A) MOTHER GOOSE TELLS THE STORY:
- Humpty Dumpty sat on a wall,
- Humpty Dumpty had a great fall.
- All the King's horses,
- And all the King's men
- Couldn't put Humpty together again!
B) INSURANCE COMPANY DOCTOR'S VERSION: "I have been asked by Mr. B.B. Wolfe, Esq., attorney for the defense, to apportion Mr. H. Dumpty's present injury and limitations, if at all, between the alleged wall-elevation-lateral-drop incident and other pre-existing medical and psychological conditions prominently documented in Mr. Dumpty's extensive medical history.
In forming such medical conclusions through scientific methodology, I have been provided approximately 11 inches of medical, psychological, and employment records related to Mr. Dumpty, dating back to his early days in the nest. I also had the good fortune of being provided with one black and white, partially obstructed, photocopy of the at-issue wall given to me for careful consideration by the ever trustworthy, Mr. Wolfe.
After careful scientific study, review, and medical evaluation, I have concluded that, to a reasonable degree of medical probability, the wall elevation differential was not of lethal height, and really, whether he be an egg, a sausage link or even a biscuit, due to Mr. Dumpty's provocative pre-existing medical and psychological conditions, I do not believe the fall explains the sequelae or extent of injury. To the contrary, H. Dumpty's presentation is best explained by a poorly managed pain disorder that dates back many years prior to the alleged fall from the subject wall. Indeed, without the intervention of the -aforementioned pain disorder, H. Dumpty should have been able to resume normal premorbid activities of daily living with no more than six weeks of physician-directed physical therapy and perhaps home exercise.
Accordingly, I find the fall-related injuries alleged to have been sustained related to the lateral-elevation-drop from the wall to be casually responsible for no more than 20% of Dumpty's current injuries, with not less than 80% of the sequelae caused by a multi-factorial set of pre-wall health and psychological syndromes, most notably a pre-existing pain disorder which, while not previously diagnosed by other providers, is nonetheless, well-documented in Mr. Dumpty's voluminous prior medical and psychological history.
In short, without the substantial influence of the preexisting overlay of medical and psychological findings, the innocuous fall, assuming it occurred as reported, should have caused little, if any, of the present medical or employment-related effects..."
C) WHAT IS WRONG WITH THE REWRITTEN STORY?
A lot of medical mumbo jumbo, right? This rewritten story by the insurance company's doctor intentionally distorts the well-defined difference between preexisting conditions, which can be used to question causation of a subject injury, versus a patient's predisposition to greater injury, which should never be a basis to question causation. A predisposition to injury simply makes a person more likely to be injured.
Every law student in America is reminded of the nursery rhyme of Humpty Dumpty when they study torts. Reflecting on the hapless plight of Humpty assists students of the law in understanding that the at-fault party is responsible for ALL of the injuries caused to his victim, regardless of whether the victim is predisposed to injury. This principle holds true even if the victim was an "eggshell plaintiff" or was born with a "thin-skull." Both of these terms are used in the law to describe a victim that is predisposed to injury.
In other words, this principle holds that that it is impermissible for any defense attorneys or their "hired gun" doctor to tell a jury that they need to consider the "severity of injury that one would reasonably been expected to suffer assuming a normal thickness of one's skull" in determining causation and compensation for a plaintiff's injuries. The actual law holds that even if no one in the world, except Humpty, would have been injured to THIS extent by the fall, his predisposition to greater injury CANNOT be the basis of Humpty receiving less than full value for HIS injuries and losses.
The distinction between a preexisting condition and predisposition to greater injury is extremely significant in a personal injury case. When the insurance company pays a "hired gun" doctor to blur the line, the result can cost injury victims hundreds of thousands of dollars in compensation and can even be the difference between winning and losing a case.
