By Charles A. Pilcher MD FACEP
Wham!!! Jim’s head snapped back as the Hummer hit the back of his Subaru Forester, totaling the Forester but leaving little more than scratches on the Hummer’s sturdy bumper. Jim had no idea how fast the Hummer was traveling. All he knew was that he had just stopped quickly to avoid the vehicle in front during the early rush-hour traffic when he was slammed from behind. The Hummer’s driver claimed to be going less than 10 mph, but damage to the Forester indicated otherwise.
At first Jim was just mad. “Why can’t people pay attention?” he steamed, but kept his cool and was exchanging information with the Hummer’s driver as the police and EMT’s arrived.
“Are you hurt?” the EMT’s asked.
“Not as bad as my car, dammit!” Jim muttered.
The EMT’s dutifully reported a good 2 feet of intrusion of Jim’s rear bumper into the rear of his Subaru and asked, “Does your neck hurt?”
“Nah,” said Jim, “it’s just a little stiff, It’ll be fine,” and walked away to call his wife to come pick him up.
“Are you sure we can’t take you to the ER? You got hit pretty hard. You should see a doctor” they advised. Again he declined their offer, but as they cleared the scene they reminded him to see his doctor or go to the ER if he felt worse.
The next morning Jim woke up in pain… severe pain. His neck was so stiff that it hurt to even brush his teeth. In the shower he dropped the soap and could not even bend over to pick it up. He took 4 ibuprofen, laid back down on the bed with an ice pack and had his wife call work to tell his boss he wouldn’t be in that day.
By afternoon he hurt even worse, and finally agreed to his wife’s urgings to go to the ER.
The ER doc listened to Jim’s story, examined his neck, checked his reflexes, but felt the stiffness, though severe, did not warrant x-rays. He advised Jim to continue using 4 Advil 3 times a day and continue the ice. He prescribed some Vicodin and a muscle relaxer, and told him to see his family doctor in a few days.
Fast forward several months. Jim saw his family doc who got some neck x-rays, which were negative. He was referred to physical therapy, but was no better after two months. Even though he had no symptoms of nerve impingement, an MRI was ordered and Jim was referred to an orthopedist. The orthopedist told Jim the MRI was normal and there was nothing he could do. On the advice of a friend, Jim saw a chiropractor, but after six months of care he still needed at least 6 Vicodin a day to even begin to control the pain. And he had yet to return to work.
In the meantime, he was being pressured to settle his claim with the Hummer’s driver. His own insurance company wanted this case closed and off their books. The Hummer driver’s insurance company, whose legal department had been involved from the outset, requested an IME, or Independent Medical Exam. His family doctor, sensing Jim’s desperation, suggested Jim talk to an attorney before signing anything.
So now, you’re Jim’s attorney, he’s not working because he hurts, he’s nearly broke, his doctors can find nothing anatomically wrong with his neck and he’s scheduled for an IME next week in preparation for closing the claim. Your experience tells you there’s little independence in the “Independent” Medical Exam. When most such exams seem to favor the defendant, you prefer the term “Defense Medical Exam.”
Sure enough, the IME physician finds nothing wrong — other than the fact that Jim himself says it hurts too much to move — and reports this to the Hummer’s insurer. The report states: “Ongoing complaints are not consistent with the reported accident 9 months previously. The reason for that opinion is the passage of time.” In other words, “time heals all wounds,” and because it’s been such a long time, Jim can’t really hurt.
The above story is undoubtedly familiiar to physicians and attorneys alike. How does one measure pain? How does one objectively evaluate limited functionality? Who says that time is required to heal all wounds? Does the absence of objective findings negate the patient’s complaints?
There are many excellent IME physicians, but often too few objective findings. This puts all parties in a sticky situation and results in settlements based on debatable evidence. Sure, once the check is cut, some injured parties experience a remarkable recovery, but that is not the norm. Most of the injured would rather have their health back than the money.
The best IME recourse for plaintiff attorneys (or defense attorneys who suspect that the IME will go against their client) is to have a knowledgeable medical advocate attend the IME with the patient/client. That person can then report the nature of the exam and assure that the examiner’s report is consistent with the exam conducted. There are several Certified Legal Nurse Consultants in this area who provide this service, or a physician expert can be retained to assist with a specific injury.
{ 1 comment… read it below or add one }
I like your writing style. You should write short stories! But more to the point, this is an all too familiar scenario. I wish there was a way to separate out the occasional weasel who feigns injury for compensation, the ones with a screw loose, the ones with limited brain matter that had periodic symptoms before they’ve forgotten and now attribute to the MVA and the ones with limited coping skills and high anxiety lifestyles sometimes intentionally inflamed by either a stupid or unscrupulous chiropractor. Maybe there are other categories I’m missing. It seems like some of these folks find their way into pain management centers and end up with $50,000 in bills for ablation or spinal blocks. Or the new chiropractic stretching machines that seem to run around $6,000 for the required series of stretches. So what, if anything, is out there to verify what I think are probably the majority of patients who actually suffer soft tissue symptoms beyond the 3 to 6 months after which any IME will swear the injury healed and any new symptoms are due to something else or one of the above categories I listed?