New York Personal Injury Trials,
Soft Tissue Injury Motor Vehicle Case
New York Law Journal, Wednesday, September 21, 2005
Ben B. Rubinowitz and Evan Torgan
The trial of a soft tissue motor
vehicle case has become a dangerous battleground for
the plaintiff's attorney.
The courts are attempting to do what the Legislature could
not: putting an end to soft tissue injury cases no matter how
serious.
On the strength of the now infamous Court of Appeals case of
Pommells v. Perez
[FN1] and its progeny, the courts are dismissing these cases
either on summary judgment or at the close of the plaintiff's
case. Care must be taken
when preparing and trying a case involving pre-existing
conditions, gaps in treatment, intervening
medical problems or
difficult issues involving causation. With proper trial
techniques, these issues can be overcome and actually used to
the plaintiff's advantage.
Pre-Existing Conditions
Many motor vehicle accident cases involve a
serious injury known as a
disc herniation where, at the same time, there is a clear
indication that there was a pre-existing arthritic condition.
For example, take the situation where a plaintiff is taken to
the emergency room, has an X-ray of his neck or cervical spine
and is quickly released. The X-ray typically shows
osteophytes
or arthritic changes at levels above or below the
disc herniation. Yet the subsequent MRI
shows a disc herniation at a
specific, yet different, level. A knowledgeable plaintiff's
lawyer can nonetheless demonstrate that the herniated disc was
caused by the accident and that the herniation is the cause of
the plaintiff's pain and disability, rather than the
pre-existing arthritis.
These issues first must be dealt with in jury selection with
the following type of questioning of individual jurors:
Q: It is our claim that Mr. Jones suffered both original
injuries caused by this accident, as well as what the law calls
an aggravation of a pre-existing
condition. Do you agree
that if someone has a previous condition and it is made worse by
the defendant's negligence, that this person is entitled to
compensation for that aggravation of their prior condition?
Q: Why do you agree with that?
Q: It is also our claim that although Mr. Jones had an
unknown, yet pre-existing condition to his neck, he suffered
what we claim is an additional injury to his spinal column that
has nothing to do with his pre-existing condition. Can you keep
an open mind as to which problems pre-dated the incident and
which problems were caused by it?
Q: Would you be willing to make a determination as to the
difference?
By questioning the prospective panel this way, you can
prepare the jurors for a favorable verdict either way: at best,
a full award for original injuries caused by the accident; at
worst, an award for an aggravation of a pre-existing condition.
The pre-existing condition must also be addressed in opening
statement. After giving a thorough description of the anatomy,
be forthcoming about the pre-existing condition in the neck and
show why that prior condition is not the cause of the
plaintiff's herniated disc, pain or his present
disability:
What is important to know is that Tom Jones never had any
known problems with his neck prior to the accident. On the
contrary, Tom never missed a day of work for any problem with
his spine at any time prior to the accident. He was
always able to play with
his children, drive them to school and go to work. Now, because
Tom was already into his forties at the time of the incident,
like many men his age, his spinal column was already showing
some changes on X-ray that revealed the beginning of
osteoarthritis. But those changes were merely changes on X-ray.
They showed up on the emergency room X-ray in one isolated level
of his spinal column but had no clinical significance
whatsoever. On the contrary, the bone spur or osteophyte as it
is called, was one level up from the area that we later learned
had herniated. And that osteophyte was small and anterior to the
spinal cord, meaning it did not impinge or touch on either the
cord or any nerve roots, and to this day is clinically
insignificant. The herniated disc at C5-C6 is new and caused by
this accident. This is confirmed by an MRI, which showed that
the disc herniation was recent. It revealed no loss of height,
no loss of water content and no arthritic change. More
importantly, the herniated portion of the disc is leaning
directly into the cord. This causes pain that radiates down the
back of Tom's neck, into both shoulders and into the thumb,
index and middle fingers in both hands. Pain that he never had
before this accident and pain that he has had and will continue
to have for the rest of his life. The bone spur at C4 is nowhere
near the cord, caused no prior pain, and has caused no
subsequent pain.
