By Melissa D. Tonn, M.D. and Bill Minick, J.D.

OccMD’s catchphrase,“The Evidence is in Our Outcomes”, is all about getting the best result for the injured worker at a fair cost to the employer. This includes minimizing the risk of and winning litigation. Here are seven tips focused on proactively avoiding litigation and being prepared if litigation later arises:

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1. Begin with the end in mind. Our top goal should be delivery of evidence-based medical care to drive better medical outcomes. Ensuring accurate, evidence-based medical assessments and the provision of appropriate medical care raises employee satisfaction and minimizes the risk of legal claims.

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2. Watch for red flags. Then, watch for subtle but important factors that may be telltale signs of a secondary gain agenda and pre-cursors to future litigation, like:‍

• Patient first goes to medical clinic months after an alleged incident
• Presents with symptoms implausibly related to a specific incident or body region
• No questions or history about non-work/home activities—so no documentation about those activities
• Discrepancies between the clinical information and the facts of the reported incident
• Symptoms not improving or increasing after injury
• High pain levels that don't correlate with other medical indicators, like blood pressure, and are inconsistent with the natural process of injury healing
• Degenerative conditions
• Medical co-morbid conditions, like poorly controlled/uncontrolled diabetes, obesity, or peripheral vascular disease

3. Scrutinize past and current medical records. The outcome of most litigated cases is heavily influenced by previous medical documentation. So, it’s critically important to obtain, review and understand detailed medical records. Review for common errors and inconsistencies to support both benefit claims administration and any future litigation process.

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4. Understand the role of imaging in diagnosis. The common practice of directing patients to the MRI center offering the cheapest price, while assuming all imaging centers and all radiologists provide equal quality reports, is incorrect. It’s critical to consider the credibility of the imaging professionals, equipment and processes used, and freedom from potential conflicts of interest that could bias their judgment. Watch for the third part of this article series addressing “The Blinded or Paid Off Radiologist.” Also, imaging should not be ordered when the clinician cannot articulate what condition they are looking for… or “just because”. This is especially true on spine cases. Incidental findings are often attributed to the incident or event due to “anchor bias” or “confirmation bias” on the part of the clinician, focusing on a single piece of information or the medical provider seeing what they expect to see. Degenerative changes are often mislabeled as trauma-related (annular tears, fissures, disc bulges). Then, miscommunication of an inappropriate “diagnosis”, followed by a specialist referral at the direction of an attorney leads to an adverse demand and litigation when there may be no acute/occupationally-derived injury or condition.

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5. Take a scientific approach. OccMD performs a scientific causation analysis on medical claims, which includes (among other things) verifying the diagnosis with epidemiological data, critically assessing the alleged incident or exposure, and a review of the validity of evidence to assess the plausibility of the injury claimed.

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6. Don’t underestimate psychosocial factors. OccMD emphasizes the need to assess and attempt to deliver appropriate physical AND mental health services to deal with factors that can dramatically impact the trajectory of a claim, such as:

• Anxiety and depression
• An unhealthy mindset, like distorted thinking, misconception or misperception, that leads to greater levels of discomfort or incapacity
• Catastrophizing, fear-avoidance beliefs, unresolved anger and other psychosocial factors known to correlate with suboptimal injury outcomes

7. Close carefully. In anticipation of closing a claim, ask yourself questions, like:

• Have the past medical records been received and reviewed?  
• If there is a disc finding, is there clinical evidence refuting any neurologic deficit?  
• Have other causes of extremity pain been documented?
• Did we make reasonable attempts to address anxiety/depression and other psychosocial factors known to correlate with suboptimal invasive outcomes?  
• Has the employee received all treatment appropriate for the condition identified as the “injury.”
• Has the employee received full information and a “warm transfer” on any other available employer group health, disability, government or other source of recovery and support, if needed.

Frequently reiterate this messaging within your claims team and contact OccMD if we can support you in any way.