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Low Property Damage Motor Vehicle Accidents- Why Are People Injured In These Accidents?

Anybody that tells you that people cannot be  injured in low property damage-bumper kiss type accidents is presenting a generic and biased point of view.

Human logic has a tendency to equate the severity of auto accident property damage to the  severity of injury potential produced by these accidents. This is a common misunderstanding of intuitive reasoning.

Most jurors have this bias, however they still tell us during voir dire that they can be fair and impartial jurors.

Just about everyone that has been driving long enough has rear-ended someone. It isn’t a pleasant experience to have a claim brought against you for a minor property damage car accident for which you were at fault. Personal integrity is often compromised when the person who caused the accident fails to take responsibility for their negligence. They take the position that,  Yes, I rear ended him but he didn’t get hurt.

Logically, you can’t say that neck and back injuries that develop within 24 hours after a low property damage accident have no causal connection to the accident that preceded them.

Insurance companies take the advantage of this intuitive misunderstanding in defending these cases. They use biomechanical experts, who make a good living expressing opinions that low property damage equates to no injury potential despite their lack of medical training.

If that proposition is true, then there should be a direct correlation between the accident-related  property damage and the severity of injuries sustained by the occupants of a vehicle. However, some people walk away unscathed from a motor vehicle accident where their vehicle is totaled while others are injured in accidents with low property damage.  So there is no direct correlation between property damage and injury potential.

Some people do walk away from minor property damage rear-end car accidents without injury. In my experience, however, many are legitimately injured, and some never recover from their injuries.

Do we fully understand the connection between low property damage accidents and the musculoskeletal injuries that follow them? The answer to that is, no.  However, today we know more about how people are hurt in these accidents than we did in the past.

Whiplash injuries commonly referred to as Cervical Acceleration De-acceleration trauma (CAD trauma) cause unusual spinal movement. Sudden acceleration of the occupant’s body is followed by sudden de-acceleration of the body (whiplash).  If the rear of a vehicle is not hit straight on, there can be oblique forces of rotation further complicating the biomechanical sequence of a whiplash body movements  which increases injury potential.

Torso overspeed means that energy released  form a compressed seat back during a rear-end collision can occur at the same time as forward movement of the body, which occurs during de-acceleration phase of a rear-end accident.  This recoil of the seat back adds energy to the forward movement of the body during de-acceleration and contributes to the potential to injure the lower back.  Older  governmental standards for stiffer seat backs have contributed to this injury potential sequence.

Vascoelasticity is a property of human tissue’s reaction to  forces and loads. Under  loading the tissue becomes stiffer and more brittle.   Since acceleration and de-acceleration loading and unloading, including path reversals, occur in one-third of a second, this makes  normal muscles, cartilages, tendons and ligaments more prone to injury when exposed to whiplash body movements. The most vulnerable tissues to vascoelasticity injuries are the discs, facet joints and supportive ligaments of the spine.

The problem with crash testing is that these tests cannot be done at increasing incremental speeds until an actual spinal  injury occurs.  This would increase energy imposed upon the volunteers to the point where they would actually be injured.  This approach would be highly unethical and would violate  human rights and result in legal consequences to the researchers. Cadavers and crash test dummies can’t provide us with 100% accurate crash test results. Therefore, due to these research limitations and the complexity of head and torso movement during a rear end collision, the threshold collision changes of velocity that produce spinal injury at this juncture have not be accurately determined.

The most accurate way for jurors to determine the injury potential of a low property damage rear end motor vehicle accident is to compare the plaintiff’s physical condition before the accident  to the plaintiff’s physical condition that develops after the accident. If there is no evidence of any other trauma in the interim between the accident and the appearance of spinal symptoms, then this lends credence to the proposition that the low property damage accident was the cause of the injuries claimed by the plaintiff.

Therefore, contrary to popular belief, and contrary to what intuitive logic suggests, low speed rear end impacts often do result in cervical, thoracic and lumbar spine injuries.

