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Shaw Chiropractic Whiplash: Insurance Flimflam in Eyes of Jurors? A study first appeared in the 67 Tennessee Law Review 569(2000).] It was reprinted in the Trail Lawyers Quarterly this year as Whiplash: Insurance Flim flam in Eyes of Jurors? Hans VP, Vadino N: Whipped by whiplash? The challenges of jury communication inlawsuits involving connective tissue injury. Trail Lawyers Quarterly 30/31 (4/1), 2001,116-132. Although I have not had the opportunity to see the study personally I had the opportunity to read the critique of the study performed by Arthur Croft. Some of you may know Dr. Croft from his whiplash text or his research publications.The below opinions are directly quotes from his newsletter. ( Dr. Croft will be sending his clients a free e-mail newsletter for attorneys. If you want to be added to our e-mail newsletter please email me your e-mail address at Dr.Shaw@shawchiropractic.com "Do plaintiffs walk into court with one (or two) strikes against them? I would appear so based on the eye-opening research of these two lawyers. They report on an ongoing project designed to gauge public perception of low speed crash injuries." "The authors note that the median award in automobile cases is only $29,000, compared to $51,000 for all tort cases, and $201,000 for medical malpractice cases. And some insurers, they note, have shifted toward a more aggressive response to these suits. Allstate, in particular, is known to push for jury trials. And, as we have all seen, these tactics are taking their toll on the plaintiff’s bar, with a growing migration of attorneys away from personal injury litigation". "In this study, the authors assembled two focus groups of males and females in two cities; Louisville, KY and Denver, CO. Public opinion polls were also collected. The survey consisted of 600 nation-wide phone surveys." "The authors reported that both research approaches indicated a general distrust of insurance companies, although most respondents were generally happy with their own insurer. Broad doubts were found regarding the credibility of most plaintiffs in civil lawsuits, and the whiplash-type connective tissue cases were considered the quintessentially fraudulent cases. Both "soft tissue" and "connective tissue" were identified as terms not clear to many citizens. None of this is good news, but it does provide some guidance to physicians and attorneys in dealing with lay jurors." "On the flip side, the authors noted that defense attorneys also have some hurtles to overcome in these trials, with jurors generally suspicious of insurance companies who, essentially, act as silent partners in these trials since jurors are not entitled to learn whether an insurance company is the true defendant. Federal Rules of Evidence (Rule 411) state that "evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully." This study supports, in a research format, what we already know. Jurors are not friendly to injured parties when the bodily damages are of a non-critical nature. Fortunately, the great majority of scientific research concludes otherwise. People who sustain connective tissue injuries often do suffer significant pain and functional limitations as a result of seemingly mild traumas. This study reenforces my belief that it is increasingly important to prepare every file as if it is going to trial. It also points out the need to use all tools available when trying to educate a jury about your client’s injuries. Charts, graphs, pictures, videos, etc. are all part of a multi-modal approach towards educating jurors that connective injuries are serious even though they may not be life threatening. As an attorney, you also need to do your homework to educate the jury. A good place to start is at a pre-trial conferences with the treating doctor. Take sufficient time with the doctor to discuss the issues which need to be clarified for the jury. Ask the doctor if they have any demonstrative tools which they use in their office for patient education purposes. Most important, make sure you understand the doctors perspective so that you can ask the questions which allow for a thorough explanation of your client’s injuries. The International Congress on Whiplash Associated Disorders was held in Berne, Switzerland on March 8-10th and was attended by about 300-400 delegates. Art Croft, of the Spine Research Institue of San Diego, attended the congress and brought back some interesting data and perspectives. Below are the abstracts from his original research which was presented at the congress. Some of the studies will be published in the proceedings of the conference while other studies have been submitted for publication in reputable journals such as Spine. His work and the work of his cohorts provide significant insight into the "whiplash" controversy. SUPPLEMENT SIGNIFICANT SPINAL
INJURY RESULTING FROM LOW-LEVEL ACCELERATIONS;
A COMPARISON MD Freeman, C Centeno, AC Croft, CN Nicodemus Background: The level of force at which significant spinal injury can occur is a topic that has generated much discussion in the literature over the past 30 years. Research pertaining to human injury thresholds is best accomplished with observational study, that is, analysis of real world events. An ideal opportunity for study is presented with amusement park rides; roller coasters in particular, as they deliver a near identical level of acceleration to hundreds of thousands of subjects over a period of years. Methods: Injury incident records kept by the operators of the Rattler Roller coaster for the period 3-28-92 through 10-22-93 (approximately 19 months) were examined for significant spinal injuries that occurred on the ride. Emergency medical response and medical records that pertained to the incident records were also identified and reviewed. Results: A total of 39 subjects (out of an estimated 300,000 riders) with significant spinal injuries were found, yielding an injury rate of 13/100,000 exposures. The injuries were as follows; 72% (28 of 39) were single or multilevel cervical disc herniations, 23% were lumbar or thoracolumbar disc herniations (9 of 39), and I 8% were spinal fractures (seven cases, one cervical and six lumbar). The average Body Mass Index (BMI) was 23.1 (SD=4.4) for the females and 22.6 (SD-3.7) for the males, indicating average height and weight of the subjects. Conclusions: While the injury rate was quite low in the study cohort (one in 7700 riders), it is reasonable to assume that the injury frequency