The Surprising Impact of Low-Impact Auto Claims

Episode Notes

Transcript

Best’s Insurance Law Podcast

The Surprising Impact of Low-Impact Auto Claims

04/06/2021

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Intro: This is the Best’s Insurance Law Podcast brought to you by Best’s Recommended Insurance Attorneys.

John Czuba: Welcome to Best’s Insurance Law Podcast, the broadcast about timely and important legal issues affecting the insurance industry. I’m John Czuba, Managing Editor of Best’s Insurance Professional Resources. We’re pleased to have with us today, Dr. Ernest Chiodo. Dr. Chiodo earned an MD from Wayne State University School of Medicine, a JD from Wayne State University, a Master of Public Health from Harvard University School of Public Health, a Master of Science in Biomedical Engineering from Wayne State University, a Master of Science in Threat Response Management from the University of Chicago, a Master of Science in Occupational and Environmental Health Sciences with specialization in Industrial Toxicology from Wayne State University, a Master of Business Administration from a Concentration in Economics from the University of Chicago, and a Master of Science in Evidence-Based Health Care, Evidence Based from the University of Oxford in the United Kingdom. Dr. Chiodo is also Board Certified in the Medical Specialties of Internal Medicine, Occupational Medicine and Public Health and General Preventative Medicine. Dr. Chiodo, thank you so much for joining us today.

Dr. Ernest Chiodo: Thank you, sir.

John Czuba: Today, Dr. Chiodo will be discussing the analysis of low impact speed motor vehicle accidents and the impact on claims. And for our first question today, Dr. Chiodo, which exerts greater force on a body, a low speed motor vehicle accident or the act of entering a motor vehicle?

Dr. Ernest Chiodo: Well, the act of entering a motor vehicle. Now, you have to remember, the person that is involved in the low speed collision is not hit by another motor vehicle. The motor vehicle that they’re in is hit by another motor vehicle and there’s either acceleration or deceleration, and those forces are called g-forces. There really a measure of acceleration or deceleration and say if motor vehicles rear-end collision that was say a five mile per hour motor vehicle collision, the g-forces would be at most 2.3 g’s. If let’s say a 10 mile per hour collision, the g-forces would be about 4.7 g’s. Well, the question is what does that mean, Dr. Chiodo? Well, 2.3 g’s is 2.3 times the force of gravity on earth. The next question is, well, so what? What does that mean? Well, you have to make a comparison. If somebody plops down into a seat, the g-forces horizontally along the top of the seat are about five and a half g’s. The g-forces up and down vertically are over eight and a half g’s. The vector, the combination of the horizontal and vertical vector is over 10 g’s, and you have to remember, most motor vehicles are designed where the most convenient way to get in the motor vehicle is the plop down into the seat. So, an individual that is involved in say a five or a ten mile per hour rear-end collision has g-forces on their body much less than the g-forces of getting into the motor vehicle before they got into the car, before they were involved in the accident. By the way, sideswipe collisions, there’s very minimal g-force because the vehicles slide past each other as there’s essentially no delta-v. So, in a side-sweep collision, even if there’s major property damage to the side of the vehicle, the g-forces are at most 0.5 g’s compared to again over 10 g’s getting into the motor vehicle. So that’s important to know. And the reason why that’s important to know is that many times plaintiffs will claim that they had the collision either caused or aggravated their condition, and if the individual didn’t complain about getting hurt getting into the motor vehicle, they’re not suing General Motors, Ford, Chrysler, Toyota, then why did they get hurt with the much lesser force of the collision?

John Czuba: Okay, Dr. Chiodo, can low speed rear-end or side-swipe motor vehicle accidents cause spinal disc herniation?

Dr. Ernest Chiodo: No, actually not. It’s an urban myth. It’s like the television program MythBusters. No, it sounds like it happens. There been five zillion lawsuits about this. Virtually, every jurisdiction in every area of the United States has had many, many, many claims of ruptured lumbar discs or cervical discs due to low speed motor vehicle collisions, but that’s an urban myth. Basically, we know based upon human studies, cadaver studies that you simply do not get a disc herniation from a single loading event that is from an accident unless you have massive bony injuries of the spine. That is if you shatter your spine, you will blow a cervical or a lumbar disc. But if you do not shatter your spine, you’re not going to rupture a lumbar or cervical disc. Why is that? Well, the bones of the vertebra of the spinal column, the vertebra are hard and brittle like a teacup. If you take a hammer and you hit a teacup, it shatters. But the annulus fibrosis of the disc is soft and flexible like a rubber band. You hit a rubber band with a hammer, it doesn’t shatter. So, the evidence-based medicine does not support the claim that somebody that gets involved in a low-speed motor vehicle collision is going to in fact have a disc herniation from the forces of the collision unless they shattered their spine.

