Evaluation of dizziness in patients who are involved in litigation can deviate significantly from the evaluation of patients who have no ongoing litigation. This article presents the basic principles of the physician’s role in the evaluation of litigating patients. Considerations for physical examination, diagnostic testing, and review of medical records are discussed. Topics of malingering and legal “pearls” are presented in the context of providing an objective and unbiased evaluation of the litigating patient.
R.G. is a 50-year-old man describing nonspecific dizziness. He states that the dizziness is constant and does not come in spells. He indicates that his symptoms wax and wane in severity with no consistent pattern for time of day or inciting activity. He reports associated symptoms of headache and neck pain, which are also constant, and bilateral tinnitus. He denies hearing loss. He states that his past medical history is negative, and his physical examination is unremarkable. Toward the end of the appointment, he indicates that all his symptoms began after a motor vehicle crash and that his lawyer specifically referred him to you for evaluation, because …you are the best doctor in town.
Dizziness in litigating patients
Dizziness is one of the most frequent chief complaints that brings patients to their physician’s office. Dizziness is also a frequent complaint among litigants who have suffered accidental or job-related injuries. Worker’s compensation, disability claims, and lawsuits are filed for financial compensation because of this complaint. As physicians, we inevitably will become embroiled as either expert witnesses in our patients’ lawsuits or as experts sought out by entities being sued by individuals for the alleged injury related to the complaint of dizziness. A competent evaluation of this entity is frequently sought from otolaryngologists in the position as an expert witness. This review puts forth some guidelines in dealing with this type of patient and the legal system. Although this article is entitled “Evaluation of Dizziness in the Litigating Patient,” the principles set forth in it are applicable for patients who are seeking disability status, worker’s compensation claims, and any other situations in which there is significant potential for secondary gain.
Basic principles
Physician Role: Patient Advocate Vs Advocate/Agent of Court
As physicians we find ourselves in the role of patient advocate for several different causes and are taught that this is our role as physicians. We advocate for their best interests in relieving their suffering and preventing further harm to their health. We advocate for them to get insurance approval for appropriate health care, and we advocate for their disability application when appropriate. These roles are all ethical and, indeed, laudable positions to find ourselves. However, when we are in the role of expert witness, we are no longer in the role of a patient advocate. When we take on the position of a medical expert, we are, in essence, enjoined as agents of the court, and our role is to provide truthful and objective assessments of an individual’s physical condition. To advocate for the patient in this situation would be unethical. This fact is important to keep in mind because the patient’s best interests may not be aligned with the best interests of the court and society as a whole.
Extensive Documentation of History and Physical Examination
Extensive documentation of the history and physical examination is an important first step in the evaluation of those who are involved in litigation. Experience has taught the authors to use an extensive pre-visit questionnaire to document the patient’s responses in their own handwriting. This questionnaire is filled out in our office waiting room, signed by the patient, dated, and witnessed by one of our staff members. This questionnaire is important to document because so many of our medical opinions and diagnoses are based on information garnered from the history. This procedure may seem elaborate, but there will be times when the patient will later deny statements made in the office. Without documentation to the contrary, the expert will either be forced to change his opinion based on this “new” historical information or will be caught in a “my word against his word” confrontation. Of course, if the above-mentioned documentation occurs, any future changes in the medical history are problematic for the patient and will denigrate his reliability. Any historical information provided by the patient (or the attorney) must be corroborated by medical records, physical findings, test results, and so forth. Memory is often swayed by potential million-dollar settlements. At the same time our intake questionnaire is completed, we have the patient sign a consent form for evaluation and testing, which includes consent for photograph or video documentation. If this is not signed, we do not see the patient.
Extensive Objective Testing to Verify Complaints
Do not be cost-conscious. In this day of escalating health care costs, many physicians have been made ever so aware of ordering unnecessary testing. However, in the context of litigation, the concern of being cost-conscious is misplaced. A complete and thorough evaluation including history, physical examination, audiological testing, vestibular testing, imaging, and any other ancillary tests needed is unlikely to exceed $10,000. Any (non-nuisance) litigation concerning dizziness almost certainly seeks redress exceeding several hundred thousand dollars and frequently exceeds a million dollars. Consequently, the costs of the evaluation by the medical expert in these cases are almost always negligible. If an attorney is reticent to proceed with a full evaluation because of the costs, this is a good clue that he does not have a case and is looking to settle for a nuisance fee.
