Herniated discs caused by car accidents? Bulges?

Factual Questions
1

We’ve all seen in bad movies, TV shows, etc., the person wearing the cervical collar for whiplash. (A comedian once explained that those collars are always good for a laugh.) As an attorney (would that be “IAL” ?), I see plaintiffs constantly complaining of bulging and herniated discs that they claim were caused as a result of the accident.

There is a current debate in my office that a herniated disc can never (or, at least, very, very infrequently) be caused by the physics, mechanics, etc. of a car accident. Some of the doctors performing “independent medical examinations” (some refer to these as defense medical examinations, because they’re not so independent) on these plaintiffs state that 1) a large percentage of people in the general population have bulging and herniated discs that are asymptomatic; and 2) therefore, because we don’t have a pre-accident MRI of these people, it cannot be determined whether this accident caused this condition.

This last part (point 2) goes with the evidentiary aphorism that “just because they experience pain there since the accident, doesn’t mean that they suffered this injury in this accident.” This is because the burden of proof rests with the plaintiff to prove that the injuries claimed were caused by this accident, as opposed to the events just being connected in time.

For example, with regard to point 1, a study published in the 7/14/94 NE Journal of Medicine found that out of 98 asymptomatic men and women, ages 20-80, average age 42 years: 52 percent had disc bulges, and 26 percent had disc “protrusions” (which could reasonably be interpreted to mean herniations). As age increased, so did the prevalence of these asymptomatic conditions.

Forget about judges, juries. I realize that medical science (or at least ER doctors, orthopedists, and neurologists) usually tries to treat what they’re presented with, as opposed to figuring out how the patient got that way. What does medical science say about causation? Obviously, it would be probably be impossible to ethically put people in car accidents and see what happens to them.

But has a study ever been done of people who were in car accidents who happened to have had MRIs done on them within a reasonable amount of time (let’s say, 1 year) before the accidents, so that they could be compared? Short of such a study, what other proof would be acceptable to answer the question?

So to reiterate, rephrase, and expand upon my question: When your average humble doctor gets on the stand and testifies that in their opinion, to a reasonable degree of medical certainty, these herniated discs were caused by this accident, what is the doctor basing this on? Is a big part of it the “well, they had no symptoms there before the accident, so the injury must be caused by this accident” school of thought, which you could argue, has been debunked by the NEJM article?

I’m not trying to get an agenda across here; and in the interests of full disclosure, I have worked for both plaintiffs and defendants.

If it simplifies things from a biomechanical explanation point of view, let’s limit this to neck bulges and herniations.

Also, let’s try to remove this from IMHO (for example, from lawyers, like myself, who are “experienced” with this sort of thing) and just stick to what the medical science has to say.

2

IANAMD, but you have omitted one other possibility: aggravation of a preexisting condition. A person may have an asymptomatic disc problem, but this can be aggravated in an accident and cause subsequent symptomatology. For example, there may have been no nerve impingement until the accident. In addition, altho disc problems are usually degenerative, IMHO they can also be caused by trauma. But I don’t know if anyone can make that determination without prior diagnostic studies.

3

Good point barbitu8, but let’s leave that one out as well to keep this as simple as possible. Aggravations of pre-existing conditions are messy, and that’s not the subject of the office debate we’re having.

4

Not that this is going to help your discussion, but a disc contains the spongy nucleus pulposus along with the bony annulus. So, generally a “herniated disc” refers to the annulus and not the nucleus pulposus, which is a more serious problem since nerve root irritation is more certain.

What is the doctor basing it on? Well, the defendant owes him $$$$ and he’s not going to collect unless the defendant collects $$$$$. :slight_smile:

5

You meant the plaintiff didn’t you? The defendant doesn’t collect $$$$.

And here in New York, it doesn’t work that way anyway. This is a bit OP, but the plaintiff’s doctor usually gets paid by the plaintiff’s attorney moments before they take the witness stand (anywhere between $3000 and $7500); the defense doctor gets paid a little bit less, a bit more in advance. That’s why the term “independent medical examination” is a bit of a misnomer, as you suggest in your post. We refer to the worst abusers of this system as “whores,” as in “Dr. Tantapus is a noted whore.” (Not quite his real name, in case he wants to sue for defamation of character!)

The doctor bases his testimony on a “reasonable degree of medical certainty.” Specifically, they sometimes testify “if the history given to me is accurate [no previous history of any condition in this body part], then I can state to a RDOMC that the injuries seen were caused by this accident.” Of course, sometimes, the history isn’t accurate, but that’s OP too.