John Czuba: Okay. So, if the motor vehicle accident did not cause a disc herniation, what’s the likely cause?

Dr. Ernest Chiodo: Well, the likely cause, and that’s always very important because if it didn’t cause it then why does this person ever ruptured a lumbar disc. The main reason to have a ruptured lumbar or cervical disc is because of degenerative changes; either degenerative changes due to aging or degenerative changes due to occupation. As one gets older, their discs become more degenerated and more likely to just spontaneously rupture. Same thing with occupations; somebody’s a heavy laborer very likely to get a disc herniation from degenerative changes from being a heavy laborer. But it’s not just heavy laborer. Somebody that does a lot of computer work is very likely to get a ruptured cervical disc due to their occupation. Surgeons very often get ruptured cervical disc. Secretaries do. So, that is the alternative explanation. Now, it’s very important because what type of medical doctor is the type of doctor that would sort out whether or not a work activity cause somebody to have a disease like a ruptured disc, and that specialty is called occupational medicine. It’s not called neurosurgery, it’s not called orthopedic surgery. There’s a reason why there’s a specialty called occupational medicine. So, that is the type of doctor that would be able to say whether or not the activity of the work more likely than not cause somebody to have a ruptured disc. Now, how does this play in from an advocacy standpoint? Now, yours truly, I just happened to be among other things, board-certified in Occupational Medicine. So if I go along and I opine that, “No, it wasn’t the motor vehicle accident because here I calculated the forces, the g-forces were much less in the accident than getting into the motor vehicle, and the most likely cause of plaintiff’s ruptured lumbar disc or cervical disc was their occupation.” Then the orthopedic surgeon or the neurosurgeon retained by plaintiff or likely the treating orthopedic surgeon, neurosurgeon will say, “No, I disagree with Dr. Chiodo. No, the occupation did not cause it.” And then the nice, easy, clean cross-examination impeachment goes like this. “Well, Dr. Jones, is there a specialty called occupational medicine?” And Dr. Jones will say, “Yes.” And the defense attorney can then say, “Well, doesn’t occupational medicine, isn’t that the specialty that figures out what happens due to work, what work activities can cause particular diseases?” Dr. Jones will say, “Yes.” And the next question, “You disagree with Dr. Chiodo. You don’t think the work caused plaintiff’s problem?” He’ll say, “No.” “So, doctor, are you board0certified in Occupational Medicine?” “No, but Dr. Chiodo is.” That’s where these alternative explanations are important and again most common cause is age and/or occupation.

John Czuba: Dr. Chiodo, what logical fallacy is the basis of plaintiff’s medical causation testimony?

Dr. Ernest Chiodo: Now, every time they’ve ever heard it, and I’m sure that your listeners will say that the logic behind the plaintiff’s medical doctor is always the following; plaintiff was fine before the accident then there was an accident. Now plaintiff is not fine; therefore, the reason why plaintiff is not fine is the accident that is A came before Z; therefore, A is the cause of Z. That’s always been the logic. I’ve never heard any logics coming from the treating orthopedic surgeon or the neurosurgeon or retained expert. That’s always plaintiff’s logic, and you know it sounds great. There’s only one problem with it. It’s a logical fallacy. In fact, it’s such an ancient logical fallacy that even the ancient Romans knew it was screwed up logic. That’s why there’s a Latin term for it. It’s called the post hoc ergo propter hoc fallacy. That’s Latin for after this therefore because of this. You cannot simply say that A caused Z just because A came before Z because maybe B is the cause, the person’s age. Or C, the person is obese. That’s very common cause for a ruptured lumbar disc or D, the person’s occupation. So, a doctor, in order to say that A came before Z and therefore A is the cause of Z has to exclude other possible causes, and if they did not do that, if they based their opinion solely upon a temporal relationship, that leads to the blunder of the post hoc ergo propter hoc fallacy. Now that’s very important because any doctor basing their causal opinion upon a logical fallacy is not giving a reliable opinion. If it really goes to show that most doctors aren’t really trained to figure out causation due to these car accidents, it’s just not their area. If it were their area, they wouldn’t do something so foolish as commit a logical fallacy that any middle school kid could go Google and say, “Oh, that doctor, that educated man committed a logical fallacy.” Handy thing to know.