1) PREEXISTING INJURY:
If a person with a preexisting back condition is involved in a car crash and suffers an aggravation of that injury, the person who caused the crash should only be responsible for the portion of the injury that they caused. If there is a pre-crash condition to the same part of a victim's body, it is only fair for that victim to expect the insurance company to question the extent that the person was suffering from that preexisting injury before the car crash. Consequently, in this situation, a doctor can permissibly apportion the aggravation of the injury versus the underlying preexisting condition.
2) PREDISPOSITION TO INJURY:
Predisposition to greater injury simply means that because of a person's physiology, they sustain what might be considered extraordinary levels of injury arising out of a car crash or other trauma. The law prevents a jury from ever determining the "reasonable amount of injury" one should sustain in a particular crash.
3) BLURRING "PREDISPOSITION" INTO "PRE-EXISTING:"
The tale of Humpty Dumpty illustrates exactly what doctors do when they are hired by an insurance company to examine a plaintiff but cannot find prior medical documentation of a preexisting injury in the same part of the body that was injured in the car crash. These doctors try to suggest, with no real medical evidence, that the victim's injuries are an overblown extension of an underlying "pain disorder" that predates the crash. Accordingly, the doctors will attempt to apportion away most of the victim's crash-related injuries to explanations other than the car crash.
Their formula is quite simple and does not require a medical degree. They review the victim's medical records and search for any record of expressed injury anywhere in the subject patient's body, or any records suggesting anxiety, depression, or even isolated instances of acute pain. Then, without any medical qualification, or any real medical evidence, the insurance doctors assert that the patient has a pain disorder that predates the subject car crash. They will write a report that says, "Once a person has a pain disorder, the condition can wax and wane for years and can even be dormant for years, sometimes decades."
Then, the insurance doctor will assert that the at-issue car crash was not violent enough to cause the extent of injuries that they are observing in the plaintiff. They will claim that the plaintiff is not suffering because of injuries caused by the crash, but instead, is suffering because of a previously dormant pain disorder, not related to the crash, that has once again resurfaced. Insurance company doctors attempt to blur the distinction between preexisting injuries and a predisposition to injury by improperly diagnosing victims with "pain disorders" to get around the "eggshell plaintiff" doctrine. When you understand what they are doing, it's really hard not to call it what it is--fraud.
D) HOW TO FIGHT THE FRAUD:
Prior to trial, attorneys can prevent their clients from being victimized by this kind of junk science (or fraud) by seeking to strike junk science conclusions through a hearing to ensure that these erroneous conclusions are never introduced to the jury. In Colorado, these hearings are called Shreck hearings, and are named for the case, The People of the State of Colorado v. Michael Eugene Shreck. The judge will then make a ruling as to whether the jury will be allowed to hear the doctor's testimony.
Personal injury attorneys can only seek to prevent the introduction of this junk science if they are experienced enough to identify and understand the formula of the fraud that is being sold as science. Also, the attorney must be experienced enough to bring this issue before the court and convince the trial judge to prevent the insurance doctors from introducing this junk science to the jury. For this, there is no greater teacher than years of experience as a personal injury attorney, and "knowing where the bodies are buried."
When these unscrupulous doctors working for unscrupulous insurance companies are allowed to get away with this junk science, it creates a dangerous sideshow. Good attorneys will set hearings that occur BEFORE trial to to ask the court to strike these types of conclusions so that the jury will never hear them. Other attorneys, who do not understand what a fraud these medical opinions really are, will struggle to overcome these deadly opinions in front of juries, and that will ultimately cost their clients, because the jury may be fooled by the "junk science" masquerading as "expert" testimony.
At Anderson, Hemmat & McQuinn, we believe that injured victims should not be re-victimized at trial by allowing an insurance company doctor to introduce junk science to the jury. As experienced trial attorneys, we know how to identify and strike these fraudulent opinions by insurance company doctors before trial. If you have been injured by another person's negligence, please call and speak with one of our attorneys today so that we can help you put your life back together again.