Bodily Injury Claims: Study 8
Medical Records and Reports
Doctors
disclose their findings to other parties through medical-legal reports
as directed by their patients. Medical-legal reports summarize the
doctor’s findings, observations and opinions with respect to injury and
give a description of the treatment plan and its outcome. Adjusters may
request another doctor to perform an Independent Medical Examination
(IME) which represents a second medical opinion.
Releasing Medical Information:
- Patient must consent to it
- Granted in writing by the patient
- Up to adjusters to provide a properly completed “consent form” to treating doctors
- When an insurer requests that a claimant submit to an independent medical examination and the claimant attends, consent to release information is not automatic
- Medical-legal reports most insurers use are standard fill-in-the-blank forms
- A form is required to authorize the release of information from each source
Medical Information: Medical information is available through:
- Clinical Notes:
- Prepared by doctors and other healthcare providers
- Record medically relevant information
- The doctor’s file on the patient in its entirety
- Course of treatment for injuries and illnesses is documented
- Hospital Patient Records:
- Daily records on every patient under treatment or care
- Prepared by staff doctors and nurses
- Test results and statistical data are maintained
- Dates and duration of hospital treatment can be confirmed using these
- Emergency Department Records:
- Usually segregated from regular hospital records
- Include when and how a patient arrived, a history of relevant illnesses or injuries, physical findings and vital signs
- These records are the ones most commonly used by adjusters
- Emergency treatment delivered at the accident scene is recorded
- Paramedics and other emergency personnel such as ambulance attendants and emergency response unit members prepare reports that may or may not be included with the hospital’s emergency department records
- Medical Questionnaires:
- Short report forms containing questions on the cause and nature of the injury, the prognosis, when a return to work can be expected
- Indicate in a general way the current condition of a patient
- Provide preliminary information
- Keep adjusters informed of a claimant’s progress
- Used instead of medical-legal reports for minor injury claims
- Doctor’s Correspondence:
- Doctors correspond with one another when patient is referred
- A specialist or a peer reports findings in a report format
- When adjusters secure proper authorization they can obtain periodic reports
- Medical-Legal Reports:
- Medical-legal reports are prepared by the treating doctor, using clinical notes in a patient’s file
- Provide evidence of the effects of an injury
- Adjusters request these reports to evaluate a claim
- Also used by lawyers
- Report should address any specific issues raised by the doctor
- Independent Medical Examination (IME):
- Essentially medical-legal reports ordered by adjusters when sufficient medical information is lacking or certain facts need confirmation
- Second medical opinion – a medical review
- Conducted by a doctor chosen by the insurer
- “Independent” means someone other than the treating doctor is conducting an examination
- Other Related Reports:
- Psychologists, rehabilitation experts and specialists, not necessarily medical doctors
- Could consist of a vocational assessment to help a claimant prepare for a job or a kinesiology report to analyze a claimant’s daily activities
Medical Legal Report:
- May be admitted as evidence to substantiate or to refute injury claims
- Of special interest to adjusters are:
- Causation:
- relationship between the injury and the accident.
- Often causation has little relevance to the doctor.
- Treatment:
- must relate to the injury claimed
- treatment’s effectiveness is of concern
- patient’s compliance with treatment may affect the claim settlement
- Subjective interpretations must be scrutinized carefully
- Medical dictionary must be used for every term that is not understood
- A court will pay little if any attention to the “possible” consequence of an injury, but a consequence established as “probable” will merit definite consideration in the assessment of damages
- Doctors often have not been trained to write medical-legal reports
- No standard style used
- There are certain areas that should be covered
- Questions are asked when in the report:
- There is a lack of information
- An issue needs clarification
- A conclusion has not been supported
- An ambiguity or inconsistency exists
- Effects of an injury:
- What is the impairment and how does it prevent the patient from his or her employment?
- Is it a total disability?
- Is the disability reasonable?
- What was the extent and duration of pain and suffering?
- How effective were drugs or other therapy?
