DMX: A New Tool For Proving Connective Tissue Injuries

Transcription

1 DMX: A New Tool For Proving Connective Tissue Injuries Arkansas Trial Lawyer s Association Presentation By Don P. Chaney Chaney Law Firm, P.A. P.O. Box Main Street, Suite 204 Arkadelphia, Arkansas Telephone: Telefax: [email protected] Digital Motion X-ray (DMX) is a relatively new scientific tool developed to aid in the diagnosis and treatment of connective tissue injuries. It is especially valuable as a diagnostic tool for Cervical Acceleration/Deceleration (CAD) injuries, commonly referred to as whiplash injuries, suffered as a result of motor vehicle collision (mvc) trauma. It is estimated that motor vehicle collision trauma causes 3,000,000 whiplash injuries per year in the United States, and that 50% of these injury victims will fully recover, 40% will suffer some degree of permanent injury with chronic pain, and that 10% will become permanently disabled. This whiplash epidemic is caused in part by changes in the way vehicles are constructed, which are causing significant injuries in low speed and other collisions, and which is a topic beyond the scope of this article. When ligaments are torn or over-stretched due to trauma, there is always some degree of permanent injury that results due to the development of scar tissue. It is like duct tape or thin plastic grocery store produce bags being stretched out of shape, which will never return to their previous condition after being over-stretched. The hallmark of ligamentous injuries are that such are permanent, painful and progressive. The ligaments hold spinal bones together to form joints and check abnormal movement. Damaged ligaments allow abnormal movement causing spinal instability and bad joints, which in turn can cause chronic pain for the duration of the victim's life. As personal injury lawyers we need to help our injury victim clients understand the nature of these ligamentous injuries, and encourage them to promptly seek proper treatment during the first few months following the injury trauma. This is very important to the healing process so that the scar tissue repair will be more functional and thereby minimize the degree of permanent impairment. Restoring normal spinal motion through proper therapy is critical to the repair of the damaged ligaments and other connective tissues. Our injury victim clients will benefit from treatment during the critical healing phase, as well as help their legal case by generating medical documentation of injury that is needed to reach a fair settlement of the legal claim. When a plaintiff 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. The client s treating physician can explain why future medical care is needed to keep mobility restored in a permanently damaged joint to minimize the inevitable disc degeneration, to help control the chronic pain syndrome by attempting to restore normal function that will minimize flareups and aggravations, and the need

2 Page 2 to provide more intensive treatment when flareups do occur. Juries are more likely to respond to permanent injuries that are objectively demonstrated by DMX, static film x-rays, digitized x-ray line mensuration analysis, MRI, CT scans, and other objective medical evidence, including the clinical examination performed by the treating physician that should include standard orthopedic and neurological tests, and palpatory findings. 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 considered to be the best objective test for showing cervical ligamentous injury, since normal MRI testing is primarily concerned with imaging of intervetebral discs and not ligaments, and there are no discs in the upper cervical spine. Many times injury victims hurt when they move due to spinal instability caused by traumatic ligamentous injuries. Static x-rays often cannot detect the true cause of the pain or the full extent of the injuries, which can only be revealed by motion x-ray showing the function of the joints in motion. Many of the same principles followed by radiologists and chiropractic physicians in reading standard static film x-rays are also followed in reading DMX motion x-rays. During the past few years I have been involved in helping to pioneer the introduction of DMX as legal evidence in court in Arkansas. I have had four cases where DMX has been admitted into evidence by four different Circuit Court trial judges. Due to oral rulings by the trial judge after the beginning of the trials, only one of these cases resulted in a written Order denying the defense Daubert challenge and ruling that DMX is admissible, and this Order is attached. Also attached is a form of Order that is recommended for use if possible by your trial judge, but which was rejected by the trial judge in my last case. I have been helping plaintiff s lawyers in Arkansas and other states win defense Daubert challenges raised by insurance defense lawyers seeking to exclude DMX as legal evidence in mvc cases. Please let me know if I can assist you by providing a copy of my DMX Daubert briefing materials, including medical articles compiled as an exhibit set that establishes acceptance by the relevant scientific communities, namely the chiropractic and medical communities. It is very important that a good trial court record be made so that appellate courts in Arkansas and around the country will have ample reasons to affirm the right decision being made to admit DMX into evidence. Thomas Edison invented fluoroscopy in 1896 to view x-rays on a screen, just one year after x-rays were discovered by Wilhelm Roentgen in In the 1930's movie cameras were used to record motion x-rays, which was known as cinefluorography or cineradiography. As technology progressed this motion x-ray imaging was recorded on videotape, and became known as video fluoroscopy (VF), which technology has been used for various applications in hospitals for decades. When digital equipment became available in the early 1990's to record motion x-ray imaging on computer discs, it became known as Digital Motion X-ray ( DMX). Today s DMX equipment is simply a modern advanced improvement of video fluoroscopy, and is in no way a new or novel theory that is untested or unreliable. Many physicians refer to these terms interchangeably because they all refer to motion x-ray imaging. The evolution of motion x-ray technology, now known as DMX, is analagous to plain film cameras evolving to digital camera technology that is common today.

