If it may please the court, I’d like to whisper sweet nothings in your ear ….

bigstock-texture-of-the-old-paper-16914953The sweet nothings of medical records.  Ahhh … proving disability by the use of medical records … I can feel my blood pressure rising as I write.

“Oh, it’s all in my medical records – it’s all there,” clients say.

This despite the fact that I have heard literally hundreds of the most graphic stories from clients telling me about their pain, anxiety, depression, suicidal and homicidal thoughts, suicide attempts – you name it – I would listen, and I would ask, “did you go to an emergency room?”   “Did you tell your doctor?”   The answers were almost always some version of, “no.  I just wanted you to know.”

No chance these stories were documented in a medical record.

To make the point that I have to prove in court the existence of symptomatology and the functional deficits therefrom, I would say something like, “well, if you didn’t go to an emergency room, it didn’t happen.  When you only have your sister come over to take care of you … unless she keeps medical recordsit never happened.”

Sometimes that gets through.

My clients almost always have a barrier to telling doctors about their problems.

This flies in the face of the commonly held belief that people who apply for disability benefits A business man bragging about the size of somethingexaggerate their symptoms, I know.  Certainly a fraction of people are exaggerators, but I find it much more common that claimants of disability benefits overestimate their capacities and under report their problems.

It’s true of me.   I overestimate my capacities and under report my problems.  Everybody I know is guilty of that to one extent or another.  It is part of human nature.  Even disabled people’s nature.  Even disabled people who are trying to prove they’re disabled.

It’s a subtle irony, I know.

Speak The Truth Even If Your Voice ShakesA friend of mine was telling me about her mother who is elderly and frail.  She refuses to use her walker though it has been prescribed by a doctor.  She has already fallen and broken her arm – twice – but gosh darn it, she is not going to admit she’s old, and frail, and … disabled.

Once I asked a client if he had any difficulty with stairs.  He said, “no.”  But his wife, sitting there incredulous, emphatically called him out saying, “you go up and down the steps on your butt!”  He said, “yeah, but … but I don’t have any difficulty with it.”

It’s all there.  It’s all in the medical records.

In conversations about the barriers patients have to telling doctors their problems, a friend who Young Doctor Checking Her Check Listis a professor at a medical school pulls the blame towards himself, to medical educators, and to the doctors themselves.   He assures me that a good deal of work goes into the design and implementation of curricula to help medical students overcome communication barriers, to listen better, etc.  He explains that many of his students are whip-smart, but lack the warmth and social skills that would allow them to develop sufficient rapport quickly so that patients are able to open up more readily.

Still, clients say, “it’s all in my medical records – it’s all right there.”

Stressed Out NurseShould I tell Mr. Smith his doctor’s handwriting looks like rudimentary ink marks made by the cephalopod limb of a squid – completely indecipherable?  Should I tell Mr. Smith he’s referred to as she at least a dozen times in his medical records?  Should I tell him that while the record documents the reason for his visit was “pain,” nonetheless the default “click-box” on the new-fangled electronic records was inadvertently left unaltered, so the record quibbles with itself by saying his pain level is “zero”?

Oh how I want just to cut to the chase and testify my own darn self!   By the time a hearing has come ’round, I’ve been privy to a whole lot of my client’s “functional limitations” – little of which got documented in medical records.   Trust me.

In fairness to the medical community, they’re keeping their records for their own purposes – not for the myriad of purposes their records might be used for by insurance companies, or by any variety of courts and tribunals.

Like in Torts class when everybody else was taking useful notes about the “reasonable bigstock-Punk-girl-smoking-a-cigarette-20688311person,” I spent the whole period doodling a picture of a punk rocker with a safety pin through her cheek … wondering ‘if she was the “reasonable person,” then would it be negligence?’  How was I to know my friend would miss that day and need to borrow my notes?

Despite the common fallacy that judges and attorneys are all in cahoots, you can’t just schmooze it up with the judge, and just tell him or her the facts.  Even when you’re super honest and trustworthy.  That is not how it works.   An attorney cannot just tell what is going on.  The attorney has to – through “documentary evidence,” i.e., words written down on paper – usually written by doctors and nurses and therapists – prove the existence, persistence, severity, and duration of symptomology that would prevent the bearer of those symptoms to be unable to hold down even the simplest of jobs.

I came to think of the process as an elaborate game of “Telephone.”   Do you know what I mean by that?   You remember the “Telephone Game,” right?  Just in case you don’t …

So, okay, you get a bunch of kids all in a line.  And the first whispers a random sentence into the ear of the next kid, and the second kid whispers it to the third, and the fourth and fifth and so on ear to ear to bigstock-Illustration-of-Little-Male-an-46531597ear until the kid at the end reveals the convoluted, radically-altered statement he understood, saying, “Mr. Horse farts toads in the cauliflower punch?”  What?!?  Peels of laughter!!!!  Hilarity ensues.

I used to love that game.   Until I realized I was playing the most dismaying version of it every darn day as an attorney advocating for disabled clients.

So, here’s the disability version of the Telephone Game:

Okay, so the first kid is always the kid with the disability.  Now, he’s supposed to square up, face his demons and fess up and whisper in the ear of the second kid all of his symptoms and foibles and failings.  Got it?  Now, hopefully that second kid is a doctor, or nurse, or therapist, or someone who’s actually going to write it down.  But, the second kid is usually the first kid’s friend, or his sister, or his lawyer.  If it’s his friend or his sister, the message goes nowhere, but if it’s his lawyer, the lawyer, says, “now, maybe you should tell that to your doctor.”  And the first kid says, “no, ’cause she’ll put me through a bunch more tests, or change my medications, or maybe even put me in the hospital.”  And the lawyer says, “we’ll I don’t know how else we’re going to prove you’re disabled if you won’t tell your doctors what’s really going on.”   So, then the disabled kid, exhausted from living with no money, and feeling awful all the time, and losing job after job to symptoms, and sorta-kinda trusting what his lawyer says, decides to give it a whirl and the whole group shoves the doctor kid next in line, and the disabled kid tells the doctor kid what’s really going on to the best of his ability, which might not be very fully descriptive, but it’s all we got.  Okay.  So.  Now the very busy doctor kid writes some version of the information down in a medical record, and sends it on to the medical records kid who won’t whisper the message on to the next kid – citing HIPPA – so the lawyer kid faxes the HIPAA-compliant releases, and pays the medical records kid for the records, and finally the medical records kid sends some weirdly edited version with some of the dates missing, that no one can figure out why.  But everybody’s relieved that the message has moved on.  So the lawyer kid gets the records, and sends them to the Office of Disability Adjudication and Review, where the judge kid is  … and then we all hold our breath waiting to find out … … … what’s in the cauliflower punch?

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