Litigation Neurosis: Factor or Fiction? A Review of Literature

By Richard H. Adler, Attorney at Law

Cervical spine and minor head injuries are a frequent result of motor vehicle accidents. Injured persons often present with symptoms such as forgetfulness, irritability, cognitive deficits, sleeping difficulties, headaches, visual distiburances, and neck pain. Some physicians may be hard-pressed to account for these symptoms on an organic basis, since many are subjective in nature. In some cases, health care providers might be led to label their patients with litigation neurosis when an MRI or CAT scan fails to produce objective evidence of injury. Recent research, however, has provided compelling evidence that such subjective complaints may arise out of organic lesions.

The term “litigation neurosis” became popular following Henry Miller’s 1961 study. Dr. Miller, a prominent British neurologist, reported on 200 head injury patients with long-term subjective complaints whose cases were still under insurance review. Based on his conclusion that 24% of his patients with worker’s compensation and personal injury claims were suffering from psychoneurotic complaints with no organic basis, many patients have subsequently been labeled as neurotic in one form or another. In Miller’s view, only persons with the opportunity for compensation developed post-concussion syndrome. All but four of the 45 cases returned to work after their was claim settled, and therefore he concluded that settlement of the claim helped them return to work. See British Medical Journal, 1961, Vol. 1, pp. 919-925 and 992-998.

Miller’s work has received growing criticism over the years. Nevertheless, his article remains influential in medical-legal circles today, predominantly used as leverage by insurers and insurance defense attorneys who argue that patients claiming post-concussive syndrome or residuals from soft tissue injury suffer from a functional rather than an organic lesion.

Recently, Arthur Croft, D.C., M.S., D.A.B.C.O., published an article in the Journal of Neuromusculoskeletal System based on an exhaustive review of all literature concerning “litigation neurosis” in conjunction with residual soft tissue injuries. Dr. Croft’s very thorough review of this research provides compelling evidence that the terms “litigation neurosis” or “compensation neurosis” should be abandoned. According to Dr. Croft, the literature indicates:

In 1965, dePalma and Subin reported that only 25% of 386 of their patients became involved in litigation and the treatment outcome was no different in the litigation and non-litigation groups.

In 1968, Schutt and Dohan published their analysis of women injured in whiplash-type accidents and reported no significant difference in the prevalence of symptoms in patients with pending litigation versus those whose litigation had been resolved.

Hohl, in 1974, found that in litigated cases, those whose claims were settled after 18 months had a worse prognosis than those settling in the first six months. Predictably, prolonged treatment will be correlated with protracted litigation and a worse prognosis. However, of the non-litigated group, only 50% were found to be asymptomatic at a five-year follow-up period.

In 1988, Maimaris, et al., published the results of their retrospective study of 102 whiplash patients and concluded that litigation did not influence the natural progression of symptoms since all litigating patients were symptomatic for 2 to 2½ years following injury, even though the average time until settlement was nine months.

Hodgson and Grundy, in 1989, reported on a group of 40 patients who had been injured in a whiplash trauma (26 had been exposed to rear impact trauma). The follow-up period varied from 10 to 15 years. The 30 patients who remained unchanged since settlement provided more evidence that resolution of symptoms does not always follow settlement of legal claims.

In 1991, Watkinson et al., evaluated a group of individuals suffering from cervical acceleration/deceleration soft tissue injuries. They found that 86% were continuing to complain of symptoms after a mean follow-up period of 10.8 years. They argued that the increased symptomatic degenerative changes noted on cervical spine radiographs after ten years refutes the notion of compensation neurosis and argues for an organic lesion.

In more recent work, Pennie and Agambar, 1991, reported that no statistically significant correlation existed in the recovery between litigated and non-litigated cases of cervical acceleration/deceleration injuries. This finding is echoed by Parmar and Raymakers (1993), who wrote that their group of 100 patients were followed for a mean of eight years after injury. The majority of their cases were free of significant pain before the settlement of their claims and only four improved soon after settlement.