among the self-selected and prepared riders of the roller coaster was lower than that of real world motor vehicle occupants exposed to similar acceleration levels in 3-4 mph rear impact collisions. The present study illustrates the fallacy of determining crash injury potential solely by estimating the level of peak occupant acceleration. A COMPARISON OF THE FUNCTIONAL PROFILE OF AN INTERNATIONAL COHORT OF WHIPLASH INJURED PATIENTS AND NONPATIENTS; AN INTERNET STUDY INJURED PATIENTS AND NONPATIENTS; AN INTERNET STUDY C Centeno, MD Freeman, AC Croft Background: Despite a significant amount of research supporting whiplash syndrome as a clinical entity, many have embraced the theory that chronic whiplash is a biopsychosocial phenomenon without an organic cause. The basis for the biopsychosocial model is the theory that cultural, medicolegal, and clinical influences lead to the formation of chronic complaints. We tested this model by comparing the functional profiles of various international cohorts of whiplash patients and that of a control group that was asked to fake a whiplash injury. Methods: 1,211 functional questionnaires that met inclusion criteria (symptom duration> 3 months) were collected from 7/25/99 to 5/15/2000 via the Internet. ‘Me questionnaires used a validated four-point disability scale in 13 key functional tasks. Data was collected from 24 counties. In addition, responses were collected from a control group of 208 international whiplash conference participants who were asked to fake a whiplash disability profile. Results: Two international cohorts of patients suffering from chronic symptoms attributed to a rear end collision were assembled (US and non-US). There were no significant differences in 10 of 13 functional categories between the US group versus the non-US group. In comparison, there were significant differences between the responses of the non-US group and the conference sample in 10 of 13 functional categories. Conclusions: Our findings cast doubt on the theory that there is no organic cause for the symptoms of late whiplash. If the pure biopsychosocial model is valid, cultural and medicolegal influences would drive functional disability complaints, resulting in differences between cultures. This was not found in the present study. Additionally, our findings support the work of previous investigators who demonstrated that non-patients are unable to accurately fake the psychometric profile of real whiplash patients. DIFFERENTIAL OCCUPANT KINEMATICS AND HEAD LINEAR ACCELERATION BETWEEN FRONTAL AND REAR AUTOMOBILE IMPACTS AT LOW SPEED: EVIDENCE FOR A DIFFERENTIAL INJURY RISK. AC Croft*, M Haneline*, MD Freeman† *Spine Research Institute of San Diego; Center for Research into Automotive Safety and Health, San Diego, California USA. † Dept Public Health and Preventive Medicine, Oregon Health Sciences University School of Medicine, Portland, Oregon USA Background: Most epidemiological and clinical studies have highlighted the increased injury risk in rear impact vector crashes vs those of other vectors. However, many other risk factors exist which might potentially confound the observations of these studies. These include gender, age, stature, occupant positioning, and differences between vehicle parameters, such as head restraints, vehicle mass, etc. Objective: We conducted full scale, human subject crash tests under controlled conditions, using the same vehicles, the same subjects, and the same instrumentation, comparing occupant kinematics in rear vs. frontal crash scenarios. Materials and Methods: Vehicles and occupants were instrumented with accelerometers and closing speeds and delta Vs were measured. High speed video analysis was performed, and subjective responses to each crash were recorded. Results: The frontal vector crash resulted in a relatively simple, monophasic occupant kinematic, whereas the rear vector crash resulted in a more complex, biphasic kinematic. Subjects also rated the rear impact crashes notably less tolerable and more likely to cause injury. Conclusions: Even in the same vehicle and at the same crash speeds, rear impact crash vectors result in comparatively more complex occupant kinematics, which seems to agree with epidemiological and clinical risk assessment data that Key words: whiplash/WAD/cervical spine injury/human subjects testing. AUTOMOBILE CRASH RECONSTRUCTION IN LOW SPEED REAR IMPACT CRASHES UTILIZING A MOMENTUM, ENERGY, AND RESTITUTION (MER) METHOD. AC Croft*, M Haneline*, MD Freeman† *Spine Research Institute of San Diego; Center for Research into Automotive Safety and Health, San Diego, California USA. † Dept Public Health and Preventive Medicine, Oregon Health Sciences University School of Medicine, Portland, Oregon USA Background and Objective: Low speed automobile crash reconstruction is fraught with difficulties. Residual crush, which is used in many reconstruction software programs, is often minimal or non-existent, police reports are rarely available, and witness accounts are generally unreliable. Many modern passenger vehicles can withstand crashes at closing velocities from other passenger vehicles at speeds of up to 15 km/h without sustaining significant damage, and yet the suspected risk threshold for occupants occurs at lower speeds. Materials and Methods: Using a method reported by Siegmund et al., in which bumper isolator travel is used to estimate energy and restitution values for use in momentum equations, we compared the results obtained mathematically to the actual data obtained from speed traps and accelerometers in two series’ of staged rear impact crash tests, utilizing multiple vehicles at low crash speeds. Results: The method was unsatisfactory when one of the two crashed cars had foam bumpers, and tended to yield values for delta V that were either close to the true value or about half, depending on vehicle make. The speed change, however, was never overestimated. When both cars were equipped with isolators, our results were difficult to interpret due to problems with frozen and broken isolators. Conclusions: In real world crash reconstructions, the MER method may provide some guidance in estimating crash speed changes for subject vehicles. However, the method seemed to have only marginal practicality and accuracy. A larger series, with statistical analytical methods will be necessary to definitively determine the utility of this method. Key words: Automobile crash reconstruction/ crash testing/ low speed crashes.
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