million persons per year undergo hip and knee replacements alone. This means that between 10,000 and 30,000 patients develop an infection after joint replacement surgery. As anyone who has been involved with a claim in which a joint replacement became infected knows, the costs of infection can be staggering. Often the original prosthesis will have to be removed to treat the infection. Sometimes patients end up effectively undergoing three joint replacements because an antibiotic-impregnated temporary prosthesis is used to treat the infection, which will then be taken out when the infection is cleared and replaced with a second permanent prosthesis. The lead researcher, Catherine Ambrose, Ph.D., noted:
[m]ade of biodegradable polymers, the antibiotics are gradually released over a period of weeks and eventually the microspheres dissolve, allowing sufficient time to prevent or treat an infection while reducing the likelihood of additional surgeries.
Better preventing and controlling infections in joint replacement surgeries would greatly decrease both costs and human suffering.The use of microspheres is exciting for reasons other than simply reducing the rate of infection. When persons develop an infection after a joint replacement, they are typically given systemic antibiotics. Microspheres offer a significant advantage when it comes to side effects because they are administered directly at the surgical site. According Ambrose, "[t]he microspheres could be administered directly at the surgical site, eliminating the need for systemic antibiotics that impact the entire body." Systemic antibiotics are hard on the body. They often cause gastrointestinal problems (and in extreme cases can lead to the development of infection with clostridium difficile, or c diff). Systemic antibiotics can also cause fever, rash, and potentially more extreme, though rare, side effects.It will be interesting to follow the use of antibiotic-containing microspheres in joint replacement surgery. If they prove as effective in practice as they have in the preliminary, preclinical trial, they will eliminate much suffering while reducing costs and improving outcomes in joint replacement surgeries.
Then [David] reaches into his shepherd's bag for a stone, and at that point no one watching from the ridges on either side of the valley would have considered David's victory improbable. David was a slinger and slingers beat infantry, hands down. 'Goliath had as much chance against David,' the historian Robert Dohrenwend writes, 'as any Bronze Age warrior with a sword would have had against an [opponent] armed with a .45 automatic pistol.'
Gladwell, Malcolm (2013). David and Goliath, p.12. New York: Little, Brown & Co.Goliath had no chance? The counter-intuitive is not necessarily unusual. Everyone in a contest involving more than pure chance should understand that each party has comparative advantages and disadvantages, even when the parties are unevenly matched. Using this information, the parties should seek to use their comparative advantages and exploit their opponents' comparative disadvantages even if doing so involves seemingly counter-intuitive strategy.In the liability and worker's compensation worlds outcomes are uncertain in most cases. This does not mean that the outcomes are not predictable, simply that the exact result cannot be known with certainty beforehand. While this presents certain challenges from an actuarial perspective, it creates opportunities for the parties even if power seems to be distributed unevenly.A perfect example of this is the 1980 U.S. Olympic hockey team. Going in to the tournament, any sane person would have bet against the U.S. team. Given the respective skill level of the teams involved in the Olympic hockey tournament, the U.S. would not even have been considered the second best team. In contrast, the Soviets fielded the equivalent of a "dream team." Just weeks before the Olympics, the Soviet team had beaten an NHL all-star team 6-0. Just as it would have been folly to bet against the 1992 U.S. Olympic men's basketball team, so it would have been folly to bet against the Soviets. Nevertheless, the contest involved two teams and, despite the unlikelihood, the outcome was not predetermined or guaranteed.What is truly interesting about the 1980 U.S. Olympic hockey team is that the team was not merely lucky. Instead, they were blessed with a deeper pool of talent than most observers realized and possessed of a cerebral genius in the cantankerous and foul-mouthed coach Herb Brooks:
The romantic notion that a bunch of college scrubs felled the world's greatest team through sheer pluck and determination is misguided. Brooks spent a year-and-a-half nurturing the team. He held numerous tryout camps, which included psychological testing, before selecting a roster from several hundred prospects. The team then spent four months playing a grinding schedule of exhibition games across Europe and North America. The players included Neal Broten, Dave Christian, Mark Johnson, Ken Morrow and Mike Ramsey, who would go on to impressive NHL careers.
In a testament to his coaching savvy, Brooks realized:
There was no matching the Europeans in skill. So [he] emphasized speed, conditioning and discipline. Knowing how luck plays a large role in short tournaments, he wanted a team that could grab whatever opportunities came its way.
