Writing Rebuttals to the Reports of Auto Crash Reconstructionists and Biomechanical Engineers

Writing Rebuttals to the Reports of Auto Crash Reconstructionists and Biomechanical Engineers

Croft, Arthur

Most practitioners have observed the slow hemorrhage of personal injury taking place in recent years. This article will provide the reader not only with hope, but also a concrete plan for staunching the flow. This article concerns the whys and wherefores of writing rebuttal reports. At the end of this article, I provide a fully redacted example of a recent report I wrote which illustrates this rebuttal process. [Editor’s note: Due to space limitations, the report Dr. Croft refers accompanies the online version of this article only.]

This is easier to do than most would imagine. I’d be happy to provide other examples at no charge. Simply e-mail your request to info@srisd.com and ask for more auto crash reconstructionist (ACR) rebuttal examples.

Before I begin, I would like to acknowledge that there are many honest and ethical ACRs and biomechanists, and this paper deals only with those whose moral compasses have been partially degaussed or who are genuinely unfamiliar with traumatology and risk analysis. I hope my fellow ACRs and biomechanists will not be offended by some honest whistle-blowing. It is also clear that some baseline level of fraud in insurance claims requires auto insurers to do their best to prevent unreasonable losses. Physicians and their legitimate patients, however, often feel overwhelmed and outmaneuvered in this hostile environment.

In the 1980s, it seemed as though patients with injuries usually managed to get the care they needed and it was usually paid for. In a dispute, a lawsuit was filed. Back then, the chief arguments on either side of the case were made by physicians and concerned issues of diagnosis and causation, injury severity, and prognosis. But, over the years, these ever-resourceful auto insurers, keen on limiting their losses in personal injury lawsuits, have resorted to a variety of constantly evolving strategies and tactics. The once medically dominated medicolegal system began to admit chiropractors into the club when the defense experienced credibility problems through the use of medical neurologists and orthopedists dictating what care should be provided by chiropractors. Soon, the medical defense medical exams (DMEs) were conducted by chiropractors in cases in which primary care was delivered by another chiropractor.

Another defense approach that became popular was to hire utilization review companies that examined medical bills and generally restructured them to the fiscal benefit of insurers. Like the DME report, this tactic provided a necessary pretext for refusing to pay bills and thus limited the insurer’s exposure to bad faith claims. Twice in California, insurers have attempted to abnegate some of their liability by sponsoring no-fault legislation; twice, voters have rejected these measures. In other states, such legislation has passed. In one case, using a nationally recognized accounting firm, the insurance and banking commission managed to create a series of algorithms for treatment that physicians were then held to. These algorithms, which sharply limited a patient’s access to medical care, were developed chiefly by non-physicians and were not evidence-based. Most recently, some insurers have resorted to direct harassment of DCs and MDs by demanding unannounced clinic “inspections.” Of two cases in Colorado that I am very familiar with, in both, the insurers lost handily in subsequent lawsuits. In one, the judge gave a directed verdict and wouldn’t even let the insurer bring the case to trial. He simply told them, “Pay the doctor, you have no case.”

Another tactic is wide-scale industrial brainwashing. One of the larger auto insurers developed some exquisitely biased and wholly unbalanced videotape training materials that it shows to all its claims adjusters. The tapes are very entertaining, but unfortunately, for the intended audiences who view them without the benefit of balanced scientific information, they appear believable, and would leave little doubt in the minds of these adjusters that injuries in crashes in which there is little or no property damage are virtually 100-percent fraudulent. The unmistakable impression the claims adjuster is left with is this: When a case comes to you in which injuries are claimed and property damage is minimal, it is very likely that fraud is afoot, and you should immediately do one of two things: (1) alert the special (fraud) investigation unit; or (2) hire an auto crash reconstructionist or biomechanical engineer (or both). The reports of ACRs and biomechanists have the ability to turn plaintiff lawyers’ knees to rubber and to virtually hypnotize jurors into believing every gilded word. As a result, over the years, the insurers have virtually inculcated most of the U.S. bar into actually believing (or at least accepting) the lie that injuries are not possible in these crashes.

Why have insurers worked so hard? The simple answer is money. The total comprehensive cost of whiplash in the U.S. each year is $42.9 billion.7 Much of this is for medical costs, which is amortized across a small number of insurers. My research has shown that perhaps 40 percent to 60 percent of all whiplash claims occur in zero or low property damage crashes. I’ll not insult the reader by offering to do the math here. This no crash – no cash game happens to be one of the most successful duplicities ever foisted on the American public and legal system by big business. Again, there clearly are dishonest plaintiffs who either fake their injuries or exaggerate them in hopes of winning a quick cash settlement, and there are even organized crime networks in the business of faking crashes or causing real ones. One can’t begrudge insurers for their efforts to fight this kind of fraud. However, it is also true that insurers save billions of dollars every year by “proving” injuries are not possible and conning jurors into returning egregious defense verdicts in valid claims. These tactics are policy-based and nondiscriminating, so many valid claims are denied. For more than two decades they have been sending plaintiff lawyers running for cover. But how can this be, you ask? They get away with it because most of the time, neither the plaintiff lawyer nor his or her expert has a clue how to contend with this set of tactics. The fraud in personal injury cases can be found on both sides of the table.

