Case Vignette

Whiplash, Whiplash, Whiplash…..

I hate the term “whiplash”!  It conjours up a vision of a rodeo rider, standing in the middle of a heavily-hoofed, sandy ring, wearing his chaps and flailing a whip above his head.  As he suddenly reverses direction on this beautifully woven leather device, a loud cracking noise splits across the crowd.  It really is quite dramatic.  It is a gross overstatement of what usually occurs at a clinical level in most rear end collisions.

A better term is in the form of a “flexion extension acceleration injury” or a “lateral flexion acceleration injury”.  This is what commonly occurs in a rear end motor vehicle collision or a T-boning motor vehicle collision.

Musculoligamentous strain injuries can ensue.  It is also possible that there could be a derangement of one or more of the intervertebral discs and a fracture could also be sustained.

Consider this Lady

With this vignette, a 63 year old lady was an occupant in the passenger seat of a Commodore sedan being driven by her husband.  They had been stationary at a set of traffic lights in a line of traffic for more than 30 seconds.  The sedan was struck from the rear by a following four wheel drive vehicle fitted with a towbar and towing a trailer filled with concrete blocks.  The forces were sufficient to shunt the Commodore sedan into the rear of the vehicle in front.  Her vehicle was damaged beyond economical repair, the plaintiff lost consciousness briefly and the rear of her seat was broken back to a horizontal level.

Under normal circumstances, it would be reasonable to assume that the patient has sustained a very severe injury and that her ongoing clinical circumstance was not only linked with the injury but also of a compensable nature.

The Past History is Important Too

The gleaning of a careful history however confirmed that this was the fourth such accident of this nature and that she had already been compensated financially for the three previous accidents.

She had been subjected to a careful, objective orthopaedic examination only weeks prior to this subject accident.  That same orthopaedic examiner had an opportunity to re-examine her twelve months following this subject accident.  Little or no difference was found in the pre-accident and post-accident examinations.

It might be reasonable to assume therefore that although the discomfort she experienced at the time of the accident may have been considerable, the natural history was such that she returned to her pre-accident state.  Any ongoing measurable impairment is more likely to be linked with the antecedent three accidents than this subject accident.

The concept of apportionment of blame is very important.

Lead Article

Causation versus Liability in Personal Injury Litigation

It is best to be clear at the outset. Your orthopaedic expert can definitely assist you in determining the presence or otherwise of causation.  Conversely, liability is strictly in the legal domain and its analysis is best left to you.

There are several important ingredients required to assess the presence or otherwise of a causal link between an alleged incident and an orthopaedic outcome.  They include the gleaning of a thorough history, the performance of a complete physical examination, reviewing ancillary investigations and ultimately making a diagnosis.  Once that point has been reached, it is then possible to retrace the steps and provide an opinion on whether or not the alleged incident could be responsible for that diagnosis or clinical outcome.

Motor Vehicle Accident

Some examples make it easy to understand.  Let us assume that a patient has been a seated driver in a stationary motor vehicle which was struck from behind.  The offending following vehicle barely touched the plaintiff’s vehicle.  The plastic cover over one of the tail lights was broken, but only just.  Since it did have a minor crack, it was replaced at a total cost of $84 including GST and labour.  The plaintiff did not lose consciousness, was not trapped within the cabin of the vehicle, did not note that the seat in which he was seated was broken and was able to drive the vehicle from the scene of the accident for a distance of 1,000km on that same day to another city in a different State.  He never, ever sought any medical assistance as a result of alleged injuries.  He has subsequently claimed however that he sustained fractures of both femora, both tibiae and both fibulae in the accident.  That is to say, all six long bones in both lower limbs were fractured.  He required multiple operative interventions, prolonged hospitalisation and expensive and protracted rehabilitation.

Blind Freddy could see that there is no link between the accident that has been described and these subsequently produced, overwhelming orthopaedic injuries.  Whilst the exact cause of those serious injuries is uncertain, it can be stated with authority that they did not occur in the subject accident.

Fall from a Building Site

At the other end of the spectrum, let us assume that this same plaintiff fell from the seventh storey of a central business district high rise.  He landed in an upright position on the concrete pavement below.  The event was witnessed, he required life-saving resuscitation at the scene, he was transported to a local major hospital and underwent complex orthopaedic surgery aimed at stabilising fractures in all bones in both lower limbs.  Whilst stranger things have probably happened in the world, it would be a reasonable assumption to attest to causation between the fall and the injuries in this particular instance.

The Difficult Middle Ground

Unfortunately, most personal injury claims and allegations of medical negligence fall somewhere between these two obvious extremes.  It is more difficult to be certain about causation.  From your legal perspective, it is best if your expert can provide a definitive opinion.  Either the causal link exists, or it does not.  It is helpful for all concerned if your orthopaedic expert can nail his colours to the masthead.

Occasionally, it is not possible to be definitive with the opinion and in those circumstances, differing options for interpretation should be offered for the Court by way of assistance.  Clarity of opinion from the expert and confidence in the ultimate outcome are directly proportional.

Be sure that your expert is clear.

General Advice

How To Choose Your Medicolegal Expert

Wisely!

Experts come in many forms.  They can be hawks or doves, bleeding hearts or little Hitlers, pushovers or aggressive adversaries.  Whatever the description, you don’t want to be dealing with one of these polarised individuals.

Objectivity, transparency, clarity of thought, economy with words and the ability to clearly enunciate an opinion are all vital.

Every opinion requires some explanation.  The explanation should be devoid of jargon, easily followed and cogent.

Importantly, the opinion must be defensible.  It would be extremely distressing for a barrister taking evidence in chief from his expert to be confronted by a 180° turn in the opinion whilst in the Court.

I suggest that you choose your reporter based on quality rather than on some misguided perception of possible outcome.