recent settlements... success stories

Transcription

1 PRESENTS recent settlements... success stories CHIROPRACTIC The following is two articles that report on significant recent legal and financial victories awarded because due to what was illustrated by d i g i t a l m o t i o n X - r a y (DMX) For attorneys, proof that proof can help build your best case

2 PRESENTS 2 recent CASES illustrate the advantages of Digital Motion X-Ray CASE #1 Whiplash Injured Truck Driver Receives $1,000,000 Federal Court Jury Verdict It was a cold and clear day on January 18, 2006, when an FFE Transportation big truck side- swiped the Chaney Law Firm s owner-operator truck driver client (referred to as the Plaintiff below), on Interstate 30 near Hope, Arkansas, causing whiplash neck injuries. The trucking company denied liability for five years, then admitted liability in a pretrial disclosure a few weeks before the federal court jury trial that was held February 15 18, 2011 in Hot Springs, Arkansas. The jury returned a unanimous jury verdict in the amount of $1,000, on February 18, The Plaintiff incurred $18, in medical bills as of the time of trial. Plaintiff's family doctor testified by video deposition, and was supportive of the chiropractic care and the orthopedic surgeon-neurosurgeon referral chain of care received by Plaintiff. He said the Plaintiff needed a future cervical fusion surgery at a cost of $50,000 $110,000, and future shoulder surgery at a cost of $20,000 $50,000, depending on complications. The treating chiropractic physician testified live at trial, and explained his own clinical findings and treatment, the digitized mensuration report of his plain x-rays, the digital video fluoroscopy (DMX) report, and the thin-slice proton density MRI test results. During the month before the trial, the treating neurosurgeon qualified the Plaintiff as an "elective" surgical candidate for cervical fusion surgery following a myelogram and an unsuccessful cervical epidural steroid injection. Surgery was not performed nor scheduled. The Plaintiff missed 10 weeks of work in 2006 after the collision, and never again missed any work. In 2009 he changed to a less physically demanding truck driver job with $23,000 loss of annual income, which translated to $440,000 total loss of past and future income over the course of his expected work life according to an economic expert. There were several friends and family members who did a credible job in describing the before and after collision injury changes in their loved one. The defense called the Plaintiff a liar" and accused him of falsifying the U.S. Department of Transportation (DOT) physical examination form on three occasions after the wreck by not marking on the form that he had physical health problems. When the defense jumped on the family doctor who had performed the DOT exam on three occasions after the wreck (and three occasions before the wreck), the doctor replied: "A man has got to work and feed his family." The doctor's file showed that he had written two prescription pad excuses for "Patient to be excused from wearing a seat belt due to a left shoulder injury." The defendant attempted to appeal to the cynicism and skepticism of any tort reform members of the jury by raising typical motor vehicle collision defenses, including: collusion between the Plaintiff, the Plaintiff's attorney and the Plaintiff s doctors (which was strongly refuted by all concerned); the treating chiropractor caused the disc injuries when treating the Plaintiff;

3 the treating chiropractor had a direct lien interest in the case as shown by a document in the chiropractor s patient file (with the inference being that the doctor would say anything to help get the balance of his bill paid); suspicion about chiropractic treatment (the chiropractor s education and post- graduate training as a musculoskeletal specialist were emphasized during direct examination testimony); that the 38 year old truck driver had pre-existing degeneration in his neck on the date of the collision (which was true and which we embraced to explain the severity of the cervical injuries caused by the collision trauma); long gaps in treatment by physicians (Plaintiff dealt with pain over a long period of time by consuming large quantities of ibuprofen and limiting his physical activities); inconsistent statements about the degree of pain and the Plaintiff s failure to report pain on many occasions in the medical records (including 22 consecutive visits without complaining of any left shoulder pain over many months, after which surgery was eventually recommended for the left shoulder injuries) ; negative findings on some imaging studies; malingering in not continuing to work as an owner-operator truck driver job making more money; subsequent motor vehicle collision (which plaintiff described as a no injury accident that resulted in a precautionary trip to the hospital emergency room to be checked out); and that this was a mere "soft tissue" injury that the plaintiff should have fully recovered from in 6-8 weeks (which is true for the majority of minor strain/ sprain cervical injuries, but not for the worst of the worst torn spinal ligament injuries that were proven. The hallmarks of torn spinal ligament and disc injuries are that they are permanent (due to healing with scar tissue), painful (due to spinal ligaments and the annulus of the disc being innervated with nerve nocioceptors), and progressive (will worsen over time according to the mass of medical literature). These kind of injuries require future treatment on a permanent basis over the patient s lifetime according to the evidence based treatment guidelines). It is poetic justice when the defense hardball tactics backfire by forcing an injury victim to take a case to trial, thereby allowing a jury to fairly compensate all of the victim s harms and losses. The treating physicians were able to establish an accurate diagnosis of the extent and permanency of the torn spinal ligament injuries, which caused spinal instability and chronic pain, by using medical technology tools that included the following:

