Transcript Slide 1

Causation
DUAL CHALLENGE FOR CLINICIANS
Gary J. Levine, Esq.
 Attorney at Law
 369 South Main St
 Providence RI 02903
 401.521.3100
 [email protected]
Steven G. McCloy, MD
Axiom Occupational Health, LLC
100 Smithfield Avenue
Pawtucket, RI 02860
401.312.0545
[email protected]
Clinical Assistant Professor of Medicine,
Brown University
Disclosures
I/we have no financial interests relative to this
presentation.
Causation
• Dorland’s Medical Dictionary on-line
– No entry
• AskOxford.com
– noun 1 the action of causing. 2 the relationship between
cause and effect
• Merriam-Webster.com
– the act or process of causing b: the act or agency which
produces an effect
• LegalLawTerms.com
– CAUSE , contra torts, crim. That which produces an effect
(no “causation”)
What About Wikepedia?
• Causality denotes a necessary relationship between one
event (called cause) and another event (called effect)
which is the direct consequence (result) of the first
• Causation is the "causal relationship between conduct
and result." That is to say that causation provides a
means of connecting conduct, complete with actus reus,
with the resulting harm or result element. It should be
noted that causation is only applicable where a result has
been achieved and therefore is immaterial with regards
to inchoate offenses.
You Say “Tomatoes” and I say “Tomahtoes”
Patient developed
knee pain while
walking back to the
cash register.
Causality: workrelated.
CLAIMANT'S KNEE STRAIN IS
IPSO FACTO AN ON-THE-JOB
INJURY. EMPLOYER FAILED
TO REFUTE THE CAUSAL
NEXUS,
ESTABLISHED BY
CLAIMANT'S EVIDENCE,
THAT HER INJURY WAS NOT
THE RESULT OF AN
IDIOPATHIC EPISODE.
• We (clinicians and the legal system) have a different
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language.
We have a different burden of proof.
We work in very different environments with different
cultures, rules of behavior, measures of success, etc.
We share a bond of confidentiality.
We have common threads of advocacy.
We have multi-party obligations.
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Attorney to the client and the rules of law
Clinician to the patient and, in the case of the occupational
clinician, to the employer and insurer
• Clinical [scientific] “proof” is
legal proof
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P < 0.05
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“Reasonable degree of medical certainty”
51%
Respondents
PAULS VALLEY TRAVEL CENTER v. BOUCHER
2005 OK 30 112 P.3d 1175 Case Number: 100169 Decided: 05/03/2005
THE SUPREME COURT OF THE STATE OF OKLAHOMA
 Claimant Boucher in Dec 2002 slipped on some grease on the floor of
Paul’s Valley Travel Center. She did not fall. She was walking to put a
gift with other personal belongings. She experienced pain and swelling,
did not seek any medical attention and had not lost work time. May
2003 while walking to serve some customers her knee “gave out.” There
was no obstacle and she was carrying nothing. She did not slip or fall.
There was no undue physical effort. Because of severe pain, she sought
medical attention.
 She has a non-work-related injury in 1999, “possibly an internal
derangement.” Her cross-examination testimony was “confusing as to
whether she periodically encountered problems with that knee after the
1999 injury.”
The Jurisdiction Determines the Definitions
• In Rhode Island,
• “Injury” means and refers to personal injury to an
employee arising out of and in the course of his or
her employment, connected and referable to the
employment.
§ 28-29-2 (7)(i)
• DID BOUCHER HAVE A PERSONAL INJURY?
• Do pain and swelling constitute an injury?
• Was walking to her personal belongings part of the essential duties
of her employment? Is this a “deviation”?
• Is “giving out” of a knee an injury or a symptom?
• Did Boucher has a pre-existing condition?
Causation—
Occupational medicine practice guidelines. 2nd edition. LS Glass ed. OEM Press, 2004.
Medical Causation is
physical or biological in
nature.
The legal definition may vary
from state to state and
between states and the
Federal law.
Legal Causation has two
components:
1. Cause in fact: the
occurrence of an event
brings about a result
2. Proximate cause:
relates to the
predictability or
remoteness of an
event.
Boucher
Injury?
Injury?
Evidence:
•Pain and Swelling (first
time),
•Second injury, giving way
• MRI for medial
meniscal tear
•What about prior
abnormal anatomy?