John Czuba: Dr. Chiodo, why is it that plaintiff was injured and almost never the defendant?

Dr. Ernest Chiodo: No, isn’t that interesting? Think about it. Your listeners, I’m sure most of them are going to be defense attorneys, if they stop and think about it, you know there’s a car accident. Two cars get in an accident. Newton’s third law of motion is every action has an equal and opposite reaction. If the vehicles are roughly about the same size, the force on the car that say rear-ends the car in front is essentially the same as a car that gets rear-ended. The forces are the same on the vehicles. So, why is it that plaintiff is always the one that gets hurt and defense is not. Defendant is not hurt and the reason being is neither one of them got hurt. Actually, who is more likely to get hurt in a rear-end accident is the person that did the rear-ending. Why is that? It’s because in a motor vehicle accident, you’re thrown towards the principal direction of force. That is if you rear-end somebody, you are thrown forward against the very narrow restraint of your lap belt and your shoulder belt. Whereas the person that is rear-ended, they’re thrown backwards into the broad area of the cushioning of their sheet and their headrest, which is a safety device. So, who is more likely to get hurt in a rear-end accident? All things being equal is the defendant. By the way, that issue of who’s more likely to get hurt in a rear-end collision is something that has been considered very much in other areas other than just motor vehicle accidents. In Detroit, the US automobile industry has for many years tried to figure out how they can design cars so that people would be driving with their back towards the direction of travel. I mean looking through a periscope, because if you run into something in that context, you’re less likely to get hurt because the force is spread over your back rather than concentrated on a lap belt and shoulder belt. But you can’t get people used to driving backwards. So Detroit has not done that. However, if you get onto a military transport aircraft, the seats face backwards because if the military plane flies into something, the passengers, the servicemen, are more likely to survive because they’re thrown into their seat rather than into the narrow restraint of a wrap belt. By the way, there might be somebody on the jury that’s been in the military. Same thing applies for infant seats. When you bring an infant home, the infancy faces backwards because if mom runs into something, the force is spread over the back of the baby. There’s very likely going to be a mom or a grandma that’s on a jury that said, “Yeah, that seems odd.” And yes, it is very important point that if defendant wasn’t hurt, all things being equal why is plaintiff hurt.

John Czuba: Dr. Chiodo, what’s the problem with using a biomedical engineer that’s not a physician?

Dr. Ernest Chiodo: Well, first off, number one there’s been a long push to use biomedical engineers, and I kind of agree with that, that the notion is let’s try to quantify how much force was in this accident. If you don’t know the force, you can’t know if somebody got hurt due to the force. The first thing that your listeners have to remember is biomedical engineering is a very broad field. Most biomedical engineers that study the discipline at most universities learn how to make CAT scan machines and ultrasound machines and other medical devices. The focus in most places is not on vehicular impact biomechanics. However, at Wayne State University in Detroit, which is where they did all the original car crash studies — In fact, by the way, how they figured out how much force was necessary to fracture somebody’s skull, they did that by throwing cadavers down the elevator shaft at Wayne State University School of Medicine in many, many years ago to gives you an idea of how things were back then. Wayne State, the focus was all in vehicular impact biomechanics. So first off, not all biomedical engineers really know how to sort this out, but if you do have a biomedical engineer that knows how to sort this out, the fundamental problem is a biomedical engineer is most are not physicians. They can’t give a medical opinion. They can talk about how much force was involved in the accident. They can talk about what that force typically can cause, but they cannot and many times are barred from going to the final step and say force in this accident did or did not cause injury to plaintiff, because that’s a medical opinion and you have to be a medical doctor to do that. So that is the problem with using a non-physician biomedical engineer, and then the obvious problem is if you have a biomedical engineer and a physician, they don’t speak the same language. Your physician doesn’t know what the heck g-forces are, it’s just not part of typical medicine, and of course the biomedical engineer doesn’t have the medical background.

