Author: Richard H. Adler

People who file a lawsuit after a whiplash injury are not more likely to sustain long term disability, according to research published in the June 26, 2001 issue of Neurology, the scientific Journal of the American Academy of Neurology. The study, Handicap After Acute Whiplash Injury, a 1-year Prospective Study of Risk Factors, says that "initiation of [a] lawsuit within [the] first month after injury did not influence recovery."

The study examined 141 Danish patients who were involved in car accidents that included rear-end collisions. All of the patients had gone to the emergency room with complaints of neck pain or headaches within two days of their accidents.

Risk factors such as patients' previous head injuries, severe initial headaches, neck pain intensity, and range of motion were found to be the best predictors of long term handicap after a whiplash injury.

But the filing of lawsuits within the first month was a factor that did not predict recovery. The subjects' gender, age, and body mass and the speed difference of colliding cars were also poor predictors of recovery.

The authors hoped to determine the best early indicator of Chronic Whiplash Syndrome, a disability and handicap that develops in some, but not all, patients who are exposed to whiplash injury.

In the study, the majority of the whiplash victims recovered within one month, but 7.8% were still unable to return to their daily activity a year after the initial trauma. An additional 4% returned to modified job functions.

This study substantiates the continuing criticism mounted against an insurance company-funded study published in the New England Journal of Medicine in April, 2000. That article asserted that after Saskatchewan Province's auto injury compensation system was changed from tort to no-fault on January 1, 1995, the incidence and severity of whiplash injury decreased.

But this proposition has already been rebuked by responsible scientists and the study's author was accused by a former colleague of trying to manipulate data to reach certain results.

In a lawsuit filed against the article's main author, Dr. David Cassidy, former employee Dr. Emma Bartfay asserted that she was told to produce statistical results that would prove that whiplash victims recovered faster under the province's new no-fault system. Bartfay stated in her complaint that "the data that had been collected were not sufficient to handle the proposed hypothesized relationship."

Others have pointed to flawed methodology with the Saskatchewan study. For example, it did not measure the claimants' times of medical recovery (the time it takes for a claimant to achieve a full physical recovery). In fact, it measured the time at which the insurance company makes a final payment. The study defined 'recovery' from whiplash injury as "the number of days from the date of injury to the date on which the claim was closed," saying (without presenting empirical evidence), that "[c]losure usually coincides with the end of treatment." The real-world flaw of this statement as experienced by health care practitioners, patients and attorneys representing those patients is that insurers will attempt to prematurely close a case even when a patient needs additional care or is not at maximum improvement.

Critics of the Saskatchewan study also noted that the authors only examined data six months prior to the no-fault law's taking effect and compared the numbers to the next two six-month periods. Given situations in other jurisdictions that claim filings can drastically increase in the six-months to a year before the tort law changes take effect, the decrease found is more likely a reflection of people rushing to file claims before the deadline when their legal rights will be diminished.

Very truly yours,
ADLER GIERSCH, P.S.

Richard Adler
Attorney at Law

*Special thanks to ATLA for bringing this study and information to our attention.