|Graphic by Michael Storc|
When a doctor reviews a patient's medical symptoms, the doctor is attempting to diagnose a medical condition, determine effective treatment, prevent deteriorating health, and essentially save the life of the patient. The doctor will be honest about the patient's prognosis, but the doctor is not immediately fatalistic about the smallest of symptoms.
When an attorney reviews a client's medical chart, the attorney is attempting to prepare some kind of legal cause of action where the client's medical condition affects the outcome: it may be a personal injury lawsuit, for money damages from an accident; or it may be a disability case, for insurance or Social Security benefits for a disabled client. In this legal context, the attorney will determine the most effective legal argument, prevent a legal conclusion that the client is "fit" or "well" and essentially attempt to protect the client's financial well-being. The attorney will be honest about the chances for success with the legal matter; but in order to maximize the protection of the client's financial interests, the attorney may have to characterize the client's condition in the most negative way.
The doctor's desire to protect the health of the patient and the attorney's desire to protect the financial well-being of the client may cause each of them to characterize the same medical symptom differently. This does not mean that one point of view is "correct" and the other is "wrong." From the outset, the doctor and the attorney picked up the individual's file and read it with different goals in mind.
Clients who do not happen to be insured by preferred-provider organizations (PPOs) are subject to increased scrutiny from health-maintenance organizations, who focus -- in this author's humble opinion -- on protecting their financial bottom line, not prolonging their patients' health.
Conversion of Medi-Cal services to the HMO structure also is producing a change in the delivery of medical services. The ability of treating doctors to schedule tests or to refer the patient immediately to a specialist is hampered by the HMO requirements of advance insurance approval.
In the context of the HIV/AIDS client, specific tests required by the Social Security Administration to verify an opportunistic infection may be characterized as a specialist referral. Even when referrals are approved by the HMO, they take time to process. This may account for some of the gaps between the treating physician's diagnosis of the patient, and the documentation required by the Social Security Administration to prove a client's disability.
The doctor will consider the CD4 cell count and viral loads and commend the patient for "undetectable" readings. The attorney will argue that a CD4 count above 200 does not preclude an opportunistic infection; and that the viral load measures only that amount of the virus in the blood, not the virus which may be hiding in the lymph nodes, internal organs, or inactive T-cells (viral load really cannot be considered an accurate reading of a client's actual HIV levels).
The doctor's progress notes may indicate "patient is stable" or "no new complaints." The attorney will argue that there is no guarantee the patient's medication will continue to work, that the virus has been known to mutate, that the client's symptoms may change if the cocktail must change, that the client may not feel well every day, and that nausea, vomiting, diarrhea, aches and pains and other previously diagnosed symptoms have not diminished.
The doctor's prepared medical history for the patient notes a family history of heart disease and past infection for Hepatitis B (now immune). The doctor will study the patient's recent laboratory results and remark on how the liver panels may have increased, how the cholesterol level is up, or perhaps advise the patient that some diet changes are necessary because of a borderline glucose reading.
The attorney will review that same laboratory result and medical history, to argue that the increases in cholesterol, together with a family history of heart disease put the client at greater risk of an HIV-induced heart attack. The attorney also will argue that people with HIV are more likely to have Hepatitis infections re-occur, to have more severe effects on the liver because of a past infection, and to have more complications in medication therapy because of already demonstrated problems with the liver. The attorney will argue that HIV can cause diabetes, such that the client's elevated glucose is an indication of a more serious physical degeneration which appears already to have begun.
The doctor will note a history of substance abuse, and will advise the patient to stop using drugs because they interfere with the effectiveness of the HIV medications, among other toxic consequences. The attorney will inform the client that s/he cannot obtain benefits from the Social Security Administration as long as the client is using any controlled substance (because Social Security, under the 1996 Welfare Reform Act, evaluates "drug activity" as "work activity" -- and if the client is considered able to work, then the client cannot be eligible for disability benefits). The attorney also will inform the client that she or he must be ready to admit to a history of substance abuse -- and any recent relapses -- or the Social Security Administration may doubt the client's credibility and discredit fatigue, nausea, aches and pains, headaches and all of the other "self-reported" symptoms documented in the medical records.
There sometimes can be one exception concerning ineligibility for Social Security benefits where there is ongoing substance abuse: marijuana for medical purposes. The doctor will note that the patient has begun marijuana treatment for nausea or loss of appetite, and that the patient is obtaining the marijuana from a cannabis club. The attorney will inform the client that although this appears to be a medically legitimate use of marijuana, using marijuana still could be considered substance abuse by the Social Security Administration and affect negatively the client's eligibility for benefits.
The doctor will note a history of pneumocystis carinii pneumonia (PCP), continue to prescribe Bactrim, and may diagnose a subsequent incident of pneumonia as a "PCP relapse," without waiting for a sputum test or bronchoscopy to verify this diagnosis. The attorney will inform the client that the sputum test or bronchoscopy is required to verify a PCP diagnosis, and that without the actual positive laboratory test report, the attorney will be unable to argue that the client has had this opportunistic infection.
The doctor will note some complaints of depression, refer the patient for a mental health assessment and perhaps treatment, and prescribe Prozac or another anti-depressant medication. The attorney will inform the client that unless she or he begins treatment with a mental health professional, the client cannot argue that the mental health deterioration is a "stand-alone" disability. Instead, the attorney will argue that mental health affects physical health -- such that the client's response to HIV or AIDS treatment is likely to deteriorate, as the mental health deteriorates.
The doctor will note any numbness, tingling or loss of control in the patient's hands and feet, characterize this condition as neuropathy, and begin treatment with Neurontin in most cases. The attorney will inform the client that while neuropathy is considered one of the opportunistic infections under Social Security law, not all Administrative Law Judges or Social Security Medical Experts will characterize the client's condition as this opportunistic infection without a neurological test and some kind of "pin-prick" test to measure the nerve-endings in the client's hands or feet.
To prove the client is disabled, the Social Security Administration may require specific medical tests. By law, however, when the client cannot get access to the tests because of insurance problems (including lack of insurance), this gap in evidence is not supposed to be held against the client. As one might expect, different Administrative Law judges treat gaps in evidence in different ways, so it is impossible to predict whether the lack of specific medical tests will cost the client his or her appeal.
|Leslie Kline-Capelle is the Public Benefits Staff Attorney at the HIV & AIDS Legal Services Alliance, Inc. HALSA can be reached by calling (213) 201-1640.|
Many thanks to David Turken, M.D., Ph.D., of USC, for assistance in preparation of this article.