Spine Injuries: Setting Yourself Up For Success

by Tom Feher for "The Gavel"

Injuries to the spine are the most common bodily injury that we confront as plaintiff lawyers and while many of us have a process for litigating and trying them, there are always alternative approaches that may better serve our clients as the medical and legal landscape evolve.

THE “PERFECT” SPINE INJURY WORKUP

I suppose in some perfect world, our clients must complain of pain at the scene of an incident, report their symptoms to a doctor immediately and consistently undergo conservative care for three months. Further, if that fails, they must follow up with a spine doctor for a referral to pain management for injections, and then if that fails, undergo surgery without delay, assuming their clinical symptoms and imaging studies 100% perfectly corelate. Where does this expedited cookie cutter scenario come from? You guessed it. Insurance adjusters and defense firms.

In the medical legal world, we have been conditioned, to document injuries based on what insurance companies, adjusters, and defense lawyers demand. We have all heard the following from them, “your client never complained of pain at the scene, never went to the emergency room, did not seek treatment until a weak after the collision; and, if they were really hurt, they would have.” In the same breadth, if your client seeks the aid of an attorney and goes to physical therapy or the chiropractor a day or two after the collision, the insurance companies, adjusters, and defense lawyers, then say “your client went to an attorney first, the attorney orchestrated this treatment, this is all attorney-driven treatment.” Ostensibly, the insinuation either way, is that you and your client are liars. Throughout the entire process from pre-litigation to trial, the defense’s underlying theme will always be an insinuation of dishonesty on the part of you and your client. This is true regardless of the case and person involved because it is an inevitable byproduct of denying or defending claim.

EDUCATING OUR CLIENTS

In light of the above, how can we better support our clients from the outset? To start, we can better educate our clients on the importance of vocalizing all their symptoms and complaints. We can work with our staff to train them to ask the right questions and follow up repeatedly with our clients. We want our clients to be comfortable articulating what they are feeling and how it is affecting their day-to-day activities. Most people don’t talk about pain and therefore may not have the words to express how it’s affecting them, and many people also tend to internalize their pain rather than express it to others for fear of burdening them.

For the people we help that have been traumatically injured, this is likely the first time it is in the context of fighting a claim, litigating, or being in trial. Why is that important? Think about the first time you hurt yourself. Maybe you skinned your knee or bumped your head. Your mom or dad likely comforted you and accepted that you hurt yourself. They didn’t say, “little Bobby, you’re just lying about that bump on your head so you can get extra ice cream after dinner.” Or think about a time you may have had a health issue or injury later in life. Your friends, family, and doctors likely offered comfort and care as well treatment recommendations. Imagine if they said, “you are not hurt, you are not sick, you are just trying to avoid going to work, taking care of the kids, and your handling responsibilities at home… malingerer!” It seems absurd, right? Why is it then once an insurance company enters the equation this becomes the norm?

Given that this process is entirely new to our clients, we have to be readily familiar with the types of symptoms someone may have as a result of a spine injury and let our clients know. Most people do not know that numbness, tingling, or weakness in their fingertips may be the result of an irritated nerve root in their cervical spine from a damaged disc. Pain that radiates from the neck into the shoulders could also be from a sprain or strain or an injury to the facet. Pain in the buttocks versus pain that shoots all the way down the leg is also consistent with nerve root irritation or impingement. We must explore all symptoms beyond just pain and discuss all the potential upper and lower extremity radicular symptoms with our clients at the outset as well as throughout their medical and legal workup. This will help us better understand what type of spinal injury they have and what type of medical treatment can reasonably help alleviate their symptoms. Your legal team should be communicating with health care providers so that you fully understand the diagnosis, prognosis, and treatment plan.

