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

IME Experts and the Scientific Literature

I was recently in court testifying on opinions which were arrived upon after doing an independent medical/chiropractic examination. (IME). The case involved an uninsured motorist claim. The plaintiff attorney was a seasoned trial attorney who had done his homework. He has attended nearly every one of my seminars and religiously reads this newsletter. In fact, he had literature published by me from nearly twelve years ago when I first moved to Connecticut and started practice. This newsletter will review the methods he used to effectively cross examine me and how effective the questions are when used properly.

First let me review the basics of the IME. There were two claimants, one of which was evaluated by me. During the IME the claimant reported no complaints of cervical or lumbar pain for some time (although at trial he testified he did). His only complaint was that he had some occasional thoracic pain. The treating chiropractor had treated reasonably but rated all three spinal areas. The ratings were applied despite the claimant’s asymptomatic status. The treater then converted the ratings to regional impairments. The conversion of impairments was done against what I believe is the convention in Connecticut and in a manner inconsistent with the procedures described by the AMA Guides. I opined that the conversions were improper and that the only proper rating was to the thoracic spine in the amount of 2%. The treating physician opined that there was an 11% cervical, 10% thoracic and 10% lumbar impairment.

The defendant attorney completed his direct examination covering the essential information regarding my examination and opinions. He was confident, as I was, that the absence of symptoms and lack of objective findings, along with a review of the proper use of the AMA Guides would prevail to the common sense of the jury.

The plaintiff attorney followed by methodically using information gathered from my newsletters. He also used specific questions which I had published on areas of scientific literature to be covered when cross examining an IME doctor. Despite having testified earlier that his client had refused to report any complaints to two of the three rated areas and that there were no objective findings in these areas he relentlessly asked hypothetical questions.

The plaintiff attorney was familiar with the scientific data. He had rehearsed the questions I had provided him on prior occasions. He knew the answers to the questions. Despite the absence of objective findings or symptoms during the IME, he relentlessly cover data on injury potential, trauma biomechanics, connective tissue repair and treatment protocols. He effectively convinced the jury that the carrier was responsible for the injuries and that, regardless of the lack of complaints, his clients were entitled to a “fair” settlement. Apparently, during his closing arguments he spent a great deal of effort portraying the carrier as a deep pocket who could afford to pay whatever the jury felt would be reasonable.

In the end, the jury returned a verdict for the plaintiff in an amount far greater than the policy limits. This case is no different than any other soft tissue/connective tissue injury with little property damage. The only difference is that the plaintiff attorney came armed for bear not bird. He took what was basically a low value case and treated as if it was a million dollar case.

I believe the moral of the story is that when you go to battle you need to be fully prepared. This is not to say that the defense attorney had not prepared. To the contrary, he spent many hours with his experts as well as countless hours reviewing the file. The difference is that the scientific information available for the plaintiff attorney (information I had gathered over the years) was overwhelming in support of his clients potential jury.

SUMMARY
What does this mean to you? I’m sorry to say that, unlike this plaintiff attorney, many plaintiff attorneys have thrown in the towel before the opening bell. They believe that a soft tissue injury is limited in value. On the defense side, it is often perceived as a slam dunk. This case proves that regardless of the facts, the winner will be the side which takes the most time to prepare and review the available literature. A good place to start looking for this literature is on our web site at www.ShawChiropractic.com .

To begin with, the site has a listing of all our newsletters available for review and printing. There is also a links page which has hundreds of web sites on everything from medical terminology to journals. I have added several links to medical search engines so you can do your own literature searches.

The value of the medical search engines alone is immeasurable. I recently printed over 20 citings for an attorney on post traumatic brain injury. He used the data to effectively settle a case which had previously been a unsettleable.