3 Page 3 Legal evidence based upon DMX should be admitted at trial because it does meet the Daubert requirements of being accurate and reliable, it is accepted by the U. S. Food and Drug Administration and other governmental agencies, it is widely endorsed by the chiropractic and medical communities, and it is much improved technology over traditional static film x-rays by demonstrating 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, and produces about 3,000 individual images that can be viewed on a computer monitor, freeze framed, zoom in or out, and saved as a single static x-ray image by the reviewing physician. The saved static image can be analyzed using digitized x-ray software to provide precise measurements and objective documentation that correlates with the AMA Guides. The video images are made as the patient moves her or his head through nine ranges of motion in a normal weight-bearing posture, which thereby provides an assessment of all 22 major cervical ligaments. The reviewing physician can play the x-ray motion study in real time, slow motion, freeze frame and zoom to determine if any of the major 22 cervical ligaments were injured by observing how the bones of the neck move in relation to each other. 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 cervical 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. 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 are harder when looking at a white on white image on plain x-ray to detect an injury. Another benefit is that DMX testing only subjects the patient to a low dosage of radiation because it uses a low powered pediatric type of x-ray machine, which is good for imaging necks, temporomandibular joints, and extremity joints; but does not have enough radiation power to image low backs unless the patient is a child or small adult person. Abnormal spinal motion shown by DMX provides objective evidence of ligament damage, which is easily observed by anyone trained in musculoskeletal radiology using standard radiology practices. The widely recognized and followed Guides To The Evaluation Of Permanent Impairment, 5 th Edition published by the American Medical Association provides a reference manual for normal and abnormal motion caused by spinal instability due to permanent ligament damage, and there are Tables dealing with ratable permanent impairment caused by such spinal instability. This book defines a motion segment of the spine as two adjacent vertebrae, the intervertebral disks, the apophyseal or facet joint, 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 vertebrae in relation to another vertebrae shown by flexion and extension x-rays. For example, movement of 3.5 millimeters between vertebrae, or 11 percent angular motion between vertebrae, establishes a whole person impairment rating of 25 percent. Other peer review articles, including Lines of Mensuration methods used to

4 Page 4 analyze x-rays, provide a reference for normal values such that abnormal values shown by a DMX study are easily recognized. DMX technology is well grounded in reliable interpretation of x-ray images based upon standard methods of radiological practice and procedure. To win a Daubert challenge and be able to use DMX as legal evidence at trial to support the plaintiff s permanent ligamentous injuries, the plaintiff has the burden of establishing that DMX has been generally accepted as being reliable by the relevant scientific community, which is both the chiropractic community and the medical community. Attached are Affidavits by Dr. David L. Harshfield, M.D., a board certificed medical radiologist; and Dr. Steven F. Bennett, D.C., a chiropractic orthopedist, which were used in some of my cases. Dr. Bennett s Affidavit contains a Table of Contents that describes voluminous pages of exhibit attachments for the brief, which are separately discussed within Dr. Bennett s Affidavit, and which consist of copies of governmental and professional organization DMX approval documents, and peer reviewed medical articles and excerpts from medical textbooks that support the admissibility of DMX as proper legal evidence that is accurate and reliable. These DMX brief attachments include excerpts from two authoritative medical textbooks that every trial lawyer handling connective tissue injury cases should own. One book was written by Dr. Ruth Jackson, an orthopedic physician who extensively studied disorders of the cervical spine, and in particular cervical trauma from motor vehicle collisions. She was a professor at Baylor University College of Medicine, a professor of Orthopedic Surgery at Southwestern Medical School of the University of Texas in Dallas, chief of Orthopedic Surgery at Parkland Hospital, and author. The first edition of her textbook, The Cervical Syndrome, was first published in 1956, and eventually went through four editions and eight printings. According to the preface in her book, the content emanated from course lectures she gave at the annual meetings of the American Academy of Orthopedic Surgeons in 1953, 1954 and The medical and chiropractic community recognize Dr. Jackson s book as a landmark in the field of cervical disorders. Her book describes the anatomy of the neck, discusses the etiology of trauma including automobile collisions, describes the structural changes induced by trauma to ligaments, capsules, muscles, nerves and other structures. Dr. Jackson describes the preferred clinical examination and radiographic x-ray examination that should be undertaken to diagnose ligament damage, as well as recommended treatment of the various injuries. Dr. Jackson explains how ligament damage is permanent, and allows abnormal joint motion between cervical vertebrae. Dr. Jackson states that the degree of permanent ligament damage is what causes either a straightening, reversal or S-curve of the normal curvature (lordosis) of the cervical spine as shown on x-ray, and that it is useful to examine angles that appear between vertebra as shown on x-ray (pages ). Dr. Jackson states that if the curves of the cervical spine are not restored within six months, then the ligament damage is permanent and recovery will not occur (page 222). In 1988 Dr. Ruth Jackson wrote a Forward to a new textbook written by Dr. Arthur S. Croft and Dr. Steven M. Foreman, who are chiropractic physicians, entitled Whiplash Injuries - The Cervical Acceleration/Deceleration Syndrome. Dr. Jackson paid a tremendous compliment to Dr. Croft and Dr. Foreman by writing in the Foreward that this book was a phenomenal dissertation, and is the most remarkable compilation of scientific and factual data thus far published concerning the many facets of the cervical spine. This text should be of great value to all doctors, physicians, and other health care providers... Such textbook is now in its third edition, and at page 53 Drs. Croft and Foreman note that videofluoroscopy is important in the