MORE THAN A MEDICAL BILL

The value of our clients’ cases are more than a medical bill and we should avoid falling into the trap of practicing where racking up large medical bills that reach or exceed a defendant’s policy limits is the only way to resolve a case. This trap is a conditioned response from dealing with insurance companies daily. We have all been there when an adjuster says a case is worth pennies because our client doesn’t have a lot of medical specials. Again, speaking out the other side of their mouth, when our clients are forced to treat with a lien because they don’t have access to good medical care, the insurance companies then argue the bills are too high.

Putting the medical bills aside, the greatest value comes from our clients’ stories. Make it a point at the outset to understand a client’s story. Get to know the person you are serving on a personal level, connect with them, and humanize the process.

Insurance companies are great at evaluating risk when it comes to economic damages alone, however, they have no real metric or algorithm for evaluating the risk of a great human story and a real human connection.

WHAT’S THE VALUE OF OUR SPINE INJURY CASE?

We can only begin to understand the value of our cases once we get to know our clients and find out what their life was like before and after their trauma. What did they value? What did they enjoy? What were their responsibilities? Who were the people in their life they cared about?

I am sure most if not all of us have slept wrong and woke up with crick in our neck or moved some furniture and tweaked our back. The day after we feel terrible, and we cannot wait for the pain to go away. We take some pain killers so we can make it to work, but we are constantly adjusting in our seats. If we have kids, the pain plays on our already tested patience, we may snap at our screaming child in the backseat and then feel a wave of guilt. Making dinner that night after a long day at work now feels like a monumental task, and after less than 24 hours we are desperately hoping that when we fall asleep and wake up the next morning, our pain will be gone.

Now imagine the next morning it doesn’t go away, and you start thinking you may need to go to the doctor if this pain persists even more. You wonder if something is wrong. You have hope that it should resolve. For something that an adjuster calls “soft tissue” injuries, sprains and strains, whiplash, these symptoms can persist for months. That is a huge interruption in one’s already busy life.

Focusing on our client’s story makes all the difference in how we approach our advocacy. It forces us to connect with our clients and to see the true value of their life and appreciate how much has been taken from them as result of an unexpected trauma.

We all know the Golden Rule and how we are not supposed to tell jurors to place themselves in our client’s shoes, however, we should be putting ourselves in our client’s shoes and seeing the world from their perspective. In other words, we should be empathizing with them. Consider, what does it mean for a single mother with three children living off minimum wage to suffer an injury and then have to make physical therapy appointment twice a week, or what does it mean for a young entrepreneur who is working 100 plus hours a week on their startup or someone who just retired from decades of dedicated labor in the workforce to now have their long awaited golden years ruined.

When we begin to empathize and learn our clients’ stories, something else happens inside of us, we begin to connect and we begin to care for these people and that is where it begins.

PAIN GENERATORS IN THE SPINE

When the spine experiences trauma, there are all types of structures that can serve as pain generators from muscles, ligaments, discs, nerves, and joints. Someone can have a muscle strain as well as a disc or nerve injury – they are not mutually exclusive, however, the more serious injuries are often not revealed until time passes. Also, be on the lookout for overlapping injuries to multiple body parts. For example, someone with shoulder and neck pain may have pathology in their shoulder and cervical spine based on imaging that is consistent with causing their symptoms, but only one of those anatomical abnormalities is truly causing their symptoms.

SPINAL IMAGING

While it is true that people who suffer acute disc injuries in their spine may not show signs of trauma like edema or a fracture, it is still important to have imaging done shortly after the incident. We have all seen cases where someone is involved in a car crash and then they are involved in a subsequent crash. Early imaging can help prove causation in and it can also serve to guide the treating doctors.

Let’s assume your client has terrible back or neck pain following a crash, however, their MRI is negative. In other words, there are no disc herniations or stenosis. That doesn’t mean they don’t have a permanent debilitating injury. There is always the possibility that the MRI did not pick up the structural damage to the disc or nerve irritation. A more likely reason may be damage to the facet joints which can be incredibly painful. Damage to the facet joint can be identified by a pain management doctor through diagnostic medial branch blocks. If the patient obtains relief, then they may very likely be a candidate for radiofrequency ablations also known as rhizotomies. This procedure cauterizes the nerves in the facets. For many patients, those nerves grow back and require ongoing intervention.

