Personal Injury Settlement involving car crash & relating injuries
The Medical-Legal News asked two nurse consultants to analyze a real motor vehicle crash and assess the current and future medical injuries, forensics of the impact and the plaintiff’s credibility.
© The Medical-Legal News, 2007
LETT, on the clinical and forensic
By Sally Lett, DC, RN
This motor vehicle collision (MVC) involved a 1990 Ford Taurus where the plaintiff was rear-ended by a tractor trailer, causing the Ford to impact the vehicle in front of it.
For descriptive purposes, the target vehicle is the one that was struck, the Ford Taurus. The bullet vehicle is the one that struck the target vehicle, the tractor trailer. Thus, the female plaintiff’s car was initially a target car, then became a bullet car when it impacted the vehicle in front of it. Following the accident, both parties moved the Ford to the side of the road following the MVC.
Following the accident the plaintiff did not have any difficulty walking, talking or communicating. No medical treatment was rendered immediately following the MVC. The following day the plaintiff complained of neck pain and headache, and received treatment at a medical clinic. She was diagnosed and treated for cervical, thoracic and lumbar sprain and strain.
The thoracic MRI read by the plaintiff radiologist diagnosed a T11-12 disc herniation. The defendant’s expert disputed the disc herniation but rather concluded a degenerative disc with peripheral osteophyte, desiccation and disc space narrowing, but not protruded. An independent medical exam (IME) indicated only a neck and lumbar sprain or strain of soft tissue. Most thoracic herniated discs are not surgically treated but rather conservatively treated.
This level is the transitional stage of the spine, where the thoracic meets the lumbar spine. A decreased disc at this level can reduce mobility and create muscle spasms to assist in stabilizing the spine.
About one and a half years following the MVC, the plaintiff started a job that required her to work 12-hour shifts, lift 70 lbs. and stand for a large portion of her shift.
The plaintiff claimed permanent back and neck injury resulting from the MVC.
The defendant fought the case on the issue of liability. Florida is a no-fault state, an auto insurance program that allows policyholders to recover financial losses from their own insurance company, regardless of fault. Motorists may sue for severe injuries and for pain and suffering only if the case meets certain conditions. Florida’s no-fault law is scheduled to expire in Oct. 2007 unless reenacted.
The speed ranged from 0 mph to 15 mph at impact. For comparison, the speed one reaches in jumping from a height of 21 ft., close to the height of a second-story rooftop, equates to a 25 mph collision. The most common injury to people in rear-end crashes is whiplash, which results from the sudden differential motion of an occupant’s head and torso. Seats and head restraint combinations are intended to reduce these injuries.
When a vehicle is struck from the rear, the occupant’s torso is accelerated while the unrestrained head and neck are thrust backward. As the head tips back into extension, the anterior (front) cervical muscles are stretched, and when their tone is overcome, the brunt of the remaining force is taken up by the anterior longititudional ligaments and anterior fibers of the anulus fibrosus. At the end of the acceleration phase, after extension of the spine, the flexion component of the injury takes place. In other words, the occupant is quickly thrown backward, tearing the soft tissue in the front of the spine where the disc fibers attach. During that time, the occupant could also ride over the seat restraint causing further stretching before being thrown forward.
If the victim’s vehicle strikes another vehicle in front, the resulting deceleration further exacerbates the flexion injury. When wearing a shoulder harness, and during the deceleration phase, a linear tractional injury occurs near the end of forward rotation.
Delayed onset of symptoms is quite common following cervical acceleration/deceleration (CAD) trauma, which could be months or even years later. Some of these conditions represent secondary adaptations to otherwise minimally symptomatic or asymptomatic conditions. In fact, 86 percent of all neck injuries seen clinically result from automobile accidents, and 85 percent of these injuries are a result of rear-end collisions. MacNab reports that 45 percent of those suffering from neck whiplash injuries continue to be symptomatic for at least two years after settlement of their cases.
Common symptoms that occur after whiplash in order of prevalence are:
• neck pain,
• neck stiffness,
• trapeziums pain,
• intrascapular pain,
• back pain,
• extremity pain or weakness, and
• dizziness or lightheadness.
Neck pain is easily explained by the tearing of any soft tissue, disc injury or herniation, or end plate fractures. Immediate pain indicates more severe injury. Stiffness is the result of muscle spasm. Shoulder pain may be the result of direct shoulder injury or referred injury or referred pain from cervical disc injury.
Patients with cervical spine whiplash injuries develop spondylosis [osteophyte or bony formation] approximately six times more frequently than age- and gender-matched controls. Conversely, patients with pre-existing spondylosis generally fare worse in whiplash. The degenerative process includes an initial destabilization of the disc through direct injury from a high energy combination of shear, compression, axial stretch and torsion forces. Loss of normal ligamentous integrity will allow a direct biomechanical destabilization of the spine, and probably contributes significantly to the overall degeneration scenario.
