2011 Whiplash, Spinal Trauma, Personal Injury Case Seminar

As part of our mission to provide the highest quality legal representation to victims of traumatic injuries, Adler Giersch, PS is committed to providing education to health care providers to assist them in caring for their injured patients. As part of this effort, the firm has presented a seminar for healthcare providers for 21 years. Whiplash, Spinal Trauma and the Personal Injury Case for 2011 was presented at the Bellevue Club Hotel on March 26. In addition, the attorneys at Adler Giersch PS presented a pre-seminar workshop, Effectively Managing Your Personal Injury Cases, on March 24 at the Bellevue Club Hotel. Over 130 healthcare providers attended from around Washington and a few travelers from Montana, Oregon, and Nevada. A wide range of providers attended including chiropractors, massage therapists, medical doctors, and staff members.

The seminar and workshop provided must-know information and materials to help healthcare providers effectively and efficiently manage the medical-legal-insurance aspects of personal injury cases. Many of the attendees gave rave reviews: “These are the best education hours in auto traumatology available anywhere.”

Fibromyalgia, Expert Testimony and the Washington Courts: A Cautionary Tale

By Jacob W. Gent, Attorney at Law

Over the past several years, fibromyalgia has received increasing attention in the medical community as a specific diagnosis, separate from other chronic pain conditions. Despite this increasing awareness, fibromyalgia (FM) as a diagnosis, and its root cause or causes, is still controversial and heavily debated amongst the various medical disciplines. Due to the philosophical and theoretical divides surrounding FM, these debates have spilled over into the legal community as well, with Washington state courts taking a very hard look at the condition in the litigation context. This article is meant to provide medical professionals an inside look at how controversial issues such as FM are addressed by the courts, which can directly impact the treatment provider’s bottom line.

Fibromyalgia is a common rheumatologic syndrome in which people experience long-term, body-wide pain and tender points in joints, muscles, tendons, and other soft tissues. Fibromyalgia has also been linked to fatigue, sleep problems, headaches, depression, anxiety, and other symptoms.

The primary symptom of fibromyalgia is pain. The exact locations of the pain are called tender points which are found in the soft tissue of the neck, back, shoulders, chest, elbows, low back, hips, thighs, and knees. Pain, often described as a deep burning ache, radiates from these tender points. The joints typically are not affected, although many patients describe the joints as a pain source. Women are more often diagnosed with fibromyalgia than are men, and many people with FM also complain of tension headaches, temporomandibular joint (TMJ) disorders, irritable bowel syndrome, anxiety and depression.

Over the past several years there has been a great deal of study and debate regarding trauma as a cause of as to fibromyalgia may be caused by some sort of trauma. Usually, the trauma is the result of a motor vehicle collision or a fall. Patients with “post-traumatic” fibromyalgia are often more severely affected and therefore more difficult to treat. Symptoms may take several weeks to fully develop after trauma as myofascial pain spreads throughout the body culminating in total body pain. Many patients who were previously healthy and fully functional find it necessary to seek a modified work environment, or ultimately leave the workforce due to their chronic pain. Such a major life change can lead to additional emotional and psychological pain, not to mention financial hardship.

When the underlying trauma is the result of another person’s negligence, the patient’s medical condition and treatment is subject to scrutiny by insurance claims personnel, opposing attorneys and the courts. Now a medical problem becomes a legal problem, and it’s up to the patient’s treatment providers and legal counsel to advocate on behalf of the injured person. The claims process in fibromyalgia cases can become quite contentious, because most liability insurance companies will challenge the relationship between the trauma and the condition. They have difficulty believing, for example, that a seemingly uncomplicated fall can result in chronic and debilitating pain. This problem is further compounded by the fact that there exists a deep division between those doctors who simply do not believe that chronic pain/fibromyalgia can result from a sometimes rather minor injury, and those doctors who believe with all their heart that there is such a disabling thing as post-traumatic fibromyalgia.

One such battle, decided by the Washington appellate court, serves as a cautionary tale to treatment providers and counsel of the steep, uphill battle they face when working on traumatic fibromyalgia cases. On October 23, 1997, Gertrude Boccia collided with a vehicle driven by Adam Grant in Yakima County. On October 9, 2000, Mr. & Mrs. Grant sued Ms. Boccia claiming the collision caused Mr. Grant’s fibromyalgia.1 At trial in December 2003, the defense attorney representing Ms. Boccia moved to exclude all expert testimony which attributed Mr. Grant’s fibromyalgia syndrome to the trauma sustained in the motor vehicle collision 6 years prior. The defense attorney argued that, because there is a disagreement within the medical community, the proposition that trauma could be the cause of fibromyalgia syndrome, expert testimony in support of Mr. Grant’s claim did not satisfy the Frye standard of proof. The trial court was persuaded by the defense’s argument and dismissed Mr. Grant’s lawsuit without awarding any compensation for his injuries and damages.

A party, such as Mr. Grant, may enter evidence (documents, things and testimony, including experts) at trial in support of their case to be evaluated by the jury according to certain well-established rules. The trial judge has considerable discretion in interpreting and applying these rules. The so-called “Frye” standard2 is used to determine whether expert scientific testimony (including medical opinions) concerning certain novel or disputed theories will be admitted at trial. In brief, the rule operates like this: for expert medical testimony to be admitted, a judge must first determine (a) whether the medical principle or theory on which the expert testimony is based is generally accepted within the relevant scientific community, and (b) whether the there are techniques, experiments, or studies utilizing the theory which are capable of producing reliable results and are also generally accepted in the particular scientific community. The judge does not determine if the theory is correct; that is for the jury to decide. The court must only determine if the theory has gained generally acceptance within the field. If there is a significant dispute within the relevant scientific (medical) community about the validity of the theory in question, evidence and testimony which is based on that theory may not be admitted at trial.3

Mr. Grant appealed the trial court’s decision to dismiss his case arguing the theory that physical trauma could cause fibromyalgia was not new or novel, and was an accepted theory within the medical community. Unfortunately, the Court of Appeals disagreed. After hearing arguments from both sides, the appellate court determined there was no definitive acceptance within the medical community as to the cause or causes of fibromyalgia, and the idea that fibromyalgia could be caused by physical trauma was a new principle subject to the Frye analysis.

The lesson for medical providers is to be mindful of the many legal pitfalls awaiting your patient and your records which may impact your ability to be compensated for services rendered. In a case like Mr. Gran’s, careful selection of a diagnosis which accurately reflected the patient’s condition but has gained broad acceptance within the medical community may have avoided the negative outcome at trial. Just as attorneys for victims of traumatic injury should be educated on the various medical issues affecting their client’s case and develop a network of top-tier experts with whom to consult with on such issues, medical providers working within the personal injury realm should stay informed of in the many legal challenges facing their patients. Providers should also cultivate relationships with attorneys willing to answer your questions and work with you to in protecting the rights of your patients and advocating on their behalf.

If your patient has experienced a traumatic injury and has a potential personal injury claim, a legal consultation is advisable to learn about the unwritten and written rules of the claims and litigation processes. Not every patient needs to hire an attorney to represent them, but all should benefit from a consultation to explain their legal rights and duties. The attorneys at Adler Giersch PS Seattle, Bellevue, Everett, and Kent stand ready to assist your patients in answering their questions and providing advice that keeps them out of harms way of the insurance company’s tactics.

1 Grant v. Boccia, 133 Wn.App. 176.

2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

3 State v. Cauthorn, 120 Wash.2d 879, 887 (1993).