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Pre-Existing Degenerative Conditions

Pre-Existing Degenerative Conditions

We all know that it’s difficult to find a human being over the age of 40 who is in your office complaining of neck pain, who, when an x-ray is taken, won’t be found with some degree of degenerative change.   If they are unlucky enough to be injured in an auto collision, and the x-rays are taken as a result of that, then the insurance company which accepts responsibility for the injuries will more than likely try to blame all of the symptoms on the “pre-existing condition.”  Let’s face it:  when it comes right down to it, auto insurance companies don’t want to pay for anything.  A perfect world for them would be one in which they collect monthly premium payments from all of their insured, and no one is involved in any auto collisions, so there are no claims, so they can take that money and invest it and make more money, and keep their shareholders (not their policy holders!) and senior executives happy with dividend payments and lucrative golden umbrellas.  But because some people are rude enough to drive their cars into other people’s cars, claims are made, and their perfect world is shattered, and that’s why we doctors have to fight so hard to get paid for the good work we do.  It shouldn’t be that way.The bottom line is that pre-existing degenerative change in our car crash patient’s spines should not be a factor which weakens the case, but should in fact strengthen the case.  Attached to this letter is a short article written by attorney Matt Powell of Tampa, Florida, entitled, “Pre-Existing Claims and Why They Increase the Value of an Injury Claim,” which appeared in the January 2010 issue of the American Journal of Clinical Chiropractic, which is a publication of the Chiropractic Biophysics technique organization.  In the article, he describes why he thinks pre-existing degeneration is a good thing for his case, and how he uses it in trial.   Now, I am acquainted with Matt Powell via my association with the digital motion x-ray people, and I know that he is an attorney who has taken it upon himself to learn about  and become conversant about the pathology of damaged ligaments and the diagnostic imaging protocols necessary in order to document their presence objectively.  Do yourself a favor and go to his website (www.mattlaw.com)  and take a look at all the professionally produced video material he makes available to anyone who wants to use it- free of charge- and begin to use it yourself.Too often, I have been in conversations with attorneys who bring up things like the pre-existing degenerative changes- because it has been a point of contention with the defense- and have already taken the “glass half-empty” route, and are ready to surrender and accept a crappy settlement.   But knowledge is power.  You can turn this situation into a “glass half-full” scenario really easily, if you just take the time to educate yourself about the facts concerning pre-existing degenerative conditions and accident injuries.I always tell people that the literature is loaded with medical articles which establish the fact- THE FACT- that those who enter into a motor vehicle collision with pre-existing pathology will be injured more seriously than those who are disease-free.  By pre-existing pathology, I mean to include the following conditions:
  1. Degenerative joint changes;
  2. Disc bulges/herniations;
  3. Genetic conditions (Klippel-Feil syndrome, congenital fusions);
  4. Nutritional disorders (anemia, stomach stapling);
  5. Endocrine conditions (diabetes, hypothyroidism);
  6. Spondylolisthesis, DJD, stenosis (both neural and central canal), scoliosis, kyphosis;
  7. Myofascial disorders;
  8. Previous spinal surgery.
Doctors, just take a little time with each of these and think them through, and you will see the rationale behind the inclusion of each of these.  But the most obvious one we have to deal with is number 6.  Consider the following literature references as ammunition for supporting your claim that your patient with the arthritic neck really got the short end of the stick when they got rear-ended.Mackay, M.  Biomechanics and the Regulation of Vehicle Crash Performance.  AAAM, 1989:323-36.  Accident Research Unit, University of Birmingham, UK.   “AAAM” is the acronym for Association for the Advancement of Automotive Medicine (www.aaam.org or www.carcrash.org), which is one of several organizations which have been set up, and are funded by, of all people, the insurance industry.  So it’s not like they don’t know that information like this exists (and in this case, since 1989), which is contradictory to what they claim to be true when they go to court.To quote Dr. Mackay, “Corridors for acceptable combinations of forces which the neck, perhaps more than any other body region, exhibits age and disease effects which must profoundly influence the nature and level of tolerable applied force.  The loss of elasticity of ligamentous structures and reduced disc spaces of themselves must alter greatly the mechanical response of the spine to certain loads and motions, which will result in great variation in tolerance to injury.  Clinically documented cases are reported of serious neck injuries occurring under extremely low severity conditions usually where some prior medical condition was present.”  To put that into English, he means that pre-existing degeneration greatly reduces the toleration of force, and makes it much easier to be injured in a car crash.Pike JA.  