Submarining occurs when the occupant slips below the lap belt and is responsible for abdominal, pelvic and lumbar lesions. This occurs chiefly as a result of poor positioning of restraint anchors, poorly designed seat cushions, slumped seating posture and improper placement of the lap belt about the anterior superior iliac spine.
All vehicles from the early 90s include specific directions in the manual that indicate that the seat belt locking device is designed for one impact only. After an accident has occurred, the seat belt locking device will not function properly again. In fact, the seat belt locking device could fail in the next accident — and allow more significant injuries.
Observe the belt for any tears or stretch marks, observe any direct damage to the casing for the locking device and jerk on the belt to ensure that it locks — all done while the vehicle is moving and has achieved at least 10 mph.
In this MVC case the attorney needs to establish if a lap belt was available in the ’90 Ford, if the auto had a prior MVC that could render the seat belt defective and if the seatbelt had been replaced.
After rear-end impact collision, the vehicle accelerates forward, forcing the occupant backward into the seat back.
Simultaneously, some vertical motion may occur, known as ramping. Ramping reduces the effectiveness of the head restraint by allowing the head to rotate backward and over the top of the restraint. A shoulder harness can cause shoulder injury and rib fractures. With no shoulder harness there is more ramping of the neck on the seatbelt and possibly hitting on the inside of the vehicle as well. This could contribute to the thoracic disc thinning seen on the MRI in this case. Identify if a shoulder harness was used in this accident, any prior accident that impacted the seat belt’s effectiveness and if that, too, had been replaced.
Loss of curve
Loss of or reversed cervical lordotic curve is commonly seen following a rear end collision commonly at the C5-C6 level. The phenomenon of cervical acceleration/deceleration syndrome (CAD) trauma is more complex than most physicians realize. This can lead to arthritic changes at an earlier age. With the loss of a curve, the normal cervical curve is not present, thus the bones alter their configuration by producing osteophyte or bone to allow for the new center of gravity from the malposition.
Check out the vehicle for a safety rating of the ’90 Ford Taurus. The web sites www.nhtsa.gov and www.iihs.org are informative about the crashworthiness and crash test performance of specific vehicles. At the IIHS site, the Ford Taurus rear crash test ratings go from 1995 to 2004, the car rates poor and marginal with marginal overall ratings for the 2004-06 Taurus. The seat and head restraint in rear end crash protection is an assessment of occupant protection against neck injury in rear impacts at low to moderate speeds.
Check out the defendant tractor trailer damages — what type and model of tractor trailer was the bullet vehicle? This goes back to the forces generated from the kinetic energy resulting from the size and weight of the vehicle.
The head and neck are exposed to acceleration forces up to two and one-half times those of the vehicle itself. At higher speed collisions, the head and neck may be exposed to four to ten times the car’s acceleration. This is why CAD trauma, specifically rear-impact trauma, results in greater injury than other, yet similar, types of automobile accident-related neck injuries.
In preparing for this case, the attorney must evaluate the target vehicle for repair costs. If rear bumpers have moved more than one inch, check for undercarriage damage and if a taller vehicle overlapped a shorter vehicle. The Ford Taurus is probably smaller in height than the tractor trailer — determine by how much. Check the target vehicle for the amount of frame time repair required and if the damage travels beyond the rear wheel well. These are just a few indicators of more significant vehicle damage which can impact the case.
It is important to note the injury history and physical evidence:
• Was the injured party a driver or passenger in the front or rear seat?
• What was the estimated speed at the moment of the crash?
• Are head restraints adjustable up and down or an integral part of the seat? If adjustable, was the position altered by the crash?
• Was the seat back adjustment altered by the crash?
• Was the seat broken?
• Was th lap belt worn or not?
• Was the shoulder belt worn or not available?
• Was any part of the vehicle struck by the plaintiff?
• Did the vehicle strike any objects after the crash?
• Was there any loss of consciousness?
The two consequences of a CAD injury include the initial or acute syndrome of varying degree and the progressive chronic syndrome arising from degenerative spondylosis with attending paravertebral fibrosis. Whiplash recoil traumas may result in varied pathological alterations ranging from a simple strain to a total tear of paraspinal muscles and ligaments. This would include the zygapophyseal processes and their posterior joint structures, the vertebral bodies, intervertebral discs, covertebral joints and the intervertebral foramina and its contents, including the nerve roots and sheaths. The inertia of the relatively heavy head, approximately seven to ten pounds, supported upon the slender column of the cervical spine, constitutes a hazard with high speed transportation. •
Sally Lett is a legal nurse consultant with over 20 years of PI experience. She is based in Kalamazoo, Mich., email@example.com.
SESCO, on the legalities
By Kathleen Sesco, RN, BSN, MHA
This case arises out of an automobile accident that occurred in Florida in the summer of 2003. On the day of the accident, at approximately 7:40 a.m., the plaintiff was traveling eastbound on I-10 near the I-295 overpass. The defendant, driving a tractor trailer, while in the course and scope of his employment, was also traveling eastbound in the right lane.
