Soft tissue injuries are typically defined as trauma or overuse of ligaments, tendons or muscles i.e. the tissues that coat and surround the skeletal structure.
Soft tissue injuries, such as “whiplash” are very common in personal injury claims and can often be the source of controversy. The absence of objectively verifiable proof of injury, such as a broken bone on an x-ray, can lead to nebulous situations in which injured people may report symptoms over and above the typically expected severity and duration of soft tissue injuries.
Soft tissue injuries can result in pain, swelling, bruising and loss of function and are divided into 3 healing phases:
1. The Inflammatory Response Phase – this can begin anywhere from the time of injury to 4 days post injury;
2. The Fibroblastic Repair Phase – this phase can overlap with the inflammatory response phase, normally beginning approximately 4 days post injury and continuing for up to 6 weeks; and
3. The Maturation-Remodelling Phase – this begins around the 6th week following injury and can extend for up to 2-3 years
A common misunderstanding amongst motor insurance companies is to assert that the absence of reported symptoms immediately following an accident would indicate later-reported symptoms must be fictitious. This ignores the fact the Inflammatory Response Phase can begin up to 4 days post injury.
A commonly recommended treatment progression is the “PRICE principle”:
1. Protection – protect the injured person from further injury;
2. Rest – such as utilising a splint or crutches;
3. Ice – in the first 72 hours following injury ice can lessen swelling and pain;
4. Compression – pressure over the site of injury such as a bandage, tape; and
5. Elevation – this can minimise tissue bleeding and swelling. It is recommended the injured area is positioned above heart-level so far as possible.
Doctors will often recommend a course of physiotherapy, typically around 8 sessions, in order to expedite the injured person’s recovery.
A requirement for all injury claims is to obtain supportive medical evidence. This takes the form of a medical report prepared by an independent doctor, normally instructed by the claimant’s solicitor, who examines the injured person and then prepares a report dealing with:
1. Causation – whether the doctor believes the person’s symptoms were caused by the accident;
2. Opinion – what, in the doctor’s opinion, the nature of the injuries are; and
3. Prognosis – how the doctor expects things to go in the future, including any recommended treatment
Ongoing and unexpected symptoms – discussion point
A frequent difficulty encountered with regard to soft tissue injuries in personal injury claims is what happens when the claimant reports ongoing symptoms in excess of the typically expected severity and duration of soft tissue injuries? The reaction one can be tempted into, largely influenced by current trends in mainstream media, is that the claimant perhaps consciously, or subconsciously, is exaggerating his or her symptoms. Doubtless there are instances in which this does occur, but experienced personal injury solicitors, and doctors, frequently report encountering ostensibly very genuine claimants reporting such symptoms. Are they all dishonest fraudulent types, or, perhaps, is something else at play?
One possible explanation is the presence of constitutional – longstanding non-accident related symptoms – being honestly misappropriated to the accident. For instance, underlying back problems are very common in the general public, often lying dormant and/or undetected for years. The occurrence of an accident may perhaps cause the injured person to focus on such symptoms and quite genuinely, albeit mistakenly, attribute such symptoms to the accident. Experts instructed in personal injury cases will sometimes recommend an MRI scan, which offers much greater definition and detail than an x-ray, in an attempt to illuminate the situation. If the scan results reveal problems accepted within the medical profession to be attributable to conditions other than the trauma of the accident the position is then relatively simple as this can be explained by the doctor. However, the typical response of many claimants is “I didn’t have any of these problems before the accident”, which can lead to further difficulties.
In addition to those difficulties is the common situation of the scan result revealing nothing at all. On the face of it therefore there is no explanation at all, whether natural or accident-related, for the claimant’s ongoing symptoms.
