Monday, March 24, 2008


I spend half my time doing chronic pain management. This has meant spending more time associating with lawyers than anyone should have to. Most of this is related to motor vehicle accidents. I don't really mind doing it; for my patients I feel that I can help them by making their medico-legal reports as timely, balanced and accurate as possible. I have a smaller number of medico-legal referrals. These are very interesting to do and the best thing is that I get to make lots of recommendations knowing there is absolutely no way I will ever have to follow-up on them.

Automobile insurance premiums have increased dramatically this millenium. This for the most part due to the insurance industry's poor investment track record and also because they can. I don't really want to discuss this much in this post. A couple of years ago in order to reduce costs, the Alberta government legislated a $4000 cap on "pain and suffering" which was supposed to reduce premiums. A judge recently ruled this cap unconstitutional so we are waiting to see what our newly re-elected government does.

A few observations on whiplash:

1. Nobody actually knows what causes it.
There have been all kinds of studies and some people say it is due to damage to cervical facets, some people say it is due to muscle damage and of course some people say it doesn't exist.

People don't die immediately from whiplash; autopsy findings on people who die in MVAs are not reliable because the forces are entirely different. I did see a case report on an autopsy of someone who committed suicide shortly after an MVA but that is a single case.

There are no really good models to reproduce whiplash. Animals are no good, there are no animals who are the same size as humans and walk upright. I have seen studies with human volunteers but these are carefully controlled studies and of course there are limits on what you can do to a volunteer. There are studies done with cadavers but we all know that even a freshly dead person feels very different from a live person.

Imaging is not very useful. There is never any bony damage, soft tissues show up poorly on even the most sophisticated types of imaging. Imaging of muscle will show structural but not functional abnormalities.

Bogduk "proved" by doing diagnostic blocks that it is damage to the facets that causes whiplash, however only 30% of his subjects passed his rigorous blinded blocks which makes you wonder what caused the pain in the other 70% of his patients with neck pain.

Now you would think that with such a large public health problem, especially one that has such an impact on the bottom line of the insurance industry that we would like to figure out why people get this condition. Unfortunately the only way to do this is to do a huge cohort study where you can look at as many people as possible with whiplash and follow them thru their course, doing a standardized workup and standardized treatment. This unfortunately requires the cooperation and involvement of the insurance industry which immediately taints the whole process plus most people's lawyers will advise them not to participate. This is exactly what happened to a colleague of mine when she tried to do such a study.

2. Getting rear-ended is not physiological.

Human beings are slow moving. This is probably what forced us to become intelligent in the first place. A sprinter who runs 100m in 10 seconds is running at 36 km per hour. This is of course the fastest speed a highly trained human can run under perfect conditions and only for a short period of time. Most of us move slower. This means that the collisions that we have experienced and survived over our evolution have been a signficantly lower speed than even the slowest car. Actually probably the fastest collision speed humans experienced would have been falling from a height which beyond a certain height is bone breaking if not fatal.

While sitting in your car, you are somewhat protected from the moron who runs into you, your body is still going to have to absorb a lot of the impact. In a sense you are being exposed to an impact that humans have only had to absorb and walk away from over the last 100 years.

In North America we typically don't investigate rear end collisions unless there is significant damage to the car. In Australia they apparently investigate all collisions and a researcher by looking at the crash records found that on the average, the speed of rear-enders with pain was 15 kph higher than rear-ender without pain.

Now add to that, the fact that there is a good chance that the vehicle that hits you is likely to be a SUV, which is much heavier than the cars we drove in the 60s, plus because they are higher the impact point is going to be higher.

3. What about seat belts?
No doubt seat belts prevent deaths in head on collisions and there is absolutely no way I would ever advocate not wearing one. Having said that, there is a theory that seat belts in particularly shoulder belts may actually increase the incidence of whiplash (maybe we should release them when stopped at traffic lights.)

4. Headrests
Most people don't have their headrest at the right height, further taller people cannot get their headrest high enough. But the only way apparently a headrest can help you is if you are leaning back against it at the point of impact. Who does that at intersections. You are looking to the side at traffic, waiting for the light to change, fixing your make-up etc.

5. The legal/insurance complex
Everybody is insured or supposed to be. In a rear end collision the rear-ender not the rear-endee is always in the wrong correct? Apparently not.

Say for example I am rear ended. I just need some analgesics and I have to take some time off work to attend physio. So after everything is said and done, I ask my rear-ender's insurance company to reimburse me for my trouble and lost income. To do this, I have to hire a lawyer who will deal with the insurance company's lawyer and eventually years later if I don't just say shag the whole thing, I might get some money.

The above is a simple claim. Suppose I can't work and/or require more treatment.

This is where the lawyers start to really earn the big bucks. Joining them shamefully are certain physicians of which I occasionally am one. All the treating physicians will be asked to submit a report for which they will be reimbursed handsomely. My medical association says I can charge $400 per hour for such reports, some people charge more.

