If it were just a question of biomechanics, how much easier Personal Injury litigation would be! A calculated force from a given direction would Cause a narrow range of physical injuries.

Enter..the Mind.

To greater or lesser degree, both lawyers and physicians have a split view of the body and mind.

Like it or not, body and mind are one, indivisible. Every physical experience is interpreted by the mind, consciously or unconsciously. Every fleeting thought has its physical equivalent in neuron chemistry.

Psychological reaction is arguably more important than any other factor in both the response to injury and the healing process.

Every personal injury occurs in the context of the client’s psychological make-up, and the consequences of the injury can be neither understood nor effectively litigated without knowledge of that psyche.

Good primary medical care records will provide windows into the client’s normal psychological functioning and responses to life’s stresses.

It follows that general and family practice clinical records for at least 5 years pre-accident should routinely be available to, and analysed by, both plaintiff and defence.

If there have been prior personal injuries, relevant medical documentation may go back decades.

It is not simply that the response to the current injury must be understood in context of previous incidents. It may be that current symptoms are part of a pattern that has been imperceptibly disturbed by the injury that is being litigated.

That defence counsel should have to answer plaintiff objections of "fishing expedition" is unwarranted and outdated.

Personal Injury litigation frequently becomes mired in arguments between opposing medical expert witnesses about diagnosis and Causation of post-traumatic bodily symptoms that lack objective validation.

The medical experts in this area are general and family practitioners, psychiatrists and forensic psychologists rather than orthopedic surgeons, rheumatologists and physiatrists. Beyond 3-6 months after soft tissue injury, such physical medicine specialists have nothing to contribute to the Court’s understanding of continuing symptoms.

Precise psychological diagnoses should be established or refuted.

It is no more appropriate to accept a diagnosis of "functional overlay" from a specialist in bone, joint or muscle disorders than to give credence to a psychiatrist's diagnosis of "rheumatism".

Psychiatrists or psychologists who have extensive experience with these "psychosomatic" illnesses can give the Court valuable information about their natural history and treated prognosis.

How common are these Disorders? In surveys of widely differing European and American communities, the overall prevalence is remarkably similar at about 20%.

That is to say, at least one in five litigants brings a psychological "thin skull" to her personal injury.

Somatoform symptoms occur less frequently in men, more frequently in women.

The varieties of Somatoform Disorder commonly seen in Personal Injury practice are Somatisation, Undifferentiated, Conversion, and Pain Disorder.

Somatisation Disorder, previously known as "hysteria", starts before age 30, lasts for years, and comprises pain, gastrointestinal, sexual, and pseudo-neurological symptoms.

If physical symptoms are present for a minimum of 6 months and the criteria for Somatisation Disorder are incompletely satisfied, the diagnosis may alternatively be Undifferentiated Somatoform Disorder.

Conversion Disorder is limited to deficits or symptoms of voluntary muscle control or bodily sensation, associated with psychological factors.

In Pain Disorder, psychological factors are considered important in its onset, severity, exacerbation, or maintenance of pain.

Personal injury clients who have chronic or persistent pain or other symptoms six months after soft tissue injury should routinely undergo psychiatric Independent Medical Examination.

The examiner should be provided with copies of the pre-accident records. Without them, Causal attribution of symptoms is meaningless.

Post-traumatic psychological injury is usually complex: one psychological diagnosis is not enough.

Clients with diagnoses of anxiety or depression may also have undiagnosed Somatoform Disorder, and be more susceptible to Post Traumatic Stress Disorder.

Psychiatrists providing such IME should routinely be asked explicitly to consider whether the client fulfils criteria (Diagnostic and Statistical Manual, 4^th edition, DSM-IV) for one or more of a number of diagnoses - typically somatoform disorder, Post Traumatic Stress Disorder, Depression, Anxiety...

Whereas the Court claims the prerogative to determine whether a claimant is malingering, psychological evidence may assist the process.

However, clinicians commonly have difficulty distinguishing between Malingering and Somatoform Disorder for a couple of reasons.

First, mental disorders are not diseases in the sense of having an objective pathological basis.

Second, awareness of secondary gain may be on a continuum, rather than present or absent.

Edmonton internal medicine specialist and defence expert Dr Robert Ferrari, and forensic psychologists Drs Oliver Kwan and Jon Freil, want to blur the previous distinction between "aware" malingering and "unaware" somatisation.

They are proposing that awareness of secondary gain may be preconscious, meaning "just beneath our level of awareness and easily brought into awareness."

Biomechanics, an inexact science in its infancy, has limited usefulness in predicting severity of injury.

If you are not anticipating it when I rear-end you, your whiplash may disable you, while my broken bones heal fully.

Because you sue me and have to prove you are disabled, you may have permanently destroyed your chances of healing...but that is another story.

Person injury litigation starts not with the seed of the injury but with the soil of the client.