Science is not the decider of fact. For example, cancer is probably the result of an accumulation within a given cell, of seven or so genetic changes, but the courts decide that any given cancer does not have a cumulative cause. The scientific probability of it not being cumulative in nature is very small indeed but the legal fact (following the Phurnacite case) is that it is not. For example, among those who make a claim for whiplash if 65% are actually injured and the test is 80% accurate then the Bayesian odds of making a diagnosis is six to one. The inference is that 86% will be diagnosed! Yet if a random sample of the population is assessed (annual prevalence ~ 1%), the odds are worse than eleven to one (against) that anyone given a whiplash diagnosis actually has such an injury. Given these scientific ‘facts’, the court would be forgiven for deciding either there was no such thing as whiplash or in the alternate, that everyone who makes a claim must be injured and it
Evidence from: The December 2012 issue of the Radar journal. In a nut shell, the normal neck is to varying degrees defective. Most of us just ignore it. It comes and goes. Normal defect does not often count as a motoring injury unless a person is examined after a not-at-fault car crash. At that point, the observed defect is an injury and what’s more, it was caused by the car crash! At-fault drivers are many times less likely to be described as injured. The problem has been that expert examiners have had no common-law-compatible method for distinguishing between normal and probably abnormal. They have had no tools for assessing, from a common law point of view, whether there is an injury or not. So, they use a medical approach instead. Medics are in effect precautionary, rather than reasonable, and trusting rather than probabilistic. This approach is acceptable for broken bones, but is of doubtful relevance to the common law when the actual defect is commonplace and normal. Insurance c
Sleep disturbance is known to affect safety performance in drivers. Some forms of sleep disturbance are innate and should lead to reassessment of suitability to hold a commercial vehicle license. Evidence from: CHEST (2006) Vol. 130 p 902 – 905 “Sleep Apnoea and Commercial Motor Vehicle Operators” Well managed obstructive sleep apnoea should not be a bar to holding a license. The guidance provides an incentive to drivers to engage with medical help (which has been shown to be very effective in these cases) and demonstrate compliance with prescription. Further detail: 6#5-6 32
It may be valid to apply a premium weighting on drivers who have recovered from TBI. Evidence from: BE Masel et al. Archives of Physical Medicine and Rehabilitation. November (2001) Vol. 82 #11. p 1526. A study of daytime sleepiness among TBI cases after apparently full recovery. Case series n = 71, 38 months after injury. Measured objectively in a live-in sleep laboratory. 47% hypersomnolance rate did not show up on self-report. That is, the hypersomnolant were unaware of their tendency to sleep during daytime. Comment It is generally held that motorists who fall asleep at the wheel would be aware that there was a risk in advance. This work suggests that former TBI cases (after 38 months) were unaware of their risk of daytime sleeping.
The bio mechanical model of whiplash promotes the orthodoxy that relative motions of head and torso, if eliminated, would eliminate whiplash neck injury. The novel device reported here would reduce relative motion, but its effect on claims would need to be validated. Evidence from: AF Tencer et al. Spine. November (2001) Vol. 26 #22 p 2432. A study of the relative motions of head and torso during rear end collision and the effectiveness of a head restraint air bag. New head restraint air bag was closer to the head, and absorbed some of the shock. Test speeds were below 10 kph. Relative motion was reduced. Comment If relative acceleration is important in causing injury at these speeds the new device would seem to offer some protection. Other studies have shown that even when torso and head are strapped firmly to the same rigid board, a rear end impact results in some deformation of neck alignment.
Whiplash cases were compared with asymptomatic persons. For common law purposes this is the wrong control group unless, on the balance of probabilities, the claimant can show they had above average health prior to the index event. This choice of asymptomatic control group is of some interest to medics but even here the choice has limited application. It would be useful if a specific lesion can be identified in whiplash cases and ruled out in all other neck pain cases. Evidence from: PT Dall’Alba. Spine. October (2001) Vol. 26 #19 p 2090. A report of a study of Range of Movement (ROM) for whiplash neck injury victims who are symptomatic after 3 months but before two years from the date of injury. Reduced range of motion was detected vs. control group. Comment Although a computerised measurement system was deployed, the technique could be criticised for failing to ensure there could be no contribution from torso rotation. A more complete study would have measured fear of movement and, at
If the standard biomechanical model of causation doesn’t have any practical utility, why is it so popular? It may be that no credible alternative has been proposed, but that doesn’t mean a defectice model should be adhered to. Defective models lead to defective assumptions and defective claims handling. Evidence from: R Ferrari. Spine. October (2001) Vol. 26 #19 p 2063. An editorial on the subject of research into whiplash neck injury. There is consensus that direction of vehicle impact is not prognostic of acute or chronic problems or litigation status. So if direction doesn’t matter, protection in vehicle is irrelevant. So why continue to focus research into protection from just one direction? The best treatments take no account of detailed pathology, so why study it any more? Good treatments such as nonspecific exercise regimens and general advice do not require deep understanding of pathology. Identification of an acute lesion would not explain why some develop ch
Neck pain immediately after any violent event stimulates of precautionary responses in medics. It is likely that these responses have a high rate of harmful effect on those not seriously injured, while preventing permanent disability in those who are. This research suggests a selection method. Evidence from: IG Stiell et al. Journal of the American Medical Association. October (2001) Vol. 286 # 15 p 1841. The Radar report is available to subscribers: 1#10 3
The Whiplash Book was the first result of the 2001 ABI whiplash research programme, directed by Andrew Auty, Chaired by Kate Lotts. The book was based on a detailed review of the evidence on causation, diagnosis, prognosis and intervention. A summary of those findings is presented in the attached pdf file. The only difference of view of note was the finding that manual therapy had a useful role to play in rehabilitation. It was conceded that this could in principle sometimes be useful when cases were deteriorating after 2 weeks, but evidence was absent. For all other cases there was emphatic evidence that there was no measurable benefit. Manual therapy was kept in the guidance because it could not be said that it was always useless. This sentiment was perhaps misplaced; based on a medical view of the world rather than a common law view of the world. The Radar report is available to subscribers: 1#9 1
The relationship between interrupted sleep and risk of accidents is explored in this study of sleep apnoea. Evidence from: LJ Findley et al. Thorax. July (2001) Vol.56 #7 p 505. There is data that could be used to estimate the annual motor insurance risk. The Radar report is available to subscribers: 1#6 2
The researchers find some support for a bio mechanical view of whiplash neck injury but a range of inconsistencies in the view make it unreliable. Evidence from: Eck et al. American Journal of Medicine. June (2001) Vol. 110 # 8 p 651. H Kasch et al. Spine. June (2001) Vol. 26 #11 p 1246. topics addressed include MRI, NIC, ROM, collision speed. Age and BMI were fair predictors of ROM. The Radar report is available to subscribers: 1#6 1
The research measures and compares the protective effect of air bags, lap/shoulder belts and lap belts. Evidence from: CS Crandall et al. American Journal of Epidemiology Feb (2001) Vol. 153 #3 p.219. The outcome measure was death within 30 days of the accident. Presence or absence of these devices would be of interest to motor insurers, accident and health insurers. The Radar report is available to subscribers: 1#2 12