In his cover letter, Dr. Herbert referred to an attached file review completed by an RN working for a company called Liberator's Inc. out of Dallas, Texas. She had referred to a textbook called the Cervical Spine, and had cited two specific sections from it in her report. Dr. Herbert asked if there were any specific texts that he might use to rebut her comments.
Nurse Rubble noted that she had dutifully reviewed all records, including the police report and vehicle photographs, and then rather unabashedly volunteered her services as an "expert witness." What follows are the salient parts of Nurse Rubble's report. I will make my comments, which might be taken as potential rebuttal arguments in some cases, in brackets. The more cynical, red-in-tooth-and-claw types are for entertainment purposes only. [To begin with, I wonder what part of an RN's training qualifies her to comment about radiographs, police reports, vehicle property damage, or most importantly, the need for chiropractic care. That is always a good question to ask. These experts can be effectively brutalized on cross-examination.]
First, there is a brief description of the accident. This was obviously derived from the police report. The plaintiff, a 36-year-old woman, struck the front of another car as its driver ran a traffic signal. She struck her head on the side window and was reportedly wearing her seatbelt and shoulder harness. [In evaluating this case, at this point you can appreciate a clear liability problem for the defense. Their insured ran the light and the police cited her. All defense efforts will have to be directed at disproving injuries and showing that treatment was excessive and unnecessary.]
Nurse Rubble quotes the police report as finding "...moderate to severe damage to both vehicles ..." (both were towed from the scene), with the plaintiff sustaining "... possible injuries." [Female gender and immediate onset of symptoms are both risk factors for poor outcome.] She then mentioned that photographs of the plaintiff's vehicle "... show what appears to be moderate to severe damage to the entire front end." [Appears to be? Can't she be certain? I wonder where she got the description from? Anyway, is she an accident reconstructionist? Is that part of a nurse's training these days. I doubt it. She is certainly in no position, by analyzing accident photographs, to second guess or preempt the police officer's opinion, so why bother? Why? Because it often adds a veneer of thoroughness and credibility to the analysis. But don't let them get away with that. After all, judges often bar chiropractors from testifying about details such as this. There's another way around that problem, but I digress ...]
In the next paragraph, Nurse Rubble states: "Based on the information provided and a reasonable medical probability, it is my opinion that the claimant sustained headaches; cervical, thoracic, and lumbar strain/sprain; and right knee pain as a result of the alleged accident of 05/12/96 as described." [Good God, woman, is there any doubt about the accident now? I should think the police report authenticates it sufficiently. But, in keeping with the affected style of defense folks everywhere, Nurse Rubble continues to describe the accident as "alleged" throughout the report, in a kind of dissimulation or plausible deniability employed by those who are always searching for loopholes. And, although it sounds as though she is making a diagnosis merely from records -- in my opinion a practice outside of the reviewer's logical and ethical purview -- that is a small point. However, I wonder whether a nurse can reasonably pontificate in the realm of medical probability. "Reasonable nursing probability" just doesn't have the teeth, I suppose.]
As a biomechanical footnote, she adds, "The force of an impact from the front, as described, can produce a hyperextension/hyperflexion motion of the cervical spine ..." [Technically, she has this backward: it would actually produce a hyperflexion/hyperextension motion. And I would not be inclined to use that terminology anyway, since we really have no way of knowing whether the normal ranges of motion were actually exceeded. And because injury can occur within the normal range, I would describe it simply as a flexion injury. Nevertheless, a skilled attorney could have a field day on cross-examination of this witness.] But Nurse Rubble's gratuitous lesson in biomechanics continues. She informs the reader that the seatbelt and shoulder harness "... should have significantly reduced or eliminated the forward motion of the thorax and lumbar spine." [Correct, but this would have consequently exposed the cervical spine to much higher bending loads. In fact, the literature is replete with testament to the fact that seatbelts and shoulder harnesses increase, rather than decrease, the potential for injury in this type of accident. As worded though, her statement exemplifies the typical defense literary legerdemain, falsely intimating that the injuries sustained would be greatly reduced by wearing these restraints.]