This line of reasoning should be followed up by the
plaintiff's testimony showing he had no prior problem with his
neck. This is necessary so that the
lawyer can lay the
appropriate foundation for the requisite medical testimony on
this very issue:
Q: Mr. Jones, prior to the day of this accident, had you ever
had any pain in your neck?
Q: Prior to the accident in question, had you ever been
treated for neck pain by any medical provider?
Q: Mr. Jones, before the day of the accident had you ever
lost any time from work for any problems with your neck?
Q: Before the day of the accident, had you ever been unable
to care for your children because of any physical injury
whatsoever?
Obviously, the plaintiff's testimony is not enough. Competent
and persuasive medical testimony must support this line of
inquiry. If you are not calling a radiologist, establish the
clinician's credentials in reading radiological studies, both
based upon his education, training and experience reading these
types of films for his patients. Have him evaluate the plain
film X-rays taken in the emergency room, demonstrating the
irrelevant bone spurs at the level above the plaintiff's
herniated disc. Have him explain why that spurring is of no
clinical significance. Have him explain the difference in
technology between the X-ray that will only show
bone injury and
never soft tissue damage and the MRI which will show
soft tissue
damage, including herniated discs. Then have him show the
MRIs
to the jury, carefully distinguishing between the levels of
the cervical spine where
the bone spur and the disc erniation appear. Question the
doctor on the history taken from the plaintiff when he first
came in to the office; demonstrate that his patient denied prior
pain, disability or injury to the
cervical spine. Then pose
thoughtful hypothetical questions to elicit the expert's opinion
on the injury, disability and causation:
Q: Doctor, I'd like you to assume that the following is true
based on the testimony in this case: That Tom Jones was in a
rear-end collision on March 2, 2003. That he was restrained by a
seat belt. That as a result of the impact, his head and neck
were thrown backward and forward. That prior to that incident he
had never missed a day of work for any problem, pain or injury
to his neck. That he was taken to the emergency room at Bellevue
Hospital where they took X-rays, prescribed Motrin and released
him to the care of his private physician. That those X-rays
showed straightening of the lordotic curve consistent with
muscle spasm and an anterior osteophyte at the body of C4. That
he came under your care one month later and you diagnosed muscle
spasm and radiculopathy bilaterally. That based upon those
clinical findings you referred him for an MRI. That the MRI,
which you displayed in court, showed a herniated disc
at C5- C6
that was both protruding posteriorly and into the spinal cord.
That the disc protruded on the descending nerve roots emanating
from the cord causing pain, weakness and numbness down his neck,
shoulders and into the thumb, index and middle fingers of both
hands.
Q: Do you have an opinion, to a
reasonable degree of medical certainty as to whether the
pre-existing osteophyte at the body of C4 had any clinical
significance to Tom Jones?
Q: Why do you say that the prior condition on X-ray had no
significance with Tom's disability?
Q: Doctor, do you have an opinion, to a reasonable degree of
medical certainty as to whether the accident in question was a
substantial factor in bringing about Tom Jones' injury,
including the herniated disc at C5-C6?
Q: Please explain why the disc herniation was caused by the
accident and not by the prior arthritic changes in the cervical
spine?
Q: Do you have an opinion, to a reasonable degree of medical
certainty, as to whether the pre-existing osteoarthritis caused
Tom's pain, or whether the herniated disc caused his pain and
disability.
Gaps in Treatment
A common thread running through motor vehicle cases
is that
many have substantial gaps in medical treatment or complete
cessation of treatment altogether. This is not surprising since
the no-fault carrier is charged with the responsibility of
paying for the plaintiff's medical treatment. It therefore makes
economic sense for them to deny payments as soon as possible.
Toward that end, the
carriers hire physicians of their own choosing whose sole
purpose is to determine whether the injury is causally connected
to the accident and whether the claimant is in need of further
treatment. It follows logically that most gaps in treatment
occur as a result of the carrier denying further medical
payments.
