Nelson Tyrone, Tyrone Law Firm

by Nelson Tyrone, Attorney At Law ©2012

(reprinted with permission)

The purpose of this article is to offer an overview to lawyers of some of the key issues involved in obtaining significant settlements and verdicts on behalf of clients suffering from Reflex Sympathetic Dystrophy (RSD). Helping adjusters, judges and juries understand our client’s injury presents several unique challenges that, if not overcome, can leave our clients without significant recovery and, therefore, without necessary medical care. My hope is that this article can offer lawyers who are currently representing clients suffering from RSD the benefit of some of what we have learned from several years of RSD settlements and trials.

Some background on RSD

RSD is a debilitating and life-changing condition. It is a chronic pain syndrome wherein a traumatic injury and the sympathetic nervous system combine to create an excruciating cycle of pain. RSD was first recognized in 1872 by a doctor treating soldiers from the Civil War. The soldiers had bullet wounds or bayonet injuries that would heal completely, but the patients would continue to report excruciating pain. They would often show signs of swelling, discoloration, and temperature or skin changes. He called the syndrome “Causalgia.” Doctors have refined the nomenclature to refer to the disorder as Reflex Sympathetic Dystrophy (RSD) or the more modern label of Complex Regional Pain Syndrome (CRPS). I continue to use “RSD” to refer to the disorder, as clients and jurors prefer it.

Some basics

RSD begins with a traumatic injury. The injury can be severe or mild. In fact, the initial injury is often a minor trauma. Our firm has represented clients whose RSD began with injuries ranging from fractures, crush injuries and burns to bruises and needle-sticks. The medical literature includes cases of RSD resulting from sprains and even bee stings. How that initial traumatic injury develops into RSD is largely a mystery to doctors. For most people who suffer a traumatic injury, the injury eventually heals. But for roughly 1 out of 1,000 people the injury triggers the sympathetic nervous system and sets off a pain “loop” where the pain signal travels from the initial injury site, through the nervous system, then back to the site – keeping the initial injury and the pain response constantly agitated and inflamed.

RSD patients describe their pain as a “burning” pain that can rise and fall throughout the day. In fact, the burning characteristic of the pain is the hallmark of RSD. Throughout the day the RSD pain can remain around a “2” or “3” on the pain scale. However, when the pain “spikes” (because something touches the injury, or the sympathetic nervous system is triggered by stress, anxiety, temperature change or activity) the pain can be excruciating. Men compare RSD spikes to the pain of a kidney stone. Women compare it to the pain of childbirth.

How doctors make the RSD diagnosis

RSD is a classic diagnosis of exclusion. This means that doctors must “rule out” more common causes for the symptoms they are seeing with a patient who has RSD. Because RSD always begins with trauma, the doctor making the earliest diagnosis of RSD is often an orthopedist, neurologist, or even a general practice doctor treating a patient for a traumatic injury.

Many patients follow a similar treatment pattern:

• 1. Traumatic injury;
• 2. Injury “heals” but patient continues to complain of severe (usually “burning”) pain;
• 3. Patient is noted to be “hypersensitive” in the area of the initial injury and may “guard” the injured limb;
• 4. Doctor questions why patient is still complaining of pain (considers “somatoform”);
• 5. Patient may show objective signs of RSD including extreme sensitivity to touch, swelling, excessive sweating, tissue discoloration, skin and nail changes, temperature differences between the RSD limb and the uninjured limb;
• 6. Doctor refers patient for a “rule-out” of RSD;
• 7. Eventually the patient is referred to a “specialist” (usually an anesthesiologist/ pain management doctor or doctor of physical medicine and rehabilitation).

This time-line can take patients months and often more than a year from the initial injury date to RSD diagnosis.

Capture the criteria

Even after the client has been diagnosed with RSD, explaining RSD to a jury and helping them understand that RSD is “real” can be challenging. The lawyer must make the disorder and the diagnosis simple for the jury to accept. We have found that the first way to do this is to identify a single diagnostic criteria and embrace it with every witness. There are several versions of the diagnostic criteria repeated throughout the medical literature describing RSD, but the most widely used criteria for diagnosing RSD are those promulgated by the International Association for the Study of Pain (IASP). (A more recent revision of the IASP criteria is referred to as the “Budapest Criteria.”) There are two types of RSD under the IASP Guidelines. Type I does not involve an identifiable injury to a nerve. Type II does.

Whether your expert and treating doctor feel more comfortable with the IASP or the Budapest criteria does not matter. They both adequately represent the state of the art in diagnosing RSD. However, you must chose a criteria and stay with it. Put another way: it is hard enough for an adjuster or a jury to understand RSD without forcing them to deal with multiple criteria for diagnosing it.

