By Allen Fraley, DC and David Marcarian, MA
In yet another attempt to limit patient access to chiropractors, The State of Florida’s Department of Health placed on a list of “invalid diagnostic devices” the technology underlying the MyoVision’s DynaROM System. This rule change was devastating to the profession, as this new tool had the power to prove not only the need for chiropractic care, but it’s effectiveness as a treatment. If the lobbyists for the insurers won, it would end this budding technologies impact on juries, limit insurance settlements, and ultimately negatively impact patient care nationwide. Chiropractors would have limited access to PI patients, as the evidence-based model's implementation requires that objective data be provided.
Dr. Richard Merritt, a DC from Lakeland, FL decided to challenge the State. He contacted all the experts on the technology in the Chiropractic Profession, and the only to respond was David Marcarian, inventor of the MyoVision.
Insurers had seen the MyoVision technology's impact on settlements and were going to do everything in their power to invalidate it. In a major blow to the Chiropractors case, the State joined forces with over 300 insurers, 75 attorneys and the resources to put an end to this argument for good. A loss to the State and the insurers meant Chiropractors would lose the right to protect patients rights to chiropractic care due to the fact the evidence-based model was quickly becoming the norm.
The task was daunting: How would David Marcarian and Dr. Richard Merritt prevail against all odds? As is typical, everyone underestimated the knowledge of those from our profession:
Marcarian presented over 40 research studies, all supporting the use of the technology. Knowing the State of Florida and the insurers would most likely appeal the decision, the judge spent a year in producing the ruling that the technology was indeed valid, thus approving it as a diagnostic device.
According to Judge Cleavinger: "this technology has been shown to be useful in the evaluation of spine pain in much the same way EKG’s have become indispensable for chest pain evaluation”.
The insurers and the State of Florida failed to convince the Superior Court to overturn the decision, and apparently the Supreme Court rejected their appeal.
The impact this case has had on Chiropractic patients throughout the United States has been monumental, leading to a major win for the Dream Team.
Prior to this case, insurers could successfully argue that normal range of motion findings were justification to cut off care, even when the doctor placed in his or her notes that the patient experienced pain and muscle guarding.
With the patented DynaROM Motion sEMG technology, the ability to measure muscle guarding is a game changer, giving patients with normal ROM the right to maintain care.
The “legal game” of PI isn’t what it used to be, thanks to the dedicated efforts of a chiropractic “Dream Team” that fought the courtroom battles - and rewrote the rules.
Personal injury cases are a “love-it or leave-it” experience for many chiropractors. High on the list of objections is losing to the opposing side’s “medical experts,” whose opinions have historically held more weight in court.
But, it’s the facts that matter, says John K. Maltby, DC, FICA, FICAC(H), practicing in Blythe, CA. “When expert testimony relies primarily on the status of the expert, and is not based on solid data, it is purely opinion and nothing more,” says Dr. Maltby. “Data is indisputable and it easily wins over the status or rank of those offering medical opinions.”
In a recent $1MM soft tissue case, the patient was referred to Dr. Maltby for evaluation of her injuries using dynamic (active) range of motion analysis that simultaneously documents muscle guarding through the use of attached-electrode sEMG (DynaROM Motion sEMG). These two measures, when performed and graphed simultaneously, have been shown to be significantly more sensitive in proving soft tissue injury than endpoint ROM testing alone (Geisser, 2004). The exam results clearly indicated muscle guarding, validating the patient's injuries (Ambroz, 2000). And, according to the American Medical Association (AMA), muscle guarding is classified as a 5-8% functional impairment. (AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition)
This case, and others like it, have dramatically changed med-legal strategies and outcomes for DCs and their injured patients. Armed with new technology and objective data, chiropractors can now refute the most highly-credentialed medical expert’s opinion. “When evidence and technology are applied, and data are presented, it will always trump opinion,” says Dr. Jaeger. “And when you enter the med-legal arena, submitting the highest level of peer-reviewed evidence is what wins.” In the process, the value and status of chiropractic care is elevated in the eyes of the public, as well as in the medical and legal communities.
Dynamic range of motion testing, in combination with sEMG for measuring muscle guarding, has helped win a series of major PI cases for chiropractors and their patients.
The Merritt vs. DOH case lead to reimbursement for such testing under CPT Codes 96002 and 96004, and established admissibility of the DynaROM Motion sEMG instrument and data in all cases thus far. The reimbursement rate for these codes is five times higher than the reimbursement rate for endpoint ROM testing, without consuming additional time.
If you are still on the fence about handling PI cases, consider this: even “cash” patients are routine one day and injured the next. But the new ammunition provided by dynamic range of motion studies gives you the power to succeed.
Remember, when credibility and respect are high, so are referrals. Dr. Jaeger has this advice for DCs: “We now have the tools to make PI objective and evidence-based, so get on board and get it done! The rewards for your patients' health and your practice are invaluable."
Allen Fraley, DC
Dr. Fraley has more than 17 years experience working with personal injury and injured-worker cases, and has testified in court on behalf of these patients. He is a frequent guest speaker on chiropractic topics for the Washington State Association of Justice, and is a featured speaker for MyoVision.
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Jason O. Jaeger, DC, fCBP
Dr. Jaeger holds adjunct faculty positions at four chiropractic colleges, and was awarded the 2014 Chiropractic Biophysics™ Researcher of the Year Award for the Advancement of Chiropractic Science. He also holds the 2015 CBP™ Chiropractor of the Year Award, and applies his extensive clinical experience to his treatment of injured patients.
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John K. Maltby, DC, FICA, FICAC(H)
Dr. Maltby is a respected expert witness and two-term past-President of the International Chiropractors Association (ICA). He also served as ICA Chairman of the Board, and was ICA’s Chiropractor of the Year in 2007. Dr. Maltby has represented the ICA on the Board of Directors of the World Federation of Chiropractic.
David Marcarian, MA
NASA-Trained Researcher and inventor of high-tech biometric instrumentation, including the patented Wireless DynaROM Motion sEMG System which graphs muscle guarding and ROM simultaneously. This technology has established chiropractors as the leading experts in soft tissue injury. Upcoming CE Seminars can be viewed at www.myovision.com or by emailing firstname.lastname@example.org.
Designer of the MyoVision and experienced expert witness.