Neck Injury:  The Use of X-Rays, CT’s, and MRI’s to Study Crash-Related Injury Mechanisms.  SAE, R-628, 2002, page 140.  SAE is the acronym for Society of Automotive Engineers, and is also funded by the insurance industry.  In the section entitled, “Injuries Subsequent to Pre-Existing Conditions,”  Dr. Pike notes that “an individual with pre-existing pathology involving the cervical spine is at greater risk for sustaining injury to the neck in a motor vehicle crash.  Any condition resulting in compromise of the structural integrity of the spine, such as osteoporosis or arthritis, increases the risk of trauma to the bone and soft tissue structures of the neck.  Furthermore, congenital or chronic narrowing of the spinal canal (spinal stenosis) as seen in cervical spondylosis, predisposes the person to associated spinal cord injury in the event of a neck injury.”  I don’t think this statement requires any translation into English.  It’s pretty clear.Dang AB, et al.  Biomechanics of the Anterior Longitudinal Ligament During 8g Whiplash Simulation Following Single- and Contiguous Two-Level Fusion:  A Finite Element Study.  Spine, 2008;33(6):607-11.  Using cadaver spines, the authors simulated the whiplash event with a considerable 8g force (but this is not unreasonable, because remember, Dr. Croft’s live person whiplash simulations regularly measured between 9-12 g’s generated by crashes under 10 mph) and measured the forces which had to be absorbed by the anterior longitudinal ligament at the spinal levels adjacent to the fusion, both above and below.  For a single level fusion, the load was increased 15.5%, and for a two-level fusion, the load was increased by 40.8%.  It has been a long established principle of spinal biomechanics that when a segment is fixated, the levels above and below the fixation will be forced to take over whatever motion has been lost, and will therefore be subjected to more wear and tear in the future.  This study establishes that fact in the case of spinal fusion, whether the fusion is congenital or acquired.   Once again, the potential for harm increases for the pathologically challenged automobile driver!Tominaga, Y., Ndu, AB, Coe MP, Valenson, AJ, Ivancic, PC, Shigeki, I., and Panjabi, MM.  Neck Ligament Strength is Decreased Following Whiplash Trauma.  BMC Musculoskeletal Disorders 2006;7:103.  In this study, the authors used cadaver cervical spines which had been subjected to whiplash, and compared their ligaments’ elastic properties to healthy uninjured ligaments.  All of the whiplash-exposed ligaments were found to be significantly weaker than their healthy counterparts, and unable to stabilize properly their respective joints.  The ligaments included in the study were the anterior  longitudinal ligament, the posterior longitudinal ligament, the facet capsular ligaments, the interspinous and supraspinous ligaments, the middle third of the disc, and the ligamentum flavum.Another long held principle concerning ligament injury is that injured ligaments don’t heal, at least not in the generally accepted meaning of the word “heal.”  Healing comes from the word “health,” and the use of the term implies that an injured tissue can put itself back together to the point at which it is as good as new, or that it can improve to the point that it is just as it was before the injury occurred.  When ligaments are injured, it is done by stretching them past their resting length.  At 3-4% of their resting length, they are permanently injured, and at 8% of their resting length, the collagen fibers are disrupted and broken.  A stretched out ligament is never able to regain its original length, and is increasingly vulnerable to future insult.  That’s why we know as clinicians that our patients who are involved in a second car crash will most likely be injured worse than they were the first time.Counselor Powell makes this point about what the law says:“If the patient’s injury (from the new car crash) resulted from an aggravation of an existing injury or disease (such as degenerative changes), the jury should attempt to determine what portion of the patient’s condition was caused by the car crash. If the jury cannot determine what new damages were caused by the crash, then the jury is told to award damages for the entire condition.”But it looks to me like someone should find out, and if it’s the same, or similar, then all of those arthritic car crash victims should get a new lease on legal life, because when it comes to pre-existing degeneration, the glass is not half-empty, nor is it half-full-  it’s full.  It will all be decided in the legal arena, and it will all come down to the litigation skills of the attorney.  Knowledge is power.  You cannot defend what you don’t understand.  All it takes is to get educated.And doctors, remember, that if you don’t document the presence of degenerative problems in your case notes, then all of the above discussion is for naught.  You must correlate real life facts to the case.  For example, endocrine conditions such as diabetes mellitus may cause peripheral nerves to be more prone to injury and slower healing.  Just because the patient is diabetic does not mean that they have impaired healing.  Many diabetics are under control with diet and medication and have normal healing responses.  But if you feel that a condition has complicated the case, make a big deal of it in your notes.  It’s a common sense issue.
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