5 Page 5 evaluation of ligamentous instability...and that clinicians trained in the interpretation of these studies are able to interpret them reliably. It is noted at page 51 that clinical instability may be demonstrated by standard x-ray or videofluoroscopy, and is often associated with chronic or intractable pain syndromes and neurological symptomatology; and usually precedes accelerated development of degenerative disc disease and spondylosis at the same levels. At page 185 is a protocol for selecting patients to undergo videofluoroscopy, including neck pain that is unresponsive to conservative management, and it is noted that ligamentous sub-failure still present after 4 months is likely to be permanent. A discussion of the progressive nature of ligamentous forward flexion injuries appears at pages and includes the use of George s Line in establishing posterior ligamentous damage. A discussion of the various lines of measurement in the objective establishment of permanent ligament damage occurs at pages Ligament damage is further discussed at pages 341 and 342, where there are a large number of footnotes provided to medical articles and studies that well document ligamentous injuries from cervical acceleration/deceleration (whiplash) trauma; and it further notes that cervical spine instability is characterized by periods of relative remission interspersed with bouts of painful dysfunction due to such ligament damage. A diagram of the chronic pain cycle from ligamentous instability is shown at page 366. There are thousands of footnotes appearing in this textbook referenced to medical studies and peer reviewed articles to support the statements given within the textbook. 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 holding of Arrow International, Inc. vs. Sparks, 81 Ark. 42, 98 S.W.3 rd 48 (2003). CONCLUSION The use of DMX is approved by governmental agencies, and widely endorsed by professional associations as a safe and valuable tool to help diagnose and treat patients with disorders of the spine and peripheral joints. DMX provides sharper x-ray images than regular x- ray, and its reliability and accuracy meets or exceeds regular x-ray. Abnormal motion shown by DMX, which evidences ligament damage, is easily observed by anyone trained in musculoskeletal radiology. The widely recognized and followed AMA Guides To The Evaluation Of Permanent Impairment provides a reference manual for normal and abnormal motion, and there is a section dealing with permanent impairment caused by spinal instability, which is often due to permanent ligament damage. Other peer reviewed articles, including peer reviewed Lines of Mensuration analysis as shown by digitized x-rays, provide references to establish normal values, such that abnormal values are easily recognized. DMX technology is well grounded in scientific principles, and interpreting the images follows long standing methods of radiologic practice and procedure. DMX is an important tool in helping achieve justice for innocent injury victims by providing objective medical evidence of permanent ligamentous injuries. The use of DMX also promotes better patient care and patient safety by providing a more accurate diagnosis of the patient s degree of spinal instability, and which in turn helps with the development of a proper treatment plan.

6 Page 6 Table of Contents for DMX Documents Attached for ArkTLA Presentation - Order denying Daubert Challenge and ruling DMX admissible in evidence by Cross County Circuit Judge Harvey Yates. - Suggested form of Order to be used by trial judge in denying Daubert Challenge and ruling DMX admissible in evidence at trial. - Affidavit by Dr. David L. Harshfield, M.D. - Affidavit by Dr. Steven F. Bennett, D.C., including Table of Contents for governmental approval documents, professional organization approval documents, medical articles, medical textbooks and other documentation supporting the use of DMX for patient care. - Printout of DMX information from the web site of Arkansas Center for Physical Medicine and Rehabilitation, North Little Rock, Arkansas. - Printout of DMX information from the web site of DMX Works, Inc., Palm Harbor, Florida, including a table of contents of 91 medical articles supporting DMX, and which medical articles are hypertext linked in pdf format on the web site. Reminder note: please contact Don Chaney to be provided with copies of the full text of his DMX Daubert brief together with the full text of the medical articles attached as an exhibit set for such brief, and which are identified in the Table of Contents for DMX documentation attached to the Affidavit by Dr. Steven F. Bennett that is attached to these seminar materials.