Then we bring in the IME. This stands for Independant Medical Exam. This is of course not independent, and barely medical. Most IMEs are done by elderly physicians as a way of financing a comfortable retirement. A few younger physicians have gotten into the game in a big way. Now if your retirement or your medical practice depended on the insurance industry (who pay for most of these IMEs) whose side do you think you are going to take, especially when you have a diagnosis as nebulous as whiplash (remember as above we don't even know what causes it). Many patients get several IMEs which judging by the volume of paper generated are costing well over $10K eacg. The Plaintiff's lawyers will also order at least one IME to rebut the other IMEs. I do about one of these a year which with the amount of paper I have to review means that I frequently end up charging more than $10K which the lawyers pay quite happily.

Another thing that really amazes me is the slowness of the process. Occasionally I get behind and let things slide but I rarely get any angry phone calls or letters asking why the hell haven't I finished yet.

Meanwhile, the poor patient is often not working and trying to scrape through why he awaits his eventual settlement. It is not unusual for these things to drag out 7 years.

These cases rarely go to trial. They are almost always eventually settled and the patient gets something. The lawyers in negotiating the settlement will always make sure their costs are covered.

Now as I mentioned, because the driver who caused the accident is always at fault, he will have been paying higher premiums for several years by that time.

Another factor of the endless exams that the patient must go through is describing the accident over and over again. Just about every IME I read has a detailed description of the accident. One thing we have learned about post-traumatic stress syndrome over the years is that the worst thing to do is to describe the event over and over again. Talking is okay in a therapeutic setting with a therapist who knows what he is doing, but the IME is not a therapeutic setting.

6. Most of the these are not simple taps from behind at an intersection.While we talk about "whiplash" most of the patients I deal with in the pain clinic where in much more complex collisions. If they were stuck from behind, they were usually struck at higher speeds and by a vehicle much heavier than those. In fact most of the more severely injured patients I see were T-boned or in head on collisions. Therefore there is almost always an element of PTSD. PTSD is by the way not a sign of weakness but is a consequence of the accident.

7. There is no green cure

That is one of the most pervasive myths in the medico-legal field. Patients do not get better after their settlement. Firstly most of them don't get a settlement. They either give up or they lose due to the "IME's". The rare patient who gets a settlement doesn't get better. Trust me, I have followed some patients from shortly after their accident until years after their settlement.

8. These people are not faking their symptoms to get some money

Many of these people are not working. In only a small percentage of cases is anybody getting any benefits until they get their settlement. Some have lost their houses. Quite a few of these people are on welfare. When they are getting benefits, it is quite often long term disability from work rather than anything related to their accident. Quite a few are on CPP disability. Now anybody who is going to put their life on hold for the 7 years it takes to get a settlement is suffering from some severe psychopathology (of course that's what people say about them anyway).

I have over the years heard about whiplash scams. The operative word is heard just like I've heard about alligators in the sewers. I'm sure it does happen. In fact one of my wife's cousins disconnected her brake lights so that she would get rear-ended. I have heard about incidents where a car was rear-ended and suddenly 5 "passengers" jumped into the car. I have heard of places in such cars being sold. But that is just that, I have only heard; I have never seen any verification. This is, by the way, insurance fraud which our judicial system takes a very dim view of.

Another resource the insurance industry uses is the private detective videotape. I had been following a patient with a whiplash associated injury for about 2 years when I got a copy of an IME which referred to a videotape which proved that she has faking her symptoms. My first impulse was anger, that this patient had pulled the wool over my eyes. In fact what happened that one of the private dicks would let the air out of her car tires and they would then videotape her trying to change her tires. This happened so often she finally joined the automobile association. On the eve of her trial, I actually got to see the videotape. It basically showed her struggling to change her tire with one hand for about half and hour,after which she got out an air compressor, inflated her tire and drove to a garage. Nothing in the video conflicted what she had said about her symptoms. Yet I met another doctor who had been involved in her treatment who, based on what she had been told about the video, now thought she had been faking all along. The other tactic is the edited videotape. One patient I saw was under surveilance for 8 hours out of which 20 minutes of tape were produced. Hardly a representation of his ability to function.

Now I did see a videotape of a patient where after viewing the tape, I told her lawyer that based on what I saw, I would be uncomfortable testifying on her behalf. The video was by the way taken in a very sneaky fashion and it was apparent that they may have tampered with her car as well.

And by the way what do we tell patients in pain management programs? We tell them to live as normal a life as possible, to do everything they possibly can. We do this knowing that somebody might be watching them. (WCB are also great videotapers in this province as well).

9. The adversarial system feeds this whole thing.

For various reasons, auto insurance is mandatory. You could look at this as medicare for the car. Suppose in the 1960s the government instead of bringing in medicare had just made health insurance mandatory. Say if you are having crushing chest pain and your doctor says you have angina. Instead of having your CABG right away, you have to go to a whole bunch of IMEs by your insurer, you get videotaped out walking; "proving" you don't have angina. 7 years later your estate might actually get the funding for your CABG. Kind of what Michael Moore described in Sicko.

Why not replace this system with a no fault system. The current rabble of IME hired guns would be replaced with true Independent Medical Examiners, certified by the Provincial Licensing Bodies instead of the weekend courses they currently take.

That would for the most part cut out the lawyers and about 2/3 of the IMEs currently done. The private dicks could go back to staking out cheap motel rooms or whatever they do.

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