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Kill Pro's and Con's

Updated: Jun 21, 2023

A pro's and con's list has been the mainstay of injury evaluations for as long as anyone cares to remember. There may have been a time when this approach made sense. However, that time has passed. Medical costs are being inflated in ways they weren't before and injuries are being exaggerated in ways that traditional "pro's and con's" points no longer address.

So why does a pro’s and con’s approach not work anymore? There are several reasons:

  1. The lists are generic. The same points tend to be made over and over. This makes them predictable and easy for plaintiff attorneys to anticipate. Plaintiff attorneys know them well and know how to readily dismiss them.

  2. They lack persuasive detail. More appropriately, they lack evidence to support the point that is being made. A "pro" or "con" is a point of argument. Without evidence, however, an argument has no impact. For example, while it's most likely accurate to take the position that physical therapy that went on for 22 weeks was excessive because it would be justified in only the most serious injuries, the argument will have no teeth if you don’t have the evidence to demonstrate why the treatment was not medically necessary.

  3. They are overly broad. Pro's and con's also fail to capture a critical point, which is that a case is equal to the sum of its parts. But most pro's and con's try to characterize the claim overall and bypass its components. A case with a concussion, as well as neck strain/sprain with an emergency room bill, physical therapy and pain management care, has five individual components that each carry their own value and issues. To treat the claim as a single amalgamation makes it nearly impossible to make arguments that will have any impact. When speaking about the injuries, effective negotiation requires isolating the evidence that applies to the neck injury separately from the concussion. Likewise, claiming that the “meds are excessive,” while perhaps true, can only be argued provider by provider. Lumping physical therapy and pain management, for instance, into the same bucket doesn't address why each is overblown. The reasons why physical therapy and pain management costs are excessive will be different. This takes time and we understand that this is a precious commodity.

  4. It's not clear whether these are the pro's and con's of the plaintiff or defense case. In any claim, there are two distinct positions. The plaintiff's and the defendants. That is, the plaintiff will argue one interpretation of liability and damages and the defendant will argue a different one. But evaluations don't specifically lay out these respective positions. So when "pro's and con's" are enumerated, the natural questions should be "pro's and con's of what?"

How to Present Your Case  So what should you do? First, enumerate the claims of the plaintiff. What material impact on the claimant's life are they claiming establishes compensable pain and suffering? How are they supporting that? For the medical costs they are submitting, how will the providers demonstrate it is justified and reasonably priced? Casentric finds that in most cases, the medical facts to support these critical questions either doesn't exist or falls far short of the mark.

Second, build the defense position based on the evidence about causation, severity, treatment necessity and treatment costs as they apply to each component of the case. What does the evidence actually support?

Third, ask questions. It is natural to want to counter-punch when your position (or person) is attacked. Challenging positions on the justification of treatment or causal relationship of an injury will draw objections. Don't respond by telling the plaintiff attorney they are wrong. They don't believe you. Use the objections to get them to specifically state what their position really is. You can only seize that opportunity by asking simple questions like "So what medical facts will your provider rely upon to show that the MRIs were medically necessary?". You first have to know their answer to know how to resolve your differences.

This approach creates a framework for negotiation that's grounded in facts. It also anchors the discussions to YOUR position because it relies upon the facts. Instead of listing points that question the validity of the presumed plaintiff's case, state the case as the facts support it.

For example, a case with an MRI showing disc herniations in the upper and lower back, 3 months of treatment and an ER visit billed at $12,000 might be summed up as follows: "This is a case of a minor neck sprain that included an emergency room visit, has 4 weeks of justified chiropractic care, and 1 justified visit to pain management. The injury has a value of $1,000, the ER visit has a value of $2,450, chiropractic care has a value of $1,200, and pain management a value of $170."

  1. When challenged on YOUR case, ask the plaintiff attorney what EVIDENCE they have to show for you to consider a different amount. This turns the tables from you having to prove that their case isn't credible (a situation very difficult to win) to requiring the plaintiff attorney to present evidence that the case is worth more than you have offered. For instance, when they indicate that the ER bill is $12,000, ask ”How will the hospital demonstrate that their charges have anything to do with what they actually get paid?” Are they not aware that most hospitals can't really explain where their charges come from? But what about the disc herniations? Ask them to point to the specific evidence that demonstrates that the herniations are more than incidental findings. If you've done the type of analysis we do at Casentric, you will be able to shoot those claims down.....and you will be arguing from your position, not theirs.

  2. Change the case from innuendo to facts. For example, when you indicate that the bills are "excessive" and should be reduced, you are implying they are built up. If this is done without the proof to demonstrate treatment that was unjustified and charges that are specifically inflated, the argument will not carry weight.  This is why plaintiff attorneys almost always ignore it. Instead, when you argue a presumptive position from the facts, the discussion sounds like this: "The chiropractic treatment has a value of $1,200."  Most often we find that the facts show poor treatment planning, no responsive management of care and no measurement of progress. These are all requirements for demonstrating medical justification. When challenged that the chiropractic bill is $6,000, you should ask,  "What objective evidence do you see that the treatment was working?" and wait for the response. Since the facts are available to support your position, your job is easy.  What evidence do they have that it was justified?

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