Medical experts are warning that the new Civil Liability Act, designed to prevent bogus whiplash claims, could deny justice to genuine victims.

The new law, which comes into force next April, will see compensation payments for whiplash injuries slashed, whilst settling claims without medical evidence will be banned.

But the rise in the small claims limit to £5000 for road traffic injuries means that legal costs cannot be recovered under this limit. So claimants may not be able to afford expert advice, given the fixed injury tariff is likely to set most compensation payments below this figure. They will have to go it alone against the insurance companies to recover damages.

Whiplash is notoriously difficult to prove (or disprove). Without the correct medical diagnosis, injuries may go overlooked and undetected – meaning that people are suffering, sometimes for years, without either treatment or compensation.

Many claimants are told there is ‘nothing wrong’ after scans fail to pick up an injury. But studies show that traditional medical scanning technology may be unable to diagnose whiplash accurately.

“Doctors fail to look for injury in a specific part of the body called the craniocervical junction (CCJ) – the complex area of ligaments and tough tissues that connect the top of the spine to the skull which is where the neck joins the skull,” explains Professor Francis Smith, Medical Director of Medserena MRI Centres.

“The CCJ is particularly vulnerable to whiplash injury. Damage here is not always detected, because standard MRI brain scans stop above this junction and normal neck MRI imaging ends below it.

“Claimants should be scanned with the neck in neutral, flexion and extension positions, or in rotation if required. However, historically they have only had access to scans through a conventional supine MRI, which doesn’t look at this particular area – and therefore can either miss or fail to prove real musculoskeletal damage.

“An upright MRI however will scan the claimant in a weight-bearing position, which is particularly useful for conditions affecting the neck and spine. Intervertebral discs are exposed to a pressure 11 times higher when sitting than when lying down.

“Injuries or conditions can be picked up that are simply not visible, or are underestimated, by traditional MRI where the patient is supine,” adds Professor Smith.

Whiplash is classified in four grades, in increasing order of severity. In the UK, around 92-95% of all whiplash cases are attributed to grades 1 and 2, which include neck pain and decreased range of motion. Only 5-8% are attributed to grades 3 and 4, which include more obvious symptoms of neurological damage and spinal cord injury.

Grades 1 and 2 are very difficult to diagnose on conventional MRI scanners or X-Rays, because they cannot be visualised. Without objective evidence, genuine sufferers may be left with no recourse.

Whiplash is a common neck injury, occurring when the head suddenly and unexpectedly moves forwards, backwards or sideways, causing damage to the ligaments and tendons. However, the symptoms can be quite vague: stiffness, aches and pain – which can also easily be falsified and exaggerated.

But in more than 200 patients suffering suspected whiplash injury analysed by Medserena, around 65 per cent showed previously unrecognised problems at the CCJ.

“If the injury is detected, a simple surgical procedure can be carried out to stabilise the joint, using a screw-like implant,” says Professor Smith.

“I believe that the accepted practice of only imaging the cervical spine, limiting the axial images to below C2, is inadequate and can wildly underestimate the incidence of significant post-traumatic dislocation above this level”.

There are 1,500 whiplash claims a day in the UK, costing insurers £2bn a year, according to the Association of British Insurers.

“Clamping down on fraudulent claims should not be at the expense of recompense for genuine victims”, adds Professor Smith.

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