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.”