Trends in Personal Injury: Whither the Future?
By Arthur Croft, DC, MS, MPH, FACO
In the populous state of California, DCs have taken a huge hit in workers' compensation claims. Meanwhile, other states are rearranging their personal injury laws. I thought this subject matter would make for a nice "interview." The following is what I would say if asked for my thoughts on the current state of affairs in personal injury trends and what the future holds for chiropractic practitioners.
Q: Dr. Croft, what is your take on the current state of personal injury from the practitioner's standpoint?
A: I think that in order to understand the big picture, you need to parse out the contributions of the major players in this business, if I can call it that. The players are the insurers, the lawyers, the doctors, the various experts sometimes relied upon during the litigation process, the government and, most importantly, the victims of trauma.
Q: Let's start with insurers - what are their contributions to the current personal injury environment?
A: The insurers are an interesting bunch. On the one hand, they lead the world right now in whiplash research through a consortium called the International Insurance Whiplash Protection Group (IIWPG). The Insurance Institute for Highway Safety (IIHS) now uses the BioRID dummy and high-tech sleds to test and rate car seats and head restraints, vis-à-vis whiplash protection. So the insurers, from a top-down perspective, obviously recognize that whiplash injuries are an important and very real public health problem. But, at the claims and litigation level, insurers steadfastly assert that injuries are unlikely in low- or zero-property-damage claims; it's a sort of corporate schizophrenia.
I think claims reviewers believe this because they are indoctrinated to believe it, but the executives and researchers certainly know it's not true. I've known Brian O'Neill, the long-time and now former president of IIHS for years. I've been to the IIHS crash test center in Virginia and lunched with vice president David Zuby. Although we differ somewhat in our viewpoints, they clearly are aware of the fact that injury is possible in zero-property-damage collisions. In our recent meta-analysis, we demonstrated that the theory does not have much in the way of scientific underpinning.1 On another front, insurers now are split on the idea of no-fault insurance. States that were once no-fault states, such as Colorado, now have returned to tort status. Florida's no-fault law sunsets next year and many insurers would prefer to return to a tort system there.
Q: Why do many insurers want to return to the tort system, rather than keeping no-fault status?
A: Because when you go from a tort to a no-fault system, with the intention of reducing your exposure, you run the risk the plan will backfire. We saw that in Hawaii several years ago. They developed a monetary threshold whereby a lawsuit could not be filed unless medical bills exceeded $6,000. The thinking was that, since the total bills in most cases were much lower than $6,000, the number of lawsuits would decrease sharply. The unintended consequence was that almost all claims suddenly went over this $6,000 threshold very quickly. Patients got radiographs, CT and MRI scans, and saw two or more specialists in a single day. But the fallout was devastating to chiropractic, as they were subsequently almost cut out of the system. I think about a third of the DCs left the state after that.
In Florida right now, the insurers are talking about going back to a tort system and simply capping chiropractic at 10 to 20 visits for a claim. Driving this is the fact that Florida is ravaged by fraudulent personal injury scams, according to the insurance industry journals. Meanwhile, at the individual claims level, insurers rely on the fact that most patients and their physicians are fairly naïve when it comes to the actual science of traumatology, so the typical tactics insurers use to intimidate doctors and patients will be successful.
Q: Can you give us an example?
A: Well, one of the latest tactics is to deny reimbursement beyond two to six visits, supposedly on the basis of the Presley Reed disability guidelines. I've seen several letters of this kind from Farmers. This insurer apparently is counting on the fact that nobody investigates this too deeply. In fact, the guidelines are workers' compensation guidelines. More importantly, they don't make any suggestion that only two to six visits are appropriate for the management of whiplash. In fact, they recognize chiropractic as a specialty and note that whiplash injuries can last months or even years. In fact, it looks to me as if some of the material in these guidelines was taken from my textbook.
Q: What about the victims themselves?
