Can You Gauge Injury Risk or Severity From the Amount of Vehicular Property Damage in Motor Vehicle Crashes?
By Arthur Croft, DC, MS, MPH, FACOAn alternative title for this article might have been: "The Biggest Health Care Deception Ever Foisted on the American Public." Think about the facts, and forgive me for not rapidly citing references - they're not important here. (Besides, I've already done so rather extensively and, if you need them, you know where to find them.1)
Every year in the U.S., there are over five million motor-vehicle-related injuries reported (how many are unreported is a matter of conjecture, but the National Highway and Traffic Safety Administration suggests it is in the range of 50 percent for low-speed crashes). I've estimated that there are about three million cervical acceleration/deceleration (CAD, a.k.a. "whiplash") injuries in the U.S. each year, and that's a fairly tight number. (It's also growing each year.) According to the Insurance Research Council (IRC), the average payout for these injuries, which includes medical costs, lost wages, pain and suffering, etc., is around $8,000, and this amount may be conservative, considering the source. Of the three million CAD traumas, let's assume for the sake of argument that half of them make a claim. That comes out to $24 billion per year, and it's not far from other industry and government estimates. That's a lot of money, even if shared among a dozen large corporations. So, the stage is set for a duplicity of monumental proportions.
But first, let's take a look at the facts regarding the types of crashes that cause injury. According to the largest study to date (conducted in Germany by some of my confr²res), nearly half of these CAD patients are injured in crashes in which no significant structural damage results (i.e., discounting paint scratches or transfers, scuff marks and damaged exterior trim or cosmetics). This is consistent with a study completed in New York recently. The largest injury group in rear-impact crashes in vehicles was categorized as "no damage."
Suppose you represented the interests of the insurance industry, and you devised a way to get the attorneys representing these victims to turn them away in droves, so that the patients had no other recourse but to accept what you offered in the way of medical reimbursement and other expenses. You would potentially save billions of dollars every year.
That brings us to the ever-popular "no crash-no cash" epigram that has been gaining popularity and undeserved credibility over the past few years. In a bitter twist of irony, the people providing this credibility are the very ones it is foisted upon: the plaintiff attorneys! (Of course, many attorneys will find it difficult to turn any business away and will shamelessly encourage the plaintiff to accept the meager offer of $2,000 to settle a claim in which the medical bills alone are higher. A percentage of something is, after all, better than a percentage of nothing. It is a cowardly display of apathy that plays itself out daily in America. But, in the process, their unwillingness to go to trial becomes widely known, which only has the effect of diminishing settlement offers every time. Years of education, it seems, do not guarantee strategic common sense. Or is it simply "herd" mentality?)
In any case, this deception has saved insurers billions of dollars. Here's how it works, if you haven't seen it firsthand.
When Patients Become Plaintiffs
The insurance company representative tells the injured party, "Sorry, but we don't believe injury is possible when the property damage is so low. We won't pay." This often drives the patient to become a plaintiff, but when the plaintiff's attorney learns that the property damage was less than some arbitrary amount, the attorney won't accept the case. With no representation, the would-be plaintiff gives up.
Alternatively, if the attorney does accept the case and takes it to trial, the attorney often fails, because the defense brings in an auto crash reconstructionist (ACR), or a team consisting of the ACR and a biomechanist, who cozen the jury with math and physics based on nothing more reliable than a series of educated guesses or "measurements" made with flexible rulers (liberally influenced by the realities of who is paying the bill. They also rely heavily on about 20 flawed papers to support their opinions. (These papers are used - or misused - so commonly that we made a formal study of their methodological flaws.2 This paper has been successfully used to repudiate defense experts in several states, and has been influential in at least one Superior Court case.)
Next, the defense lawyer puts up a photograph of the rear of the plaintiff's car and asks, "Come on, how bad could it be?" (In Delaware, this tactic cannot be used unless the defense produces an expert qualified to discuss the meaning of the photograph in terms of injury risk - another example of how times can change for the better when you refuse to allow the situation to devolve. And, if such an expert claims the photo implies a low risk, a well-versed plaintiff attorney can easily impeach him with a skillful cross-examination. I didn't mention that this is a violation of jury instructions: asking them to speculate.)
