Big Insurers, Dirty Tricks
Two D’s for Justice vs. Three D’s for the Defense
Using DMX and X-ray Digitization to Objectively Prove Connective Tissue Injuries
Don P. Chaney
On February 9, 2007, the CNN Anderson-Cooper 360 television program exposed the insurance industry’s hardball campaign that began in the mid-1990′s to “Delay – Deny – Defend” all motor vehicle collision claims involving connective tissue injuries of the neck and back. Fortunately civil justice attorneys now have scientific medical tools to overcome such abusive insurance defense tactics by providing convincing evidence to support fair jury verdicts for injury victims. Digital Motion X-ray (DMX) and x-ray digitization are scientific tools developed to aid in the diagnosis and treatment of connective tissue injuries (ligament, tendon, muscle and disc). They are especially valuable as diagnostic tools for Cervical Acceleration/Deceleration (CAD) injuries, commonly referred to as “whiplash” injuries, suffered as a result of motor vehicle collision trauma. Such trauma causes 3,000,000 whiplash injuries per year in the United States, where 50% of these injury victims will fully recover, 40% will suffer some degree of permanent injury with chronic pain, and 10% will become permanently disabled. This whiplash epidemic is caused in part by the stiffening of vehicle bumper systems to avoid or minimize property damage to vehicles, which causes the instant transfer of crash energy trauma to vehicle occupants, and which thereby provides the mechanism of injury in low speed and higher speed collisions.
When spinal ligaments are torn or over-stretched due to trauma, there is always some degree of permanent injury due to healing with scar tissue that is less functional than normal tissue. Ligament subfailure is like heavy duct tape being over-stretched, which will never return to its previous degree of elasticity and strength. The hallmarks of spinal ligamentous injuries are that they are “permanent, painful and progressive.” Ligaments hold spinal vertebrae together to form joints and check abnormal movement. Damaged ligaments allow abnormal movement causing spinal instability, bad joints and advanced spinal degeneration, which can cause chronic pain and the need for future medical treatment for the duration of the injury victim’s lifetime.
As personal injury lawyers we need to show compassion and help our injury victim clients understand the potentially serious nature of these spinal ligamentous injuries, and encourage them to promptly seek treatment following crash injury trauma. Taking advantage of the initial window of opportunity for healing is important so that the scar tissue repair process will be more functional, and thereby minimize the degree of permanent residuals from the crash injuries. Restoring normal spinal motion through proper treatment, including spinal manipulative therapy, is critical to the repair of damaged ligamentous and other connective tissues. Our injury victim clients will benefit from treatment during the initial healing phase, as well as help their legal case by generating medical documentation of injury that is needed to reach a fair resolution of their legal claim, whether by settlement or by a jury trial.
When an injury victim proves that a spinal joint is permanently damaged due to connective tissue injuries, the victim is entitled to the full set of jury instructions covering damages for permanent injury, future medical care, future loss of income or future loss of earning capacity, future pain and suffering, and future mental anguish. Juries are much more likely to respond to permanent injuries that are objectively demonstrated by DMX, plain film x-rays, digitized x-ray analysis, MRI, CT, EMG, SEMG, NCV, myelography, discography and other objective medical tests. Additional objective evidence is provided by the treating physician’s clinical examination that should include standard orthopedic and neurological tests, and palpatory clinical findings. Specialized palpatory training in identifying functional impairment of the spine is commonly associated with chiropractic physicians, osteopathic physicians and physical therapists. The victim’s treating physician should explain why future treatment is needed to manage recurring biomechanical spinal lesions by keeping mobility restored in permanently damaged joints to control chronic pain and help minimize flareups and aggravations, as well as to provide more intensive treatment when periodic flareups occur. Regular treatment also helps to minimize advanced disc degeneration.
DMX is a medical break-through to objectively demonstrate the functional loss caused by impaired joints of the spine due to permanent ligament damage. DMX is the best objective test because normal MRI testing is primarily concerned with static imaging of intervertebral discs and nerves, not ligaments, and there are no discs in the upper cervical spine. DMX is also used as a screening tool when performing proton density MRI and functional kMRI imaging, which are capable of showing injuries to some of the individual spinal ligaments.