A: The trend is that people are starting to look a little more at safety ratings and crash tests. But this is becoming more and more confusing since there now are several crash test ratings. First, there is the mandated federal compliance test. Then comes the New Car Assessment Program (NCAP), a non-obligatory test at higher speed; and this is the five-star system. Then there are the IIHS tests, the results of which do not always coincide with NCAP tests because they are different tests at different speeds. Now they have added side impacts and other tests, making this rather difficult to parse out for a consumer. Physicians should have a handle on this information so they can counsel their patients, but few do. On the other hand, most people do not consider whiplash an important safety issue - unless it already has affected them.
Q: What about the trend with the government?
A: The National Highway and Traffic Safety Administration (NHTSA) has whiplash squarely on its agenda and, in fact, recently passed a new head restraint/seat requirement that will help to mitigate whiplash injuries. I think it represents progress, but it's important to realize that NHTSA was severely gutted during the Reagan administration and is only now making some progress. It always has faced severe opposition from the auto manufacturing lobby. I think we will not have a whiplash-proof vehicle until the human factor is removed completely from driving the vehicle, and that is many years off. Meanwhile, the effect of the higher speed crash tests conducted by NHTSA (the NCAP) and the IIHS have forced manufacturers to make their cars stiffer to manage these higher energy crashes. This makes them stiffer in lower velocity crashes as well, and the unintended consequence has been to increase the risk for whiplash-type injuries.
Q: What about the lawyers?
A: In a perfect world, we would work things out without lawyers. But, in third-party claims, lawyers are an important balance point. Too many times, victims simply are not treated fairly by insurers, which send a letter to the doctor and patient that says, "According to our analysis, the collision could not have resulted in sufficient forces to cause an injury." So at that point, lawyers become a necessity. But lawyers come in two flavors. One type wants to avoid trial at all costs. They handle every case by letter and phone call. In some areas, there is a virtual formula they follow. They tell the doctors never to let the medical bills exceed $2,500. Then they negotiate a settlement with the insurer.
This is a bad way to go for a number of reasons. Although it isn't my concern how much claimants receive in awards, many serious claims are settled for discounted amounts. What practitioners should be aware of is this: These non-litigating lawyers are well-known to insurers, and the doctors who work with them are electronically linked to the lawyers through their social security number or tax identification number. These doctors' cases are devalued based on this association alone.
Q: So, you mean that if a doctor worked often with lawyers who do this form of telephone litigation as a normal procedure, the doctor's cases would be devalued by the insurer?
A: Yes, it's guilt by association. The other type of lawyer is the one who will take some of these cases to trial. They are the ones who preserve the system of checks and balances. Otherwise, if the insurers knew you'd never go to trial, they'd have no incentive to offer your client anything, and eventually, these lawyers merely are settlement brokers. But there is a trend here in that more lawyers are taking these claims to the mat. They are challenging this "no crash, no cash" notion that injury is unlikely when property damage is mild. Our paper is the best evidence to show this is a myth.1 I wish more lawyers knew about it. It's a free download from the journal's Web site. Doctors should make sure the lawyers they work with have a copy.
Q: What is the trend among manufacturers?
A: This industry is driven by sales. Despite the sloganeering we see in television commercials, the focus on safety that has emerged in the past decade largely is a result of the industry's careful analysis of trends in consumer interest. In the 1960s, safety was the industry's bête noir. The industry feared that mentioning safety would scare customers away. Television commercials for cars focused on fun, fashion, power and luxury - anything but safety. But the safety consciousness of today's consumer has not escaped the notice of the manufacturers.
On the other hand, this appeal to safety mostly is veneer. The only time American manufacturers add a safety feature is when it's mandated by a new federal requirement. This is a time-honored modus vivendi. Once the requirement is in place, the manufacturers advertise it as though it was industry's idea from the start. But in fairness, the industry has its problems, too, and juggling safety with sales is not easy. I'd also point out that most of the substantial advances in safety not federally mandated, but simply a good idea, are coming out of Europe and Japan. Our "new" head restraint requirement has been the standard in Europe for years.
Q: You mentioned other "various experts." Who are they?