Lastly, there has also been a concerted attempt to influence policy through research. It works this way: An insurer or group of insurers funds a research project. The results, not coincidentally, turn out to be beneficial to the insurers in one or another way. (The fact that this would be roughly the equivalent of a study funded by tobacco companies that found cigarette smoking is not harmful seems to escape notice.) They then use the results of this research to develop training programs or to support their oftentimes draconian treatment endpoint algorithms. If this sounds a bit too Orwellian, just take a gander up to our neighbors to the north. The Quebec Task Force on WhiplashAssociated Disorders (QTF-WAD) was funded by a supplemental auto insurer. The QTF-WAD determined that whiplash injuries did not require more than short-term treatment.6

Not long afterward, the Insurance Corporation of British Columbia, the government auto insurer in that province, began using this document in support of their BC Whiplash Initiative – essentially an “educational” tool used to strongarm the physicians in the province. A recent series of studies on traumatic brain injury was funded by the Saskatchewan Government Insurance (the chief auto insurer for that province), the Insurance Corporation of British Columbia, and La Societe de l’Assurance Automobile du Quebec – the same insurer that funded the QTF-WAD study. I can’t say which group approached the other, but it seems likely that the World Health Organization was approached first. With the WHO stamp, the panel would then be assured of valuable, marketable cache using the loftysounding name of the WHO Collaborating Centre Task Force on Mild Traumatic Brain Injury.

By the way, what did they actually report? They speak in surprisingly vague terms, telling us no more than, for example, “Most seem to recover,” or “They were largely recovered.”8 Convenient sound bites for the media or the legislature, but hardly the stuff of a scientific investigation or best-evidence synthesis. After all, “most” covers the gamut from 51-99 percent, but that is a pretty broad range. This is very much reminiscent of the QTF-WAD, which had at least one author in common. Readers may recall that the QTF-WAD used “return to usual activities” as a very unorthodox proxy for “recovery,” which resulted in widespread misunderstanding of the findings. The told us that after a year, only 3 percent had not recovered, but, in fact, they had no information about who was still symptomatic or in treatment. In the end, rather than evidence-based policy-making, this maneuvering is more aptly called policy-based evidence-making.

All of this may sound depressing, but the good news is that you can very definitely learn how to deflect tactics designed to interfere with the delivery of necessary and reasonable health care. Bear in mind, 3 million people are injured this way in the U.S. every year and the numbers are actually growing, not shrinking. Who should care for these people? Studies show that chiropractic care may be the best answer.9

This article simply relates the general mechanics of the process of rebutting and encourages the reader to explore the other sources of information mentioned as to the specifics of the process. ACRs and biomechanical engineers have a well-developed strategy that is fairly consistent from case to case and is supported by a limited literature of junk science, and often by a series of dubious assumptions and occasionally mind-numbing misapplications of Newtonian physics. I have exposed these tactics1-3 and we have debunked this literature.5 (This is an ongoing process, of course, since new research – real and junk – is published each month and is the primary reason for our annual SRISD scientific conferences.) But, to a naïve jury, it all looks and sounds rather convincing.

Fortunately, truth can be a great equalizer. I have seen well-pedigreed PhDs from prestigious institutions like MIT and Stanford struck from cases. It is more common than not that after looking at their work product, we can make one of three things happen: (1) After filing a motion in limine, outlining the reasons why they should not be allowed to express the opinions they intend to express, they are struck from testifying by the presiding judge; or (2) The judge allows them to testify about forces and loads, but not to opine as to the probability of injury; or (3) They are allowed to testify relatively unrestricted, but the material we have already provided in the motion is, essentially, the plaintiff lawyer’s crossexamination strategy, and the “expert” often regrets coming to court if they cannot support their opinions with hard science. Believe me, they have nothing to stand on when their testimony is based on fiction, fabrication, and deception; but this is true only if it is exposed. The purveyors of deception are simply counting on the fact that, in most cases, the odds are against them being exposed because most plaintiff lawyers and their experts don’t understand these issues well enough.

