Dimming the ‘Bright Line’ Rule

A recent Financial Services Commission of Ontario (FSCO) decision has once again called into question the utility of the Glasgow Coma Scale (GCS) for determining catastrophic impairment.

In Security National v. Hodges, the arbitrator accepted that not all GCS scores of 9 and below are equal when it comes to determining catastrophic impairment following a brain injury.

Arbitrator Renahan held that GCS scores of 9 or below that were taken while the applicant was intubated “meant that his GCS score was not testable”. He concluded that a score recorded while the level of consciousness is untestable cannot satisfy the test for catastrophic impairment. His decision runs counter to a line of FSCO decisions that have held that sedation and intubation do not invalidate GCS scores for the purposes of satisfying the test for catastrophic impairment. By accepting that GCS scores must be interpreted with some medical context, this decision could have a significant impact on future cases where an applicant seeks a finding of catastrophic impairment on the basis of a GCS score of 9 or less.

When the definition of catastrophic impairment was developed in Ontario, the GCS was incorporated into the legislation by reference. Section 2(1.2)(e)(i) of Ontario’s Statutory Accident Benefits Schedule (Schedule) defines catastrophic impairment in cases of brain injury, in part, as a score on the GCS of 9 or less.

Originally designed in 1974 as a simple numerical tool that could be used by front-line healthcare workers to score a patient’s level of consciousness and gauge the severity of the potential brain injury, the GCS requires that doctors, nurses and paramedics numerically score patients by assigning grades for each of three domains: eye opening, motor response, and verbal response. A combined score of 15 represents full consciousness, while anything under 15 represents a reduced level of consciousness.

Of the multitude of GCS scores recorded by various healthcare practitioners on patients following an accident, it takes only a single GCS of 9 or less within a reasonable period to satisfy the definition of catastrophic impairment under the Schedule. What constitutes a reasonable period is undefined in the legislation and has been held to be a case-by-case determination, ranging from mere hours to days.

Despite the availability of more reliable prognostic tools, such as MRIs, and increasing concern over the past 20 years that the GCS is not very effective at predicting long-term outcomes, it is still being used to determine catastrophic impairment in the case of acquired brain injuries.

Why is such a relatively simple and arguably outdated test being used to assess benefit entitlement for such complex injuries? As the Court of Appeal explained in Liu v. Ontario, by incorporating this numerical test into the legislation, the legislature intended to “create a bright line rule which is relatively easy to apply.”

But as adjusters, insurers and medical practitioners have asked, at what point does the application of this rule create a medical absurdity in pursuit of legal simplicity?

The use of GCS scores to determine catastrophic impairment brings to the fore the uneasy relationship between medical tools and legal tests and highlights the challenges that emerge when a medical tool is converted into a “bright line” legal test.

It is well identified in the medical community that the increased use of intubation, ventilation and sedation of patients in emergency settings has complicated the scoring of the GCS in patients with serious injuries and potentially impaired levels of consciousness. As Drs. Jennett and Teasdale, the developers of the GCS explain in their text, The Management of Head Injuries, if a patient cannot speak due to a tube, the verbal domain cannot be tested. When one domain is untestable, the three scores cannot be combined to produce the aggregate score referenced in the legislation.

In their April 22, 2011 Report to FSCO, the Catastrophic Impairment Expert Panel voted to eliminate the GCS from the Schedule, on the basis that its prognostic value is questionable. In their research, they relied on various peer-reviewed studies that assessed the prognostic value of GCS scores in predicting patient’s future outcomes following traumatic brain injuries. Notably, the studies they relied upon omitted from consideration those patients whose scores were recorded while they were intubated or sedated.

Despite what appears to be consensus in the medical community as to the invalidity of GCS scores when a patient is intubated and sedated, arbitrators have been reluctant to even consider that a GCS score can be invalid.

Until recently, it appeared that notwithstanding an applicant was intubated or sedated for treatment of other injuries, the mere fact that a GCS score of 9 or below was recorded allowed that applicant to successfully meet the definition of catastrophically impaired under the legislation.

In Tournay and Dominion of Canada General Insurance Co., Arbitrator Kominar directly considered the impact of intubation on the validity of GCS scores and found that they ought to be considered valid regardless of the fact that one domain of response could not be tested. Arbitrator Kominar held that although intubation may mean certain domains of response are “untestable”, this does not mean the scores are “confounded” or “invalid”.

More recently, in Mallet v. The Personal, Arbitrator Miller considered the impact of intubation and sedating medication on an applicant who registered two GCS scores below 8 following surgical procedures to repair serious orthopaedic injuries. The Personal denied the applicant’s application for a catastrophic designation on the basis that the Applicant’s GCS scores were recorded after sedation and intubation and therefore were invalid. Arbitrator Miller found that notwithstanding the applicant was intubated and/or sedated at the time the scores were recorded, the applicant met the test under clause 2(1.2)(e)(i) of the Schedule.

Both Arbitrators Miller and Kominar rely on the use of the GCS as a legal rather than medical test in finding that factors such as intubation, which are not mentioned in the legislation, are not relevant to the analysis. According to this reasoning, if a score of 9 or less is recorded within a reasonable period of time following the accident, the analysis ends there.

The problem with this “bright line rule” is obvious. Patients are routinely intubated in trauma centres for reasons unrelated to a brain injury; in many cases, they are sedated in order to facilitate treatment of internal or orthopaedic injuries. If GCS scores recorded while a patient is intubated and sedated are accepted as valid, it would mean that intubation and sedation to induce anaesthesia following an accident almost automatically legally renders an individual catastrophically impaired, regardless of the actual severity of the brain impairment. This outcome is hardly in keeping with the legislative intent behind the catastrophic impairment designation, which is to provide enhanced benefits to those whose medical conditions require them.

In Security National v. Hodges, Arbitrator Renahan accepted that a GCS score cannot be taken in isolation. Though he did not go so far as to find that intubation will always invalidate a GCS score, he did conclude that GCS scores recorded while all three domains of response are “untestable” – due to medical interventions such as intubation – cannot satisfy the test for catastrophic impairment. A GCS score of 3 recorded while an applicant is in a medically induced coma as a result of intubation is not the same as a GCS score of 3 recorded while the applicant is unconscious as a result of head trauma.

As we await more fundamental legislative change to the definition of catastrophic impairment following a brain injury, Arbitrator Renihan’s decision is a small but important step towards reconciling the science of th
e GCS test with its legal implications. 

Linda Matthews is a partner at Matthews Abogado LLP, where she specializes in insurance defence litigation, including the defence of statutory accident benefits claims. Laura Hodgins is an associate at Matthews Abogado LLP.