By Richard H. Adler, Attorney at Law
“Physical findings after whiplash … are seldom commensurate with the severity of symptoms experienced and the findings are gone months before the symptoms abate.”
M. Hohl, M.D., Soft Tissues of the Neck,
Clinical Orthopedics and Related Research,
No. 109, p. 42 (June 1975)
When a patient who has suffered soft tissue neck injury in an automobile accident is involved in resulting legal action, the treating physician will at some point be asked to give an opinion regarding prognosis. A determination of damages for reasonable and necessary future care, as well as for future pain, suffering, and disability, often turns on the doctor’s understanding of factors influencing prognosis. Chronic residual symptoms may be encountered with or without objective findings.
We have heard doctors express doubt about the validity of a patient’s residual pain or health care needs when that pain stems from a soft tissue injury. A number of studies are available to supplement the physician’s clinical experience and education, assist in formulating opinions, and help shape discussion about soft tissue injury prognosis.
One well-known study of factors influencing prognosis in soft tissue neck injuries was published by Hohl in 1974. Involved were one hundred forty-six patients who had sustained automobile accident-related neck injuries without fracture or dislocation. None in the group had pre-existing degenerative changes. Follow-up was made at five plus years. Forty-three percent of the patients reported residual neck symptoms. Disc degeneration was noted in thirty-nine percent of the patient group. Among early post-injury symptoms and findings which correlated positively with poor symptomatic recovery were: 1) pain and/or numbness in the upper extremities, and 2) x-ray findings of restricted motion at one intervertebral level.
According to Hohl, factors correlating with post-injury degenerative change included: 1) sharp reversal of the cervical curve (“A sharp reversal of the curve after injury, however, is a harbinger of degenerative changes in sixty percent of patients.” ); and 2) x-ray findings of restricted motion at one intervertebral level.
Two hundred and five neck pain patients were followed for a minimum of ten years in a study published in 1985. Thirty-two percent had moderate to severe residual pain that interfered with their lifestyle to some extent. Only forty-three percent were free of pain. Data relating to lordosis, degenerative change, and pending litigation was found to have little value in predicting outcome. In addition to confirming the difficulty of basing a prognosis on initial symptoms and x-ray findings, these researchers suggested that treating physicians must realize that many patients may have long-term, moderately disabling symptoms.
In 1983, Norris and Watt proposed a classification system for patients with neck injuries from rear-end collisions as a basis for prognosis formulation. Sixty-one patients were studied. Follow-up at approximately two years showed that among those patients who had not shown neurological loss at presentation, more than fifty percent continued to report neck pain. Thirty-seven percent continued to report headache symptoms. Paraesthesiae were reported almost as frequently. This study also suggested that litigation “per se” has little influence on symptoms. Factors adversely affecting prognosis included objective neurological signs, stiffness of the neck, pre-existing degenerative spondylosis, and muscle spasm. The researchers commented that abnormal curves in the cervical spine were more common in patients who had a poor outcome.
In a 1990 study, forty-three of the same sixty-one patients were contacted for follow up after a mean 10.8 years. Twenty-eight percent complained of “intrusive symptoms which handicapped work and leisure and caused them to seek relief by frequent intermittent use of analgesia, orthosis, or physiotherapy.” Twelve percent of the patient group suffered more severe problems. Neck pain, headache, and paresthesia were the most common symptoms at follow-up, and the researchers suggested that most patients’ recovery had plateaued (though not returned to pre-injury condition) within two years of injury.
A 1989 study reviewed forty patients to examine the incidence of residual symptoms between ten and fifteen years after neck injuries were sustained in automobile accidents. Of the twenty-six patients who had sustained true whiplash injury, sixty-two percent had significant residual symptoms. Only ten out of forty patients whose compensation claims had settled reported subsequent improvement. The researchers noted that for the majority of patients, symptoms had remained level for many years. They concluded, in part:
… a whiplash injury has a significant likelihood of resulting in long-term symptoms which in the majority of cases may be physical in nature, and that the settlement of compensation is unlikely to affect the long-term outcome. These points should be borne in mind when treating patients and when compiling medical reports.
In the typical medical-legal context, opinions regarding prognosis can be sought weeks, months, or years after injury. A health care provider may be asked to answer the question of prognosis on the insurer’s Application of Benefits form. Likewise, the issue of prognosis is important to the patient, patient’s attorney, and the at-fault party’s insurer, and the question will be asked via narrative report request or testimony. Here, the physician’s task in formulating a prognosis will be assisted by a relatively longer case/patient history. Absent significant non-organic factors, the degree of chronicity already observed may be a major factor in predicting future residual symptoms.
The above-referenced published medical studies suggest various medical-legal practice pointers for the doctor and patient’s attorney, including:
Care must be taken by the treating physician in making early statements about neck injury prognosis. Any symptom history which exceeds the early prediction will be taken by the insurance carrier as a sure sign of malingering or secondary gain. The resulting extra litigation is extremely time consuming for the doctor, patient, and attorney; very expensive for the parties; and upsetting to the patient/plaintiff.
The medical literature requires health care providers to affirmatively challenge notions that “all soft tissue injuries are the same”; that “soft tissue injuries are not real”; and that “soft tissue injuries heal quickly and without residuals.”
The doctor’s opinion concerning prognosis need not be based on “absolute certainty.” Rather, the law simply requires the doctor to offer opinions based on a “more probable than not basis,” otherwise known as a “more likely than not” basis.
Careful phrasing of reports requested by attorneys or insurers, or testimony at a deposition or trial, regarding the chronic nature of the injury is critical for assuring the patient’s future care needs and legal rights.
At Adler Giersch, P.S., we are aware that soft tissue injuries can be long term in nature. When we represent one of your patients, we carefully address and evaluate the issue of prognosis because of the significance this issue holds for your patient’s health care needs and legal rights.
If you have other articles on the subject matter of soft tissue injury prognosis, we would appreciate your forwarding a copy to us.
Very truly yours,
ADLER GIERSCH, P.S.
Richard H. Adler
Attorney at Law
1 WE ARE GRATEFUL FOR THE WORK OF CONTRIBUTING AUTHOR, E. PAUL GIERSCH, ATTORNEY FOR PRINCIPAL OF ADLER GIERSCH, P.S.
2 M. Hohl, Soft Tissue Injuries of the Neck in Automobile Accidents: Factors Influencing Prognosis, J. Bone Joint Surgery (AM), Vol. 56A, p. 1675 (1974).
3 Adler Giersch, P.S., Significance of Radiologic Loss of Cervical Lordosis, Article of the Month (June 1992).
4 Donald R. Gore, M.D., Susan B. Sepic, M.S., Gena M. Garoner, B.S., and M. Patricia Murray, Ph.D., Neck Pain: A Long-Term Follow Up of 205 Patients, Spine, Vol. 12:1, pp. 1 – 5 (1987).
5 S.H. Norris and I. Watt, The Prognosis of Neck Injuries Resulting From Rear-End Vehicle Collisions, J. Bone Joint Surgery, Vol. 65B, p. 608 (1983).
6 M. F. Gargan and G. C. Bannister, Prognostic Factors in Soft Tissue Injuries of the Cervical Spine, J. Bone Joint Surgery (Br), 72-B, pp. 901 – 903 (1990).
7 S. P. Hodgson and M. Grundy, Whiplash Injuries: Their Long-Term Prognosis and Its Relationship to Compensation, Neuro-Orthopedics, Vol. 7, pp. 88 – 91 (1989).