Legal Liability of Physical Education Teachers and Coaches

Prior to becoming an attorney, I taught high school physical education in Western Pennsylvania for 12 years. I also coached  gymnastics and track.  I have a masters degree in the  scientific basis of physical education and sports.  I then came to UNLV to work on my doctorate in Education Administration.  I taught physical education classes at UNLV for two years prior to entering law school.

My education and experiences in these areas gives me the unusual background which enables me to comment on the topic of legal liability of physical education teachers and coaches.

The thing that exposes physical education teachers  and coaches to  more  liability than classroom teachers is “movement”.  The amount of student movement in the classroom is limited; therefore, the classroom teacher does not have the liability exposure of a PE teacher or coach.  Add to that the fact that PE teachers and coaches deal with many students moving at the same time. We also have projectiles mixed in with his movement – such as baseballs, softballs, footballs, tennis balls, discus, shot-put, javelin,  etc. – which can cause injuries.   We also deal with various instruments that propel these projectiles to high speeds.  These include bats, golf clubs and  tennis rackets, etc.  You get the picture.  So, because of “movement” the chance of  injury to  our students and athletes is exponentially higher than the liability of the classroom teacher.

The premise of physical education is that movement of the human body carries with it certain physical,  social and emotional benefits.   So there is no way to eliminate movement form what  coaches and PE teachers do.

Furthermore, your facilities are of greater size than that of classrooms.  There is more areas for PE teachers to cover and supervise.  Your facilities include both indoor and outdoor areas.

Many of you also must deal with the presence of water in the form of swimming pools and showers.

Obviously, no students or athletes should ever be left in a swimming pool without teacher or coach supervision.  A swimming pool should remain locked when not in use and the teacher or coach should be the first person in the pool and the last person out.  The danger of drowning and slips and falls goes hand-in-hand with pools and shower facilities.

It is my position that a PE teacher should be the first person into a gym or pool, especially when equipment is present which can create a potential for injury.  The gym or pool should always remain locked when not in use, and the PE teacher and coach should be the last to leave.  This rule is probably a bit  idealistic; however I strongly believe that it is necessary.

Accordingly, in order to prevent accidental injury to our students and athletes, PE teachers and coachs must be concerned with safety of students and athletes much more so than the classroom teacher.

The law that applies to the primary liability exposure  of a PE teacher or coach is “negligence”.  Under the law of negligence a person has the duty to act in a reasonable manner when it come to the safety of others.  If you create an unreasonable risk of harm (by omission or by commission) and somebody gets hurt, your are responsible for the injured person’s damages in the form of medical expenses, loss of income and earnings capacity and for intangible damages for physical and mental pain and suffering.

In Nevada , if you are acting within the course and scope of your employment with a city, county or the state, you have a statutory  limit on your liability exposure of $75,000.00.  However, teachers and coaches get involved with little league, midget football, AAU sports programs, etc.,  where they are not in the course and scope of your employment with a public school. Thus, not every liability exposure will be protected by the statutory cap on damages. Private school teachers do not have the benefit of this liability cap.

When we coach activities outside the public school, we often use our personal cars to transport students. This exposes us to potential liability for injuries caused by our  negligent driving.

If an at fault accident occurs while we are working for a public school, then the school district will pay for damages, subject to the statutory cap.  You will be protected by the cap and you  won’t have to pay, so long as you were  in the course and scope of your employment. When you are involved in coaching or teaching an activity outside of the course and scope of your employment, your assets  are personally exposed.

Therefore,  it is important to be concerned about safety, because following reasonable safety procedures is your duty of reasonable care to your students and athletes.  Anytime that you cut corners on any safety procedure, you can be exposed to potential liability.

If you belong to any professional association, they may offer liability insurance at a nominal rate.  Volunteer coaches may be protected by liability coverage of the league in which you involved.   If you coach, you should inquire into these types of liability insurance protections which may or may not be available to your athletic association or league.

