SkadePortalen / WhiplashInfo
The New England Journal of Medicine -- October 12, 2000 --
Vol. 343, No. 15
Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims
To the Editor:
The findings of Cassidy et al. (April 20 issue) (1) suggest that radical changes are needed in the tort system of automobile insurance that is common throughout the United States, in which injured claimants can sue for pain and suffering caused by another driver's negligence. Cassidy et al. examined the time to closure of a claim for claimants injured in motor vehicle collisions in Saskatchewan, Canada, during the six months before January 1, 1995, when a tort system was in effect, and in the two consecutive six-month periods after that date, when no-fault insurance was implemented. Under the no-fault system, claimants could no longer claim compensation for pain and suffering. The time to closure of claims was reduced by 54 percent during the no-fault period. The authors conclude that the reduction in the duration of whiplash injuries under the no-fault system was due to the absence of the financial incentive that is inherent in the tort system.
Cassidy et al. base their conclusions on the assumption that when an injury claim was closed under the no-fault system, the claimant had recovered from his or her injuries. The only support that Cassidy et al. provide for the assumption that recovery from whiplash coincided with the closure of the claim is a 1995 monograph by the Quebec Task Force on Whiplash-Associated Disorders, in which the authors equated the cessation of time-loss payments with recovery. (2) We have criticized the use of time-loss payments as a proxy for recovery in that study, since no data were collected on the symptoms, amount or type of treatment, or degree of functional impairment of the injured study subjects (3); thus, there was no evidence supporting the conclusion that they had actually recovered. Cassidy et al. have made the identical error in the current study. Curiously, they recorded the level of pain in the study subjects but chose not to report these data in their article.
A closer examination of the no-fault insurance system in Saskatchewan reveals several other changes that contributed to the more rapid closing of claims after the no-fault system was implemented. These changes confounded the data the authors relied on for their conclusions. For example, under the no-fault system, patients with symptoms that persist far more than six weeks are referred to centers that are owned and managed by Saskatchewan Government Insurance, for evaluation and rehabilitation. If the claimant refuses the insurer-mandated treatment, the claim can be closed by the claims adjuster, under the no-fault statute. In addition, with the elimination of virtually all litigation, there is no need to have claims remain open for the resolution of any legal issues.
What Cassidy et al. have demonstrated with their study is that if an insurer is given the ability to close claims more rapidly, the insurer will do so. This finding does not come as a great surprise. The ultimate effect of this experiment on the health and welfare of the people of Saskatchewan has yet to be determined.
Michael D. Freeman, Ph.D., D.C., M.P.H.
Annette M. Rossignol, Sc.D.
Editor's note: Dr. Freeman has been a consultant and has provided expert testimony with regard to motor vehicle-collision injuries for plaintiff and defense attorneys, as well as law-enforcement agencies.
To the Editor:
In the study by Cassidy et al., recurrences were cases in which a closed claim was reopened (i.e., recurrences were not due to further injury). Previously, the report of the Quebec task force (edited by Cassidy and colleagues) emphasized a 3 percent rate of failure to recover at the end of 12 months on follow-up of patients with whiplash. (1) The report largely ignored data that probably would have increased the failure-to-recover rate to 12.4 percent. (2) We see a similar pattern of ignoring recurrences in the Saskatchewan study. Of 7462 persons included in this study, 2064 had claims that were reopened after closure; reopened claims constituted 22 percent of the claims under the tort system and 32 percent of those under the no-fault system. Remarkably, for a prospective study, recurrences were not included in the time-to-event analyses.
To explain their exclusion, the authors state, "Because of uncertainty about the reasons for reopening 2064 claims and the lack of information about the first closure date, these claims were not included in our time-to-event analyses." Persons whose claims were reopened, presumably because these persons were symptomatic, were simply removed from the comparison of claim closure between the two groups of claimants. In the Quebec study, Cassidy et al. had found that recurrences were a problem. In their report on the current study, the authors state that on the basis of the Saskatchewan government's records, it was not possible to determine whether claims were reopened just to pay a bill or because of the continuing consequences of injury. Surely this information should have been fully documented from the beginning by the investigators.
The subjects who were excluded because of reopened claims accounted for 28 percent of all the subjects. This group may well have included persons more likely to have reported symptoms for a longer-than-average period. Remarkably, data on the first closure are missing only for these 2064 persons with reopened claims, not for any of the 5398 who did not have reopened claims. Despite the authors' statement that they do not have these data, they provide detailed data on how long the claims remained reopened when the information might appear to support their conclusions. The first-closure dates were uncertain, yet the median values are given for the duration of the reopened claims.
Harold Merskey, D.M.
Editor's note: Drs. Merskey and Teasell have served as consultants to attorneys and have provided expert testimony with regard to claims involving motor vehicle collisions and other personal-injury claims.
