Dynamic Chiropractic – January 15, 2010, Vol. 28, Issue 02
Study Confirms Flaws in Standard MVC Defense Strategy
By Arthur Croft, DC, MS, MPH, FACO
The
seemingly complex, or perhaps even inscrutable, calculus of what
practitioners term personal injury is, in truth, deceptively simple.
However, while it keeps getting simpler, many practitioners and lawyers
feel hopelessly wrapped around the axle of this puzzling system. The
net result is abandonment of needful patients and clients, with a
corresponding loss of revenue stream. Consider just a few facts. Motor
vehicle collisions are a leading cause of injury in the U.S. and
constitute one of our most burdensome public health dilemmas. With 3
million such injuries each year, a total recovery proportion of only
about 50 percent, a permanent disability proportion of 10-12 percent,
coupled with the fact that many of the injured are young and have many
quality life years to lose, the $43 billion annual price tag is hardly
surprising.1
Auto insurers make every reasonable effort to insulate
themselves from their liability. Some would argue that they engage in
efforts most of us would consider unreasonable, if not downright
unsavory or unethical. Regardless of your personal judgment, most would
agree that over the past two decades, the insurers’ concerted and very
expensive campaign to limit claims has been fairly successful.
With
Allstate taking the vanguard position with their now-famous three Ds –
delay, deny, and defend – most major auto insurers have since
instituted similar policies, and the plaintiff persona-injury bar has
more often withered than weathered. With a loss of potential legal
representation, plaintiffs have had fewer alternatives for compensation.
This often has meant that needed health care resources are simply not
available to them, which contributes further to the doleful outcome
statistics mentioned above. Since inaugurating its get-tough policy in
the mid-1990s, which was described by its consulting firm as a
transition “from good hands to boxing gloves,” Allstate has reportedly
posted surprising high profits.2 Other insurers have not failed to
notice.
The Standard Defense and the Importance of Delta V
How
could any of this possibly be simple? One need look no further than the
essential game plan of most defense lawyers: deception, dissimilation
and obfuscation. It requires a team of experts from the fields of
medicine (including chiropractic), accident reconstruction and
biomechanics who have collectively developed what I consider to be the
standard defense strategy. It continues to be the most successful and
widely used strategy today, having become the world standard.
This
has fostered a small research industry dedicated to the production of
pro-defense literature to aid in the cause. Most is junk science. Make
no mistake, insurers have the best researchers money can buy and they
know how to get published. As a result, even many clinicians remain
split on critical issues depending on which brand of literature they
rely upon. I note, with all due respect to the Insurance Institute for
Highways Safety (IIHS) and members of the International Insurance
Whiplash Protection Group (IIWPG), that their research activities are
quite laudatory and most welcome. However, there is just a bit of
schizophrenia in this industry when it comes to research. While the
valid research of the IIHS and the IIWPG is squarely aimed at reducing
the industry payout problem by reducing the number of actual injuries,
the “other” research seems to be aimed at providing verisimilitude for
company experts to wield in courtrooms to sway jurors toward defense
theories.
The standard defense has three parts and is based on the
ultimate playing field: a court of law, and, in particular, the biases
and naivete (i.e., the normal lack of specific factual information in
the field of crash traumatology) of jurors. Polls suggest that
Americans are also divided on the question of whiplash injuries. As
many as 60-70 percent consider it either definitively or very likely a
non-injury, but merely an opportunity to bilk insurers at the expense
of the rest of us policy-holders who subsidize the system through the
increasing premiums we must pay. Thus, jurors are easily misled by the
standard defense strategy because it merely reinforces that which they
already believe.
The first and most fundamental part of this strategy
is to demonstrate that the forces of the collision would not have been
of a sufficient magnitude to cause injury. The common currency for
this discussion is the plaintiff vehicle’s delta V or change in
velocity. For this, an accident reconstructionist is usually employed.
Because reconstructionists are rarely allowed to provide opinions as to
injury risk, they are often followed by a biomechanist, who is granted
more latitude to venture into the discussion of injury risk. In some
cases, they are allowed to consider medical records, MRIs, etc., in
forming their opinions. Finally, the defense physician (DC, DO or MD)
adds the icing to the cake, testifying that either there was no injury
or that there was a minor straining-type injury that has long since
resolved.
When pre-existing conditions are present, the plaintiff’s
complaints are often attributed to them rather than the injury. Company
doctors will typically also be of the opinion that a large portion of
the medical expenses claimed by the plaintiff are unnecessary,
unreasonable,and represent unwarranted treatment and diagnostics. Note
that low back injuries are virtually never admitted to be causally
related to low-velocity collisions. I have written a paper on this
subject which is available upon e-mail request at drcroft@san.rr.com .3
As
I have so many times implored readers – and this fact is never
contested even by my small army of industry-affiliated detractors – the
entire defense mechanism just described is nothing more than a series
of interlocking nonsequiturs. The accident reconstructions and
biomechanists provide a very polished and seemingly airtight argument
based on what appear to be sound mathematical principles and classical
Newtonian physics. This is all very interesting, and would be even more
so if it had the additional virtue of being true.