There are many basic rules that can protect you from liability.  These are too numerous to list, however the following are some of the more basic safety rules:

 

  1. Don’t hide in your office between classes.  You have the responsibility to supervise your students.  They can wander off and get involved in all sorts of mischief.  Students can get into fights and altercations with other students which may require your intervention.  There  are many entrances and exits to a PE or athletic complex.  You and your fellow teachers and coaches have  the duty to provide reasonable supervision  these entrances and exits.  This will involve the establishment of a plan and cooperation of your co-workers.
  2. Always keep your pool and gym locked between classes.  Don’t give your keys to students.  These areas should be locked between classes especially when there is equipment set up in the gym. Always check the pool and gym for the presence of students and athletes before you lock the doors.
  3. Mats should always be under any equipment which creates the possibility that as student may fall.  The greater the danger the more matting is required. Never allow the use of any equipment without adequate matting.
  4. It is my strong opinion that some activities should not be taught in PE classes.  Gymnastics should be limited to basic tumbling and basic vaulting skills.  If vaulting activities are used then students must be individually spotted.  Most students do not have the strength to perform skills while hanging or supporting their bodies with their arms.  Therefore there exists the likelihood of falls. If the fall occurs while some is in an inverted position this can cause is spinal injuries, paralysis and even death.  Trampoline (including various types of mini tramps) should ever be taught in PE classes.  If these tramps are used in extracurricular activities such as cheerleading and gymnastics, make sure that there is you have insurance to cover accidents.  You may be surprised that many insurance companies  won’t insure trampolines, or the premium for this coverage may be unaffordable.
  5. For example, remember that even innocent activities  like softball can be dangerous if basic rules are not followed. When there is a fly ball students must be instructed to call for it, and the persons not calling for the catch should back off.  There is always a risk of collision between students  especially when you have 30 students on the fielding team and not just 9.  Head to head collisions and collisions between large and small students carry with them the likelihood of serious injuries.  Remember that there are safety rules that apply to all sports.
  6. Check surfaces where water is present to determine if slip resistant surfaces are inadequate or worn.
  7. Do an inspection of your facilities on a monthly basis.  Report any maintenance repair problems to your maintenance department and to the school administration.
  8. Use appropriate safety equipment for each sport or activities.  If eye protection is reasonable then make provisions to obtain and to use it.
  9. Keep non-participating students out of harms way.
  10. If a student gives you a doctor’s excuse follow the physicians instructions.
  11. Go over safety rules with your students for each new sport or activity.
  12. Do not use strenuous exercise to discipline or punish students. Consult with your school nurse to determine if you have any students who have medical conditions that cannot tolerate any strenuous activity. Never have any physical contact with any student, unless he your safety and the safety of your students is in jeopardy.

When I taught PE, our high school district established a safety committee.  One person from each department was assigned to identify and report  safety hazards to buildings and grounds (maintenance) and to the superintendent.  We identified hazards and immediately repaired them so that they would not be a source of potential injury.

Risk management is concerned with the identification, assessment and control of risks that can endanger students and cause injuries.  Identifying risks is critical to safety.  Risk probabilities can be dividend into he following categories:

 

  1. Very likely to occur- high potential for serious injury.
  2. Some chance of occurrence- high potential for serious injury.
  3. Small chance of occurrence- high potential for serious  injury.
  4. Very little chance of occurrence- high potential for serious injury.

These should be addressed immediately and given high priority.

When the risk involves a medium and low potential for serious injury, these potential risks should be immediately addressed but should have less priority of than those risks which have the potential for serious injury.

Much of what is presented in this article may seem like common sense procedures to you. If this article does not trigger any proactive response from you, go back and read it again, because when it comes to safety, there is always room for improvement.

There always will be risks that cannot be fully identified, prevented or contained. Chances are that you will not be held responsible for those types of  risks because they are not foreseeable.  In preventing accidents decisions should be made that will prevent accidents thus mitigating your liability exposure.   Always be proactive and when it comes to preventing accidents and make sure that you have adequate insurance to protect your personal assets.

Medical Experts: How Do You Respond When Asked the Question “What Are the Bases for Your Opinions on Causation?”

Most medical experts do not understand how to articulate their opinions on legal causation.

