SUMMARY: The prognosis for healing and recovery after Personal Injury is often central to Quantum of Damages. There is accumulating empirical evidence for the self-fulfilling power of client expectations about recovery from illness and personal injury. By exploring 5 beliefs, counsel for both claimant and defence will gain insights beyond those in medical reports. Whether changing expectations can change prognosis remains untested.
It is common experience that the outcome of soft-tissue injuries is extremely variable.
Common sense says that the client's beliefs about recovery influence outcome.
Is there solid evidence that expectations have a material effect on recovery from soft-tissue injury, other medical conditions and chronic benign pain?
Other Medical Conditions
There is accumulating empirical evidence for the self-fulfilling power of client expectations about recovery from illness and personal injury.
1 year after a heart attack, the factors that most predicted(1) exercise tolerance, habitual physical activity and duration of night's rest were the patient's opinion of his physical capabilities and his expectation of returning to work(2) at 3 months.
At 1 and 6 months after Coronary Artery Bypass Grafting, the factor that most powerfully foretold disability was the expectations of the patient(3), or what the researchers called "self-efficacy".
Results were similar for other types of cardiac surgery(4).
3 months after surgery for fractured hip, those elderly patients who had positive expectations had lost less mobility and were walking better(5).
For at least a year after surgery for Benign Prostatic Hyperplasia (enlarged prostate), positive expectations strongly increased the likelihood that patients would feel better after the surgery.
Of particular interest to Personal Injury counsel, Waddell et al. have shown that patients' beliefs about the effects of physical activity and work on Low Back Pain strongly affect consequent work loss(6).
In another study, patients entering a vocational rehabilitation programme for chronic back pain were accurate at predicting outcome(7).
Conversely, treating physicians were better predictors than the patients themselves of the efficacy of intravenous drug administration and nerve blocks for Chronic Pain(8,9).
Is there solid evidence that clients' expectations have a material effect on recovery from soft-tissue injury?
We have previously explored the progression from soft tissue injury to disabling chronic pain following personal injury.
Recent Canadian research (10) has for the first time quantified the effect of patient expectations on recovery time.
Positive expectations about current progress, future improvement and time until return to usual activities were associated with a 25-37% faster return to work.
This correlation was independent of other recognised prognostic factors and appears to be a true cause-and-effect relationship.
By exploring 5 beliefs, counsel for both claimant and defence will gain insights beyond those in medical reports.
Beliefs about injury and illness are necessary for us to make sense of what is happening to us, form judgments about the effects on our health and determine what action is necessary during recovery.
These beliefs can usefully be grouped in 5 main cognitive areas(11):
Practice PointClients' beliefs about a medical condition:1. Name and component symptoms 2. Cause 3. Expected duration 4. Anticipated effects and outcome 5. Cure or control |
The name the client uses to identify his condition can be illuminating and may or may not be medically correct. Similarly, the component symptoms that the client attributes may not all be causally related.
The client's beliefs about the cause of the condition or symptoms can differ markedly from conventional medical tenets.
Expected duration may be very different for patient and caregiver, and for the client time-beliefs tend to be a self-fulfilling prophecy.
Anticipated effects and outcome are particularly useful for counsel to explore.
Cure or control: will the patient recover, and does he believe he can influence the outcome by what he does?
This is a useful template for claimant counsel during intake interview, and for defence counsel during Examination for Discovery.
The purpose of the questionnaire is not to "correct" the client's beliefs, according to the litigator's understanding or conventional medical "truth", but to gain insight into the widely-varying outcomes of similar injuries in different clients.
The claimant's beliefs should simply be fleshed out and recorded.
Practice PointThe client's beliefs are more accurate predictors of individual prognosis than the beliefs of medical expert witnesses |
Claimant and defence medical experts characteristically provide prognoses at the pessimistic and optimistic ends of the range respectively.
Those predictions are based more on wishful thinking than on medical science: were they based on clinical judgment, such opinions would differ much less than they do.
As we have previously discussed, the principal determinants of legal impairment (= medical disability) are clinically unmeasurable.
Physicians, counsel and the court would do well to listen to the claimant's beliefs.
Henry Ford said, "Whether you think you can, or you think you can't, you are probably right."
Can Claimant Beliefs be changed?
As Dale Carnegie wrote, "A man convinced against his will is of the same opinion still."
Whether changing expectations can change prognosis remains untested.
If we accept the Evidence-Based premise that expectations strongly influence outcome of soft-tissue injury, can the prognosis be changed by changing claimant's beliefs?
Even though soft-tissue injuries account for the vast majority of the billions of dollars in lost-time workers' compensation claims (in Canada at least) (12), this question is yet to be seriously addressed in the medical and psychological research literature.
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