The question then for the solicitor is whether, and how, to explore the position further; working to the assumption of course the reported symptoms are genuine. Solicitors will often look to the doctor who prepared the initial expert evidence for guidance but an all-too-common issue in this respect is the lack of such guidance. For instance, a solicitor may have instructed an orthopaedic surgeon to prepare a report on a claimant suffering, ostensibly, soft tissue injuries, the orthopaedic surgeon may then in turn have provided a typical prognosis period of 6-12 months. The claimant then say reports continuing symptoms at 24 months. An MRI scan is undertaken the results of which are unremarkable. The doctor is asked to review and comment upon the MRI scan and to provide further opinion, which tends to be along the lines “The MRI result is unremarkable therefore I have no explanation for continued symptoms beyond 12 months.”
Some doctors however will recommend seeking further opinion from a different expert in another field of medicine, such as a pain specialist.
A view held by some pain consultants is that following injury 3 things occur:
1. Nerves change their function – pain is produced by non-noxious stimulants;
2. The action of opioids (synthetic narcotics) is diminished; and
3. There is secondary activation of the sympathetic nervous system
Another consideration is a psychologist or psychiatrist – what if the reported problems are psychosomatic i.e. real physical symptoms manifested by the brain rather than the body. It is crucial to appreciate this does not mean the injury is not genuine – the brain is able to cause real symptoms outside of the injured person’s conscious control. If such symptoms can be medically verified as being caused by the accident the claimant will be entitled to be compensated for the pain, suffering and loss of amenity they cause.
Policies and politics
So, should all claimants who report symptoms beyond the expected severity and/or duration of soft tissue injuries be referred to pain consultants, rheumatologists, psychologists? This is often a difficult question for the solicitor dealing. In theory the decision should not be in the hands of the solicitor at all – the solicitor is not qualified to make such a decision as this is a medical question, not a legal one. However, as it is most often the case the solicitor has to directly ask the doctor whether he or she believes further evidence should be sought from a pain consultant or rheumatologist, when faced with no explanation for such ongoing symptoms, the practical reality is the onus to pursue this point, and, therefore, to discount the possibility the symptoms are fictitious or exaggerated, is delegated to the solicitor. Statistics in respect of the supposed percentages of fictitious and/or exaggerated symptoms are of little reliability in the eyes of solicitors, the same often being produced by insurance companies with considerable vested financial interests in casting doubt upon the veracity and credulity of personal injury claims, the methods of data collection, analysis and quality control being shrouded in secrecy. Even if a neutral study was undertaken could it ever be objectively verified that a claimant’s symptoms were dishonestly reported? This will most likely forever be a question for the courts to answer, applying human judicial opinion. It seems to this author all the solicitor may do is apply neutral, yet critical, analysis to the situation and proceed in the best interests of their client.
If, in due course, long after settlement of the case, the claimant is referred via the NHS to a pain consultant or rheumatologist, who diagnoses a pain disorder, which was not factored into settlement of the case at the time, will the solicitor be professionally negligent for not returning to the doctor for further guidance? This is a difficult issue as the question appears to be a medical one, not a legal one. To blame a solicitor for failing to consider another field of medicine would on the face of it would lead to an odd continuum as how would the same logic apply to cases involving complex brain damage and neurosurgical evidence? How much should a solicitor know? However, the solicitor is ultimately responsible for the progression and management of the case, relying upon expert opinion as appropriate and decides which field of medicine to at least begin with, and what to include in the instructions. A practise of this author is to routinely ask experts as to whether an alternative field of medicine should be considered, and whether they are able to provide a recommendation given experts within particular fields most often bear sub-specialities within the field, such distinctions being often outside the knowledge of the solicitor.
The human element in this issue will perhaps forever render the situation a complex and often nebulous one. It is disappointing to this author to witness the often successful attempts of pressure groups such as the Association of British Insurers (ABI) to influence the Government towards plans such as an outright ban on personal injury claims relating to soft tissue injury claims, without any ostensible scientific empirical review, analysis or exploration of the nature of soft tissue injuries. Such issues can perhaps only be properly be dealt with by appropriately qualified medical practitioners and in turn judges should such evidence be challenged, not by politicians and certainly not by entities with considerable vested financial interests one way or the other.
By James Winterbottom, Solicitor