DEGENERATION AND JURY INSTRUCTIONS

Most doctors will agree that our spines begin to show some signs of wear and tear by the time we enter adulthood. The amount of wear and tear just like with anything will depend on that person’s body and their life experiences. However, most people with wear and tear in their spines do not have persistent debilitating symptoms that warrant treatment.

CACI 430, 431, 3927, and 3928 provide great guidance in dealing with preexisting wear and tear of prior injuries. In particular, CACI 431 states that a defendant cannot avoid responsibility just because some other condition was also a substantial factor in causing plaintiff’s harm. The defense used in virtually all spine cases regardless of the plaintiff’s age is that they had degeneration in their spine and there is no acute findings on the imaging. This instruction is powerful because you can get the defense expert to agree that most if not everyone has some degree of degeneration and its asymptomatic. Aside from degeneration, people may have a herniation or spine surgery prior to the subject incident. That would leave them more vulnerable or susceptible to injury or becoming symptomatic. Most defense experts will also agree on that point as well and you should always ask this question in deposition.

DO NOT PROVE MORE THAN YOU NEED TO AT TRIAL

We can agree virtually everyone has had some neck or back pain. Just sitting for too long in front of the computer, we can feel it. If you have a client who says, I have never had neck or back pain and they have been doing construction all their life, no one is going to believe that, even if their medical records do show priors injuries. Rather than saying your client has never had neck or back pain, the better response would be, I never suffered an injury to my neck or back that required treatment, assuming that is true, of course.

Most people with spine injuries still live their lives. They workout, carry groceries, shop, travel, work, pick up their kids from school, clean their house, etc. That is life. Just because someone suffers an injury doesn’t mean the world will wait for them. People have responsibilities they need to complete even if it causes them pain. So, when our clients are asked what they cannot do because of their spine injury, it is not about what they can or cannot do, but what they must do and what they can avoid doing.

HEAVY ON THE EXPERTS

There are at least two schools of thought in the field of experts, and some like to pour it on thick where others like to simplify it as much as possible. The defense generally wants to designate a half dozen experts which include an accident reconstruction, biomechanic, orthopedic surgeon or neurosurgeon, radiologist, and billing expert. You will find that this is the case regardless of whether the case is surgical or not, or whether the defendant has a hundred thousand policy or million-dollar policy. A few ways of leveling the playing field is to have a non-retained radiologist testify during the discovery period as to their findings, confirming the pathology they see on the images and testifying that these findings must be clinically correlated by a spine surgeon to determine treatment protocol. As to the accident reconstruction and biomechanic experts, there are many experts who do both, so you don’t have to retain two separate experts. For billing experts, I strongly suggest that you consider stipulating to an amount of the past medical expenses or potentially waiving them if your client is agreeable and you believe it’s in the best interest of your case. Keep in mind that you can have retained and non-retained orthopedic surgeons or neurosurgeons provide testimony as to the reasonable and customary value of past and future medical treatment.

KEEP IT SIMPLE AND FOCUS ON THE STORY

At the end of the day when you get to trial, you will have so much information to distill. You and your client will have lived with the case for years and there may be a part of you that wants to cover it all with the jury. Do not get sucked into that trap. Streamline it as much as possible. It won’t be the details or medicine that necessarily win the day but whether jurors connected with your client and their story.

Tom Feher is a trial lawyer, founder and CEO of Feher Law, APC. His firm specializes in litigating and trying catastrophic injury, wrongful death, and employment cases. He has tried 50 jury trials throughout California obtaining multiple seven and eight figure verdicts. He has been honored with CAALA’s Rising Star Award in 2018, OCTLA’s Young Gun Award in 2017, and CAOC’s Street Fighter Award in 2016.