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  The Fault With The New England Journal of Medicine's
No-Fault Insurance Report

 


An April 20, 2000, article in The New England Journal of Medicine declares that eliminating health insurance benefits makes people well.

That counterintuitive proposition has been rebuked by responsible scientists, and one of its authors has been sued by a former colleague who accuses him of manipulating data to reach certain results.

The New England Journal of Medicine's article "Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury" asserts that after Saskatchewan Province's auto injury compensation system was changed from tort to no-fault on January 1, 1995, the incidence and severity of whiplash injury decreased.

Specifically, the authors concluded that "[t]he elimination of compensation for pain and suffering is associated with a decreased incidence and improved prognosis of whiplash injury" (Cassidy, D.C., Ph.D., et al, Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury, 342 New Eng. J. Med. 1179 (2000)).

The article was based on a study of whiplash claims filed between July 1, 1994 and December 31, 1995 six months prior to and 12 months following the switch in systems.

Clearly, this study found what the authors had decided they would and wanted to find. The most obvious evidence of this predetermined outcome is the study's use of the term recovery.' The study does not measure medical recovery of the patient, but instead measures the duration of the no-fault insurance claim which has little to do with the patient's physical status.

There are other problems with the study as well. What follows is a detailed outline of talking points on the issue:

The Study is Biased

The study was paid for by an entity with an enormous financial interest in the outcome. Saskatchewan Government Insurance, "the only insurer for motor vehicle injuries in Saskatchewan Canada," financed the study with a grant (Cassidy, D.C., Ph.D., et al, Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury, 342 New Eng. J. Med. 1179 (2000)).

In a lawsuit filed against the article's main author, Dr. David Cassidy, former employee Dr. Emma Bartfay, Ph.D., asserts that she was told to produce statistical results that would prove that whiplash victims recovered faster under the province's new no-fault system.

According to the complaint, "in or about September 1998, and contrary to all normal and appropriate practices and procedures in regards to independent medical research, she was instructed by Cassidy to produce certain statistical results that would support the end conclusion desired. Specifically . . . Cassidy instructed her to produce results and graphs that would support the conclusion that an injured person's time (date) of settlement is a good proxy for the person's time (date) of recovery" (Statement of Claim, In the Court of Queen's Bench for Saskatchewan, Judicial Centre of Saskatoon, between Dr. Emma Bartfay, plaintiff, and The University of Saskatchewan and Dr. J. David Cassidy, Defendants. Filed May 21, 1999, Q.B. #1679 of 1999).

Bartfay further states in her complaint that "the data that had been collected were not sufficient to handle the proposed hypothesized relationship" (Statement of Claim, In the Court of Queen's Bench for Saskatchewan, Judicial Centre of Saskatoon, between Dr. Emma Bartfay, plaintiff, and The University of Saskatchewan and Dr. J. David Cassidy, Defendants. Filed May 21, 1999, Q.B. #1679 of 1999).

After Bartfay refused Cassidy's instructions, she says, she was harassed, verbally abused, and intimidated. She eventually had to resign her position.

According to a Saskatchewan newspaper article, Bartfay was not the first researcher to complain of inappropriate and unethical conduct in the study.

In a November 3, 1996 letter obtained by The StarPhoenix, the study's former research director, Dr. Ken Yong-Hing, accused Saskatchewan Government Insurance (SGI) personnel of interfering with the study group's work.

Yong-Hing alleged that SGI the province's only motor vehicle injury insurer, which funded the study wanted its contributions to pay for certain study expenses in a way that "could well be interpreted as an attempt by SGI to disguise the destination of Saskatchewan residents' money" (Letter from Dr. Ken Yong-Hing, Professor and Head of Orthopedic Surgery, University of Saskatchewan, to Colin Clackson, President, Saskatchewan Trial Lawyers Association (Nov. 3, 1996) (on file with author)).

Yong-Hing wrote that the interference would "expose the results and conclusions of the study, when they are published, to questions regarding their objectivity and impartiality and cast serious doubt on their validity" (Kim McNarin, SGI Accused of Meddling; Researcher Claims She Was Told to Falsify No-Fault Insurance Study, The StarPhoenix, May 14, 1999).

The study cites as one of its inspirations a 1995 review of literature on whiplash injury which was also financed by another insurance entity, the Quebec Task Force. This 1995 report was criticized by Canadian doctors as biased. Dr. Michael Freeman, a forensic trauma epidemiologist and Assistant Professor at the Oregon Health Sciences University School of Medicine describes the Quebec study as "questionable," saying its "lack of validity stems from the presence of bias, the use of unconventional terminology, and conclusions that are not concurrent with the literature" (Dr. Michael Freeman, et. al, Whiplash Associated Disorders: Redefining Whiplash and its Management" by the Quebec Task Force; A Critical Evaluation, 23 Spine 9 at 1043 (1998)).

