Why Some Lawyers Avoid Minor Impact Soft Tissue (MIST) Claims

Picture you are watching a TV crime drama of a case about a minor fender bender and one of the parties claims they’re experiencing whiplash.  How do you react? For many people, the answer is, “That guy’s faking it.” This is how insurers came up with the concept of MIST (Minor Impact Soft Tissue) cases and the media coverage of these types of injuries.

The MIST category of insurance claims was begun in the mid-1990s by US automobile insurance providers, based on the theory that it’s very difficult to sustain a permanent or serious injury in low-property damage or low-speed collision. Almost all American insurers have adopted this approach, but there is very little scientific evidence to validate this claim. The studies that refuted the existence of late whiplash or other injuries were plagued with poor methodology, according to a 2005 study by CJ Centeno, M Freeman, and WL Elkins.

MIST relies on the idea that the visible damage of the vehicles and occupant is closely linked. The fundamental assertion is that there is a linear relationship between the intensity of the impact, based on the change in velocity, and the rate of serious injury, as a car accident lawyer Chicago IL trusts can explain. However, the review showed that variables such as stiffness and elasticity of vehicles, the interplay between seat design, occupant mass, occupant position, and vehicle dynamics are not taken into account by MIST. This means that there are serious issues with the MIST methodology. A study by M Krafft, et. al. demonstrated that injuries occurring at 15 or 13 times gravity had serious neck injuries, but were not the highest changes in velocity. This led to the conclusion that there is no direct correlation between a change in velocity and the risk of injury, a central idea related to MIST claims.

For some patients, whiplash is a complex condition, that is not sufficiently classified by modern medicine. Studies show that persons who experienced whiplash were more likely to suffer related medical problems, including:

  • 160-370% increase in risk for headache, thoracic and low back pain, fatigue, or other sleep issues, relative to others involved in rear-end crashes
  • Over a span of 15.5 years, 70% of patients followed continued to report symptoms relating to the original crash
  • Between years 10 and 15.5, only 18% reported improvement, while 28% reported a worsening state. This is relative to the 54% that stayed the same

Authors Centeno, Freeman, and Elkins propose that MIST is outdated and that its regulators required insurers to revise using this concept on these types of claims. They recommend a method that uses a research-based severity index to allow insurers to better allocate resources.

A 2007 investigation by CNN seems to identify the reason why the MIST system remains in place. According to their investigation, MIST allows insurers to claim that persons were not actually injured, in an effort to delay or deny claims.

When MIST cases do go to trial, insurers use photos from the incident to convince the jury about the severity of the impact and assert a “causation” defense. In other words, did the accident cause the very injuries the client complains of?

CNN contacted three jurors in their example case. In the example, the jurors awarded substantially lower damages to the plaintiff than she sought. The jurors stated that the slight damage to the vehicles, demonstrated by pictures, impacted their award to the plaintiff. Experts in these types of accidents, interviewed by CNN, claimed that jurors expect that the injuries suffered by the plaintiff to be commensurate to those of the vehicle.

The problem is that the plaintiff is then being judged by what the car looks like or the extent of the impact rather than the real issue, the injury to the plaintiff. This attempt to confuse and mislead the jury is generally successful because judges fail to realize the lack of correlation value from these photos. In essence, the insurers argue that there was no correlation between the accident and the injury sustained.

Even more troubling, the insurance carriers apply the same cookie-cutter approach to all cases. In essence, you have adjusters formulating an opinion without actually knowing the first thing about the victim’s alleged injury. We often receive letters from insurance carriers discussing the minor impact without inquiring as to the nature and extent of the physical injuries.

Insurers take this philosophy a step further by researching the personal history of the injured person. When claims are taken to trial, the injured party is indicted with any number of past injuries, no matter how minor. Insurers call into question whether this accident was responsible for this particular injury by making out the plaintiff as a con artist.

Proponents of MIST claim, without proof, that this methodology lowers premium costs for all insurance subscribers. However, the most substantial financial impact appears to be the cost of litigation. Plaintiffs who are substantially injured have little to gain where a jury is unlikely to believe their claims, even when injuries are sustained.

 Thanks to our friends and contributors from The Law Offices of Konrad Sherinian for their insight into soft-tissue claims.


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