Proving traumatic cervical syndrome injuries.

Auto collisions at relatively low speeds frequently cause injuries to the soft tissue of the neck, shoulder, chest, and back.(1) These injuries and the complications brought on by concomitant bone damage or aggravation of pre-existing conditions have been belittled for years by defense lawyers and the insurance industry, who refer to them as "whiplash" injuries.

This term correctly applies to the mechanism of injury, not to the injury itself. After years of unfavorable publicity, the term has come to suggest that people who suffer these injuries are malingerers or fakers seeking an unjustified windfall.

In fact, the injuries can be painful and can cause long-lasting disabilities. When cases involving these injuries are carefully prepared and supported by expert testimony, they can provide the injured parties with fair compensation.

The better term to use to describe these injuries is traumatic cervical syndrome (TCS). To properly represent a client with the syndrome, the attorney must believe in the injury, be knowledgeable about cervical and thoracic anatomy, and understand the mechanics of how these injuries occur.

Although many physicians downplay the effects of TCS, the medical literature shows that these injuries are frequently associated with damage to

* muscles, including interstitial tearing, inflammation, and infarcted tissue;

* ligaments, including overstretching and detachments from bones;

* joints, including disruption of capsules and displacement of surfaces;

* vertebrae, including compaction and chipping;

* nerves, including compression, stretching, and tearing; and

* blood vessels, including decreased or blocked circulation.

These primary injuries may cause secondary ones to the spinal cord or brain, to cervical sympathetic nerves that interfere with balance and posture, and to nerves that control pupil dilation or eyelid droop. The primary injuries frequently aggravate pre-existing arthritis (including crippling spondylosis), transforming a relatively benign dormant condition into a disabling one. Many victims also suffer from chronic headaches.(2)

Studies conducted at the University of Rochester School of Medicine reported that 38 percent of rear-end impacts resulted in TCS injuries. Among the injured, 43 percent continued to have symptoms and disability for five years or more, and 39 percent developed degenerative arthritis.(3)

In nearly all cases, the defense will seek a medical examination of the client. Defense lawyers invariably prefer a physician whom they believe will offer an opinion that soft tissue injuries are neither significant nor permanent. To offset this expected testimony, a medical examination should also be conducted by a doctor of the plaintiff's choosing who can provide a more objective opinion of the injuries.

Demonstrating collision force

TCS injuries can result from collisions that occur at very low speed or when a vehicle is stopped. As noted by Drs. Arthur Kobrine and Michael Nabors,

[T]he degree of injury depends on the force

applied and inertia rather than the speed of the

striking vehicle.... Therefore, a car struck by a

large truck or a loaded bus traveling five to seven

mph will be accelerated forward as much as

if struck by a small car traveling at a much

greater velocity.(4)

To determine the amount of force transmitted to the injured person during a collision, a qualified accident reconstructionist or engineer should be consulted. As in so many other technical areas, computer software has been developed to help the expert make these calculations.

For example, given pre-collision directions of movement, post-collision trajectories, and crush profiles, the SLAM (simulated linear accident momentum) program can estimate the vehicles' pre-crash velocities.(5) The speed of the vehicle and its mass determine the force exerted.

Once this force is known, the attorney must prove its effect on the plaintiff's cervical spine and surrounding tissues. When developing demonstrative evidence, a statistic to keep in mind is that the average adult human skull weighs 11 to 13 pounds. So jurors should be shown the effect of whipping the cervical spine with that weight attached to it.

A gallon of milk, for example, weighs about 10 pounds. Whipping a gallon of milk back and forth should make the point evident to jurors. Indeed, if a gallon of milk were introduced as an exhibit, one or more jurors would probably want to test the effect themselves during deliberation.

The damaging effects of this force on the cervical spine and related tissue also can be demonstrated by using crash films from the National Highway Traffic Safety Administration (NHTSA). When requesting information about films from NHTSA in Washington, D.C., attorneys should refer to federal motor vehicle safety standards related to the films. For example, FMVSS 209 establishes minimum requirements for occupant restraint systems.