To the Editor:
In the study by Cassidy et al., there is a potential for investigator bias. The research is supported by Saskatchewan Government Insurance, the only automobile insurer in Saskatchewan. This is as if a cigarette manufacturer were to underwrite a study of cigarette smoking and cancer.
Did the injured persons close their claims because they were entirely better or somewhat better, or had they just given up complaining? The reduction in treatment days may be more a result of policy than of healing. When health maintenance organizations in the United States refused to pay for maternity care that lasted more than a day after delivery, hospital days and related costs dropped dramatically. You can always reduce treatment days and costs if you reduce coverage.
Minimal treatment or benign neglect of whiplash injuries should not be the standard of care. Such a standard stigmatizes patients and encourages doctors to underevaluate their symptoms.
Mitchell Clionsky, Ph.D.
Editor's note: Dr. Clionsky has provided expert testimony on motor vehicle-collision injuries.
To the Editor:
The assumption that closure of a claim is equivalent to recovery is simply not true in Saskatchewan. For the majority of my patients with marked whiplash, closure occurred under three sets of circumstances. In some cases, the patient's condition failed to improve substantially with treatment, and the patient was incorrectly assumed to be malingering. In other cases, the demanding, highly regimented, and relatively fixed four-to-six-week daily treatment program mandated by the insurance company (which, according to Cassidy et al., is inappropriate) actually worsened the patient's clinical condition, and the patient could not take it any more, mentally or physically. The patient voluntarily quit the program, even though he or she knew the insurance adjuster would disallow the claim and provide no further financial or medical benefits. Finally, some patients missed several days of the treatment program because of aggravation of their symptoms due to the treatment or because of illness and were unilaterally dismissed from the program.
Contrary to the authors' statement that "the decision to close a claim involves negotiations" among the claimant, the physician, and others, closure is often a unilateral decision made by the insurance adjuster. My clinical opinion about the closure of a claim has never been requested, even in cases disputed by the accident victim. Almost all my patients with whiplash who received treatment through the no-fault program were more traumatized by the care they received than they were by their accidents. The patients who should have fared the best, with minimal medical intervention, fared the worst; several became clinically depressed.
Unfortunately, many of my patients continue to have serious, ongoing health problems due to their whiplash injuries, but all have had their claims closed and are no longer entitled to any further medical or financial benefits. According to the state-run insurance agency and the assumptions of Cassidy et al., however, these patients have recovered or have attained "maximal medical improvement" and deserve neither further consideration nor support.
Robert S. Russell, M.D., M.H.Sc.
The authors reply:
To the Editor:
Freeman and Rossignol state that we simply assumed that claim closure reflects recovery. In our study, we reported a strong relation between the rate of claim closure and the rate of recovery, as measured by the intensity of neck pain, the level of physical functioning, and psychological status. (1,2) Recovery from neck pain, physical disability, and depression occurred twice as fast under the no-fault system as under the tort system. The second criticism noted by Freeman and Rossignol is also not accurate. Saskatchewan Government Insurance reimburses rehabilitation centers for treating claimants, but these centers are neither owned nor managed by Saskatchewan Government Insurance. However, this point is irrelevant to our findings; our data were collected before the rehabilitation programs were established.
Merskey and Teasell express confusion about the administrative data available to us. The administrative data base maintained by Saskatchewan Government Insurance contained the date a claim was opened, the date it was reopened (if relevant), and the date of closure. If a file was reopened and then closed again, the second closure date automatically overwrote the first closure date. Identifying the reason for reopening a claim would have required a review of the claim file, for which we had neither the consent of the claimant nor the approval of the ethics committee. Therefore, in order to retain internal validity, we excluded reopened claims. However, including these claims in the analysis does not essentially change our findings. If we include all 7462 whiplash claims in the analysis, the median time to closure was 168 days longer under the tort system than under the no-fault system. If we exclude from the analysis claims that were reopened for less than a week, on the assumption that they were reopened for administrative reasons, the time to closure among the remaining 6492 whiplash claims was 205 days longer under the tort system.
Clionsky expresses concern about investigator bias. The grant was made to the University of Saskatchewan, and investigators at three universities undertook the research. Two graduate students and their dissertation committees were also involved in the study. Saskatchewan Government Insurance did not influence our research.
Russell has his own select experience in family practice. However, our study represents a large, unselected population of claimants throughout Saskatchewan who provided self-reported data in a structured format over a defined period of time. Our study does not address the appropriateness or effectiveness of the current rehabilitation system. As we have indicated, this system was not a factor during our study. We do not argue that closure of a claim reflects the absolute cessation of symptoms. Most clinicians and researchers recognize that the process of recovery is indeed a process, not an event.
J. David Cassidy, D.C., Ph.D.
Pierre Cote, D.C., M.Sc.
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