This case presents a classic “he said, she said” scenario.
The plaintiff contends the defendant rear-ended her at an unknown speed while the plaintiff was stopped in the right lane of stop-and-go traffic. According to the plaintiff, the collision caused her 1990 Ford Taurus to impact the vehicle in front of her, thus causing a chain reaction collision.
The defendant insists he was traveling “anywhere between 0 and 15 mph” in “bumper-to-bumper” traffic, and claims the plaintiff caused the accident by unexpectedly “slamming” on her brakes which left him without enough time to stop before impacting the plaintiff’s vehicle. Prior to the accident, the defendant states that he was traveling a safe distance behind the plaintiff. The defendant believes “[he] did everything [he] could do” to avoid the accident.
Shortly after the accident, the defendant checked on the plaintiff’s status and the plaintiff told the defendant that she was “OK.”
The defendant then helped push the plaintiff’s vehicle to the side of the road. The defendant noted that the plaintiff had no difficulty walking, standing or communicating after the accident. The plaintiff did not require an ambulance after the accident and both parties drove their respective vehicles away from the scene.
The defendant vehemently defended this case on the issue of liability, in that the defendant “did nothing wrong” to cause this accident.
The plaintiff asserted that she sustained permanent back and neck injury as a result of this accident. Interestingly however, the plaintiff did not appear injured at the scene, nor did the plaintiff complain of bodily pain allegedly associated with this accident until the next day, at which time the plaintiff complained of neck pain and a headache. She was seen at a local ER.
The plaintiff received pain medication and was discharged.
The plaintiff visited a medical clinic and complained of neck pain and low back pain. The doctor diagnosed the plaintiff with cervical, thoracic and low back sprain and strain. The doctor prescribed a conservative course of therapy which included hot and cold pack applications, electrical muscle stimulation, spinal manipulation, myofacial release and mechanical traction.
The doctor ordered MRIs of the cervical lumbar spine which were ultimately performed by a local imaging center and read by a Dr. Elias in Miami.
According to Elias, the plaintiff’s MRIs depicted a bulging disc at C3-C4 and a disc herniation at T11-T12. The defendants disputed Elias’ interpretation of the plaintiff’s MRI films. The defendant’s expert doctors opined the plaintiff’s disc space at T11-T12 was not a herniated disc, but rather a degenerative disc with peripheral osteophytes, dessication and narrowing of the disc space, but with no disc protrusion.
The experts’ medical record reviews and IME report found the injury was soft tissue — sprain and strains of the neck and lumbar area.
Skeletons in the closet
Approximately three months before the subject incident, the plaintiff was dismissed from her position as a welder for absenteeism. Shortly thereafter the plaintiff went to school to become a nurse. The subject incident apparently had no impact on the plaintiff’s ability to attend and physically complete clinical classes in the fall of 2003. Following the plaintiff’s completion of the nursing program, the plaintiff evidently changed her mind regarding the healthcare industry and expressed that she did not like nursing and had no plans to continue working in that field.
In January 2005 (approximately a year and a half after the incident) the plaintiff accepted a job at A Pipe Corporation as an “operator trainee” and was ultimately promoted to quality control inspector. Both positions at the pipe corporation required that the plaintiff be able to work 12-hour shifts and lift 70 lbs. while standing for the substantial portion of the workday. The plaintiff’s employment records at A Pipe Corporation indicate the plaintiff was able to perform all of her jobs satisfactorily and the plaintiff was well liked among co-workers. In fact, the plaintiff received a series of promotions and pay raises during her tenure at A Pipe Corporation and there is no reason to believe that the plaintiff could not have had a very successful career at that company. In spite of the plaintiff’s satisfactory work performance, the plaintiff resigned her position in late July 2005, allegedly due to her then-current doctor’s rather tardy recommendation that the plaintiff no longer work at A Pipe Corporation given the physical requirements of the job.
The plaintiff’s employment and scholastic records are replete with evidence tending to show the plaintiff’s attendance problems and adverse consequences thereof.
Settlement demand and offers
The plaintiff submitted a pre-suit demand in the amount of $100,000, which was rejected. At that time, the plaintiff alleged that she incurred in excess of $10,200 in medical expenses as a result of this incident (a portion of which has been paid by the plaintiff’s PIP carrier).
In response, the defendant offered a pre-suit sum of $1,500 to settle the matter, which the plaintiff rejected.
The case was heard in Federal Court by The Honorable John H. Moore II.
The jury found the defendant was at fault and awarded the plaintiff the following for damages:
• Medical (past), $15,000.
• Medical (future) $0.
• Wages (past) $0.
• Wages (future) $0.
• Physical Pain & Suffering (past) $0.
• Physical Pain & Suffering (future) $0.
• Total: $15,000.
The defendant was very satisfied with the jury’s outcome. •
Kathleen Sesco, RN, BSN, MHA, is a legal nurse consultant at Howell & O’Neal in Jacksonville, Fla., firstname.lastname@example.org.
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