Personal injury: the changing landscape, by Dr. H. Jaye Goldstein on January 20, 2015
In the course of my morning commute across the roads of Vaughan and north Toronto, I see them everywhere—on billboards and the broadside of buses and in transit shelters. I hear their ads on my all-news radio choice of the day, sponsoring traffic and weather reports. At day’s end, while catching up on local and national news, their TV commercials intrude upon my attempt to unwind from the stresses of my general practice toils. I am not referring to real estate brokers, car dealerships, alarm companies or travel agencies. I am speaking of personal-injury law firms.
Appealing to the emotions of the public, and possibly their greed, must be working because there appears to be no end to these commercials and an ever-increasing competition in this expanding legal playing field—this, in spite of changes to auto insurance legislation, which has significantly limited funding for patient accident benefits.
These ‘minor injuries’ can drag on forever and challenge the patience and expertise of even the most experienced physician.
For those of us who have practised long enough to remember the days before no-fault car insurance was introduced, you will recall the painstaking and unpleasant task of writing voluminous medical legal reports, which very often resulted in years of delay in payment while we awaited “every effort to recover funds pending settlement.” There wasn’t anything else in those days that raised the hairs on the back of my neck more than when I received a letter with a law firm logo (except perhaps an envelope with the CPSO logo).
The times have changed! Today the accident patient arrives with the OCF-3 secured in a manila envelope, having already seen their legal counsel, who has referred them to an “independent” accident rehab facility. Some patients have been “counselled” by tow-truck operators, emergency department personnel, paralegals or insurance claims advisers and have similarly started rehab well before their arrival in the doctor’s office with the requisite envelope. Not uncommonly, followup is minimized by the variety of other services the patient is concurrently receiving.
Whereas the medical legal report in years past necessitated a comprehensive review, updating status and prognosticating recovery, the legal system now requests copies of clinical notes and all related reports, as well as notes and records for five years prior to the accident. While the time required to meet these requests, for the doctor, is considerably reduced, there is a significant burden that is placed upon our office staff in terms of time.
We are guided by the OMA schedule for uninsured benefits in determining fees for such services, somewhat generously I might add; however, there implies an obligation to ensure that the clinical records for these specific visits be detailed, descriptive and adequately reflect the comprehensive care received from all allied professionals should the case ultimately proceed to litigation. These “minor injuries” can drag on forever and challenge the patience and expertise of even the most experienced physician.
My first-hand experience
In early January 2003, I had the misfortune of slipping on black ice, obscured by packed snow, in a strip-mall parking lot. This occurred the day following a major snowstorm in Toronto. The parking lot had not been maintained to the standards of the day, and my resulting hip fracture was directly the result of negligence on the part of the management company and maintenance services of the shopping mall, or so my lawyer set out to prove. My undisplaced femoral neck fracture was treated conservatively with eight weeks of non-weightbearing, in an attempt to avoid the curse of adverse surgical/anesthetic events often seen in physician patients.
Although I missed but one week of work, I was limited to half-day offices, with the capable assistance of my RN wife, and feeling quite spoiled as I had never had the luxury of an office nurse in all my years in practice. The half-day was necessitated by unexpected and profound fatigue by mid-day, as well as painful armpits secondary to walking with crutches. I quickly learned the complexities of applying for insurance benefits, a process I had previously taken for granted as my patients navigated their own way through what I was to learn is anything but a seamless journey.
I had my first personal interface with the medical-legal process when I hired a lawyer to represent my claim. I was subjected to an insurer (previously known as “independent”) exam, as well as an expert opinion exam to establish my status and prognosis. Interesting process to be the physician as patient. Neither of my examiners was stellar, especially the orthopedic surgeon my lawyer referred me to. He never appreciated the fact that I was a medical colleague nor the impact the fracture had had on my ability to perform the duties of a busy GP working 50 hours a week.
The fracture healed uneventfully and by week 10, I was walking unassisted on a treadmill and back at full-time work. My wife moved on to a new and more challenging job as an endoscopy nurse, while I returned to flying solo. I continued to look over my shoulder, however, anticipating AVN or progressive O/A and the total hip arthroplasty sure to follow.
The wheels of justice moved slowly. I would soon experience the examination for discovery and mediation processes and their associated futility. Having failed to arrive at a reasonable settlement, I was advised that the next step was court and that if I lost, I would be responsible for costs incurred by the other side. Then, of course, there were my lawyer’s fees.
Almost four years from the time of my fateful fall, I received a call from my lawyer informing me that he had a “number” to propose. It was an offer I couldn’t refuse. I just wanted to end the procedural nonsense. After paying his fees, I received a cheque that didn’t come close to covering my lost income (my disability insurance elimination period was 90 days), nor did it take into account the very real possibility that at some time in the foreseeable future I would be custom-fitted with a prosthetic hip joint.
Today, I walk 10 miles a week and maintain an active lifestyle and general practice. I continue to see MVA and personal-injury cases regularly in the practice and, given my personal experience, take a more empathetic approach to the implications of personal injuries. With the recent advertising deluge on the part of our legal colleagues, I pause to contemplate how our profession would conduct itself if regulations were eased and the ethical advertising principles and practices we are bound by, blurred.
Will we one day see colleagues “pop up” on a popular websites, hear radio commercials advertising personal injury physicians during traffic reports or see the familiar face of a colleague on the side of a bus or highway billboard? Not likely, I think.
Dr. Howard Jaye Goldstein is an Ontario physician.