The Pommells court has made this reality relevant to the
trial of a case by mandating that the plaintiff's lawyer explain
gaps in treatment. In cases where the gap is caused by the
plaintiff's inability to pay for treatment or the termination of
benefits by the carrier, the plaintiff and treating physician
will have to combine forces for the appropriate explanation:
Q: Tom, could you please explain to the court and jury why
you hadn't returned to physical therapy or to your neurologist
for two and one-half years?
A: Yes. I have a wife and two children and could not afford
to pay for my own medical treatment.
Q: But, Tom, after having intensive treatment for the first
six months after this accident, what, if anything, occurred to
make you stop going for treatment?
A: My insurance benefits ceased. The company suddenly stopped
making payments, and none of the medical offices would treat me
without a source of payment.
The physician must also explain the gap in treatment:
Q: Why did you stop seeing Mr. Jones, Dr. Schwartz?
A: Because although Tom needed
treatment, the visits were expensive. The physical therapy he
needs costs $175 per session, and each visit to me costs $250.
Unfortunately, his insurance company subsequently denied any
further payments for the medical care for his neck injury.
Q: How do you know that?
A: I have a letter from the insurance company in the chart
[offered as a business record] denying any further payment, and
they refused to pay my last three bills.
Q: Are there any other reasons he stopped his medical
treatment?
A: None. Tom was a highly motivated patient, who wanted to
get better so that he could continue taking care of his family.
If the denial of no-fault benefits is not the reason for the
gap in treatment, the plaintiff's lawyer must still prove a
reasonable explanation for that gap.
Q: Doctor, can you explain why your patient did not return
for treatment for two years?
A: Yes. Although he was doing physical therapy three days per
week, it was not helping him. He was not improving at any
significant rate. As a result, I prescribed home exercises for
him to perform every other day.
Q: What did those exercises consist of?
A: Stretching the lower back and hamstrings for 45 minutes
every other day. Alternating ice packs and heat on those days
that he is not stretching.
Q: Why did you stop prescribing
medications during that two-year period?
A: Because prior to that time, I had been
prescribing Motrin
800 milligrams, twice a day. Motrin is merely ibuprofen, the
same thing as Advil, an over-the-counter medication, but in
higher dosages. The patient could basically get the same
benefits by taking Advil in higher quantities.
Q: Is it your position he does not need further medical
treatment?
A: No. Not at all. But the only thing that would really help
him is surgery and, after explaining the risks and benefits and
that there were no guarantees of a good outcome, he made the
reasonable decision not to undergo invasive surgery.
Do not forget that in any motor vehicle
accident case, you must prove
the plaintiff meets the no-fault threshold. Do not leave that
decision to chance. Specifically track the language of the
insurance law found in the Pattern Jury Instructions. Although
you are asking the expert to give his opinion regarding an
ultimate issue in the case, this is permissible under the
authority of
Dufel v.Green
[FN2] and Moreno v. Chemtob [FN3] and their progeny:
Q: Do you have an opinion, to a reasonable degree of medical
certainty, as to whether, as a result of the accident, Mr. Jones
has permanently lost the use of a body organ, member, function
or system?
Q: Do you have an opinion, to a reasonable degree of medical
certainty, as to whether, as a result of the accident, Mr. Jones
sustained a significant
limitation of use of a body function or system?
Q: Do you have an opinion, to a reasonable degree of medical
certainty, as to whether, as a result of the accident, Mr. Jones
has sustained a permanent consequential limitation of a body
organ or member?
Conclusion
Recent case law has apparently made the trial of a
soft
tissue motor vehicle accident case even more difficult than it had been
previously. The courts' dismissal of cases where there are
pre-existing conditions, intervening
medical issues and gaps in treatment have become the rule rather than the exception.
However, with appropriate proof, the trial attorney can use the
existence of pre-existing medical conditions and gaps in
treatment to his advantage. By demonstrating the irrelevance of
the pre-existing medical conditions, the
immateriality of
intervening medical conditions and legitimate reasons for gaps
in treatment, the plaintiff can easily overcome the recent line
of cases and persuade a judge and jury of the seriousness of his
case.
FN1.
4 NY3d 566 (2005)
FN2.
84 NY2d 795
(1995)
FN3.
271 AD2d 585 (2d
Dept. 2000)
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
