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, October 8, 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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