Prove it (over and over)

Jurors, already skeptical of lawsuits (and people who bring them), are understandably skeptical about RSD. The signs of RSD are often invisible, and it can be hard to understand how an injury so “small” (cut, burn, needle-stick) could cause an injury so “big.” I start cases on behalf of RSD clients with a healthy respect for juror’s skepticism and decided long ago that I would err on the side of “over-proving” the injury. I use three primary tools to prove a client’s RSD to a jury: photographs, a checklist, and confirmatory medical testing.

Photographs

Many patients with RSD will have objective symptoms a jury can see. The challenge is that a client’s RSD symptoms (edema, red and shiny skin, or purplish skin – even sweating) come and go. We keep an evidence photographer on retainer to capture the physical symptoms whenever they present.

Checklist

Doctors diagnose RSD based on a combination of symptoms. It is important to demonstrate each symptom to the jury in a way they can remember. We comb the medical records and interview friends and family members for witnesses who have seen the objective symptoms of RSD. We then create a checklist that identifies when each of the IASP criteria have been met. Presenting a checklist educates the jury that all the symptoms do not appear at the same time but will appear on different days and thus be seen by different people. The checklist is also an important visual tool to show the jury that RSD is a real, diagnosable condition.

Confirmatory Testing

Throughout the years, physicians have attempted to use nerve blocks (stellate ganglion blocks or phentolamine injections), x-ray imaging (three-phase bone scans) and even NCV testing to confirm a diagnosis of RSD. Each of these methods produces high percentages of false negatives. The current state of the art in confirmatory testing is Isolated Cold Stress Testing (ICST) with laser thermography. This is, essentially, a sophisticated time-lapse imaging test that compares blood circulation in the RSD limb with the non-RSD limb under temperature “stress.” The testing generates a color thermograph image that allows the jury to “see” the changes in the RSD limb. Only a few hospitals in the country are able to do this testing, but it is powerful scientific and visual evidence.

Expert, treating doctor and life care planner (the three-legged stool)

For the clients whose RSD is permanent, I routinely see life care plans that include electrical implants (spinal cord stimulators, peripheral stimulators, intrathecal pumps), prescription medications, and “off-label” medications (Ketamine). These life care plans can often total several millions of dollars in future medical care and interventions. In order to recover the full value of the life care plan, it is critical that the treating doctor, the expert and the life care planner agree on the treatment contained in the plan. Our firm retains out-of-state experts and life care planners who often have 20-30 years experience with RSD patients. However, I have seen instances where well-meaning treating doctors can undercut a life care plan by millions of dollars simply because they are unfamiliar with the current state-of-the-art possibilities in RSD treatment. Therefore, it is imperative that your client do their own research and identify a doctor in their region who treats a large number of RSD patients, attends the national seminars, and is aware of these state- of-the-art RSD treatments.

Pitfalls (defense IME’s, defense experts and defense surveillance of your client)

Defense lawyers routinely rely on “expert” doctors who rely on outdated or improper criteria to rebut the diagnosis of RSD in your client’s case. I have seen several “experts” point to the AMA Guidelines (4th or 5th Edition) criteria for RSD that contain much more stringent “criteria” than the IASP or Budapest Criteria. This approach can be easily debunked. The AMA Guidelines contain several indications within the text that warn physicians against using the guidelines as a diagnostic tool. Another approach I have seen is an “expert” in an IME rejecting an RSD diagnosis because they did not observe all of the symptoms of RSD during their (often abbreviated) examination. Of course, no RSD patient will show the full range of symptoms on any given exam date. Finally, since the symptoms of RSD can come and go, the client will have “good” days and “bad” days. It is not uncommon for the RSD client on a “good” day to be able to grocery shop, drive a car or carry groceries with their affected limb. The Defense will often conduct secret surveillance of your client in order to show video of them shopping, driving their car, or picking up an object. We deal with this issue head-on. We educate the jury about “good” days with RSD, and our client always is given a chance to talk to the jury about what they can do on their “good” days.

In short

RSD is very scary for clients. It can be hard to understand for an adjuster or a juror. The fear of how to prove RSD can be scary for lawyers. However, RSD is very real, and our clients need our help. Our firm has learned that we can achieve multi-million dollar settlements and verdicts on behalf of clients with RSD when we do the work to educate the adjuster or juror on how “real” this disorder is. It takes painstaking work, and we must avoid the many pitfalls the Defense can create for us, but our clients deserve it.

 

Nelson O. Tyrone III

Trial Lawyer

1201 Peachtree Street, N.E.

400 Colony Square, Suite 2000

Atlanta, Georgia 30361

Phone: (404) 377-0017

Fax: (404) 249-6764

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If you have questions or want to make an appointment then contact us:Assistance available 24 hours a day, 7 days a week.

Contact us by telephone at 404-377-0017 or by email at ntyrone@tyronelaw.com.