U.S. insurance companies have taken a new look at soft tissue injuries, a result of the millions of dollars paid out in benefits each year. The actuaries have decided that the industry will save money if they litigate questionable claims for soft tissue injuries. Larger insurance companies have taken into account numerous factors and have come up with a range for settlement. They believe that plaintiffs will have to prove damages to juries if they want more compensation than the predetermined settlement range. Low-end insurance companies litigate most soft tissue claims with specials (medical bills) around the $2000-$3000 range. In my experience, many patients' claims fail because the primary treating doctors have not adequately documented their patients' injuries. If you are going to treat PI patients, you have a duty to adequately document their injuries.
Soft tissue injuries are difficult to prove, and records rarely demonstrate objective evidence of injury. Because of this, a thorough history is the most important aspect of the clinical record. In an automobile collision-related injury, it is imperative that the history answers these questions:
- Was the patient wearing a seat belt?
- Did the patient hit any structures in the car?
- What seat was the patient sitting in?
- What was the damage to the vehicle?
- How fast was the car going?
- What was the approximate speed of the other vehicle involved, if any?
- Did the patient receive emergency medical attention? (If yes, document where and when treated, and obtain records.)
- What were the patient's complaints at the time of the collision?
- What are the patient's current complaints?
- Was the patient taking any medication?
- Did the patient have pre-existing conditions?
Gathering these facts is necessary to document the nature and extent of your patient's injuries, or to render an opinion in court.
For some reason, doctors often do not ask their auto accident patients about pre-existing injuries and prior treatment. A pre-existing problem is not as detrimental as you may think. There is a saying in the law: "You take your plaintiffs as you find them." Document pre-existing injuries.
Finally, if the patient delayed seeking treatment, document the reasons. The patient will eventually have to answer this question, so it is better to clearly state the reason in the initial office visit. Afterward, if you have to testify in court, you will be glad you recorded the information.
Here are a couple of examples of case histories I have reviewed. These are examples of what not to do. (I have changed the names of patients and dates of their involvement to protect their privacy.)
Example 1: A 20-year-old female was in an accident in June 1995 and went to the DC in December 1995. She did not receive any treatment in the interim. The extent of the history provided was: "Automobile accident, June 2, 1995, low back and neck pain."
How could the chiropractor, six months after the fact, state within a reasonable degree of certainty that the patient's back pain and neck pain were caused by the accident?
Example 2: A 24-year-old woman involved in an automobile accident saw her chiropractor. The DC used computer-generated form notes. The history section of one form stated: "Patient has had no history of prostate surgery" and "patient has no history of prostate medication."
Why should a jury, insurance claims representative, or another chiropractor trust anything in these records? What do you think the claims representative thinks about the individual doctor or chiropractic as a whole? What if this was the first chiropractic claim for the claims representative? How is the patient's attorney going to handle these records on examination? In the end, the patient will be the one hurt.
Remember, everything that comes out of a DC's office reflects on its owner and the profession.
Guy DiMartino,DC,JD
Merrillville, Indiana
gdimartino@hwelaw.com