Many times injury victims hurt when they move due to spinal instability caused by traumatic ligamentous injuries. Most plain film x-rays and recumbent MRI imaging cannot detect the true cause of the pain or the full extent of the injuries, which can only be revealed by DMX showing the abnormal function of the joints in motion. Many of the same principles followed by radiologists and chiropractic physicians in reading plain film x-rays are also followed in reading DMX motion x-rays.
While not yet decided in Arkansas, DMX imaging should be found to meet the Daubert requirements of being accurate and reliable, acceptance by governmental agencies, and it is widely endorsed by the chiropractic and medical communities. It should be noted that while the scientific medical literature supports the admissibility of DMX evidence under Daubert, there is an argument that a Daubert analysis does not apply to a physician’s medical opinions based upon personal experience and observations under the precedent of Arrow International, Inc. vs. Sparks, 81 Ark. 42, 98 S.W.3rd 48 (2003).
DMX is much improved technology over traditional plain film x-rays by demonstrating spinal instability due to abnormal joint motion caused by ligament damage. At its heart DMX is still a simple x-ray, however, it works with a video camera to take 30 individual x-ray frames per second to create a motion x-ray that lasts approximately 90 seconds. This results in about 3,000 individual x-ray images that can be viewed on a computer monitor, freeze framed, zoomed in or out, or viewed in slow motion.
The individual images that best show the damage can be saved as static x-ray images by the reviewing physician, and then analyzed using x-ray digitization software. The video images are made as the patient’s head is moved through nine ranges of motion in a normal, weight-bearing posture, thereby providing an assessment of all 22 major cervical ligaments. While the ligaments themselves are not shown on the x-ray images, the effect of injured ligaments can be ascertained by abnormal movement of the spinal vertebral bodies in relation to each other. An analogy is to watch leaves blowing in a tree, where we cannot see the wind, but we can see the effect of the wind. Likewise, even though we cannot see the cervical ligaments, we can see the results of ligamentous injuries by abnormal movement of the vertebral bodies, which is easily observed by anyone trained in musculoskeletal radiology using standard radiology practices.
The first x-ray was invented in 1895 by Dr. Roentgen, and in 1896 Thomas Edison continued to develop radiography with the invention of fluoroscopy to show moving x-ray images on a screen. These fluoroscopy methods evolved and were called cinefluoroscopy, cineradiography, video fluoroscopy (VF), and now digital or dynamic motion x-ray (DMX), which all have the same meaning. As technology progressed the ability to record x-ray motion images evolved from movie film to videotape to digital images, exactly like traditional cameras moving from 35mm film to digital images. DMX is also similar to MRI and CT digital images that can be saved on electronic media and displayed on computer screens, or they can be printed on film or paper. The use of DMX was approved for patients with spinal and peripheral joint disorders by the U. S. Food and Drug Administration in 1994, the Arkansas Department of Health and Human Services in 2003, the National Guideline Clearing House (a governmental agency that works with the American Medical Association and the health insurance industry), the American Chiropractic Association Council on Diagnostic Imaging Physicians, the Arkansas Board of Chiropractic Examiners, the Arkansas Chiropractic Society; and its use endorse by Pain Management, A Practical Guide For Clinicians by the American Academy of Pain Management, Occupational Medicine Practice Guidelines by the American College of Occupational and Environmental Medicine, and further supported by a large number of peer reviewed medical articles published inSpine and other medical journals. The widespread acceptance of DMX is also shown by being at the top of the list of five approved imaging methods, ahead of MRI and CT imaging, for a Medicare documentation requirement to establish a spinal subluxation diagnosis for a patient before a chiropractic physician can be paid for treatment by Medicare.
There are other benefits of DMX in addition to showing function of the cervical spine through motion testing. DMX images have an enhancing effect by showing the cortical margins of the bones in black. In other words in a digital x-ray of an egg, the shell of the egg appears black, and the contents are grey. This allows the interpreting physician to detect compression fractures which are occasionally missed by traditional x-ray. Plain film x-rays do not show some fractures as well because the cortical margins are displayed as white, and the body of the bone is also shown as white, thus detecting abnormalities is harder when looking at a white on white image on plain x-ray. Another benefit is that DMX testing only subjects the patient to a low dosage of radiation because it uses a low powered pediatric type x-ray machine, which is good for imaging necks, temporomandibular joints, and extremity joints; but does not have enough radiation power to image the low back unless the patient is a child or small adult person.
