The Big Picture

The big picture is this – Peeples wants to talk about secondary gain and malingering without getting his hands dirty.  It has been my experience that if he has not seen the patient/client, he will not directly accuse them of seeking medical treatment for secondary gain or being malingerers.  He just wants to talk generally about the concepts without making the actual accusation.  If Peeples will not offer an opinion that secondary gain or malingering is involved in the present case, then any attempted testimony of this nature should be excludable based on the Arkansas Supreme Court holding of Rodgers v. CWR Construction, Inc., 343 Ark. 126, 33 S.W.3d 506 (2000) and Dowden v. Garcia and Collins & Associates, Inc., 2007 U.S. Dist. LEXIS 27579.

            Peeples tries to bolster his secondary gain/malingering position by citing medical journals.  In a recent report he cited two articles I had not previously seen him cite.

            Here is how the first article came up in his report:

            As indicated in the following paragraph of meta-analysis, it is my recommendation that no surgery be performed while the case remains open.  This avoids a situation summarized by Dr. Hadler when he stated: “If you have to prove you are ill, you can’t get well” (Spine 1996; 21: 2397-2400)  I agree with this statement.  I have observed these dynamics in my clinical practice.  Resolution of illness behavior should not be expected until litigation matters are concluded.

            First, his quote is a partial take on the title of the article.  The full title is: “If You Have to Prove You Are Ill, You Can’t Get Well: The Object Lesson of Fibromyalgia.”  This was a big distinction in my case which involved an orthopaedic injury without a single medical record referencing fibromyalgia.

            However, if your case does involve fibromyalgia, soft tissue injuries or ligamentous injuries, this article should serve you well.  The premise of Dr. Hadler’s article is that society has made the plight of those suffering with fibromyalgia worse by challenging whether or not they are truly ill.  Dr. Hadler contends that fibromyalgia patients are put through the wringer to an even higher degree in the context of torts.  The following section is particularly telling:

The Vortex of Disability Determination. The industrialized world is fast approaching the end of a century-long experiment in disability determination.  I have argued that the experiment is a failure.  Disability determination as practiced currently is designed to obviate the need to trust anyone who asserts that his or her earning capacity is compromised. Instead, we are to rely on the more objective quantification of impairment. If one quantifies the magnitude of disease (impairment), can one predict the quantity of illness? even the illness of work incapacity? So goes impairment-based disability determination, the holy grail of the Social Security Administration, of indemnification under Worker's Compensation, and of determination of awards for tort litigation. The construct has attained the status of common sense despite the fact it is a sophism.

What happens when the impairment is judged less than sufficient to account for the illness of work incapacity? Then, the "impairment rating" construct assaults the veracity and pari passu, the sense of invincibility of any claimant. That poor soul has to convince many who doubt-including physicians paid to perform "contracted examinations" and "independent medical examinations" for agencies whose interest is vested in questioning the veracity of the claimant's symptoms.  When there is no demonstrable impairment, when the illness is a pervasive sense of vulnerability and of disaffection, "impairment rating" schemes for disability determination turn into a vortex of escalating vulnerability and disaffection.  Very few recover.

(emphasis added)  Our clients are the poor souls Dr. Hadler had in mind when Peeples performs his records reviews or IMEs.

Also, it should be pointed out that Peeples did not state that my client’s records gave any indicator of the “dynamics” which he had observed in his clinical practice or that she suffered from “illness behavior.”

Here’s how the second article came up:

Meta-analysis of 211 published articles established in medical science the following: “Compensation status is associated with poor outcome after surgery.  This effect is significant, clinically important, and consistent.” (JAMA April 6, 2005, Vol 293, #13, 1644-1652) I agree.  I have recognized this in my own practice.  The probability of poor outcome should be strongly considered when elective surgery for pain is considered in a compensation or litigation situation.  Unless surgery offers a decided advantage over conservative non-operative treatment in such cases, it should not be performed until legal issues resolve.  After conclusion of litigation confounding factors negatively influencing surgical outcomes are no longer present.

First, his quote is a partial take on the article’s conclusions.  The full conclusion is as follows: “Compensation status is associated with poor outcome after surgery.  This effect is significant, clinically important, and consistent.  Because data were obtained from observational studies and were not homogenous, the summary effect should be interpreted with caution.  Compensation status should be considered a potential confounder in all studies of surgical intervention.  Determination of the mechanism for this association requires further study.”

(emphasis added)  The restrictions of the conclusion are significant.  The meta-analysis is further constrained by the fact that only studies involving workers’ compensation claimants and workers’ compensation claimants with litigation were studied.  There were no studies analyzed involving plaintiffs without work related injuries.  Also, not all studies were conducted in the United States – Canadian and European claimants had much higher rates of unsatisfactory results than Americans; Australians had lower rates than Americans.  Finally, the analysis only considered specific surgical procedures.

Another constraint of this analysis is the reference to secondary gain.

Attributing the effect to secondary gain implies conscious or unconscious illness exaggeration by patients who receive compensation.  This has been explored previously and, although evidence of conscious exaggeration of symptoms exists, it probably only accounts for a small proportion of the difference in outcomes.

(emphasis added).  I believe anything the article gives is quickly taken away by stating that only a small percentage of people are consciously exaggerating.

Another area of interest is the fact that Peeples will generally testify that all/most of his patients were satisfied with the surgical procedures he performed.  During his deposition in this case, he stated that he was unsure whether his patients had ongoing litigation when he performed surgery.  I think he will have a tough time explaining how he saw “compensation status” behavior in his practice when he will admit that in most cases he wasn’t aware when his clients had pending workers’ compensation cases or personal injury cases.

Again, Peeples made no specific reference to my client’s “compensation status” in his report.

In conclusion, if Peeples is unwilling to give a definitive position on whether your client has secondary gain, is a malingerer, has “illness behavior” as referenced in the Spine article, or is having a poor surgical outcome due to their “compensation status” as referred to in the JAMA article, then trial judges should grant motions in limine filed by plaintiff’s counsel to exclude this line of testimony.  There is also a strong argument that the articles themselves should be in limined out under Daubert as they don’t help the trier of fact decide an issue at hand in the case.

Alternatively, if trial judges let Peeples testify based on the above two articles, then there is enough fertile ground in the articles to make hay with Peeples on cross examination.

Carter C. Stein
Attorney at Law