Case Vignette
Hand Injuries Can Be Difficult To Assess

Next to the brain and the eye, I regard the hand as being one of the most complex anatomical structures that humans possess.  The precise placement of bones and the astonishing array of tendons, ligaments, nerve and blood vessels all combine to form an anatomical unit capable of truly extraordinary pursuits.

The hand can remove a small bead from a nostril and wield a sledgehammer to smash a large rock.  The wrist, the hand, the thumb and the lesser digits all combine in a most magnificent way.  Mathematical formulae have been used to describe the synchronous movements involved in dextrous activities.

Unsurprisingly therefore, serious hand injuries can have major adverse consequences.  Assessing these compromises requires special skill on the part of the expert reporter.  These consultations can take considerable time.

The AMA 5 Guides (Chapter 16 in particular) provide considerable guidance for the expert reporter.  Every joint is assessed individually, every tendon and nerve function has been allowed for, variations on radiographs have been described and functional components can be considered either in isolation or in concert.

Dominance or non-dominance of the limb is important, as are other factors such as the prior education, training and work experience of the plaintiff.  A right handed barrister who loses his left hand in a chainsaw accident will obviously be unhappy about the outcome but not so severely disabled as a concert pianist.

The medicolegal assessment of hand injuries is amongst the most complex tasks that an orthopaedic surgeon can be asked to perform.  You should ensure that your expert is up to the mark.

Lead Article

How Complex Can Complex Matters Get?

It is obviously a rhetorical question. How deep is the ocean, how long is a piece of string, when will the car journey as a child every end?

Causation is a case in point. Quite often, it is relatively easy. A chainsaw through a thigh, an axe in the back of the head, being crushed beneath a steamroller or swallowing a live hand grenade can all be expected to give rise to serious and obvious injuries. Conversely, some patients may suffer with quite serious conditions of essentially unknown cause or aetiology.

I recall examining a woman whose first pregnancy was complicated by quite severe osteoporosis involving one hip. Although she was relatively young, she did have a number of significant comorbidities, some of which could be associated with osteoporosis. Usually however, osteoporosis is of a global nature and not linked specifically with one focus only. She suffered a fracture of the hip near the end of her pregnancy and was subjected to a joint replacement. Complications ensued and the outcome was far from desirable.

Her litigation focussed upon the inadequacy of a diagnosis, the delay in actually making a diagnosis and the delay in instituting a proper therapeutic regimen. The quality of the therapeutic regimen was also questioned.

In the absence of an identifiable cause, it was difficult to subsequently find a breach in the diagnostic or therapeutic processes. Although the outcome was obviously adverse, in the absence of that link between the duty of care and the care that was provided, the claim for negligence was understandably quite elusive.

Measuring impairment can also be extremely difficult. We usually refer to tomes such as the American Medical Association publication entitled “Guides to the Evaluation of Permanent Impairment” (5th Edition) or other similar publications. These guides are no more than that – they are just guides. They often rely heavily upon the measurement of joint movement or lack thereof. These functional observations can vary from day to day or even hour to hour on occasions. On a very good day, a patient may have a permanent impairment of only 4%. On a bad day, that impairment could be three times higher.

The translation of impairment to disability is obviously very difficult and often unwise but such variation can also be witnessed in social, recreational, domestic and remunerative competence. It becomes extremely complex to determine the true state of a plaintiff and to advise the Court accordingly.

The solution to complexities is not avoidance. Instead, it is imperative that all options are considered and enunciated, that a best fit is chosen and that the reasons for choosing that options are explained clearly for all to see and read.

As openness increases and clarity becomes more obvious, so does complexity diminish. It has been my experience that experts who are able to distil complex matters to their essence are of most use to litigants and the Court.

GENERAL ADVICE 
Which Cases Should You Take On?

Obviously, this will vary according to your persuasion – whether you are acting for the plaintiff or the defendant.

From a plaintiff’s perspective, there are a few simple steps that should be taken. The first relates to the likelihood that an injury has truly occurred and that there is some measurable impairment or disability. If it sounds trivial at the outset, it may well be trivial. Conversely, if there is a cogent history of what appears to have been a major insult, then real incapacities and disabilities may occur.

Another step relates to the magnitude of the impact of the injury on the social, recreational, domestic and remunerative prospects for the claimant. Whilst significant scarring may have occurred, this could be on a part of the torso which is routinely covered by clothing and not visible to the claimant personally. It could be on the back, for example. It would therefore be of less importance than severe and multiple facial scarring on a young woman.

The prospects for success of the claim also depend to some extent on the perceived honesty and presentation of the plaintiff. Inconsistency, overreaction and embellishment can be sensed in some from the outset. If you can sense it in your client, it is probable that the medicolegal reporter will have antennae which are equally receptive.

From the defendant’s perspective, all of these similar rules apply. If there is a history of genuine injury, a well-documented sequence of events necessitating considerable therapeutic intervention and a cogent medicolegal report which attests to the veracity of the claim, fighting it may be a losing battle. The exception could be that the claim is excessive and unjustifiable. That is obviously an issue for you to assess. In general terms however, digging in the heels over tiny increments could be wasteful for all involved.

At the other end of the spectrum for the defendant lawyer is the claimant who may be classed as a recidivist. As many as eight, ten or even a dozen previous claims over the last few years would ten to raise some suspicions about genuineness. I am not about to say that a person could not be so unlucky but in general terms, as the number of claims increases, so does the likelihood of personal gain being a motive increase.

In essence, assess it all carefully, consider all options and make a value judgement.

A final step which I think could be very valuable for many is to call your favourite medicolegal reporter and ask for some ad hoc unofficial advice. A 15 minute conversation could make the difference and save months, if not years, of fruitless expense.

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