Intuitively, gazing at a photo of an undamaged rear end, the jurors assume the crash was essentially a "nonevent," and therefore the plaintiff is out for a jackpot - a skullduggery they have no sympathy at all for - and they hand down a defense verdict. This further inculcates the attorneys in town that low-speed/no-damage cases are doomed, and it reinforces in the plaintiff lawyer's mind the futility of trying these cases. (Never mind that in all likelihood the attorney strategically did everything wrong, but that's a subject for another article.)
Let's do a quick postmortem on the previous scenario before we allow nihilism to spoil our holidays. This is not our inevitable d³nouement of destiny; no final depredation of this fine corner of practice. It does not always go that way. Trust me, I've been doing this for 20 years and have more cases under my belt than many attorneys I work with. The classic ingredients of this medicolegal quagmire are:
This represents the most common scenario in America's courthouses today: the weakest and most pathetic attempt to bring balance to an unbalanced world. It is not surprising that the opposing defense shenanigans prevail more often than they fail; it's simply a numbers game. More importantly, though, America's disaffected attorneys are turning away in droves, virtually in a panic, from these low-speed cases. They are collectively like a boxer, outmatched by the adversary, unwilling to take a dive, and taking every punch gamely and trying not to disgrace themselves. As in a boxing match, the current game cannot last. The cruel irony is that these low-speed, minimal-damage cases are some of the most valid ones. And I must add that this has been, in all honesty, the most successful hoodwinking and the most ingenious duplicity I've been witness to in my lifetime. Ethics, of course, is an entirely different issue, but not a luxury much vaunted by the accountants of big corporations. It is a kind of social determinism, transforming blame for misconduct to social forces.
Thus, the ground is laid for an epic struggle for truth that will be the metaphorical equal to Waterloo, Gettysburg and Stalingrad as one of the decisive battles in modern public health. Make no mistake about it: If left to fester, this problem will - in no uncertain terms - cost your patients their right to be fairly compensated for reasonable and necessary medical care and it will prevent them from being compensated for pain and suffering, future medical care, and other expenses. And the next time the industry brings the no-fault issue to a voters' referendum in your state, it just might pass without the additional opposition by the trial lawyers' associations. It will also cost you, gentle reader, the ability to provide treatment to these patients and to collect your reasonable fees.
It's just another corner of your world crumbling down, like so much beach sand sliding out from under your feet in the surf. But is there much real estate left to lose? More to the point, is there anything you or I can do about it?
There is. All of the arguments I've accused the defense of making are spurious, feeble, scientifically unscripted and fatuous. Countervailing them are virtual mountains of evidence.
The mere fact that these defense tactics ever prevail is an indictment of the lack of knowledge and skills possessed by most of the plaintiff teams. If we ever expect the insurers to play fairly and settle claims in what we would consider good faith (and I take no interest in issues of pain and suffering compensation, which is the domain of others, but simply argue now for medical reimbursement necessary to return patients to health), insurers must face the uncertainty of potential large monetary losses at trial. Without that fear, they will not change. Thus, plaintiff attorneys and their experts must educate themselves and learn the facts about CAD injury so that the common strategies of misinformation, deception and partial truths no longer prevail in the majority of cases.
Hijioka, et al.
Although I have not made reference to some of the firmament of my arguments, here is one you should read from Hijioka, et al.3 Use the following critique (reprinted by permission from the Advanced Proceedings of Whiplash and Brain Injury Traumatology, 2002) in conjunction with other literature to re-educate plaintiff attorneys that the "no crash-no cash" epigram is false, and that you can help them see and even prove it:
That was just the latest evidence to disabuse the "no crash-no cash" myth. Want more? Check out the papers on our website (the download is free) or contact me at the e-mail address below. The most important thing to remember is that herd mentality is not an effective solution. You have to do something positive. Take an attorney to lunch; write a newsletter; put up a website; give a lecture. The best way to predict the future is to create it. Happy holidays.
Director, Spine Research Institute of San Diego
San Diego, California
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