Issue: October 2014
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Backaches and Court Battles: When Chronic Back Pain Leads to Litigation

Introduction

Chronic Back Pain: Liability Issues

Americans spend at least $50 billion each year on low back pain. This is the most common cause of job-related disability, a leading contributor to missed work, and the second most common neurological ailment (after headaches) in the U.S.

 

Chronic back pain, pain for greater than three months, requires diagnosis and treatment by a physician or other medical professional. Treatment may include surgery; the use of analgesics, anticonvulsants, antidepressants, and opioids; and other forms of treatment designed to reduce inflammation, restore proper function and strength to the back, and prevent recurrence of the injury. Some forms of treatment are high risk such as complex surgical procedures, including spinal surgery, and may result in complications.

 

The cause of a patient’s chronic back pain can be difficult to diagnose, and treatment may not be effective in relieving the patient’s pain. As a result, patients suffering chronic back pain may seek compensation through the judicial system.

 

Attorneys, physicians, hospitals, insurers, employers, and other potential parties to litigation should be aware of the types of lawsuits and other liability issues that arise in connection with chronic back pain. 


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed to establish medical malpractice or negligence involving chronic back pain? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an injury involving chronic back pain? And, what is a potential strategy for the physician to employ? 

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for the physician’s actions? And, what is a potential strategy for the insurer to employ? 

Employers:

Can an employer be subject to liability for an employee’s chronic back pain? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s liability for malpractice or negligence in the diagnosis or treatment of chronic back pain, or malpractice or negligence in surgical or other treatment of a patient that results in chronic back pain.

Physicians:

A physician should review the items on this list when defending against claims of malpractice or negligence involving chronic back pain.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of chronic back pain.

Employers:

Use this checklist to determine if the employee’s chronic back pain is “work related” and occurred “in the course of the employment.”

Expert Analysis

What Do Patients Need to Know to Understand Chronic Back Pain?

Arnold J. Weil, MD

Living with Back Pain: How Can Health Providers Understand the Patient’s Pain?

Penney Cowan

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.   


Reasons To Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.


Reasons To Go To Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving chronic back pain?



Medical Examples

Chronic Back Pain

This section provides detailed medical information on chronic back pain, its diagnosis and treatment, the psychological aspects, and conditions often causing chronic back pain. The section also discusses the pain sufferer’s prognosis and ability to work.  



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on chronic back pain.  


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Backaches and Court Battles: When Chronic Back Pain Leads to Litigation

Table of Contents
Introduction

Expert Analysis
   Arnold J. Weil, MD
   Penney Cowan

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

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons To Reach Settlement

Reasons To Go To Trial

Jury Awards and Settlements

Chronic Back Pain

Law and Medicine Resources