Injury Law – Acceleration in Orthopaedic cases

By : Steven Weddle

Steven Weddle considers the validity of expert opinion on the acceleration of previously asymptomatic degenerative conditions.

The concept of injury making a pre-existing symptomatic condition worse is easy for all to understand but not so when the pre-existing condition was asymptomatic. As injury law practitioners we are often faced with orthopaedic opinion that a minor injury has accelerated an asymptomatic condition and brought forward a condition by a number of years.

The argument tends to be that the expert can look at an x-ray or scan and say that the symptoms suffered now would have been suffered in N years time even if the injury had not happened.

It is suggested by many orthopaedic sources that almost 100% of men and 85% of women show spondylitic change on plain x-ray and if they are all going to become symptomatic within, say, 10 years, then most of the male population and a large proportion of the female population would be queuing up at our orthopaedic departments waiting for their backs to be examined. That is plainly not the case. Even if we put it as low as ‘probable’ that pain will be suffered then we would still be looking at the best part of half the population experiencing symptoms by the age of 70. It does not happen.

The question we face is ‘Must we accept the opinion?’ to which I answer ‘Not necessarily.’

It goes without saying that every case will stand on its own facts but there are ways of getting round it. Part 35 questions to an expert can work.

I am not aware of any publications by medical practitioners that support the theorem of inevitable pain, or even probable pain, from natural spinal degeneration. It must be right that the older someone is or the longer they have the degeneration the more prospect there is that it will become symptomatic but, taking the generally agreed premise that changes seen on an x- ray bear no correlation to pain suffered as a result, it must be impossible to say which person is likely to suffer pain, or when, with any degree of certainty.

Orthopaedic surgeons will very rarely see an asymptomatic spine and it would probably be unethical to x-ray a large group of asymptomatic people at, say, 55, in order to see how their spines fare 5, 10 or 15 years later. It is therefore highly unlikely that any expert is giving this opinion on the basis of research or experience.

The Part 35 questions must therefore drive at 2 fundamental points:

1. What publication, research or actual experience does the expert rely upon to support the conclusion, and
2. Bearing in mind the prevalence of degenerative changes in the spine in the older population, generally without pain, why is it probable, as opposed to possible, that this person should fall into the group that would have pain?

The phrasing of the questions is a matter for the practitioner but the answer is quite likely to be that the expert has difficulty supporting the opinion other than on the broad basis that ‘It is generally accepted that …’ pain will be suffered.

That answer is, strictly speaking, accurate because you will find that most orthopaedic practitioners in the medico-legal world appear to agree, but why?

I think the answer lies in constant repetition reinforcing the opinion which is founded on some kind of medical ‘logic’ but which has no real foundation. It’s rather like saying a man who loses all his hair due to illness or treatment would have lost it all eventually anyway because men do. We only need to look around to see that is false. A large proportion of men lose some hair as they age, some lose very little, but very few lose it all.

Because we are now expected to ask questions and deal with these matters long before we get to court, it is rare that one will get the opportunity to cross-examine an expert on this issue. If the opportunity does arise and Part 35 questions have not been asked then the prospects of ‘turning’ the expert in the witness box are greater than on paper as they have less time to prepare the answers. There is a risk that the court will stop the ambush but it could be worth a try!