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Some patients referred for treatment in a pain management clinic
will be involved in workers’ compensation cases, disability
determination cases, or malpractice suits against other physicians. Physicians
may choose not to see such patients. This is permissible as long
as there has not been the prior clear establishment of a physician-patient
relationship. If this relationship has been established, patients
may charge abandonment by the physician who refuses to see them.
It is more appropriate to exercise this judgment during the prescreening
process. An appointment request from a patient’s attorney
or compensation board makes the situation clear. Often, the letter
from the referring physician will contain information relative to
this point; or an inquiry can be made to the referring physician.
The use of a medical history questionnaire to be completed by the potential
patient before the first appointment is common. Included, if desired,
can be the question, “Are you involved in a compensation
case or medical malpractice suit related to your pain condition?” In
situations in which a prescreening questionnaire is used, the question
of exactly when a physician-patient relationship is established
may arise. It is not clear from case law whether making an appointment
constitutes a relationship or whether the patient actually must
be seen by the physician. For those sufficiently concerned on this
point, having the patient complete and return a questionnaire before
being given an appointment would seem to be the most logical course.
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Workers’ Compensation
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The American system of workers’ compensation was developed
to help relieve the financial impact of a work-related injury. It
is an alternative to tort litigation and was developed as a no-fault
system. Benefits may include medical care and rehabilitation as
well as cash payments. There has been some concern that the workers’ compensation
system encourages malingering. In some studies, when return to work
time after a work-related injury in US workers was compared with
similarly injured patients in other countries, the time of return
to work was longer in the US workers. Such factors as job satisfaction,
stress, and amount of compensation may also have an impact on return
to work status.17
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Tort litigation is a negligence-based and fault-based system.
In the current American system of tort litigation, patients can
recover damages for alleged injuries, which may include pain and
suffering in addition to economic damages. Subjective pain and suffering
are difficult to quantitate or determine when the patient might
be fabricating or exaggerating his or her pain. It may be difficult
to determine when the patient is misleading the physician. Jury
awards for these types of damages have fluctuated widely in amount,
and have produced huge awards in some cases.17
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Whether pending litigation has an impact on outcome is controversial.
Some practitioners recommend caution in treating these patients,
believing that improvement with treatment is reduced in these individuals.
Since permanent injuries tend to be compensated with larger awards
than temporary injuries are, this may present some incentive to
prevent rehabilitation. Some studies have shown much higher costs
in treating comparable injuries in those patients having pending
compensation issues, compared with those who do not. It has historically
been presumed that pending litigation or disability compensation
for pain-related injury encourages functional impairment and compromises
rehabilitation effort.
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Some authors speculate that patients do not want to admit to
experiencing improvement in their pain problem after being involved
with litigation or disability claims, in fear that they will be admitting
fraud, or that they will be accused of fraud. Others may be concerned
that their benefits might be reduced if their case is reviewed in
the future and they have shown improvement.18
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In one study, patients with chronic low back pain were entered
into a multidisciplinary pain management program. This program involved
exercise therapy, cognitive restructuring, relaxation therapy, and
coping skills. Measures of impairment (measured by flexibility,
pain, and muscle endurance) and disability (measured by exercise
fitness) were improved in the group as a whole. However, handicap
(measured by sickness impact profile scores) were much higher in
the patients involved in litigation. The authors speculate that,
while the litigant group had improved impairment and disability,
the factor of ongoing litigation impedes the restoration of function
to their lives.19
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Patients’ perceptions about the cause and treatment
of their pain may influence their response to treatment. In one
study, perception of fault was evaluated in patients with chronic
pain. Patients who felt that their pain was someone else’s
fault (employer, physician, etc.) had more current distress, less
expected improvement from treatment, and a higher incidence of worsened
condition from a previous treatment. These negative effects were
highest in those patients who felt that their employer was at fault.20
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Some authors feel that evidence of the philosophy that compensation
and litigation promotes poorer outcome with treatment is somewhat
controversial. In reviews of the literature on the effect of the
compensation and litigation on low back pain and pain secondary
to whiplash injury, the findings are somewhat equivocal, depending,
in part, on the patient population studied and the oucome critieria.
The type of compensation and litigation may influence return to
work status. Some studies have shown that litigation affects return
to work in workers’ compensation claimants but not in other
insurance claimants.
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In one study that evaluated litigation status in patients with
whiplash injury, litigation status (current versus postlitigants)
was not predictive of employment status. The authors speculate that
their results (which are different from several other studies) may
be different because of study design. Only one type of pain problem
was studied, and only one type of litigation was involved (tort
litigation).21