Articles by JCS
The Woes of Whiplash
JC Smith, MA, DC
If your spouse were to die suddenly while owning a life insurance policy of $100,000, what would you do if the insurance company offered you only $50,000 at settlement with the comment, “But he wasn’t worth $100 grand”? Of course, you would be incensed with anger if you were offered half of what the policy called for, no doubt asking for an investigation by the insurance commissioner. Indeed, this situation is so preposterous that it’s laughable, but sadly, this happens daily when it comes to many auto insurance claims.
In my twenty-plus years in practice, I’ve seen folks in car accidents become victimized by their own auto insurance company and, in some cases, by their own attorney. This situation is so prevalent that the acronym, TWIP, has been used within the industry to describe this common gimmick of cutting claims in half without reason or legitimate cause. “Take What Insurance Pays” is the motto most attorneys and insurance adjustors live by, unbeknownst to most injured patients, however.
Too often I’ve taken care of folks injured in car accidents who were terribly surprised at the settlement to learn that the insurance company refuses to pay their bills entirely. What comes as a complete shock occurs when the insurance adjustor tells them that they’ve received too much care, although in many cases the patient is still in pain and may have permanent spinal injuries. It’s simply a ruse done by insurance companies to save themselves money, and often the client’s own attorney goes along with this because he doesn’t want to go to court; it’s much easier for him to settle this case over the phone for quick cash. Indeed, neither the insurance company or attorneys really care about your lifelong spinal injury resulting from a car accident—it’s all about money.
Regrettably, instead of arguing the case in front of a jury for full compensation, many attorneys prefer to take their 40% off the top of the settlement after making a couple of phone calls to the adjustor, then off to the next case to be settled just as quickly and easily—no time out of the office, no courtroom appearance, no sweat whatsoever. Just TWIP the case and off to the next one is their creed.
While this may be easy work for the attorney and claims adjustor, it certainly short-changes both the patient and chiropractor who has worked for months to rehab the injured patient. Just like a football player with a blown-out knee, permanent injury will likely result to cause future relapse, degenerative arthritis, and constant pain. Yet rarely is the long-term damage from a whiplash taken into consideration in these settlements. If there’s no blood or broken bones, many attorneys and adjusters think these spinal injuries are just strained muscles, or “just in their head” as if the injured patient is making up their pain and torment. Little do they know the extent of these spinal injuries.
For those patients suffering from a serious whiplash spinal injury, even if they were given $50,000 for a settlement (which is next to impossible) and were to live another 50 years, that equates to $1,000 a year, or less than $3 a day to suffer with a permanent and often disabling spinal condition. I know most people would give $3 a day not to have the intractable pain and disability that comes from a whiplash injury. Realistically, most of these cases settle for less than $10,000 a case, so the long-term value per day is worth pennies.
Part of this problem is the fact that insurance adjustors work on a bonus system that rewards them for keeping claims low. If they stay below the average settlement, they are rewarded, and if they go above the average, they’re reprimanded. In some cases when the insurance company sends the case to an IME (independent medical examiner), these IMEs are reportedly given 25% of whatever they cut. So their motivation is not to give you, the injured patient, all that your coverage calls for, such as $25,000 in some cases, or all the treatment you may need. Instead, they will nickel-dime you on everything, even going so far as to lie to you about your need for future care.
Last year “Dateline News” on NBC did an expose on this ruse. They found a case in Alaska where a woman had bills of $10,000 from a car accident, but State Farm paid only $700, telling her that their IME said her care was unnecessary. Not only had she never been examined by their IME doctor, they revealed that many of these IME examiners are not doctors at all. Many are lay people who are given a cookbook that shows them how to cut claims, and then a hired gun doctor may come by to rubber stamp their cuts. They never examine patients to find out the real extent of their injury or permanent disability, nor do any patients ever get more care for their case.
In almost every case, claims are routinely cut, and then the insurance company tells the patient that their attending doctor is committing fraud by giving them too much care in an attempt to make the doctor the bad guy and diffuse the patient’s anger from them. This reminds me of the time when Mozart, the great composer, was told by the aristocrat who commissioned his work that it had “too many notes.” Can you imagine how ridiculous that sounded to Mozart? “And just which notes were they?” he asked incredulously.
Whenever I’ve had the misfortune of talking with these adjustors or IMEs, I always asked them what guideline they used to determine the number of treatments and timeframe that they deem proper. Never have I been told of any guidelines whatsoever. It appears they just wing it when it comes to the amount of proper care; whatever is done is cut in half routinely. Then they have the gall to tell the patient that they’ve gotten too much care when, in fact, that’s blatantly untrue in most cases.
Regrettably, the patient’s attorney knows this TWIP scam all too well, but most play it nonetheless because it’s easy money. Rather than taking a day out of his office to go to court, many PI attorneys simply settle over the phone and agree to this low-ball figure. Of course, he takes his 40% cut off the top, and then disperses the balance to the injured patient and health care provider. His cut is very lucrative considering all the work he did was a paper shuffle and speaking with the claims adjustor a few times over the phone.
The insurance companies also fail to realize that the amount of damage done to the driver or other occupants does not always equate to the damage to the car. Research has shown a severe whiplash neck injury can result from a 3 mph collision. Since new car bumpers can absorb more shock than ever before, sometimes there’s minimal damage to the car. But the force is transferred into the patient’s neck. And if the car seat headrest is too low, it may act as a fulcrum causing more force to damage the soft tissues in the spine. Yet the insurance adjustor ignores these findings and arbitrarily decides that the driver shouldn’t be hurt because the damage to the car is minimal.
