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When you hear of a minor fender bender and one of the parties claims they’re experiencing whiplash, what’s your first thought? For many people the answer is, “That guy’s faking it.” Ladies and gentlemen, welcome to the MIST (Minor Impact Soft Tissue) cases and the propaganda behind such.
MIST stands for “minor impact soft tissue.” Launched in the mid 90s by US automobile insurance providers, the theory claims that it’s impossible to sustain a permanent or serious injury in a low-property damage or low speed collision. Almost all American insurers have adopted this theory, 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 are 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. 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. In a study by M Krafft, et. al. demonstrated that injuries occuring at 15 and 13 x g (or 15 and 13 times gravity) had serious neck injuries, but were not the highest changes in velocity. In the end this leads to the conclusion that there is no direct correlation between a change in velocity and the risk of injury, a fundamental assertion of MIST.
For some patients, whiplash is a complex condition, that is not sufficiently classified by modern medicine. Studies show that persons who experienced long term whiplash were more likely for future 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Authors Centeno, Freeman, and Elkins propose that MIST is outdated and that its time has come. They recommend a method that uses a research-based severity index to allow insurers to better allocate resources. Sadly, to this author’s knowledge, insurers have not adopted this proposal.
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 probative value from these photos. In essence the insurers argue that there was no correlation between the accident and the injury sustained. Further, 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.
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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 injury by making out the plaintiff as a fraudster.
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. In the end, it is up to the legal system and legislators to make changes to disallow this behavior, that one observer interviewed by CNN claimed was a, “System of Bad Faith.”
Matthew A. Dolman, Esq, is a personal injury and car accident lawyer in Clearwater. For more information on MIST cases, call us today for a free consultation and case evaluation with our Florida injury law attorneys.
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