In the next paragraph, the reviewer notes that some records are missing and that it would help her to have them. Specifically, she would like to see the report of the orthopaedic surgeon. [Well, I should think so. After all, he may have suggested that the patient continue with chiropractic care (and wouldn't that be embarrassing to discover later on). Usually file reviewers include such caveats in the hopes that, should they later come under fire for not reviewing key documents or hard copies of films (or even worse, should they be sued for malpractice), they'll have an excuse. Of course, they are also happy to review more records for financial reasons. On the other hand, insurance companies may purposely exclude records from the reviewer's package in hopes of guiding his/her opinion in the desired direction. Nevertheless, inveterate defense experts (a term that is usually unearned) rarely are hindered by a lack of records and, as we shall see, Nurse Rubble was no exception.]
Regarding the need for chiropractic care, Nurse Rubble felt that no more than one month of manipulation was indicated and no more than six weeks of passive (PT) modalities. Moreover, manipulation should not have applied to the neck because of the high risks associated with cervical spine manipulation outweighing any potential benefits [And she provided a quote and citation to the above mentioned textbook]. Although no basis for the one month limitation of manipulation was provided, the six-week cut-off for PT modalities was based on another quote taken from the cited textbook: Continued passive therapy, she noted, "... tends to cause irritation and perpetuate symptoms."
Later in the report, in a logically unscripted maneuver, she mentioned that from reviewing records, she was unable to determine maximum medical improvement (MMI). However, if the patient is still treating with Dr. Herbert she said, "I would still consider it unreasonable, and further symptomatology should be evaluated by a qualified orthopaedic surgeon." [Wow. Where does one begin? How many orthopaedic surgeons are really qualified to evaluate soft tissue injuries? How can you tell when one is? Of course, the real issue is MMI. On the one hand she's telling us she doesn't know when MMI occurred, but if treatment beyond a certain point is unreasonable, doesn't that mean that the patient must have reached MMI before then? Thus, the statement requires a knowledge of the existence and onset of MMI.]
Later on in the report she assures the reader that "...most strain/sprain symptoms will resolve with or without treatment in approximately a six-week period of time." [As many of you know by now, this is one of my buttons, as psychologists like to put it. Push it and I'm likely to fly off in a tirade. But, in a nutshell, there has never been a study that has shown that most people recover within six weeks; or even 12 weeks. This defense allegorical is as mythical as the unicorn. She obviously bases all of her main opinions firmly on it (and this would explain the MMI puzzle -- nobody should require care beyond six weeks). Which, in the end, is fine because, when you shatter the myth, this report no longer has a basis in fact. I frankly look forward to the day when we can describe this myth as an historical footnote.]
That's about it for the report. Using the report as its pretext, the insurance company will now offer to pay for four weeks of manipulation (excepting cervical work) and another two weeks of PT modalities. The plaintiff attorney's knees will begin to weaken ... you know the story. What can you do?
In my Module 4 book I suggest, among other things, that you obtain all of the references these experts allude or refer to. Read them and find out whether they have mischaracterized or misquoted, taken the authors out of context, or simply confected a yarn. So I went to my bookcase. I did have a copy of the Cervical Spine (edited by the Cervical Spine Research Society). My book did not have page numbers in the range listed by Nurse Rubble. Probably there is a newer edition, I thought. I called the librarian at the local chiropractic college who very graciously photocopied the appropriate sections of the later edition and faxed them to me.