Another issue that often happens—misdiagnosis—occurs to those injured folks who are taken to the ER and told all they have is a “strained muscle,” given pain pills and muscle relaxers, and never told they might see a good chiropractor. In effect, they were misdiagnosed, mistreated, and misinformed as to their options and alternatives as required by informed consent law. After months of popping pills, many patients are still hurting by the time they drop into my office for spinal rehab. Then the insurance adjuster tells them he won’t pay for chiropractic care because according to the ER report, they should be well by now. This happens all too often when patients are medically misdiagnosed and mistreated obviously by virtue of still being in pain. Yet the insurance adjustor doesn’t care about the patient’s well being, but he certainly uses this excuse to not pay for proper spinal rehab.
Even sadder are those folks who are misdiagnosed with a herniated disk and have had spinal fusion, only to still hurt afterwards. Research has shown repeatedly that disk abnormalities are not the cause of pain, yet unethical surgeons still use this outdated concept to convince patients they need surgery. In fact, the US Public Health Service’s guideline on back pain states, “Surgery has been found to be helpful in only one in 100 cases of back problems.” Yet when these failed back surgery victims finally come in for our care, the claims adjuster again spits up his milk by stating, “you should be well by now.”
Another scam done by some PI attorneys is to send patients to surgeons so as to increase the value of the case, hoping for a large settlement, even though 99% of back injuries do not require any surgery. One attorney told me that a spinal fusion settlement starts at $25,000. Sadly, these attorneys know surgery doesn’t work, and only leads to more surgeries that fail. Since these surgeries cost plenty, plus the cost of disability afterwards, this adds to the overall cost of the case, insuring a bigger settlement for the attorney who works on a 40% contingency. Both the attorney and surgeon who profit greatly from the patient’s injury are now victimizing their own patient—again, it’s all about money.
I’ll never forget one lady patient who was rear-ended in a very low impact collision. She complained of slight neck pain and headache, and after just a few weeks of care, I dismissed her with “flying colors.” Actually, the last time I saw her in my office she was ready to go play tennis, and she looked great—a senior woman who looked half her real age. Two years later I spoke with the attorney from the other side who wanted to know why she has had 3 back surgeries since then, which came as a complete surprise to me.
I phoned her attorney who told me the surgeon found she had degenerative disk disease, so he fused her neck in two places as well as once in her low back although she never complained about pain in her low back. I told her attorney that disk degeneration had nothing to do with her neck pain nor was it caused by this accident. Finally he admitted to me, “Look, would you want 40% of $10,000 or 40% of $250,000?” He didn’t give a hoot about his client; it was just the hope of big bucks that made him refer her to the surgeon. In the end, they settled for $90,000; the attorney got his 40%, the surgeon made his booty, and her husband who bought himself a new truck took the remainder. All this lady got out of this was 3 back surgeries and no relief.
I saw her a few weeks later in the grocery story, limping around on a walker, looking like a very haggard old lady. I approached her and asked how she was doing. She told me she was doing better now that she could finally get out of bed after having 3 surgeries since I last saw her.
“But Linda,” I replied, “the last time I saw you, you were ready to play tennis.”
“I know,” she said, “but my attorney made me see the surgeon, who discovered I had degenerative disk disease and needed surgery.” He described her condition to her as if it were a type of cancer that was spreading in her spine and, if he didn’t cut it out, she would be in great peril. What a con-job that was! Research has shown emphatically that disk degeneration has nothing to do with back pain, but that doesn’t stop unscrupulous surgeons from scaring patients anyway. As I said, it’s all about money.
And the insurance company paid this claim despite the obvious con-job that had been perpetrated on her. Apparently anything a surgeon does is okay to these insurance adjusters, even when the surgeries fail. This illogical scam is a result of the “cost-plus” basis of health insurance because they more they pay out, the more they can charge in insurance premiums. So, there’s more money for everyone—the attorney, surgeons and insurance people. And when they raise your rates, you wonder why?
This happens all too often I’ve learned after years of dealing with these attorneys and insurance adjustors. If you are in a car accident, be prepared to worry about both your attorney’s motivation and your insurance adjustor, knowing full well both of them will profit from your accident. Be very worried about a hospital mis-diagnosis of “pulled muscles” and/or “slipped disks,” as an explanation of a whiplash since neither have been proven to be true, and one that your insurance company will throw back in your face later: “but your MD said you just had a pulled muscle—you can’t still be hurting.” Be worried about their treatments of pain pills, muscle relaxers or back surgery. Indeed, injured car accident victims have a lot to worry about other than just their damaged car.
After twenty years of dealing with whiplash cases, it’s disheartening to see patients victimized twice—once by the car accident itself, and secondly by their own insurance company and attorney. Most folks fail to realize this scam until they’ve experienced it. The media has rarely informed the public, and the insurance industry has certainly kept a tight lid on their scheme to defraud their own patients. Don’t be fooled by their cute TV ads either—believe me, you’re most likely not in “good hands” with many attorneys, nor does your insurance company treat you like a “good neighbor.”
So, if you’re unfortunate to be in a car accident, after visiting the ER to rule out fractures, bleeding, and/or shock, go directly to a good chiropractor for proper spinal rehab care. If you find your claims adjuster is short-changing you on the bills, then you might find an ethical attorney (an oxymoron?) to help with your case. It will definitely be an uphill battle to fight, but hopefully this advice will forewarn you. I have found a few ethical attorneys here in town; so if you need a referral, just let me know. I make no financial gain whatsoever whenever I refer to these attorneys; I use them because I’ve found them to be honest and helpful with our mutual patients/clients.