- Certain cases display characteristics that serve as a warning that further investigation or action is needed. Warning signals of a difficult claim include:
- A pre-existing condition that required long-term continuing medical care
- A very minor accident that caused a totally disabling condition
- Soft tissue injuries that do not resolve within the range of normal healing periods
- Subjective and non-specific complaints (fatigue, anxiety, headache) are the basis of the claim
- Elements of a Medical-Legal Report:
- Medical Qualifications:
Any
information that would demonstrate the current level of skill a doctor
has, any specialty focus of his or her practice, and any membership in
peer associations should be included
- Claimant Identification:
information
about the patient – including patient’s name, height, weight, age,
number of dependents and marital status, photographs. Photographs have
been used to detect and discourage the fraudulent practice of
substitution – sending a person truly suffering from an injury to be
examined instead of the claimant.
- History:
some
background details on the accident. Medical reports do not only refer
to the injury that is the subject of the claim. Accidents and medical
conditions that predate the current accident must be described.
Complaints and disabilities that existed before the accident should be
identified. Important to document whether any previously injured area
has been re-injured. Doctor must comment on the etiology (cause or
origin) of the present symptoms and whether any relationship exists to
previous conditions or injuries. Information about the claimant’s
clinical history would be available from his or her family doctor.
Important to determine who the previous doctor was. Report should detail
the medical treatment received immediately after the accident. Should
indicate whether the patient was hospitalized and for how long.
Information on the patient’s occupation, job duties, and the physical
and mental demands of his or her job must be outlined. Information about
the patient’s education, domestic duties and recreational functions may
be relevant.
- Examination:
Subjective
complaints are noted by the doctor. These are considered with the
results of the physical examination and testing. When patient responds
to tests within a normal range results are said to be “within normal
limits.” Abnormal readings should be distinguished noting any bearing
they may have on the injury. The specific area of the anatomy affected
and an adequate description of the injury is necessary. Any objective
findings, such as, decreased sensation, decreased muscle bulk, lost
reflex and decreased range of motion are usually described. Clinical
impairment describes a measurable weakness – an objective physical loss
found on clinical examination. May result in a functional disability.
The functional disability identifies the activity or type of work that
can no longer be performed. Not enough to say that a patient is
“disabled”. Pain should be graded according to severity – severe,
moderate, mild. Length of time the pain lasted should indicate whether
any tenderness was acknowledged on palpatation (examination by touch),
measurement of range of motion, and the pain response. Doctor should
compare the current physical condition of the patient to the
pre-accident condition. Referral to a specialist should be considered
especially when a psychogenic-based pain response is suspected.
- Diagnosis:
In
some cases doctors will make a working diagnosis based on a patient’s
subjective complaints. This is an accepted practice. Opinions expressed
must be supported by scientific fact and reasoning. Mechanics of the
particular injury suffered by the patient should be described. The
chronological order of pain, discomfort and stiffness should be
recorded. The basic criteria used to report a diagnosis should be
reviewed.
- Treatment Regimen:
Prescribed
drugs and therapy should be identified and rated on their
effectiveness. Drug compendiums can be used to acquaint adjusters with
information that may include:
- Generic and brand names of drugs
- Conditions treated
- Side-effects
- Recommended dosages
- When effects can be anticipated
Any other recommendations made to the patient may include:
- Surgery or other medical procedure
- Other therapies
- Certain activities restricted
- Direction to participate in certain activities
- Exercise program
- Return to work
Determine
whether a conventional form of treatment for the injury was followed.
An explanation should be offered if a normal treatment mode is not
followed.
- Follow-up Visits:
Records
of follow-up visits should show the patient’s progress. How symptoms
and signs of illness develop or subside should be noted. If the patient
is being treated for pain then details of the pain’s intensity, duration
and how it has affected the patient’s activities must be included.
During the recovery period the patient may have sustained another
injury. This should be explained and the doctor should express whether:
- The subsequent injury was caused by a condition resulting from the first accident
- The first injury has been adversely affected by the second accident and to what extent
- Referral to Specialists:
Attending doctor may feel that a specialist is needed. Each specialist’s report should be made available to the adjuster.