Corroboration of Objective and Subjective Findings
Because litigation involving the complaint of dizziness often involves the possibility of very large monetary awards, there is considerable incentive for plaintiffs to malinger or to exaggerate their symptoms. Lawyers, judges, and juries are also aware of these factors, sometimes more so than physicians. Consequently, it is imperative that any subjective complaint be verified objectively and quantified as best as possible. This process will often either bolster the plaintiff’s case or destroy the case entirely. However, sometimes the result is a mixture of these outcomes, helping some aspects of the case while harming the others. To the expert witness, whatever the result, it should not matter.
Make Sure All Pieces Fit: Do Symptoms and Severity Correlate with Objective Findings?
Among dizzy patients who are undergoing litigation, approximately 25% will have symptoms that are corroborated by objective testing and 25% will have nonphysiologic test results, with no objective findings to corroborate their subjective complaints ( Fig. 1 ). These 2 groups would seem to be fairly straightforward—one group that seems to be fairly honest and legitimate and the other group that is highly suspicious for malingering. However, there is another larger group of patients representing approximately 50% of litigating patients complaining of dizziness who have characteristics of both–some verification of subjective findings by objective testing and some nonphysiologic results suggesting malingering or exaggeration. Putting all 3 groups together, one could reasonably say that 75% of all patients complaining of dizziness and involved in litigation are either malingering or exaggerating their problems. Or, one could also reasonably state that 75% of these patients have a legitimate pathologic condition. Both statements would be correct. Separating the true pathologic condition from exaggeration is the main role of the expert witness.
Assessment of Causation
Once the evaluation of the objective pathologic condition has been performed, causation must be considered. The legal hurdle for most expert witness testimony is the determination of probability. Probability is defined as more than 50% likelihood; consequently, absolute certainty is not required when determining causation, although it is best to be more certain than not. Remember, anything is possible, but the courts want to know what is probable.
Two factors that need to be considered are the timing and mode of injury. Timing refers to the time sequence of events in question relative to the pathologic condition causing the litigant’s dizziness. Mode of injury refers to the mechanism, such as blunt head trauma, noise trauma, and explosion. Obviously, in a patient with immediate onset of vertigo after a sledgehammer impacted his occiput, both the timing and mode of injury would seem reasonable to accept as more probable than not, the head trauma is the cause of the vertigo. However, if you later find out that the patient did not have any vertigo or dizziness until 1 year after the sledgehammer incident, you would likely conclude that the vestibular problem was more probable than not to be unrelated to the head trauma. Similarly, for a situation in which a plaintiff complains of dizziness immediately after a tap on the shoulder, one might reasonably conclude that although the timing might be appropriate for causation, the mode of injury is inconsistent with the pathologic condition observed. Consequently, one would accept as more probable than not, that the shoulder tapping did not cause the dizziness. The 2 main questions to be answered are the following:
- 1.
Is the mechanism of trauma appropriate for the injury?
- 2.
Is the timing appropriate to link the pathologic condition to the alleged incident?
A word of caution is that it is inappropriate to take the patient’s (or the attorney’s) word for the mechanism of injury. You are the expert, and it is your job to make this determination. Both the patient and the attorneys (defense and plaintiff) have a significant stake in the outcome of your determination. Remain objective and verify anything you are told with objective findings, such as the medical record or test results.
Prognosis
After determination of the objective pathology, causation, and probability, the next step is determination of the prognosis. In this regard, you need to consider the average, that is, the best and the worst-case scenarios. You also need to consider sequelae that may be many years in the future. For the patient who has been seriously affected, this litigation may be their only chance for monetary recompense. The basis for the plaintiff’s award is entangled in the prognosis. Any future medical and nonmedical needs should be considered. A recent conversation with a plaintiff’s attorney was enlightening. I had seen his patient and treated her benign paroxysmal positional vertigo (BPPV). I informed him that he had a good case and that his client was already cured. He took this information as a good news/bad news moment. He had a good case, but because the client was cured, there would be little monetary award for future medical or other needs.
Dealing with Lawyers
Many physicians mistakenly believe that attorneys who hire an expert want that expert merely to support their case, a “hired gun.” Although this belief may be true for a small minority of attorneys, our experience has been quite the opposite. Some of the most thankful attorneys were the ones to whom we had to give bad news. Plaintiff attorneys sink a lot of their own money into their cases, and the amount of money invested is often substantial. The last thing a plaintiff attorney wants to do is to get all the way to a trial (read: large outlay of his own money on an expensive court trial) and then finally find out that his client is malingering. Similarly, a defense attorney who finds out that the plaintiff is legitimate and will likely win at trial is much more willing to offer a generous settlement in pretrial negotiations rather than risk losing at trial.
