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FROM THE EDITOR'S PEN
By Steven M. Burris
"HERNIATION VERSUS PROTRUSION "
This will tell you something about how old I am, but when I first started to practice law, they didn't have CT scans or MRI reports. Back in those days, people had to submit to a painful and risky procedure known as a myelogram to get any sort of pre-surgical analysis of whether they had an actual herniated disc or not. Then came CT scans, and after that, MRI machines. These were able to give patients and their physicians some idea, without engaging in painful and risky myelograms, whether a person had a herniated disc or not. For many years, the reports that we saw from radiologists would talk either about disc "bulges" or disc "herniations." It was generally understood by everyone that a "bulge" was not particularly significant, and was likely just a degenerative type of change; a "herniation" was more likely to be significant or traumatically caused.
Then, approximately twelve years ago, in radiology reports from some facilities or radiologists, I started to see the term "disc protrusion" used exclusively, which seemed to be a somewhat vague term that included both bulges and herniations. I noticed that some radiologists were still talking about herniations and some radiologists would speak only about "protrusions."
There was an interesting story making the rounds in Las Vegas a few years ago. The story was basically to the effect that a certain large workers' compensation insurer had approached various radiology firms in town promising them their business if the radiology firm would promise never to use the word "herniation" in their reports (and instead just use the word "protrusion" whenever there was an abnormality in the disc, be it bulge or herniation.)
I don't do workers' comp work, but apparently in workers' comp claims, there is or at least was, a big difference in how the case was evaluated in terms of the use of the word "herniation" in the report versus the word "protrusion."
Several weeks ago, I went to a seminar being taught by a person who is an expert on the "Colossus"- type computer software programs that are being used by most of the large insurers to evaluate auto accident injury claims. One thing this speaker stressed was that most of the programs are set up to only recognize the term "herniation" or "herniated" in the radiology reports. If the radiologist uses any other term, even something like "annular tear," the person programming the evaluation form is instructed to ignore it. The processor must either see the word "herniation" or else the back injury is thrown into the less serious category for evaluation purposes. This seemed, to me, to be crazy: I asked the speaker, does this mean that if the radiologist actually identified a tear in the disc with extruded material, but didn't use the word "herniation," would the Colossus processor throw it into the mild injury category? He said, believe it or not, that's probably what will happen.
I recently had lunch with a radiologist acquaintance. I asked this fellow what he could tell me about this whole business. He related to me what I thought to be a rather interesting story. He said that he had attended a big radiologists' convention years ago (I assume like twelve years ago), and there was a fellow giving a speech on the subject. I don't remember his name, but apparently this is a fellow who has a lot of clout in the radiologist community. He was pushing at that time his pet project to make all the radiologists switch from using the terms "bulge" and "herniation" and to only use the word "protrusion." My friend stated that during his seminar on this subject, this speaker made a remark to the effect that a major reason he was suggesting this change was because he did not like radiologists being embroiled in legal disputes, and by switching to the term "protrusion," they would avoid legal entanglements. Then, he allegedly made a "joke" that "every time you use the word ‘herniation,' you are putting $50,000 into a lawyer's hands." My friend stated that this remark drew quite a response from the audience; apparently there was quite a lot of thought by the radiologists in attendance that they were being used as "tools" by lawyers who would take their MRI reports and make undeserved riches from them.
My radiologist acquaintance said that there is an ongoing controversy in the community of radiologists now over whether the practice of calling everything a "protrusion" is something that should be encouraged. It has been noted by at least a few ethical radiologists that even though use of the word "protrusion" to describe everything is useful for avoiding legal entanglements, it also tends to be a disservice to the clinical practitioners treating the patient. The actual surgeon or general practitioner needs to know just how bad the problem is, and by using this all-inclusive term "protrusion," they are left guessing to some extent. Many radiologists who never bought into the "protrusion" theory of writing reports continue to use the words "herniation" or "bulge" to help the clinical practitioners more accurately diagnose the problem.
Apparently the radiologists who were pushing for the exclusive use of the word "protrusion" now are advocating a different posture of sorts: if the abnormal disc only extends so far, it will still be called a "protrusion"; but if it extends past a certain point, then it will be given the word "extrusion." It was felt that by using this nomenclature, it would still help to avoid enriching attorneys by not using the word "herniation," and also would give the clinical practitioner some guidelines.
My radiologist acquaintance said that he is tired of the whole business and so is now using the terminology "herniation of the protrusion type" or "herniation of the extrusion type" in his reports. It seems to me that by doing it this way, he is being true to the Hippocratic oath. It seems that the split in the radiologist community over how to handle this situation will continue for at least the next couple of years. As to what you, as a practicing attorney, can do about this situation, vis-a-vis protecting the interest of your clients, I have no "silver bullet" pieces of advice.
I think you need to realize that in automobile cases, the people processing the claims with Colossus are not going to listen to your arguments about whether a disc described as a "protrusion" or whatever is really a "herniation"; they are going to stay with the "box checker" mentality, and categorize the problem as minor unless the magic word "herniation" is used. You might consider, on those cases, having the MRI films read by someone from the "old school," and ask them: is it a "bulge," or is it a "herniation"? I think it is also useful to make mental notes of which radiologists have bought into the "protrusion only" nomenclature and which radiologists are "old school" and use the older terms "herniation" and "bulge." Your client (as well as his treating physician) would probably be better served by the "old school" radiologist who isn't afraid to make the distinctions.
In the meantime, we can all hope for the day when insurance companies will get past the silliness of classifying back injuries solely by whether or not the magic word "herniation" is used instead of some other medical term meaning essentially the same thing; and we can hope that radiologists will at some point universally adopt a terminology system that promotes clarity, rather than obfuscation.