Et Tu Brute Injury Pseudoinjury and Litigation

Professional liability litigation in our specialty continues at a significant rate, yet claims for personal injury and product liability far exceed those for malpractice in our present litigation explosion. Many physicians blame the medicolegal litigation morass on the proliferation of lawyers in our country during the last 25 years, and in particular on the “ambulance chasers” in search of employment.

My personal experience having reviewed over 1,000 personal injury cases, in addition to several hundred malpractice cases, confirms that much of injury-related disability and prolonged symptoms are exaggerated or feigned when associated with litigation. However, the cause of unscrupulous lawyers would be worthless were it not for physicians whose reports to attorneys support their patients in the presence of exaggerated symptoms.

My case reviews and testimony have been requested primarily by attorneys representing insured or self-insured corporations, as well as by a small number of plaintiffs’ attorneys. This experience has enabled me to follow 886 personal injury cases to conclusion during an eight-year period. Of these, 681 (77 percent) were settled; the average settlement was significantly less than plaintiff demands after the degree of injury had been accurately documented. Disposition of the remainder of the cases included a defense verdict in 138 (16 percent), a plaintiff verdict in 26 (three percent), and dismissal in 41 (five percent).

The majority of the cases stemmed from motor vehicle accidents; of these, almost half were rear-end collisions for which liability is seldom challenged, and the major question is the degree of physical injury sustained. Next in frequency were slip-and-fall accidents, followed by other types of injury and industrial accidents.

I found that authentic and supportable injuries — including closed-head injury, skull and spinal cord fractures, acute and chronic subdural hematoma — accounted for approximately 20 percent of the 886 cases. Many other people were injured — moderate or severe muscular strain, for example — but required minimal or no treatment and achieved full recovery in a short time with no disability. A small number had injury-related herniated discs, with some requiring surgery but most recovering spontaneously. But surgery deemed inappropriate was done on 15 percent of the 886 cases, invariably resulting in Failed Spinal Surgery Syndrome.

Overwhelming numbers of people displayed symptoms that were entirely out of proportion to objective findings. My observation is that a number of these patients, under the guidance of their attorneys, simply magnified their symptoms. Others were obviously in a malingering or conversion group, often with extensive prior similar histories and ongoing disability.

Most physicians understandably are supportive of their patients, yet from my observation some doctors have accepted merely the fact of an injury itself without any clear understanding of how it may have occurred. Worse yet are unprincipled reviews and testimony lacking in medical facts.

While tort reform is one remedy to the proliferation of professional liability litigation, in the meantime neurosurgeons should not underestimate what can be accomplished by objective, science-based case review and testimony, coupled with ethical, professional behavior.

As irrational as it may seem, instead of behaving with rancor toward the judicial system, neurosurgeons would do well to maintain a greater presence in the courtroom. I have even found that educating attorneys and jurors can be personally satisfying!

— Charles A. Fager, MD, Burlington, Mass.

Editorial Note:
The award-winning AANS Professional Conduct Program is one way the AANS helps to sustain the public’s confidence in neurosurgery. The program and the AANS Code of Ethics, Expert Witness Guidelines, and more, are highlighted in the Spring 2002 issue of the Bulletin, available at https://www.aans.org/bulletin/Issue.aspx?IssueId=12947.

Solo Voce: Let’s Get Together and Speak Up,
Says Neurosurgeon

I was quite pleased to see that one of our distinguished neurosurgeons was elected to the Board of Trustees of the American Medical Association (“Speaking for Neurosurgery,” Fall 2002). For all the years that I have been in practice, which is over 32 years, I have been disappointed with the AMA and its lackadaisical attitude toward the representation of physicians and surgeons.

Next to the AMA, the most negligent group is the American College of Surgeons, which has only recently begun to open its eyes to our problems. If the exorbitant and intolerable liability insurance cost isn’t enough, both Medicare and the HMOs cut our reimbursement and tell us how to practice our trade. At least the AANS has been active and has kept abreast of all the problems through our Washington Office. I am hoping that while Dr. Carmel is on the board of the AMA, he can build on the momentum toward stronger political action so that we can take control of our lives.

I would like to commend the doctors in Nevada for their work stoppage that eventually led to the politicians finally getting the message. I have found in our hospital that it is very difficult to call for even a two-day work stoppage because this reimbursement and liability problem does not affect primary care physicians or internists as much as it affects us. So, as chief of staff, whenever I bring up the subject at the executive committee meetings and tell them that we have to take a hard stance on this problem, I do not get a unanimous response. When a 20-member executive committee cannot come together in agreement, then it is unlikely that 400 people will come together. As a result of this divisiveness, we continue to fail.

I am hoping the leadership in our association, the ACS, and the AMA will get together and speak up with a strong voice. Certainly all neurosurgeons are waiting for this kind of voice to come down the pike.

— David A. Yazdan, MD, Brick, N.J.

Editorial Note
Nevada’s only level I trauma center closed for 10 days in July because its doctors couldn’t afford liability insurance. In August the state passed tort reform legislation that took effect Oct. 1, but some think it didn’t go far enough. See Newsline in this issue for more information.

EMTALA: The Straw That Broke the Camel’s Back

EMTALA has become a household word in all medical neighborhoods. An outgrowth of the Consolidated Omnibus Budget Reconciliation Act of 1985, the Emergency Medical Treatment and Active Labor Act is a federal law that prohibits the “dumping” of patients based on their inability to pay for medical care. It makes sense that Medicare participating hospitals provide a medical screening examination to any individual, irrespective of their payment status, who comes to the emergency department for a needed assessment of a medical or surgical condition. The impact of this statute for the last decade has increased exponentially with the growth of both its regulatory and judicial arms, often reaching beyond the emergency department setting.

Unfortunately, the burden of this uncompensated care has been placed squarely on the shoulders of physicians and hospitals. This has been particularly problematic for the medical and surgical specialists who have to provide this coverage. The crisis brought on by the implementation of EMTALA should have been predicted considering the conservative estimate of 38 million Americans who are uninsured, many of whom are children. It is not surprising that our emergency rooms across this nation are besieged with patients needing medical assistance with absolutely no means of paying for any aspect of their care.

What makes this even more unfair is the fact that the EMTALA requirements are excessivelyyplaced on the physician with no similar funded mandate being directed at the managed care organizations. This adds another layer of complexity, for payment will be denied by such insurance carriers if they determine (after the fact) that a patient did not have an emergency. The physician again has to absorb the financial loss, although he or she has already rendered the service.

There is a loud call for the oversight organizations, including the Office of Inspector General and the Centers for Medicare and Medicaid Services, to address this discrepancy. While it used to be considered a safety net for patients in an emergency setting, EMTALA has become a “dragnet” for physicians. Under this current condition, it is expected that hospitals will continue to lose support of their medical staff. Difficulty in staffing on-call panels will continue, especially in the specialties of neurosurgery, orthopedics, cardiothoracic, pediatrics, and obstetrics and gynecology.

The unfunded mandates of EMTALA have been the straw that has broken the camel’s back. Faced with increase in regulatory burdens, a steady decrease in reimbursements, along with a corresponding increase in administrative responsibilities, the physicians are now throwing in the proverbial towel.

Perhaps the easy answer is the only answer; universal health insurance.

— L.D. Britt, MD, MPH, Norfolk, Va.