In 1993, Robinson and Cassar-Pullicino published that the majority of their cases (86%) ranging from 10 to 19 years after injury remained symptomatic after settlement.
More than three decades have passed since Miller’s work was published. It is from Miller’s theory that the notion of compensation disorder arose, purporting to account for the long and often bizarre list of symptoms encountered in those patients suffering from post-concussive syndrome or residual cervical soft tissue injuries. However, it should be of no surprise that more severe injuries result in “protracted litigation” as the provider and patient work together over a longer period of time to achieve the best medical condition. The issue, however, is whether protracted litigation or severity of injury are the cause of on-going symptoms. Croft’s literature review shows that Miller’s theory is anecdotal in nature and not supported by the evidence. Dr. Croft states: “Those who advocate non-organic factors as etiology rarely provide any firm support for their views in the literature. Although some continue to rehash those issues, there now seems little justification for doing so.”

Probably the best explanation for the “litigation neurosis” theory is that it emerged at a time when the general understanding about biomechanical forces involved in certain types of trauma was limited. Perhaps with the advent of high resolution imaging modalities, better diagnostic skills by doctors, and a greater awareness of the symptomology that flows from these types of injuries, health care providers will abandon the terms “litigation neurosis” or “compensation neurosis” for all but a very, very small minority of patients.

Very truly yours,
ADLER GIERSCH, P.S.

Richard H. Adler
Attorney at Law

1 J. R. Taylor and L. T. Twomey, “Acute Injuries to Cervical Joints: An Autopsy Study of Neck Sprain,” Spine, Vol. 18, No. 9, pp. 1115-1122.

2 It is notable, however, that Dr. Miller’s opinions were not derived from any scientific measurements or psychometric tests.

3 A. C. Croft, “The Case Against ‘Litigation Neurosis’ in Mild Brain Injuries and Cervical Acceleration/Deceleration Trauma, Journal of Neuromusculoskeletal System, Vol. 1, No. 4, pp. 149-155.

4 A. F. dePalma, D. K. Subin, “Study of the Cervical Syndrome,” Clin Orthop, 1965, Vol. 38, pp. 135-142.

5 C. H. Schutt, F. C. Dohan, “Neck Injury to Women in Auto Accidents,” JAMA, 1968, Vol. 206, No. 12, pp. 2689-2692.

6 M. Hohl, “Soft Tissue Injuries of the Neck in Automobile Accidents: Factors Influencing Prognosis,” J Bone Joint Surg, 1974, Vol. 56-A, No. 8, pp. 1675-1682.

7 C. Maimaris, M. R. Barnes, M. J. Allen, “Whiplash Injuries of the Neck: A Retrospective Study,” Injury, 1988, Vol. 19, No. 5, pp. 393-396.

8 S. P. Hodgson, M. Grundy, “Whiplash Injuries: Their Long-Term Prognosis and its Relation to Compensation,” Neurol Orthop, 1989, Vol. 7, pp. 88-91.

9 A. Watkinson, M. G. Gargan, G. C. Bannister, “Prognostic Factors in Soft Tissue Injuries of the Cervical Spine,” Injury, 1991, Vol. 22, No. 4., pp. 307-309.

10 B. Pennie, L. Agambar, “Patterns of Injury and Recovery in Whiplash,” Injury, 1991, Vol. 22, pp. 57-59.

11 H. V. Parmar, R. Raymakers, “Neck Injuries from Rear Impact Road Traffic Accidents: Prognosis in Persons Seeking Compensation,” Injury, 1993, Vol. 24, pp. 75-78.

12 D. D. Robinson, V. N. Cassar-Pullicino, “Acute Neck Sprain After Road Traffic Accident: A Long-Term Clinical and Radiological Review,” Injury, 1993, Vol. 24, No. 2, pp. 79-82.

13 A. C. Croft, “The Case Against ‘Litigation Neurosis’ in Mild Brain Injuries and Cervical Acceleration/Deceleration Trauma,” Journal of Neuromusculoskeletal System, Vol. 1, No. 4, pp. 149-155.