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Shaw Chiropractic
A Medical-Legal Newsletter for Personal Injury Attorneys
by Dr. Steven W. Shaw

New Study Questions Patient Motives

The well respected New England Journal of Medicine has just published a paper titled Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury (N Engl J Med 2000;342:1179-86). The study concluded that AThe elimination of compensation for pain and suffering is associated with a decreased incidence and improved prognosis of whiplash injury@. Your first impression might be that this paper supports the defense position. Upon reading the paper I interpret the findings differently.

The study took place in Saskatchewan Canada during the 1995 conversion from a tort system to a no fault system. The study examined claims made during three time frames. These included the last 6 months of the tort system, the first 6 months after initiation of the no-fault system and second 6 months after the no-fault system. The new no-fault system essentially eliminated smaller claims by allowing tort actions only when medical costs exceeded $500,000 or annual income replacement exceeded $50,000/yr. Patients in Saskatchewan have universal health care benefits and there are no cost to patients for treatment.

The authors found that the incidence of whiplash claims dropped by 28% despite increases in the number of vehicle damage claims. There were significant differences related to gender. Claims by men dropped by 43% while claims for women dropped 15%. There was an increase in the rate of re-opened claims after the no-fault program by nearly 50%. The median time for closure of cases dropped from 433 days to 194 days representing a 54% drop. Under both systems having a lawyer involved resulted in delayed closure. Under the no-fault system closure of the case took longer when the the initial consult was with a chiropractor, physical therapist or both medical doctor and chiropractor.

At first glance these figures seem damaging. So, let me take several moments and review my take on the data. First, Canada is Canada and the U.S. is the U.S. There are significant differences both culturally and economically which do not allow for comparison. One of the interesting differences is physician reimbursement. In Canada, chiropractors are paid the equivalent of between $10-$15 US compared to approximately $80-$100 here. Chiropractors in Canada are allowed to charge for services above the reimbursable fee as long as they notify the patient in advance. Under the previous tort system the additional fees (which were many multiple of the base fee) were paid from settlement. Under the no-fault system patient would have to pay out-of pocket for fees above the national fee. Given the subject group demographics, out-of pocket expenses would be a significant deterrent to care.

The authors claim that under the nationalized health system no barriers exist to care. Despite this, people in Canada report some of the highest rates of dissatisfaction (mostly due to access). Patients regularly wait months to see specialists and undergo procedures such as MRI. Physicians would rather see patients who pay cash and therefore give them priority appointment status. National fee patients are perceived in Canada in the same manner as the Medicaid population is perceived in our country.

Under a tort system, the determination of permanency and residual complaints is essential to recovery. As a result, patients are monitored for longer periods of time to determine if residuals exist. Early versions of the AMA Guides required 6-12 months of documented Amedical stability@ after active treatment to apply impairment. In the absence of the need for documentation, as in the no-fault system, patients would be expected to be discharged much earlier.

The fact that patients treated by chiropractors and physical therapists were managed for longer time frames is not surprising. Both DC and PT treatment approaches are based upon a model of functional outcome rather than the medical model of pain reduction. Typical management by these specialists will last several months and include periodic review and modification to accommodate the changing functional needs of the patient.

It has been documented that fraudulent claims under our Medicare system account for approximately 10% of all claims. It would be naive not to assume that an equal percent or more fraud exists in our present tort system given the financial benefits to the claimants, doctors and lawyers. The no-fault system in Canada has effectively reduced some of the fraud but at the expense of injured people not receiving appropriate care for the reasons cited above. The financial barriers created in the no-fault system for claimants and doctors is an effective way to save the insurance carriers money but not assure the health of the nation.

On the fraud issue, I have my own opinion. Anyone who specializes in personal injury has come across claimants who have secondary gain in mind. All of us have discharged patients/clients due to symptom magnification or outright fraud. For the most part, our experience and clinical judgement screen out those who are fraudulent. The question becomes the integrity of the physician and lawyer. Lawyers and doctors who are successful don=t have time to waste on patients/clients who put their reputation and standing in the community in jeopardy. I would like to believe that, ultimately, what goes around comes around. Sure, some claims are fraudulent. However, the scientific literature is predominantly supportive of damaging effects and poor outcomes from MVA injuries. To discount that because of a relatively small number of frauds would be irresponsible.

The NEJM article opens some area of controversy for both plaintiff and defense interests. I strongly suggest that you obtain a copy of the article for your records and review it so you understand it=s strengths and weaknesses. I have enclosed a copy of the abstract for you to reference. If you have any questions please call at 1-800-232-6824.