Treating physicians should consider referring patients for a DMX after the patient’s range of motion has been re-established following traumatic injury, and where the physician suspects spinal instability as part of the physician’s differential diagnosis process. Persistent signs and symptoms after the patient reaches maximum medical improvement following treatment, including unresolved neck pain, shoulder pain and headaches, also establishes medical necessity to refer for DMX testing. The treating physician must then correlate the patient’s history, pain complaints and physical examination with the DMX test results, along with x-ray digitization diagnostic studies if available, to make sense of the DMX testing. The American Chiropractic College of Radiology and Council of Diagnostic Imaging provide other recommended guidelines for using DMX.
Abnormal spinal motion shown by DMX provides objective evidence of spinal instability caused by permanent ligament damage. The widely recognized and followed Guides To The Evaluation Of Permanent Impairment, 4th and 5th Editions, published by the American Medical Association, provide a reference manual for normal and abnormal motion caused by spinal instability due to permanent ligament damage, and includes Tables dealing with ratable permanent impairment caused by such spinal instability. It should be noted that the AMAGuides is required to be followed when permanent impairment ratings are assigned to workers compensation claimants in Arkansas pursuant to Ark. Code Ann. §11-9-522 (g)(1)(A), Ark. Workers Comp. Rule 34 and Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (Ark. App. 2001).
The AMA Guides defines a motion segment of the spine as two adjacent vertebrae, the intervertebral disc, the apophyseal or facet joints, and ligamentous structures between the vertebrae. Permanent impairment to the spine is based upon spinal instability as established by a slippage or translation of one vertebra in relation to another vertebra shown by flexion and extension x-rays. For example, translational movement of 3.5 millimeters between cervical vertebrae, or 11 degrees of angular motion between cervical vertebrae, establishes a “whole person” impairment rating of 25 – 28 percent.
Through the use of x-ray digitization computer software, either plain film x-ray flexion and extension views, or the same static views saved from a DMX study, can be precisely measured and correlated to such AMA Guides impairment ratings. Such x-ray digitization software also provides reference to “Lines of Mensuration” methods used to analyze x-rays that establish other normal and abnormal objective values for the patient’s x-ray analysis. Abnormal findings provide additional objective evidence of permanent ligamentous injuries. The National Guidelines Clearing House gave an “established” rating to x-ray digitizing in 2003, and it is also supported by numerous professional organizations, peer reviewed articles and texts.
The use of DMX is approved by governmental agencies, and widely endorsed by professional associations and physicians as a safe and valuable tool to help diagnose and treat patients with disorders of the spine and peripheral joints. Abnormal spinal motion shown by DMX provides objective medical evidence of permanent ligamentous injuries. The widely recognized AMA Guides To The Evaluation Of Permanent Impairment provides a reference manual for normal and abnormal spinal motion pursuant to which x-ray digitization analysis can provide accurate measurements to establish permanent impairment ratings caused by spinal instability due to permanent ligament damage. Other peer reviewed “Lines of Mensuration” methods as shown by x-ray digitization software provide references to establish normal values, such that abnormal values and permanent impairment are easily proven by objective medical evidence. DMX technology and digitization of x-rays are well grounded in scientific principles, and follow long standing methods of radiologic procedures.
DMX and x-ray digitization are important tools to help achieve justice for injury victims by providing objective medical evidence of spinal instability caused by permanent ligamentous injuries. Their use also promotes better patient care and patient safety by providing an accurate diagnosis of the patient’s spinal instability, and which helps the treating physician develop a proper treatment plan for each patient. The use of these medical technology tools to achieve courtroom justice for injury victims should eventually lead the insurance industry to abandon its hardball blanket denial of connective tissue injury claims, and to embrace these tools that clearly show which injury claims are meritorious and should be paid, and which claims should be “Delayed – Denied – and Defended.”
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Don P. Chaney is a civil justice attorney with offices in Arkadelphia, Arkansas, and practices motor vehicle collision injury law statewide in Arkansas. Over the past several years he has helped to promote the use of new medical technology tools, Digital Motion X-ray (DMX) and x-ray digitized radiology reports, for use as evidence in court to help motor vehicle collision injury victims achieve justice by receiving fair jury verdicts.
Copyright 2007 by Don P. Chaney – Published in the Summer 2007 issue of the ATLA Docket, a quarterly magazine publication of the Arkansas Trial Lawyers Association.