- Prognosis:
The prognosis is the doctor’s estimate of the course and ultimate outcome of the patient’s condition. It includes:
- Length of time it will take to have injury resolve itself
- When the patient can return to work
- Further treatment that is recommended
- When treatment is expected to stop
- Alternatives if the treatment fails
- Lasting effects caused by the injury and whether they will result in any permanent disability
Independent Medical Examination:
- Adjusters must sometimes choose a medical expert to provide a second medical opinion or medical review.
- Called an Independent Medical Examination (IME) or Defence Medical.
- Traditionally takes place in a tort claim when a settlement is ready to be negotiated
- At this point the claimant should have reached the stage where no further recovery is anticipated
- Adjusters must ensure that the most complete medical information is obtained
- Second opinions on medical rehabilitation issues in accident benefits claims in Ontario are provided through Designated Assessment Centres (DACs)
- This is a substitute for an Independent Medical Examination
- Insurer can request this type of re-examination as often as necessary
- Important to choose a doctor who has experience and demonstrated skill in the specialty in issue, and possesses qualifications superior to the treating doctor
- Reports must be free from any influences of impending litigation
- Objective reports are more likely to withstand close critical scrutiny
- Courts are likely to rule in a claimant’s favour where ambiguity exists
- Reasons that may prompt the adjuster to obtain an IME:
- The claimant’s doctor has not provided adequate or timely medical information upon which a claim can be evaluated
- The claimant’s complaints and ongoing disability extend beyond the normal rate of recovery
- Complaints are disproportionate to the injury
- Conflicting or ambiguous medical information needs clarification
- Need for evidence from a specialist
- Examiners specializing in conducting IMEs are often particularly competent at identifying inconsistencies in patient responses
- Examiners will often begin to observe the patient’s body movements and general appearance as soon as they meet and later compare them with the results of the physical examination
- The following would be helpful to conduct an examination involving an automobile accident:
- Ambulance report
- Emergency department report
- Police report
- Pre-accident details of functioning and medical condition:
- Clinical notes from the family doctor
- Adjuster’s notes on history
- Very important for adjusters not to “lead” the examiner
- Revealing biases to examiner is not recommended
- Requests directed to an examiner must be neutral.
- It might include questions such as:
- Is the diagnosis reasonable?
- How effective was the treatment?
- Was a conventional treatment plan used?
- What alternative treatment would be reasonable should the current methods fail?
- When can the patient go back to work?
- What was the cause of the injury and is it related to the mechanics of the accident?
- What was the clinical impairment that prevented the performance of job duties?
- IMEs will not necessarily solve the settlement of a claim
- Sometimes such reports can prove a claimant’s case
- In some cases inconclusive reports leave the adjuster without any objective evidence
- When sufficient and reliable medical data is available it is not necessary to order an IME
- Sometimes the claimant’s activities must be corroborated. This can be accomplished by interviewing employers, co-workers or hiring a surveillance specialist
Definitions:
- Plaintiff-oriented doctor: tends to emphasize or dramatize the injuries, perhaps not intentionally or consciously, but rather because the sum total of his or her experience leads in this direction. This type of doctor tends to act as an advocate for a patient.
- Defence-oriented doctor: assumes a critical position that tends to minimize the effects of an injury. A patient’s subjective complaints are less likely to be accepted at face value unless supported with other evidence.
- Etiology: is the study of causation of injury and disease
- Paravertebral: means alongside or near the vertebral column
- Bilaterally: means that both sides are involved
- Osteoarthritis: is a bone and joint disease characterized by destruction of articular cartilage and overgrowth of the bone with lipping and spur formation.
- Diazepam: is used to bring short-term symptomatic relief of mild to moderate degrees of anxiety and nervous tension. It eases skeletal muscle spasm.
- Dicyclomine: relieves muscle spasms of the stomach and intestines. It is used as an adjunct to anti-ulcer medication.
- Acetaminophen: is a painkiller medication
- Doxepin: is used to treat various types of depression and anxiety. It may help in the management of post-traumatic stress disorder.
- Ranitidine: is an anti-ulcer medication used to relieve symptoms, accelerate healing and prevent recurrence of ulcers.
- Meniscectomy: is an operation to remove the disc of cartilage between the ends of the bones in a joint
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