Delta V Not a Valid Gauge of Injury Risk?
But
figures don’t always add up, which brings me back to the headline of
this article. A new study that provides further compelling evidence
that delta V, the keystone in the standard defense strategy, is not a
valid gauge of injury risk.4 The authors recruited a total of 57 people
within 48 hours of their MVCs. The subjects were recruited either from
an engineer’s office for vehicle damage assessment or an ER. The
whiplash grades ranged from 0-4 (0 indicating no claimed injury and 4
indicating fracture). The collision types included 13 frontal, 21 rear,
19 side, three multiple crashes and one rollover. There were 25 males
and 32 females with a median age of 33.
In all cases a trained
engineer determined the delta V by examining both crash vehicles. The
VAS and Neck Disability Indexes (NDI) scores were tabulated. The
authors found no significant correlation between NDI and delta V, no
correlation between whiplash grade and delta V, and only a moderate
correlation between VAS reported pain and delta V. However, the R2
value (coefficient of determination) for that correlation was only
0.30, which means that 70 percent of the proportion of the variability
of pain severity was not explained by differences in delta V.
There
was no lower threshold below which a large proportion would predictably
not be injured, nor was there an upper threshold above which most
would predictably be injured. This was because some people were injured
in very low velocity crashes while others were not injured despite
fairly high velocity crashes. The authors commented, “It can be
concluded that delta V is an irrelevant predictive value for cervical
spine injury after MVA [motor vehicle accident].”
Some specific
findings include the following: Cervical spine fractures in frontal
crashes occurred in delta Vs of 9.3, 19.9 and 31.1 mph. Fractures in
side impacts occurred in delta Vs of 6.2 (z-joint fracture of C4), 9.9
(C7 with dislocation of C6-7), 19.9 (z-joint fracture of C2), 31.1 (C5
fracture with C5-6 dislocation and paraplegia), 32.3 (rupture of alar
ligaments), 36.0 (atlantoaxial dislocation) and 36.6 mph (rupture of
alar ligaments). There was a dens fracture in the one rollover with the
delta V reported as 9.3 mph. This article is available for free
download at www.ncbi.nlm.nih.gov/pmc/articles/PMC2657117.
A related
component of the standard defense strategy is the property damage
issue. Specifically, the argument goes, when the property damage is
minor, an injury is very unlikely. We addressed this issue earlier in a
meta-analysis of medical and engineering literature dating back as far
as 1970 that failed to provide a clear link between property damage
and any of three outcomes: risk for acute injury, degree of injury
severity and risk for long-term symptoms.5 As I always caution readers,
this lack of correlation considers the genre of collisions producing
property damage that would be described as minor or non-severe. Clearly,
when crash severity increases beyond this, there is an increased risk
for injury or death.
A related interesting paper by Viano and
Parenteau demonstrated that more than 60 percent of the National
Automotive Sampling System case database for rear impacts are for
crashes with delta Vs of under 15 mph. They noted, “In very low speed
crashes, advanced age, stenosis and degeneration of the cervical spinal
canal can lead to spinal cord injury and paralysis in crashes
otherwise not causing injury in normal adults.”6 I would also note that
it has been demonstrated rather conclusively that human variables
(i.e., risk factors) are more determinative vis-a-vis injury risk than
crash metrics in the lower crash-severity range.
In the end, when
essential parts of the foundation of the defense strategy are tested,
they repeatedly fail to hold up to the scrutiny of hard science. In a
court of law, however, if the plaintiff and their experts cannot
effectively present the real facts and rebut the junk science, 12
impressionable jurors will decide the outcome of the case based on
their perception of the soundness of the arguments they heard. The
simple fact is that more often than not, the plaintiff and their
witnesses are simply not adequately prepared. Knowledge is power and
information is the currency of success.
References
Zaloshnja E,
Miller T, Council F, Persaud B. Comprehensive and human capital crash
costs by maximum police-reported injury severity within selected crash
types. Annu Proc Assoc Adv Automot Med, 2004;48:251-63.
Berardinelli DJ. From Good Hands to Boxing Gloves: The Dark Side of Insurance. Portland: Trial Guides, LLC, 2008.
Croft AC. Low back injuries in low velocity rear impact collisions. Forum, 2009;39(4):33-7.
Elbel
M, Kramer M, Huber-Lang M, et al. Deceleration during “real life”
motor vehicle collisions: a sensitive predictor for the risk of
sustaining a cervical spine injury? Patient Saf Surg, 2009;3(1):5.
Croft
AC, Freeman MD. Correlating crash severity with injury risk, injury
severity, and long-term symptoms in low velocity motor vehicle
collisions. Medical Science Monitor, 2005;11(10):RA316-21.
Viano DC, Parenteau CS. Serious injury in very low and very high speed rear impacts. SAE, 2008;2008-01-1485.
Pages
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Monday, March 12, 2012
Why an MVA can't always be Measured as to the extent of injury, But the Insurance company will try for their own Gain
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