In the game against the Soviets (not the gold medal game, by the way), Brooks' strategy worked to a T.
In the final 20 minutes, a pillar of the Brooks strategy – speed – came to the fore. Tikhonov relied heavily on veterans like Kharlamov and Mikhailov, players the Americans could catch… Brooks rolled four lines in quick shifts, taking advantage of tired Soviet legs. "It was the first time I ever saw the Soviets panic," said [goaltender Jim] Craig. "They were just throwing the puck forward, hoping somebody would be there."
By all rights, the Soviets should have crushed the American team; however, while Brooks used his comparative advantages effectively, the Soviet coach, Viktor Tikhonov, not only did not use his comparative advantages effectively, he ended up leaving open his comparative disadvantages to exploitation. As the Soviet team tired and the Americans surged, Tikhonov did not play his younger, less experienced players, the ones who could actually keep up with the Americans. Instead, "Tikhonov relied heavily on veterans like Kharlamov and Mikhailov, players the Americans could catch." Brooks' strategy is a textbook example of using comparative advantage to achieve an improbable (but not impossible) result.In the claims and legal world, finding your comparative advantage can turn weakness into strength. The key is to examine the claim or case by examining the assumptions based on conventional wisdom. Are the assumptions valid? How might things be done differently? And if done differently, how might that affect the relative strengths and weaknesses of both sides? If I act differently, how can I exploit my opponent's weakness and magnify my strengths?I once had occasion to observe this method in what appeared to be a problematic case. At the time my employer represented a plaintiff in a car accident case. The case was the low speed, low impact collision with little or no visible damage to the cars and soft tissue only injuries. The defense's main strategy was to use an engineer to extrapolate the forces involved in the accident based on the damage to the vehicles and then compare the estimated forces involved in the accident to forces involved in activities of daily living such as stepping off a curb or sneezing. The expert cited to an article published in Spine Magazine ("Acceleration perturbations of daily living. A comparison to 'whiplash'") to establish the magnitude of forces involved in activities of daily living. The theory was that the forces involved in the accident were small, comparable to such activities as stepping off a curb or sneezing; hence, injury could not have occurred in the accident.The question became not how to attack the engineering expert, but how to use him to support our claim. On cross examination, we established a couple of things before getting to the activities of daily living defense. First, we got the expert to admit that the lack of physical damage could result in increased force being transmitted through the plaintiff's body because damage to the vehicle would actually absorb force while a lack of damage would mean that virtually all the force in the accident would be transmitted through the plaintiff's body. Second, we got the expert to admit that he was not an expert in the biomechanical properties of human tissue. Specifically, we obtained his admission that he had no idea of what forces would be necessary to cause tissue yielding in the human neck (or any other part of the body for that matter). Once establishing these admissions, we walked the engineer through the activities listed in the article and had him compare those forces to the force he estimated to be present in the accident. Following this, we asked the engineer a series of questions about injuries that commonly resulted from the listed daily activities, including a fractured ankle from stepping off a curb wrong and a herniated disk resulting from a sneeze.The expert's admissions presented him with a conundrum: if he refused to answer on the grounds that he was not a medical expert, then his opinion regarding the injury causing potential of the accident would not be credible (and could possibly be excluded). If he answered the questions about the injury-causing potential of the forces involved in daily activities in the affirmative, then he would be admitting that the forces he was attempting to describe as benign could actually cause significant injury. Ultimately the engineer admitted that the activities of daily living could cause significant injury and that he could not determine if the forces involved in the accident, however benign-seeming, would have no effect, some effect, or an injurious effect on the soft tissue structures in the plaintiff's neck. In essence, the engineer helped make our case by demonstrating that what appeared to be a questionable claim was in fact entirely normal and comparable to injuries we all suffer from such common things as twisting an ankle while stepping off a curb. What seemed to be an advantage to the defense turned out to be a comparative advantage for the plaintiff. Needless to say, the jury found our client's favor with respect to medical causation and the nature and extent of the injury.Not every case will be amenable to using counter-intuitive strategies to exploit your comparative advantage and your opponent's comparative disadvantages. One thing that can be done, though, is to investigate claims with an open mind so that the assumptions we bring to our claims do not obscure potential strategies that seem, at first glance, to be counter-intuitive or unusual. Sometimes the best strategy is one that is unexpected and will keep the other side off balance.[Full Disclosure: the genesis for this post was Malcolm Gladwell's David and Goliath, which is a quick, interesting read for those so inclined.