Published July 31, 2016

Dear Professionally Integrated docs. This is a very important ruling!! You can read it all below here but basically this court ruling shows how we can determine injury IF we are good docs. Professionally Integrated gives you all the tools to be able to do this to help more patients.  Dr. Freeman just emailed this as he was one of the major reasons this has happened. Read his email to me here with all the links to court ruling as well as the process to determine causation on our patients.

Hi all,
About a year ago I wrote about a Federal Court case called Etherton that went through a detailed Daubert analysis of one of my peer-reviewed papers on the causation of crash-related disk injury. I was not a testifying expert in the case, but none-the-less had a vested interest in the outcome.

The defense had challenged the ability of a physiatrist to testify that a low speed rear impact had caused the plaintiff’s spinal disk injury. They used one of their frequent-flyer defense experts, an MD with an engineering degree, to assert that without knowing exactly what the forces of the crash were the treating doc couldn’t possibly know if the crash had really caused the plaintiff’s disk injury. Of course, all the defense expert knew was that disk injuries are never caused by any crash, so it’s difficult to see how a so-called biomechanical analysis had anything to do with his opinion.

Amazingly, the first judge in the case ruled that the doc would not be allowed to testify about causation. A full-blown Daubert hearing was held in front of a second judge (after the first judge was recused). At the hearing the doc testified that he had relied entirely on (and here’s the part that was of interest to me) the 3 step methodology described in my peer-reviewed paper on disk injury causation, published in 2009.

After a careful and extensive analysis, the judge ruled that the methods described in my paper were the generally accepted methodology for medical determinations of causation of disk injury following traffic crashes. There was a substantial award in the case as well as the addition of punitive-type damages (the award was trebled).

The defendant insurance company appealed the case to the US District Court of Appeals, and that decision was just handed down a couple of weeks ago (Etherton v. Owners Insurance Company). Quoting from the decision, the judges wrote about how the expert testified about the method described in our paper:

“In short, Dr. Ramos employed a three-step methodology to determine the injury’s cause. First, he determined whether it is plausible that a collision caused the back injury. This step is easily satisfied, he explained, because “[t]here is a lot of literature that shows very specifically if you get rear-ended, you injure your back. Yes, very specifically: disc herniations, facet injuries, absolutely.” App. Vol. V at 1475.

Second, he assessed whether a collision likely caused the specific injury by reviewing diagnostic studies, examining the injured person’s medical history and physical examinations, and determining whether the collision occurred just before back pain commenced. App. Vol. V at 1485 (“I would want physical exam findings that would coordinate; that would suggest a temporal relation of time…”).

“Third, he considered whether other, more likely causes produced the injury by reviewing the person’s medical history, physical examinations, and any other available information. He testified, “My methodology would include anything else that would be a more likely cause or a better alternative cause for the condition [a patient] was presenting [with]. And so that would include the intervening events, anything else essentially that would be a more likely cause.” App. Vol. V at 1487. He stated his methodology accounted for the possibility that degeneration caused Mr. Etherton’s injuries, and noted “the medical literature would suggest he’s at a higher risk for this [type of injury] due to those degenerative changes.” Id. Dr. Ramos testified the medical community generally accepts his methodology, which is based on peer-reviewed medical literature”

The Appeals Court ruling concluded that:

The district court noted that Dr. Ramos’s approach is generally accepted in the medical community for treatment. It carefully considered—and ultimately rejected— critiques of the methodology’s specific causation component. It explained that the methodology is similar to those previously found reliable in this circuit.  …We afford substantial deference to its reasoned conclusion that his testimony was reliable and conclude the court did not abuse its discretion.”

This is an important decision, as it is the highest court decision dealing with the methodology of assessing the cause of a disk injury following a traffic crash. More and more frivolous challenges are brought against treating docs who testify about the cause of their patient’s injuries, with the defense presenting the “gold standard” of a causal analysis as the junk science claims of an engineer who says that the crash was like activities of daily living and thus it could not have caused the plaintiff’s injury. It is valuable to now have an authority on the topic as acknowledged in medical, scientific, and legal publications. All clinicians who testify on crash injury causation should be furnished with a copy of my paper that the doc in Etherton cited to, as well as both the Federal Court and Appeals Court decision to understand the kind of challenges that are being mounted against clinicians’ ability to testify about causation.

The entire decision can be accessed from the Web here, and the original decision in Etherton can be downloaded here.
My paper that is cited in Etherton and which first describes the 3 step process of causation can be downloaded here.

Feel free to forward this e-mail.


Michael D Freeman MedDr PhD MPH FAAFS
Consultant in Forensic Medicine
Associate Professor of Forensic Epidemiology
CAPHRI School for Public Health and Primary Care
Maastricht University Medical Center

425 NW 10th Avenue, Suite 306
Portland, OR 97209
Tel: 971-255-1008
Fax: 971-255-1046
Cell: 503-871-0715

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