The agency has frontal-barrier crash-test films that depict impacts at various vehicle speeds. Impact tests at speeds as low as 25 mph vividly show how the force at collision causes hyperextension and hyperflexion movements.

Proving the injury to the jury should be a teaching experience. To appreciate the significance of the injury, jurors must be taught the anatomy of the cervical and thoracic areas. And who can do that better than the anatomist who teaches students in the local medical school? Starting the proof with an anatomist will add legitimacy to the claim and undermine the anticipated "whiplash" defense.

After fundamental anatomy is explained, it will be necessary to describe the physical changes that occur as a result of the injury and during the healing process. The expert who can best describe the difference between healthy and injured tissue is a clinical pathologist.

The pathologist can provide anatomical slides to compare normal muscle fibers, ligaments, and nerves with damaged ones. This expert can also explain what happens when these soft tissues are stretched, torn or otherwise injured.

Disabilities also are associated with the healing process. For example, ligaments before injury are typically elastic (depending to some extent on age), but scar tissue that replaces normal fibers during healing is inelastic, reducing the range of motion and activity. The pathologist can explain how fibrosis and scarring result in disability.

When considering which medical expert may best be able to communicate with jurors, plaintiffs' lawyers should keep in mind that chiropractors may be excellent choices. Chiropractors spend more hours studying the anatomy of the spine during their training than many orthopedists or neurosurgeons. Also, many people who sustain traumatic cervical syndrome injuries seek their treatment from chiropractors.

Experts for special needs

Damage to paraspinal muscles may result in changes to the normal curvature (lordosis) of the cervical spine. When this is the case, a radiologist can be used to demonstrate the effects of the injury by comparing films of a normal spine with films of the damaged one.

For example, damage to the posterior longitudinal ligament may affect the support given to one or more vertebrae. The radiologist can illustrate this problem by documenting anatomical changes as the client hyperextends, bending the spine backward, and assumes a hyperflexed position bending forward. The positional films often show malalignment of vertebrae in the area of the damaged ligament, such as loss of the normal lordotic curve.

Another tool used by radiologists to show changes in vertebrae alignment is vide of luoroscopy. This is a moving X-ray, performed while the patient goes through the extension and flexion movements. A videotape of this sequence serves as an excellent teaching device at trial. The radiologist can also perform sonographic evaluations on injured tissue. Sound waves directed through the damaged area penetrate and rebound at variable rates determined by the type and density of the tissues. This produces a black-and-white positive film that shows the damaged areas. A series of sonograms can be used in order to show progression of the injury and its response to therapy.(6)

If the client suffers from TMJ (temporomandibular joint syndrome), a professor of dentistry from a nearby dental school may prove helpful in explaining the injury. TMJ is characterized by head pain, often radiating into the ear, and tenderness of the muscles used in chewing. Symptoms often include limitation of full movement of the jaw and malocclusion.

The syndrome can be demonstrated to the jury with flat plate latera X-ray films and with sonograms. The X-rays will show the malalignment of the joint, and the sonogram will demonstrate the damaged support tissue, which causes the malalignment.

Compression and stretching of nerves or the tearing of neurons is important in a soft-tissue case. The best person to educate the jury regarding this is a neurologist. This medical expert can use anatomical slides and drawings to explain how damage to tiny nerve filaments in anatomical microstructures is caused by bleeding, inflammation, and scarring.

When the plaintiff may have suffered a closed head injury, consultation with a neuropsychologist is justified either to confirm or rule out that diagnosis. Also, through the use of standard professional tests this expert can determine that the client is not a malingerer and is not a personality type likely to exaggerate the injuries. The neuropsychologist can testify that the client's symptoms are not emotionally related but are indications of real physical injuries.