A: In the case of alleged injury arising from motor vehicle collisions, insurers increasingly have turned to accident reconstructionists and biomechanical engineers to defend claims. This is a very deep level of argument; the subtlety often is lost on clinicians who might be overconfident that the most deterministic discussions will be doctor vs. doctor arguments concerning whether an injury occurred and what its nature is, prognosis issues, etc. In fact, that is how I believe these cases should be resolved. That's how they were resolved when I entered practice 25 years ago.
But times have changed. What clinicians and lawyers should understand is that if the reconstructionist or engineer can convince the jury the actual physics involved would not be consistent with injury, the jury often will disregard the doctor vs. doctor issues entirely, having already decided the outcome of the trial. So this is an area in which plaintiffs must contend with these issues, and it's why I have to teach accident reconstruction and biomechanics to doctors these days. While these "physics" arguments generally are easy to take apart if you know how; very few clinicians, and even fewer lawyers, know how. I think that in the past decade, the number of reconstructionists probably has increased exponentially.
Q: And what about the doctors?
A: The trends are really regional. In the areas I spoke of in which lawyers follow a cookie-cutter formula, the doctors tend to go happily along with it. And since they never need to go to trial or deposition, they really don't need to be terribly knowledgeable in terms of the science and management of motor vehicle traumatology. I find that our seminar attendance in those states usually is low.
Conversely, in Florida, there is great interest in this area of research. The interesting thing about motor vehicle personal injury is that it's a huge problem in the U.S., for which most health care practitioners don't really have much to offer. Of the 3 million whiplash injuries each year, we don't know how many actually receive formal treatment. But chiropractors are the most common treating practitioners at 36 percent, according to a study we did last year. Many chiropractors shy away from this type of patient because they don't feel confident working in the medicolegal arena. I can't tell you what this lack of confidence entails exactly, but I know this because the word "confidence" is the most common one we see in testimonials to us regarding our training. Once they feel comfortable, everything changes.
I also should point out what is happening on the other side of the fence. In defense of these claims, the standard approach is to hire orthopaedic surgeons who typically will quote from a fairly standardized collection of published papers purporting to show whiplash is a dubious medical condition, that it's likely not in low-velocity collisions, and that, in any event, it heals in a short period of time and requires little treatment. This collection of 20 or so papers is so standardized, in fact, that my colleagues and I published a paper in Spine several years ago pointing out the various weaknesses of these papers.2
Usually, these medical experts know very little about this kind of traumatology beyond this genre of literature and are very easy to contend with if you have a strong background in this area. At that point, they're forced to fall back on the "appeal to authority" game and try to leverage the MD degree against the DC degree. But, juries are pretty savvy these days, I find, and they can see through that game when the DC knows the subject matter well.
Q: So, can you summarize the future of chiropractic's role in treating victims of car crashes?
A: The overall trend has been an increase in the number of whiplash and related injuries in the past couple of decades. This clearly is related to the way we build cars, not some mysterious biopsychosocial change, as some claim. Although we do know how to decrease the risk of injury through better engineering, I don't see this problem being resolved anytime soon. So, there will continue to be millions of new injuries every year. Insurers will, of course, do what they can to reduce their exposure, but Americans will never give up their right to be treated by a health care practitioner for these injuries and to be compensated fairly for damages visited upon them by the negligent acts of others. So, there will continue to be lawsuits over these injuries.
Meanwhile, although I do see a growing interest among the medical profession in this area, judging from the growing number of MDs attending my seminars, chiropractors still have the most to offer these patients therapeutically. I think we should capture more than 36 percent - and we could, if the will (or the confidence) were there.
And finally, I think there is an important opportunity for DCs to enter the forensic world here. They should pay attention to the retired orthopaedic surgeons who share something with DCs, in that the two have the highest professional disability rates. Standing over the operating table for hours on end and pounding, sawing and performing other activities involved in this form of surgery apparently are as disabling as bending over chiropractic tables all day. What do orthopaedists do after they "retire?" They become "expert" witnesses.
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