The pivotal issue on most personal injury cases centers on causation.  A medical witness must, to a reasonable degree of medical probability, relate the injuries to the subject accident.  For future pain and suffering and future medical care, the standard is to a reasonable degree of medical certainty. (Other legal foundational requirements involving medical necessity and reasonable and customary charges will be addressed in future Blogs.  This blog is limited to he issue of medical causation for past injuries).

“Reasonable medical probability, “means “more probably than not probable” (51%).

“Medical certainty”, as it applies to future damages, means that future medical expenses and/or future pain and suffering are reasonably certain to occur in the future.  It is a higher standard than reasonable probability.

The follow-up question in a deposition by the defense and under direct examination by plaintiff’s counsel at time of trial is: “What are the bases of your opinions on causation?  Keep in mind that causation is never a slam dunk; and, no accident case that involves litigation has a perfect causation scenario.  Pre-existing conditions, prior accidents, prior treatment, diabetes and osteoarthritis, even if remotely relevant,  are always raised by the defense to attack causation.  This is a format providing  examples of responses to the question, “What are the bases of your opinions on causation?”

  1. My review of the medical records and the medical history provided by Mr. X indicates that Mr. X was asymptomatic in the affected areas prior to this accident for ______ (months) or ______ (years).  His injury symptoms developed within _____(hours) _____ (days) after being involved in this accident.  A delay in the development of  neck and back injury symptoms following a motor vehicle accident is he rule rather than the exception. (Explain why).
  2. Mr. X was not taking pain medications before the accident and required pain medication, muscle relaxers and anti-inflammatory medications after the accident.
  3. After the accident, Mr. X’s pain scales were high (give them a range) (Explain how pain correlates with traumatic injury).
  4. Within ____ (hours) ______ (days) of the accident, Mr. X had positive neurologic and orthopedic test results (For each positive test and explain what injury it indicates).
  5. After the accident, Mr. X had reduced range of motion in he following areas:  (give specific examples and explain how reduced ranges of motion correlate with injury).
  6. After the accident, Mr. X was referred to a neurologist or neurosurgeon or orthopedic  surgeon for evaluation (explain the reasons why the referral was medically necessary).  Mr. X, prior to this accident had no such referrals. Explain the concern that conservative treatment was not sufficient to resolve the patient’s symptoms indicating a mores serious condition than he had in he past.
  7. After the accident, Mr. X was referred to pain management (explain the reasons why the referral was medically necessary).
  8. Pain management performed X, Y, Z and the results were A, B, C.  This confirmed the injury because ___________________________________.
  9. Although Mr. X had some (neck and back) treatment before this accident (if it applies): a)    he recovered from his injuries and was asymptomatic before this accident; b)    he returned to an active lifestyle without pain; and c)    he participated in sports, fitness and recreational activities without limitations.
  10. After the accident Mr. X’s activities were limited in the following ways ________.  These limitations do not appear in his pre-accident  records.
  11. The accident as described by the traffic accident report and/or statements and/or answers to interrogatories and/or depositions depict an accident or event capable of causing movement that resulted in probable injury potential. Movement of  Mr. X’s body is confirmed by the entries in the medical records  and/or accident report and/or statements (Interrogatory answers, depositions) that I have reviewed.  These documents indicate that_________________________________________.
  12. Although there is no way directly to equate injury to property damage, in my opinion, the significant events about the accident on injury potential are ______________.
  13. Mr. X, because of his pre-existing arthritic condition, was more prone to injury than a person without osteoarthritis.  Osteoarthritis is generally an asymptomatic condition that can be made symptomatic by trauma. (Explain how conditions such as diabetes can affect the healing of musculoskeletal injuries and why prolonged treatment may be required).
  14. Mr. X was in a posture or position at the time of the accident that made him more prone to injury (head turned to the side, body twisted, looking in rear view mirror, etc.).  He did  not anticipate the occurrence of the accident,  all of which made him more prone to movement and injury. (This is important for minimal property damage accidents).
  15. The pain generator for Mr. X’s symptoms was determined to be through pain management procedures and radiology reports at the ___ level of the spine.  (Explain what the pain generator is and link it to the radiology reports and pain management findings to that level of the spine).
  16. Mr. X’s symptoms are consistent with a pain generator at that level of the spine. I find this correlation to be significant factor concerning causation.
  17. Even surgical candidates have good days and bad days.  Their ability to perform is dependent on their use of medications so its not unusual for Mr. X’s condition to have its ups and downs dependent upon medication consumption and activity level.  It comes as no surprise to me that his medical records indicate that Mr. X had days when he was in less pain and was  functional than others.
  18. Mr. X’s prior medical conditions and prior injuries do not explain the acute onset of injuries after this accident.  None of these prior medical conditions or prior injuries in my opinion form a reasonable basis for me to conclude that the accident did not cause Mr. X’s injuries for the following reasons: ____________________.
  19. Although there are some inconsistencies in Mr. X’s reporting of his medical history and symptoms to his medical providers, these types of inconsistencies are present in most medical records.  Not all physicians can possibly take down everything that a patient tells them during an appointment.  If it were possible for two doctors to simultaneously  take a history and examine a patient, their notes would be different.  All patients have lapses of memory when giving a medical history.  These are common occurrences.  Inconsistencies in medical records do not necessarily mean the patient is lying.  I found Mr. X to be forthright and a honest historian and his medical records in my opinion do not support a secondary gain motivation in pursuing treatment.
  20. Without Mr. X experiencing a traumatic event, it would not be probable for him to coincidentally develop these long-lasting and severe symptoms.  This degree of symptoms would not be caused by performing normal everyday activities.
  21. In my opinion, from the documents that I have reviewed and my examination and treatment of Mr. X, I cannot conclude that the accident didn’t cause Mr. X’s injuries and resulting symptoms.  Based on the information that I have, in order for me to reach the  conclusion that the accident did not cause Mr. X’s injuries, there must  must be a reasonable basis for me concluding that something else, other than the subject  accident, caused the onset Mr. X’s symptoms.  Considering all of the evidence that I have, there is no reasonable basis for me to conclude that this accident did not cause Mr. X’s injuries.