Dr. Cassidy, principle author of this New England Journal of Medicine whiplash study, was also an author of the criticized Quebec Task Force study (see above).

Dr. Marcia Angell, editor-in-chief of the New England Journal of Medicine, acknowledged the potentially conflicting relationship between doctors and companies in a September 2000 Los Angeles Times article that uncovered failures to adhere to the Journal's own conflict-of-interest rules in the Journal, saying "there's so much connection between academia and the private sector now" (Terrence Monmaney, Medical Journal's Article Raises Conflict Concerning Research: Positive Assessment of Anti-Balding Drugs Was Written By Professor Who Has Worked For Makers, LA Times, Sept. 28, 1999 at A1).

The Methodology is Biased

"All of [the study's authors'] conclusions are completely invalidated by their methods," says Dr. Michael Freeman, a forensic trauma epidemiologist and Assistant Professor at the Oregon Health Sciences University School of Medicine.

The study did not measure the claimants' times of medical recovery (the time it takes for a claimant to achieve a full recovery); it measured the time at which the company makes a final payment. The study defines recovery' from whiplash injury as "the number of days from the date of injury to the date on which the claim was closed," saying (without presenting empirical evidence), that "[c]losure usually coincides with the end of treatment" (Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury, 342 New Eng. J. Med. at 1180).

In fact, Freeman has published findings (contrary to this study's) that show that 32% of people who suffer whiplash injuries will go on to have chronic symptoms. (Dr. Michael Freeman, A Review and Methodologic Critique of the Literature Refuting Whiplash Syndrome, 24 Spine 1 (1999)).

The study attributes the decrease in whiplash claim incidence and severity to the elimination of pain and suffering compensation. But the article doesn't detail other variables that directly affect patients' injuries such as the new treatment regimen that came with no-fault.

Jon Schubert, SGI's Vice President, describes it like this: Under the new treatment regimen, a claimant is referred to a primary physician for the first six weeks of care. If the injured person does not recover in six weeks, the patient is then referred to a team consisting of a physician, a chiropractor, and a physiotherapist. If the patient has not recovered after 12 weeks, he or she is referred to a team of "physical rehabilitation experts, psychologists, social workers, occupational therapists, and others . . . At this point, the program tends to focus more on psychological issues." (Jon Schubert, Rehabilitation Priority, Recovery Magazine, Vol. 8, No.1, Spring 1997).

Dr. Freeman points out that the treatment time guidelines are arbitrary and have no basis in science, and that the study's authors are "operating on the assumption that whiplash injuries are all temporary and that they are all going to get better . . .[t]hey have set arbitrary limit 12 weeks [for treatment], after 12 weeks it is in your head." (Anne Kyle, No Fault Said Flawed, Regina Leader-Post, Apr. 10, 2000).

Freeman also notes that since patients have no other choices for treatment they must follow the above treatment regimen, or they will get no care at all the results of the study will be skewed.

Critics also note that the conclusion that the drop in whiplash claims and the institution of no-fault are associated is suspect, because the authors only examined the six months prior to the no-fault law taking effect and compared the numbers to the next two six-month periods. Given that we have seen in other cases (such as IllinoisSee Laura Duncan, A Year Later, Tort Reform is Changing the Business of Law, Chi. Daily L. Bull., Apr. 27, 1996 at 1.) that claim filings can drastically increase in the six-months to a year before the tort law changes take effect, the decrease found may only be a reflection of people rushing to file claims before the deadline.

Conversely, the low rates of whiplash claim filings during the first 12 months of the no-fault system may represent a lack of comfort with the new system. In other words, claimants' lack of familiarity with the rules of the new no-fault system may have delayed or stemmed claim filings. In order to provide an accurate comparison, the authors should have looked at data from at least two years prior to the law taking effect, and for a longer period after.

CONCLUSION

Common sense alone dictates that changes in the compensation system cannot affect whether an injury occurs or whether it is more or less severe. An examination of the empirical evidence mustered to support the study's conclusion reaffirms common sense rather than examine individuals to determine the absence or moderation of whiplash injuries, the authors rely entirely on how long it took insurance companies to close claims and made assumptions about the meaning of that for whiplash injuries.

More appropriately, the study reveals that insurance companies close claims more quickly under the Saskatchewan system, a development that is neither remarkable nor an indication about the nature of the injuries suffered.

The study does not prove what it claims to prove. The exhibited bias and flawed methodology show that under a rigid no-fault scheme that mandates a single treatment regime within an artificial time frame, the duration of open insurance claims is shorter than under a traditional tort system.

 

Republished with the permission of the Association of Trial Lawyers of America.