Insurance Defense Lawyer & Attorney : Strong & Hanni Law Firm : Product Liability, Insurance Coverage

Strong & Hanni is currently involved in resisting attempts by the Plaintiffs’ Bar to dilute the value and effect of Rule 35 medical examinations.  

    In recent months, the Plaintiffs’ Bar approached the Utah Supreme Court Advisory Committee for the Utah Rules of Civil Procedure with proposed amendments that would impair the ability of defendants to defend themselves through the use of Rule 35 medical examinations.  Historically, civil defendants in personal injury actions have been permitted to obtain medical evaluations performed by a physician or care provider of their choosing.  Over the course of several years, the Plaintiffs’ Bar in the State of Utah has waged a campaign in part to discourage physicians from participating in such examinations and to impose limitations on such examinations that render such examinations less effective.

    Stephen J. Trayner of Strong & Hanni and two other members of the Utah Defense Lawyers Association (“UDLA”) have been appointed by the UDLA Board to serve as spokespersons for the Defense Bar before the Supreme Court’s Advisory Committee on the Rules.  Currently before the Committee is a proposal that would require such medical examinations to be recorded, either through the use of video or audio tape.  The proposed amendments also would require many medical examiners to provide copies of all prior defense related examination reports for a period of four (4) years.  Production of such reports would be at the expense of the defense lawyer or defendant retaining that physician or care provider to perform a Rule 35 examination.  In recent days, Plaintiffs Bar has also suggested that they will be seeking further modifications and limitations to the scope and nature of a defendant’s right to use Rule 35 examinations.  

    During the pendency of personal injury actions, defense lawyers frequently need to retain the services of physicians, neuropsychologists, psychologists, physical therapists, and other health care providers to conduct Rule 35 examinations.  Strong & Hanni is playing an active role in preventing any further dilution of a defendant’s right to a Rule 35 examination.

    It is anticipated that the Supreme Court’s Advisory Committee will make recommendations to the Utah Supreme Court this fall on any amendments to Rule 35 of the Utah Rules of Civil Procedure.  

Summary provided by Stephen J. Trayner

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            With the publication of the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (2001) (hereinafter the “Guides”), we have seen a number of cases in which plaintiffs have been awarded Category IV impairment ratings (25-28% whole-person impairment ratings) for loss of motion segment integrity of the spine, arising out of low-impact motor vehicle accidents.

            Patrick Luers, M.D., an expert radiologist, has opined in a peer reviewed article, however, that “loss of motion segment integrity . . . as defined in the AMA Guides is rare.” Luers, Motion Analysis of the Cervical Spine, The Guides Newsletter, AMA September/October 2004, at 11. Such a condition most commonly results from a single-level surgical fusion. Id. 

            Many Category IV spinal impairment ratings are erroneous due to a misinterpretation of the Guides. According to an article authored by Dr. Luers, ambiguous terminology in the medical literature has led to misunderstanding and misinterpretation by those awarding impairment ratings. Luers, Spinal Alteration of Motion Segment Integrity, The Guides Newsletter, AMA March/April 2007, at 1. 

            On page 379, the Guides define loss of motion segment integrity as an “anteroposterior motion of one vertebra over another that is greater than 3.5 mm in the cervical spine, greater than 2.5 mm in the thoracic spine, and greater than 4.5 mm in the lumbar spine.” Id. As a reference, the Guides cite White AW, Punjabi MM. Clinical Biomechanics of the Spine. 2^nd ed. Philadelphia, Pa: JB Lippincott; 1990.

            Dr. Luers has critically analyzed the referenced articles in White and Panjabi’s chapter discussing the instability in the spine “necessary to evaluate normal maximal translation and angular motion thresholds in the spine.” Luers, Spinal Alteration of Motion Segment Integrity, at 1. The literature relied on by the Guides provides that maximal normal translation for the cervical spine is 3.5 mm anterior plus 3.5 mm posterior, for a total translation of 7.0 mm. Id. at 2. For the thoracic spine, the maximal normal translation is 2.5 mm anterior plus 2.5 mm posterior, for a total translation of 5.0 mm. Id. For the lumbar spine, the maximal normal translation is 4.5 mm anterior plus 4.5 mm posterior, for a total translation of 9.0 mm. Id. In other words, the maximal normal translation range for the spine is twice what is reported in the Guides.

            Apparently, the authors of the Guide misinterpreted the maximal normal translation seen on the radiographs for either anterior or posterior translation to represent the total normal maximal translation thresholds. For that finding, however, the anterior and posterior thresholds must be added together.

            Accordingly, Dr. Luers concludes that “the total translation threshold values described in the Guides are within the normal range and inconsistent with the data in the medical literature; therefore they should not be utilized as established by Category IV loss of motion segment integrity impairment.” Id. at 3.

            Typically, a Category IV impairment rating for loss of motion segment integrity arises from a single-level surgical fusion of the spine. Accordingly, it should be extremely rare to see such an impairment rating following a low-impact motor vehicle accident. 

Written by Michael L. Ford

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