In some cases, the neuropsychologist should be asked to perform IQ studies. For example, an injured client with a low IQ may be doubly damaged. A vocational consultant, aware of the types of employment for which the client could compete before the injury (primarily menial labor) may testify that the injury has reduced the client's opportunities for future employment.

In most jurisdictions, plaintiffs are entitled to recover damages for the increased risk of future harm.(7) As a result of TCS injuries, clients may be at an increased risk for a ruptured cervical disk or disk degeneration because of the weakened musculature surrounding the cervical spine.(8) This means they may at some time have to undergo spinal surgery and fusion.

Rather than have a surgeon merely explain this medical procedure to jurors, it is better to show it. Medical schools maintain libraries that include videos of surgical procedures. The plaintiff's attorney should obtain a copy of a cervical diskectomy and fusion film, ask the surgeon at trial whether the film accurately depicts the surgical procedure, then show jurors what the plaintiff may have to endure in the future as a result of the present injury.

Whenever exhibits are displayed at trial --including anatomical slides, X-rays, and other graphics--the attorney should use overhead projectors and screens. Using the overhead projector has two distinct advantages: It enlarges the exhibits so that they can be more easily seen, and it allows the attorney to temporarily dim the lights in the courtroom.

It has been my experience that, when the courtroom lights dim, jurors immediately get the impression that what is about to occur is important. Their heightened sensitivity leads them to pay close attention to the testimony.

One general problem in representing people with TCS injuries is that they typically do not appear to be as injured as they are. To overcome this, I recommend that the attorney remove the plaintiff from the courtroom while medical experts are used to prove damages and then present the plaintiff to the jury to confirm what the experts have said.

Financial experts, such as economists, may follow to establish the economic impact of the injury. To establish economic damages, the economist can rely on actual loss of earnings as well as the testimony of the vocational consultant.

In summary, traumatic cervical syndrome injuries are often truly significant injuries that involve long-term disability and risk of future harm. With proper preparation and courtroom presentation, plaintiffs' attorneys can obtain fair compensation for these injured clients.

Notes

(1.) I.S.H. Norris et al., The Prognosis of Neck Injuries Resulting from Rear-end Collisions, 65B(5) J. BONE JOINT SURG. 608-11 (1983); M. Ragozzine et al., Upper Cervical Spine Trauma, 32(L) AM. FAM. PHYSICIAN 113-19 (1985); J. Walter et al., Clinical Presentation of Patients with Acute Cervical Spine Injury, 13 ANN. EMERG. MED. 512 (1984).

(2.) D.E. Marmion, Role of Muscles in the Etiology of Headache, 100 J. ROYAL ARMY MED. CORPS 99 (1954)

(3.) JOHN D. STATES, SOFT TISSUE INJURIES OF THE NECK, SAE No. 790135, Society of Automotive Engineers (1979).

(4.) ARTHUR I. KOBRINE & MICHAEL W. NABORS, NECK PAIN (1986).

(5.) SLAM software is published in the United States by Trantech Corp, Ste. 301, 1229 Cornwall Ave., Bellingham, WA 98225, [phone].

(6.) A. Q. Fischer et al.,Muscle Imaging in Neuromuscular Disease Using Computerized Real-Time Sonography, 11 J. MUSCLE & NERVE 270-75 (1988); J.Z. Heckmatt et al., Real-Time Ultrasound Imaging of Muscles, 11 J. MUSCLE & NERVE 56-65 (1988); Heikki R. Laine et al., Experience with Real-Time Sonography in Muscle Injuries, 7(2) SCAN.J. SPORTS SCI.45-49 (1985).

(7.) See, e.g., Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984); McCall v. United States, 206 E Supp. 421 (E.D. Va. 1962).

(8.) A Myers,Degeneration of Cervical Intervertebral Discs Following Whiplash Injury, 14 BULL. HOSP JOINT DIS. 1 (1953).

Theodore L. Mussler Jr. practices law in Louisville, Kentucky.