Distraction Test

Distraction Test

The complaints of patients with chronic or degenerative conditions of the cervical disc are quite different from those of patients with acute conditions. Patients with chronic conditions experience intermittent episodes of pain, discomfort, and muscle spasm. Exacerbations come from exertion. Pain and stiffness may result from weather changes or unexplained causes. Radiculopathy is not always present. Hyporeflexia, motor weakness, and sensory disturbance (especially paresthesia) are common.

1.  Delay in the onset of symptoms.  If the symptoms are not written down and documented within a few hours or days after the crash, then it is very difficult for the patient to say he/she had pain when there is no written evidence.  This can be a critical issue in a case, for example, the first doctor to note that the patient had a traumatic brain injury was made 8 to 10 months after the collision.

2.  Delay in seeing the first doctor.  Any significant delays between the date of the crash and seeing the doctor may create credibility issues for the case.  The patient needs to have a good explanation for waiting for several days to weeks for the first appointment.  There may be legitimate issues such as, some doctors have very busy schedules and may not have appointments available for several days.  The reasons for delays should be noted in the file.  The doctor or patient may have a vacation or work trip scheduled, be out of town for a medical emergency, may have an unrelated surgery that made it impossible to make an appointment, or may simply have not transportation available.

3.  There were conflicts in the history given by the patient in the records.  For example, patient stated in his deposition that he had never been involved in a crash before.  Records from 1989 indicate that the patient was involved in a rear-end crash.  The ER doctor notes that the patient did not use a seatbelt and the orthopedist noted that the patient did use a seatbelt.

4.  Little-to-no damage to vehicle.  The defense will advocate that the damage to the vehicle equals the injury potential (see Chapter 15 for crash speed thresholds for injuries).  There are generally few photographs taken of the vehicles that adequately show the extent of the damage.  Most jurors are going to see poor quality blow-ups of the vehicles or as the parts are removed for repairs.

5.  Impact forces not sufficient to cause any injury or was sufficient enough to have caused only mild muscular strain that would have healed without treatment within a few days may have occurred.  No mechanism of injury was possible in this collision.

6.  No objective findings to prove injuries.  No bruises, bleeding, lacerations, fractures, or photographic evidence of the injury to show the jury.

7.  The treatment that was provided was passive and has not been proven to work.  Patient’s condition would have been the same with or without treatment.  Exercise is the only thing that works.  Patient had only palliative benefits from the treatment.  No long-term benefits noted in file.  May look at deposition.  If patient states in the deposition that the treatment only helped for one to two weeks but the patient continued to have treatment for an additional four months. The case may have challenges.

8.  The duration of treatment was too long, was excessive, or was duplicative, and therefore is not justified from doctor’s experience.  The treatment costs were thus unreasonable for the mild nature of the injuries.  The osteopath, chiropractor, and physical therapist were doing similar things, and therefore the treatments were unnecessary.

9.  Gaps in treatment indicate that the patient did not have any pain.  That a reasonable person in pain would see a doctor is a common attack.

10.  Healing and full recovery takes two to four weeks.  This opinion is simply a hoax for most cases (see Chapter 7 for more about soft tissue healing).

11.  Every person will have full recovery following whiplash injuries.  Doctors and attorneys are to blame.  This is another hoax (see Chapter 13 for a review of prognostic studies).

12.  Patient saw too many providers, consistently self-referred himself or herself, and had a history of psychological problems.

13.  Documentation was poor.  The doctors did not note symptoms, or there are inconsistent statements made by the doctors.

14.  New injuries, including MVCs, falls, etc., or simply flared-up bending over are responsible for the problems.

15.  Prior injuries resulted in all of the problems.  The defense may attack the case by telling the jury that the injuries sustained 8 to 15 years earlier were responsible for the current pain, although there is not evidence of the patient being seen by any health providers for the past five to six years for any musculoskeletal pain.

16.  Prior pain and / or treatment for this pain within the past couple years clearly indicates that the patient’s pain was long-term and would have been present despite the crash.

17.  No justification for the amount of time off work.  May state that the typical patient is back to work within one week (see Chapter 12 for more information).

18.  The MRI scan results showing a bulging or herniated disc are also seen in the general population and are not related to the accident.  Typically, if any degeneration or spurring is noted in the radiology report, the defense medical and biomechanics expert will use that as his/her basis for that opinion using a “Natural Progression” theory.

19.  Future treatment is not needed.  The defense attorney may tell the jury in the opening statement that “Everyone knows that once the case settles the plaintiff’s pain will go away.”

20.  Conservative jurors who have a “Hollywood mentality” can make a case extremely difficult even with the best documentation, proof of bulging discs, and great doctors.  The jury may perceive the plaintiff as looking healthy and there are no photographs of blood and guts.  Some court districts are known as being very conservative, thus making it difficult to get any significant awards.  Some jurors may see that there is monetary motivation for the plaintiff.