Most likely no attorney has ever received a medical expert report that covers all of most of these points on the basis for a causation opinion.  The reason that we don’t get these types of reports is because nobody ever provides medical experts with this type of format.  Now that  you have this format, you can incorporate it into your medical reports and use it to prepare for your deposition and trial testimony?

If a medical expert presents no bases for his opinions on causation other than a temporal link between the injury and the accident, or that the patient relates that his symptoms began after being involved in the subject accident, this is a very weak and insufficient basis for establishing causation on an injury case.

Liability Medicare Set-Aside Arrangement

Many physicians who treat patients on crossover personal injury/Medicare cases may have some knowledge or the Liability Medicare Set-Aside Arrangement (LMSA).

Medicare has a issued the following memorandum which deals with the simplification of the LMSA process:

 

Your certification can serve to expedite the resolution of these crossover personal injury/Medicare cases.  The following is a Physician Certification Form that your office can use to supply your LMSA Certification to the patient, the patient’s attorney or any first or third-party insurance carrier.  If you receive a Certification Request from an attorney when he requests your medical records and bills, you should not be surprised. We recommend a simple certification such as that below:

LIABILITY MEDICARE SET-ASIDE ARRANGEMENT (LMSA)
PERSONAL CERTIFICATION OF COMPLETED TREATMENT

I, (Name of Physician), treated (Patient’s Name), for injuries which the patient has received proceeds from liability insurance (including self-insurance), settlements, judgment, awards, or other settlements, that he/she sustained in an accident that occurred on (Date  of Accident).

I do hereby certify that treatment for these injuries has been completed as of the date of the settlement, and that future medical items and/or services for these injuries will not be required.

Pursuant to NRS 53.045, I declare under penalty of perjury that the foregoing is true and correct.

_________________________________        _____________________________________
DATE                                                                                     PHYSICIAN


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