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Shaw Chiropractic
A Medical-Legal Newsletter for Personal Injury Attorneys
by Dr. Steven W. Shaw

The Sky Is Falling!!!!! Again OR The Chicken Little Syndrome Revisited

As times become more and more challenging in the field of personal injury I am surprised how many lawyers and doctors are ready to throw in the towel and give up rather than fight for what is rightfully due their clients and patients. They hear tales about this case or that case which had a terrible settlement or jury verdict and deduce that every case will have a similar result. Rumors about special investigation units and fraud investigations have interfered with business as usual and forced attorneys and doctors to change procedures to avoid the appearance of impropriety even though impropriety never existed. It seems that decisions are made not based upon good business or what a client deserves but what will appease the insurance adjusters or defense lawyers. Negotiating from a position of fear is weak one and the opposition knows it.

Unlike my regular newsletters, this newsletter is more of an editorial. Usually, I bring to you information about new medical technology, medical legal strategy or general topics of interest of concern to those who live in the personal injury world of practice. However, I believe that many of us have lost sight of what we are trying to do in practice and I decided that I will break away from my usual genre and write one newsletter based upon the principles of Andy Rooney. Excuse my editorializing and I assure you that this will be a one time distraction. This disclaimer having been presented let me make some observations.

Why are we so afraid to fight for our clients and patients? Is it because the cases are so bad? Is there poor liability? Inadequate coverage? Probably not. Most lawyers are good enough business people to realize if a case has merit or not after an investigation and some preliminary discovery. If they have accepted the case I must assume that it is because they believe the case has some teeth. From the doctors perspective, whether a case is good or not has no bearing on if a patient is accepted for care. Patients are accepted for care if they have clinical findings which suggest that treatment is necessary. The quantity of care may need to fit the patients budget but the necessity is not a legal decision. Now if the above is true and both the doctor and lawyer have accepted the responsibility for the injured person why do we need to bend over backwards to make an adjuster happy. I mean negotiations are one thing but the accepted settlements I have heard of lately are ridiculous and frankly not representative of the injuries I see.

I know that if the case is tried the end result may yield the same or less net to the patient and there is always a chance that the case will be lost. I have heard and believe that juries are not plaintiff oriented and bring with them significant prejudices. I also appreciate that some cases are weaker than others and that the chances for favorable outcome are diminished. But you need to realize that the insurance industry is only trying those cases which they feel they can win which allows them to continue their propaganda about the invalidity of the soft tissue case with low velocity impacts and low property damage. On the plaintiff side you need to set the same precedent. You need to try some cases which are cherry picked by your office for trial. If you value a case at $35,000 and the carrier offers you $12,000 meet them in court and make your case to the jury. On an individual basis it may not be worth it but in the big picture it will let them know , and more importantly the rest of the world, that there is a down side to their actions. If they can convince you and the public that these cases are of no significance the game is over and you may as well change professions. On the other hand, if you want to make a difference and turn the tide on the unscrupulous actions of the insurance industry you and I need to take a stand.

So, what is it that we need to do? Prepare, prepare and prepare some more. Even on the minor injuries the doctors need to make sure that the documentation is thorough. If there is not going to be a permanent impairment make sure the doctors address the functional modifications the patient has had to make in their lives. Ask the doctors to objectify everything they can using tools such as inclinometric ranges of motion, electrodiagnostic and neuroimaging studies, psychologic and pain profiles, visual analog scales, autonomic concommitants etc. The attorney preparation might include periodic phone calls with the client and doctor to identify potential trouble sources as the case moves along, pre-trial and pre-deposition conferences several weeks before and again the day of the expert testimony. Review of the current medical literature with the doctor so that a strategy for introduction of this powerful evidence is developed. Preparation for every foreseeable defense objection and cross examination question with a plan for response. Review of the defense expert list with the doctor for insight on medical issues which might be diffused with the right questions, make sure your doctors exhibits are understood by both attorney and physician for a smooth delivery of the hard impact information.

Now is not the time to throw in the towel. I have practiced in other states which in their best days were not as good as it is here today. The present trend is not ominous. Rather, it is an opportunity to reorganize and strategize for a better tomorrow. Perhaps the current attacks on our clients and patients are just what we need to spark a fire and get us working for what has come too easily for the past several years. Will things ever be like they used to be? Probably not, we can never go back. At the same time I am optimistic that with a little hustle and a lot of planning we can turn the lemons they give us into lemonade. My friends know me to be generally less than optimistic but I can tell you from my personal past experience that now is the time to forge ahead rather than close shop and grab what you can.