John Czuba: So, what’s the problem with using a physician that’s not a biomedical engineer?

Dr. Ernest Chiodo: Now this is very interesting. I don’t know if your listeners picked up on it, but I have been a physician for almost 40 years now, but I’ve been an attorney for almost as long. How did I get into this whole crazy area of vehicular impact biomechanics? Because that’s not how I started out. Really, for many years, I was the go-to, I think I am still the go-to guy, as far as toxin exposure cases in Michigan, both medically and legally. In fact, I did enough legal work as an attorney representing plaintiffs in toxic tort cases that I used to be the Chairman of the Environmental Litigation and Administrative Practice Committee for the State Bar of Michigan. Mildly prestigious if you’re a lawyer but darn unusual if you’re a doctor. As a result, I got a reputation among lawyers as being very opt on Daubert, and application of Daubert in Michigan, because that comes up very commonly toxic tort cases. Well one day, I think it was 2006, I got a phone call from an attorney, this attorney that wanted to pick my brain, and it was about a car accident. He said, “Doctor, I want to ask to pick your brain legally.” And I’m the type of guy that I always give professional courtesy to lawyers. If they want to call and pick my brain, it’s just gentlemanly to let them do that. He said, “This is a problem I have, doctor. I’m defending a low-speed automobile accident case and I have a very well-qualified neurosurgeon that has opined that based upon the appearance of the vehicles after the accident that there was not enough force that caused the ruptured lumbar disc of plaintiff.” And plaintiff attorney has brought a motion to exclude my board-certified neurosurgeon because he is not a biomedical engineer. He deemed it as a Daubert challenge. I don’t think it was a Daubert challenge. It’s really a foundational challenge. But he asked me what do I thought about that. And I had never thought about the issue before because everything I was doing was toxin exposures. I thought about it and I thought that’s genius on the part of that plaintiff attorney because that board-certified neurosurgeon is eminently qualified to diagnose a ruptured disc. He is eminently qualified to have an opinion about treatment. He may say surgery, I may say medical care, we may disagree in our opinion but he has the right to have his opinion about treatment. He’s qualified. He’s eminently qualified to have an opinion about prognosis. How’s this person going to do five, ten years later? But what the heck is there in the background of a neurosurgeon, of an orthopedic surgeon, of a physiatrist, neurologist, any type of medical doctor that would allow them to look at pictures of vehicles after the accident to say there was or was not enough force to cause a ruptured lumbar disc, or any other type of injury because that’s an engineering question to figure out what the forces were. And I thought to myself that’s not just engineering, that’s biomedical engineering specifically vehicular impact biomechanics. The point being is if you have a doctor and he can’t figure out the forces in the collision then he really doesn’t know whether or not somebody got hurt due to the accident because he doesn’t have the background to quantify the forces. You have to know something about the force to say whether or not somebody got hurt due to the force, and that is the fundamental problem with both the plaintiffs, expert and the defense expert. Really, orthopedic surgeons, neurosurgeons, they’re experts in doing surgeries, they’re not experts in figuring out whether or not somebody got hurt due to a low speed motor vehicle collision because they don’t have the engineering background to figure out the forces.

John Czuba: And finally, Dr. Chiodo, what should claims managers or defense attorneys be made aware of?

Dr. Ernest Chiodo: Well claims managers and defense attorneys should be made aware of that Dr. Chiodo happens to be one of the few doctors out there that feels any need to get professional courtesy to lawyers because I just happen to be one myself. So, if anybody in your audience, claims manager, defense attorney, or even a plaintiff attorney wants to call and pick my brain, I give professional courtesy. I’ll let you go ahead and pick my brain, and you’re free to do so, and no obligation to hire me as an expert.

John Czuba: Dr. Chiodo, thanks so much for joining us today.

Dr. Ernest Chiodo: Thank you, sir.

John Czuba: That was Dr. Ernest Chiodo, expert service provider in Best’s Insurance Professional Resources, and special thanks to today’s producer, Frank Vowinkel, and thank you all for joining us for Best’s Insurance Law Podcast. To subscribe to this audio program, go to our webpage, www.ambest.com/claimsresource. If you have any suggestions for a future topic regarding an insurance law case or issue, please email us at [email protected]. I’m John Czuba, and now this message.

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