First published in The Lawyers Weekly November 21, 2003, Vol. 23, No.28
Errant assumptions lie at the root of nearly every failure. For both claimant and defence counsel, personal injury litigation is a minefield of fallacies.
Fallacy: Claimants' memories are generally reliable.
It has been estimated that we record in memory a fraction of one per cent of
what we experience.
What little we do record is fragmentary at best - we invent a framework to make
sense of it.
Every time we remember and rehearse "facts," we add new details and strengthen
our erroneous belief in their "truth".
When a claimant is emotionally invested in a legal action, s/he "recalls"
details and sequences that are consistent with his/her wishful thinking.
The new-onset back pain is erroneously remembered as starting on the day of the
motor vehicle accident. This distortion arises, not from a conscious intent to
deceive, but because memory is volatile and recreated anew every day.
Solution: Check all details against contemporaneous medical records.
Fallacy: Symptoms were caused by the injury because they followed it.
The post hoc ergo propter hoc fallacy permeates personal injury litigation. In
evaluating medical causation, eight criteria need to be considered. Of these
eight, personal injury causation frequently fails because (1) a causal
connection is not biologically plausible, (2) the new condition often occurs in
other people without preceding injury, or (3) there is not an appropriate
time-relation to the accident. Diabetes that is diagnosed six months later was
likely not caused by the accident.
Solution: Check out causal assumptions.
Fallacy: A diagnosis is a diagnosis.
Many common so-called diagnoses are nothing more than a commonly occurring
cluster of symptoms and clinical signs or laboratory abnormalities. The supposed
pathological basis may be obscure or entirely hypothetical.
Beware particularly of diagnostic labels that include the word "syndrome."
Irritable bowel that develops after repair of a ruptured spleen can probably not
be causally linked to the injury.
Solution: Determine what the medical jargon means in terms of observable
pathology.
Fallacy: Caregivers agree on a diagnosis so it must be correct.
Clinicians form “working diagnoses” that prompt them to review and investigate
until a diagnosis is confirmed or refuted.
They use this provisional label with their patients as a convenient shorthand.
When a patient reports such labels to subsequent caregivers, those therapists
(physicians included) often uncritically adopt the working diagnoses as if they
were proven and confirmed. Reactive arthritis may be refuted with the passage of
time.
Solution: Require the evidentiary basis for diagnoses that do not fit or are
troublesome to the case.
Fallacy: Experts can measure disability.
The principal determinants of (legal) impairment are not objective functional
limitation, but pain, psychological distress, fatigue, and sleep deprivation,
none of which can be clinically measured in a meaningful way.
Major disagreements between experts about disability of a claimant are largely
determined by prejudicial attitudes, not by differences in clinical judgment.
Psychological injury is commonly under-diagnosed.
Solution: Routinely require that every claimant whose disability is contentious
undergo directed psychiatric evaluation.
Fallacy: Bad outcome means that standards of care were violated.
Many medical malpractice actions are initiated on the erroneous belief that the
unexpected adverse outcome is de facto evidence of negligence. The majority of
physicians fall below the legal requirements for risk disclosure, and many do
not tailor risk assessment to the individual patient.
Conversely, patients demonstrably do not hear most of the warnings that they are
given prior to consent — and they quickly forget much of what they do hear. When
we are frightened by illness, we not only fail to hear but also have a greater
tendency to engage in magical thinking — “this disastrous result is possible,
but it won’t happen to me.” There is a much broader range of possible outcomes
of a standard medical or surgical intervention than is generally supposed. Range
of movement and severity of pain may be no better or worse after competent joint
replacement surgery.
Solution: Establish whether there is evidence of substandard care independent of
the adverse outcome.
Fallacy: Standard treatment would have made a difference.
The medical propaganda machine has been highly successful in promulgating the
myth that most standard therapeutic interventions have been proved to be
effective. Since the era of Evidence-Based Medicine, which began around 1990,
most of the quality research has served to debunk such claims. Most traditional
medical treatments have no empirical basis. Although most patients express
satisfaction, tonsillectomy has not been shown to reduce the frequency of sore
throats.
Solution: Determine whether there is clinical research evidence for treatment
efficacy.
Fallacy: Missed diagnosis worsened the outcome.
Many standard treatments are purely symptomatic or palliative, do not influence
the natural history of a disease process.
Failure to prescribe passive physiotherapy after unrecognized injury has no
causal implications.
Even when interventions have proven value, delays of minutes, days, months or
even years may make no demonstrable difference.
Solution: Extrapolate back to the missed diagnosis and determine the range of
treated prognosis.
Fallacy: With earlier diagnosis the treatment would have been different.
For many malignancies, therapy is standardized, often with relatively minor
variations that are dictated by how advanced the cancer has progressed.
Commonly, tumours are already years old by the time they cause symptoms or can
be detected, and the alleged delay in diagnosis may be comparatively short in
the lifespan of the disease process. Treatment and prognosis would likely have
been no different if the bowel cancer had been diagnosed six months sooner.
Solution: Check what the treatment would have been at the time of missed
diagnosis.
Fallacy: Standard of care is broadly agreed upon.
Even among physicians who have no vested interest in taking an adversarial
position, there is more disagreement than agreement about most standard of care
issues. Indeed, the level of concurrence is often little better than chance. Is
it negligent to cause injury to a nerve that was explicitly protected?
Solution: Establish what range of opinions on standard of care can be expected.