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.
