Issue: December 2011
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When Pain is the Only Proof: Subjective Impairments

Introduction

The Difficulty of Subjective Medical Proof

Self-reported, or subjective, impairments are difficult to diagnose and treat, and difficult to litigate. Determining whether insurance coverage is provided compounds the difficulty.

 

Generally, there are no objective tests to prove this type of impairment or disease, and pain, fatigue, sleep loss and other subjective complaints are the only symptoms. It is critical to have the right medical knowledge and see each party's perspective for success before and during litigation.


The Perspectives: Improve Your Strategy

Attorneys:

Why is a subjective impairment, such as whiplash or fibromyalgia, so difficult to prove, and what proof must be shown for your client to be successful in litigation?

Physicians:

Why does the diagnosis of a subjective impairment expose the provider to controversy and claims of malpractice?

Insurers:

Can the diagnosis of a subjective impairment be disproved and coverage denied to limit payouts?

Employers:

Can subjective impairments subject the employer to worker’s compensation payouts, less-productive or absent employees, and what can be done to prevent this loss?


Practice the Technique: Checklists

Attorneys:

A litigation checklist of facts and circumstances tending to prove fibromyalgia resulted from car accident trauma.

Physicians:

Physicians must consider this litigation checklist when defending the diagnosis and treatment of a subjective impairment.

Insurers:

The insurer should use this litigation checklist to spot “red flags” and inconsistencies when investigating a person suspected of malingering.

Employers:

Use this litigation checklist to determine if the if the employee’s subjective impairment is “work related” and occurred “in the course the employment.”

Expert Analysis

What Issues Do Physicians Face in Subjective Proof Impairment Litigation?

Philip J. Wagner, MD

What Outside Impacts Affect and Complicate Your Litigation Decisions?

Professor Marilyn J. Berger, JD

Can a Delayed Investigation Harm the Insurer’s Defense?

Steven Plitt, JD

Can Subjective Impairments, like Fibromyalgia, Be Considered Work-Related?

Kenneth N. Rashbaum, Esq.

Litigation

Alternative Dispute Resolution

When arbitration or mediation is appropriate or required in a fibromylagia or whiplash case.


Reasons to Reach Settlement

Reasons why the attorney, physician, insurer, employer or manufacturer would want to reach settlement, and not take the fibromyalgia or whiplash action to trial


Reasons to Go to Trial

Reasons why the attorney, physician, insurer, manufacturer, or employer would want to take the fibromyalgia or whiplash action to trial.


Jury Awards and Settlements

How much have juries awarded in whiplash and fibromyalgia cases?



Medical Examples

Medical: Fibromyalgia

The etiology, onset, symptoms, diagnosis, treatment, and ability to work of a person with fibromyalgia.


Medical: Whiplash

The terminology, occurrence, resulting injury, symptoms, diagnosis, treatment, and the prognosis and ability to work with whiplash.



Law and Medicine Resources

References

Listing of law and medicine references for further information on subjective impairments.


 


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When Pain is the Only Proof: Subjective Impairments

Table of Contents
Introduction

Expert Analysis
   Philip J. Wagner, MD
   Professor Marilyn J. Berger, JD
   Steven Plitt, JD
   Kenneth N. Rashbaum, Esq.

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician and Health Providers Checklist
   Insurer Checklist
   Employer and Risk Manager Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Medical: Fibromyalgia

Medical: Whiplash

References