On page 438, Dr. Mason Hohl was discussing treatment for soft tissue injuries and mentioned that frequent or prolonged use of a heating pad, ultrasound, or diathermy tends to cause irritation and perpetuate symptoms [This is the sentence Nurse Rubble quoted.]. Having read the entire section, I realized that his comments could actually be interpreted two ways: either 'prolonged' meant a long exposure on a single treatment session, or an overall long period of treatment over weeks or months. Most would have derived the first meaning, I think. Certainly no specific time frames (e.g., six weeks) were mentioned, leaving us to wonder how the reviewed extracted the six-week allowance. Anyway, a small issue perhaps. But many of you may recall the name Hohl. He's a (qualified) orthopaedic surgeon from Beverly Hills whose work in whiplash is widely cited. He's the one who reported that 39 percent of his whiplashed study group developed degenerative changes over several years (60 percent if they had also lost consciousness) as compared to only a 6 percent expected figure.1
In fact, on page 440, Dr. Hohl summarizes his chapter by mentioning his work and the outcome studies of Greenfield and Ilfeld, who found that 37 percent of their patients remained symptomatic at seven weeks,2 and Norris and Watt, who found that 44-90 percent of their group remained symptomatic at a mean follow-up of two years.3 And, incidentally, the Norris and Watt work was one of the few outcome studies judged "acceptable" by the Quebec Task Force. Most recently, Radanov et al. also reported that more than 40 percent of their study group remained symptomatic at 12 weeks.4 In any case, its clear that the notions of a 6-12 week recovery and a rosy outcome for most victims are fables. In court, they can easily be ripped from the bleeding side of the defense.
So it would appear that Nurse Rubble practices the popular art of selective citation -- quoting those sections that bolster her opinions and conveniently disregarding those that don't. She's specifically told the reader that she bases her opinions on Dr. Hohl's comments about PT (which she may have misinterpreted anyway), but the basis of her opinions concerning the need for care (i.e., the usual six-week recovery period) stands in clear and direct contravention to his writings in that same chapter. She is ineluctably bound by Dr. Hohl's writings/research and has trapped herself. Her report will be easily shown to be disingenuous and unreliable: some expert.
Now, let's go back to Dr. Herbert. He asked me whether there was a book he could use to rebut the nurse. Yes. It was the book she cited. And that is exactly my point. First look at the references and literature cited by the experts themselves. There isn't a more stultifying way to rebut these folks that to use their own references.
Incidentally, the citation given concerning the fact that cervical manipulation was too risky took me to a page containing only references. It is possible that the reviewer made a mistake. It's possible that the typist typed the wrong number. But, as I suggested to Dr. Herbert, have her give you the right citation. In any case, there is no hard scientific evidence that cervical manipulation by a chiropractor is risky. In fact, the recent RAND report on cervical manipulation, in which I was a panelist, found that the risk of manipulation is probably lower than any medical intervention. And the citation in question (if it exists) will almost certainly be no more than an unqualified and biased editorial comment without scientific basis. Thus, it will not be a problem.
And finally, Dr. Herbert should not necessarily feel obligated to defend the use of cervical manipulation. It is taught to him in chiropractic school and it is a long-accepted procedure in this profession. Certainly we have a long history of empirical evidence for its usefulness. We do need to support research in this area but, in my opinion, striving towards an evidence-based health care system does not require that we should at first abandon all interventions not yet validated with sound clinical trials -- particularly when the risk is so low.
- Hohl M. Soft tissue injuries of the neck in automobile accidents: factors influencing prognosis. J Bone Joint Surg 56A (8): 1675-1682, 1974.
- Greenfield J, Ilfeld FW. Acute cervical strain: evaluation and short-term prognostic factors. Clin Orthop 122:196, 1977.
- Norris SH, Watt I. The prognosis of neck injuries resulting from rear-end vehicle collisions. J Bone Joint Surg 65B (5): 608-611, 1983.
- Radanov BP, Sturzenegger M, Stefano GD: Long-term outcome after whiplash injury: a two-year follow-up considering features of injury mechanism and somatic, radiologic, and psychosocial factors. Medicine 74 (5): 281-297, 1995.
Arthur Croft, MS, DC, FACO
San Diego, California
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