Cause in fact?
Proximate cause?
Arising out of and in the
course of his or her
employment?
Connected and referable
to the employment?
Case #2
The Leaky
Secretary
Case #2: The Leaky Secretary
 Thanks to Dr. K Kimball (Dartmouth-Hitchcock)
 A 50 y.o. school secretary with stress incontinence
had an accident. She went to the restroom to change
her underclothing. She reported that she had
twisted her ankle in the restroom and that this was a
work-related injury.
Case # 3
Case #3: Latex Paint Exposure
• A nurse with a history of latex allergy worked in a
hospital where the walls were being painted. She saw
her primary care physician who sent her home for a
work illness of latex exposure.
• An occupational /environmental physician did a
consultation and confirmed that she should not
return to work until the exposure risk had ended.
• Work Illness?
There is no
latex in “latex”
paint
[We should all groan at this point because low back pain
is so common, so difficult and so important.]
Case #4: Low Back Pain
36 yo carpenter strained his back at work.
•PCP puts him to bed with meds, then gets MRI
•MRI shows a bulging disc along with disc desiccation
•He is deemed an independent contractor with no workers’ comp
forms and no lost wages
•When he is about to lose his health insurance, he consults an
attorney who suggests an orthopedic consult
•Orthopedist starts physical therapy
•Neither PCP nor orthopedist completes WC report papers or
mentions causality
•After six weeks of work absence, the employer advises the
carpenter that “there is no work for “ him.
Case # 4
NIOSH process for
determining work relatedness
1.
2.
3.
4.
5.
6.
Evidence of Disease
Epidemiology.
Evidence of exposure
Consideration of other
relevant factors
Validity of testimony.
Conclusion
1.
2.
3.
4.
5.
What is the disease? How certain
are you? What evidence
supports/does not support the
diagnosis?
What is the epidemiologic evidence
for that condition? Is there support
for a relationship to work?
Is there evidence that exposure was
of frequency, intensity and
duration to support workrelatedness?
What other factors are present in
this case?
Is there information to suggest that
the history, etc. are inaccurate? Is
there corroboration?
Source: Glass, p. 60.
Case #4
Is there evidence of
disease?
Bulging discs are seen in MRI in 54%
of normal subjects under the age of
60. This rises to 79% of normal
subjects over the age of 60. In other
words, these subjects had no back
pain for did have bulging disks on
MRI. Bulging discs by themselves do
not mean that there is a surgical
problem in the back.
Boden, SD, Davis DO, Dina TS et al. 1990. Abnormal
• (MRIs
of the lumbar spine in asymptomatic subjects. J
•
Bone Joint Surgery 72A:403-8.
Is “degenerative disk
disease” a “disease,” or is
it a factor of normal aging
processes in the spine?
• Studies of normal people
with NO history of back pain
lasting more than 24 hours
show that one-third of
people under age 39 have
DDD. In those aged 40-59,
59% have DDD. Over age 60
shows DDD in 93% of MRIs.
Boden, SD, Davis DO, Dina TS et al. 1990.
(Abnormal
MRIs of the lumbar spine in
asymptomatic subjects. J Bone Joint
Surgery 72A:403-8.
Case #4
Is there epidemiologic
evidence to support this
diagnosis?
Is there evidence of
exposure?
Case 4
• Yes.
– He had an event
– His back hurt after that event
• No
– Is backache an injury?
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Before the 1800’s and the
advent of the railroad
industry it wasn’t
Fast speed of the train
inflames the spine
Canadian study of 11,000
patients concluded that low
back pain is generally not
precipitated by a clearly
defined injury
Hall, H, et al. Spontaneous onset of back pain.
Clin J Pain 1995;14(2):129-133.
Are there other relevant factors
that might affect causality?
• Prior injury? Prior back
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pain?
Cigarette smoking
Psychosocial issues
Age and gender
Posture
Other spine disease
Low education and income
levels
Elevated Score of Scale 3 of
MMPI
Small JW and CM Kalina. Facilitating return
to work: Transitional duty and case
management. In, Derebery J and JR
Anderson. Low Back Pain. 2002 OEM
Press.
Case 4
 Is the testimony valid?
 Is there Cause in Fact?
 Is there Proximate
Cause?
Discussion, Argument, Debate, Thoughts?
Thank you for
your
attendance
and attention.