Thin Skull Principle: For Lawyers Advocating for Injury Victims
At Stanger Healthcare, we work by the “Thin Skull Principle,” otherwise stated as: “You take your victims as you find them.” In a legal setting, if a defendant’s negligence causes someone harm, then the defense cannot argue that the victim was “not tough enough” to avoid injury.
To expound: If the victim had a pre-existing condition making the skull thinner than normal—and the defendant whacked the victim over the head and caused more damage than would have happened if the victim’s skull had been thicker—the defendant cannot blame the severity of the victim’s injury on having a “thin skull.”
For lawyers, this is an important point: the defense in a liability case frequently tries to place blame on the victim for some pre-existing condition, but the “thin skull principle,” while not removing the pre-existing condition argument altogether, should deflect blame from the victim. The defense will still likely try to argue that the victim’s pre-existing condition may have been a factor in the injury.
Therefore, lawyers advocating for recently-injured victims need to bolster their case with another key piece of evidence: accurate and detailed diagnosis of the victim’s condition from the treating physician.
Proper Injury Diagnosis Can Help Victims in Court
Currently, Chiropractors in South Florida and around the country use a one-step ICD-9-CM (which will soon be advanced to ICD-10-CM) diagnosis code on billing and claims forms. To assist injury victims during the diagnosis phase of their recovery and court proceedings, 3 simple steps can be added to give victims’ lawyers more data to work with:
- Impressions—Usually found in doctor’s notes, radiologist’s reports, etc. these impressions include the details of the patient’s condition upon examination and testing.
- Treating Diagnosis—Treating diagnosis and complicating factors (below) need to be separated properly by the treating physician for claims/legal purposes. For example, if a 60-year-old woman comes in for diagnosis and treatment of an auto accident injury, the treating diagnosis may be “cervical sprain/strain” and “thoracic sprain/strain”.
- Complicating Factors—The woman may also have already been suffering from and receiving treatment for diabetes and degenerative disc disease, both of which may have impacted the car accident injury.
This three-step process provides all parties a clearer understanding of the patient’s condition. For legal purposes, the defendant or insurance company should be responsible for the conditions listed under “treating diagnosis” (the cervical and thoracic sprain/strains), but not the degenerative disc disease or the diabetes.
There may still be points of argument, however. Physicians have taken an oath to treat “the whole patient” and creating separate billings for just the accident-related injury vs. the pre-existing conditions can be murky, particularly as the degenerative disc disease treatment and treatment for the injuries may overlap. Insurance companies and courts struggle with these distinctions. This is why Stanger Healthcare provides extremely detailed impressions, treatment diagnoses and complicating factors notes that lawyers can use to best prepare to advocate for their clients.
If you have any questions, please contact us at 866-426-3876