Now, there are a number of fears and misconceptions that I should address here. Many doctors will say, “No way. I’m not an engineer, physicist, or ACR. I’m not going to butt heads with those guys.” But have faith, gentle reader; you very well can. In fact, you must if you believe that your care is medically necessary and appropriate, and that the opinions expressed by opposing experts may become the baseless pretext for denials of coverage. Rebuttal is precisely what this article is encouraging. It may be comforting to know that most of the rebuttal does not involve physics, mathematics, or engineering issues. And even if you choose not to argue the actual calculations of crash metrics, there will still be plenty you can rebut.

This slow hemorrhaging I earlier alluded to is aided in a very significant way by these so-called experts claiming to disprove injury. If you allow it to go on unchallenged, you do a grave disservice to your patients. And consider this: The very reason that so many lawyers today will not represent honestly injured individuals (whose only crime was being hit in a crash with little property damage) is because they have acceded to the lie foisted upon them. Granted, many actually do recognize that their clients are genuinely injured, but the cases are simply too difficult to try, in their estimation. And since most lawyers don’t know how to put these cases together, it would seem that their assessment is correct. If they knew how to properly handle such a case, it would be a very different story. What I am saying here is that for the past decade or so, insurers have effectively dictated to lawyers how the personal injury business would evolve. This situation should and can change, but to do so is to reverse the current evolution, and that takes some re-engineering.

What Am I Suggesting You Do?

First, understand that getting up to speed on all things whiplash is crucial. Fortunately, there are training programs and other materials to help to get you there. There are textbooks that discuss current issues in ACR and biomechanics.4 Become a student again. Make lifelong learning your modus vivendi. Remember, the best weapon against authority is more authority. Take a half-hour a day of quiet time and start becoming one. In a very short time, you will know more relevant information than most of the people who call themselves experts. Start writing rebuttals reports – not only in response to outrageous IME/DME reports, but to the ACR or biomechanical reports that require it as well. Stop being passive and become aggressive.

I will end with an anecdote. One of my students called from North Carolina a couple of months back. He was having problems with a certain PhD engineer who was of the opinion that his patient could not have been injured in the subject car crash – the usual fare. The student mentioned the engineer’s name and I recalled having written a rebuttal to another of his reports a few years earlier. I sent the doctor a copy. He recently informed me that they used the rebuttal to develop the voir dire of this “expert” and, after a brief time on the stand, the judge actually asked him to step down and leave the courtroom because his opinions were completely discredited and deemed untrustworthy.

This article is available online at www.chiroweb.com/columnist/ croft. You may also leave a comment or ask a question at his “Talk Back” forum at the same location.

References

1. Croft AC. Whiplash injuries and low speed collisions: confessions of an accident reconstructionist. Forum 1997;27(6):10-15.

2. Croft AC. Biomechanics. In: Foreman SM, Croft AC (editors): Whiplash Injuries: The Cervical Acceleration/Deceleration Syndrome, 3rd ed., pp. 1-129: Lippincott Williams & Wilkins, 2002.

3. Croft AC. Advanced Diagnostics, Treatment, and Auto Crash Reconstruction (ACR). Spring Valley, Spine Research Institute of San Diego, 2005.

4. Foreman SM, Croft AC. Whiplash Injuries: the Cervical Acceleration/Deceleration Syndrome. Baltimore, Lippincott Williams & Wilkins, 2002.

5. Freeman MD, Croft AC, et al. A review and methodologic critique of the literature refuting whiplash syndrome. Spine 1999;24(1):86-96.

6. Spitzer WO, Skovron ML, et al. Scientific monograph of the Quebec Task Force on Whiplash-Associated Disorders: redefining “whiplash” and its management. Spine 1995;20(8 Suppl):1S-73S.

7. Zaloshnja E, Miller T, et al. Comprehensive and human capital crash costs by maximum police-reported injury severity within selected crash types. 48th Annual Proceedings of the Association for the Advancement of Automotive Medicine, Key Biscayne, Florida, 2004.

8. Carroll LJ, Cassidy JD, Peloso PM, et al. WHO Collaborating Centre Task Force on Mild Traumatic Brain Injury. Prognosis for mild traumatic brain injury: results of the WHO Collaborating Centre Task Force on Mild Traumatic Brain Injury. J Rehabil Med 2004;43 Suppl: 84-105.

9. Woodward MN, Cook JC, Gargan MF, Bannister GC. Chiropractic treatment of chronic ‘whiplash’ injuries. Injury 1996;27(9):643-645.

Arthur Croft, DC, MS, MPH, FACO. Previous articles, a “Talk Back” forum and a brief biography of the author are available online at www.chiroweb.com/columnist/croft.

Arthur Croft, DC, MS, MPH, FACO, Director, Spine Research Institute of San Diego

San Diego, California

info@srisd.com

Copyright Dynamic Chiropractic May 21, 2005

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