Basic principles
Physician Role: Patient Advocate Vs Advocate/Agent of Court
As physicians we find ourselves in the role of patient advocate for several different causes and are taught that this is our role as physicians. We advocate for their best interests in relieving their suffering and preventing further harm to their health. We advocate for them to get insurance approval for appropriate health care, and we advocate for their disability application when appropriate. These roles are all ethical and, indeed, laudable positions to find ourselves. However, when we are in the role of expert witness, we are no longer in the role of a patient advocate. When we take on the position of a medical expert, we are, in essence, enjoined as agents of the court, and our role is to provide truthful and objective assessments of an individual’s physical condition. To advocate for the patient in this situation would be unethical. This fact is important to keep in mind because the patient’s best interests may not be aligned with the best interests of the court and society as a whole.
Extensive Documentation of History and Physical Examination
Extensive documentation of the history and physical examination is an important first step in the evaluation of those who are involved in litigation. Experience has taught the authors to use an extensive pre-visit questionnaire to document the patient’s responses in their own handwriting. This questionnaire is filled out in our office waiting room, signed by the patient, dated, and witnessed by one of our staff members. This questionnaire is important to document because so many of our medical opinions and diagnoses are based on information garnered from the history. This procedure may seem elaborate, but there will be times when the patient will later deny statements made in the office. Without documentation to the contrary, the expert will either be forced to change his opinion based on this “new” historical information or will be caught in a “my word against his word” confrontation. Of course, if the above-mentioned documentation occurs, any future changes in the medical history are problematic for the patient and will denigrate his reliability. Any historical information provided by the patient (or the attorney) must be corroborated by medical records, physical findings, test results, and so forth. Memory is often swayed by potential million-dollar settlements. At the same time our intake questionnaire is completed, we have the patient sign a consent form for evaluation and testing, which includes consent for photograph or video documentation. If this is not signed, we do not see the patient.
Extensive Objective Testing to Verify Complaints
Do not be cost-conscious. In this day of escalating health care costs, many physicians have been made ever so aware of ordering unnecessary testing. However, in the context of litigation, the concern of being cost-conscious is misplaced. A complete and thorough evaluation including history, physical examination, audiological testing, vestibular testing, imaging, and any other ancillary tests needed is unlikely to exceed $10,000. Any (non-nuisance) litigation concerning dizziness almost certainly seeks redress exceeding several hundred thousand dollars and frequently exceeds a million dollars. Consequently, the costs of the evaluation by the medical expert in these cases are almost always negligible. If an attorney is reticent to proceed with a full evaluation because of the costs, this is a good clue that he does not have a case and is looking to settle for a nuisance fee.
Corroboration of Objective and Subjective Findings
Because litigation involving the complaint of dizziness often involves the possibility of very large monetary awards, there is considerable incentive for plaintiffs to malinger or to exaggerate their symptoms. Lawyers, judges, and juries are also aware of these factors, sometimes more so than physicians. Consequently, it is imperative that any subjective complaint be verified objectively and quantified as best as possible. This process will often either bolster the plaintiff’s case or destroy the case entirely. However, sometimes the result is a mixture of these outcomes, helping some aspects of the case while harming the others. To the expert witness, whatever the result, it should not matter.
Make Sure All Pieces Fit: Do Symptoms and Severity Correlate with Objective Findings?
Among dizzy patients who are undergoing litigation, approximately 25% will have symptoms that are corroborated by objective testing and 25% will have nonphysiologic test results, with no objective findings to corroborate their subjective complaints ( Fig. 1 ). These 2 groups would seem to be fairly straightforward—one group that seems to be fairly honest and legitimate and the other group that is highly suspicious for malingering. However, there is another larger group of patients representing approximately 50% of litigating patients complaining of dizziness who have characteristics of both–some verification of subjective findings by objective testing and some nonphysiologic results suggesting malingering or exaggeration. Putting all 3 groups together, one could reasonably say that 75% of all patients complaining of dizziness and involved in litigation are either malingering or exaggerating their problems. Or, one could also reasonably state that 75% of these patients have a legitimate pathologic condition. Both statements would be correct. Separating the true pathologic condition from exaggeration is the main role of the expert witness.