4 digital video fluoroscopy (a/k/a Digital Motion X-ray (DMX) - for more information please see our firm's case of Graftenreed v. Seabaugh, 100 Ark. App. 364, 268 S.W.3d 905 (2007), which is the first appellate court case in the United States to approve the use of digital video fluoroscopy over a defense Daubert scientific challenge); digitized x-ray reports (also known as Computer Aided Radiographic Mensuration Analysis or CRMA ) for regular x-rays correlating the objective measurements of x-ray abnormalities to a 25% whole person permanent impairment rating based on an angular motion segment integrity change at C5-C6, following the procedures required by the American Medical Association s Guidelines for the Evaluation of Permanent Impairment; and thin-slice proton density MRI (which takes fine 2mm thin slices at sufficient resolution to show small and thin torn spinal ligaments) establishing Grade 3 tears (two-thirds to fully torn) in key spinal ligaments and membranes that hold the skull base to the upper cervical spine. The federal trial judge with 19 years of experience did a wonderful job in building up the jurors to realize that their jury service was one of the most important things they will ever do as U.S. Citizens. The sacred and solemn jury service atmosphere created by the trial judge may have prevented the defense from using the cheap-shot defense tactic of "let's hurry up and get this little frivolous soft tissue case over with, and stop wasting everyone's time so we can all go home and be with our families as soon as possible." The jury took their job seriously, and we were pleased that our deserving Client was fairly compensated by the jury. When we got back to the office after the trial, our litigation legal assistant still had tears in her eyes from being touched by our Client and his wife going out of their way on their way home to stop by our office (40 miles from courthouse), to thank her and our other staff members for their hard work leading to a good jury verdict. It is gratifying and rewarding when the civil justice system works to take care of deserving injury victims, as it can be difficult to overcome the smokescreen defenses raised by the powerful interests with unlimited financial resources in defending injury claims. I hope this verdict encourages my plaintiff lawyer friends, and especially the younger generation, to not be discouraged and give up, but to keep fighting the good fight and swinging for the fence in taking cases to trial when forced to do so by the defense refusing to make a reasonable settlement offer. We should all work to protect the constitutional right to a jury trial and oppose tort reform that erodes this right, because a trial by jury is the only institution created by mankind to protect ordinary people from powerful interests intent on avoiding responsibility for harm caused by wrongdoers! Respectfully submitted, Don P. Chaney Chaney Law Firm, P.A. P.O. Box Main Street, Suite 204 Arkadelphia, AR Tel: [email protected]

5 SETTLEMENT REPORT Hillsborough County Circuit Court Florida Civil Division CASE #2 Settlement of $200,000 Based on objective evidence provided by Digital Motion X-Ray Matthew Powell, ESQ Attorney for Plaintiff vs USAA Insurance The claim of the Plaintiff was filed in the Hillsborough Circuit Court against the Defendant who was insured by USAA. The Plaintiff had been injured in a Motor Vehicle rear end crash with minimal property damage. USAA made no offer to settle the claim prior to the suit being filed. The Defense contended: 1) Low impact crash 2) No injury at all, 3) Pre-existing injuries, 4) There was a two day gap in treatment between the crash and going to a doctor, 5) There was a 6 week gap in treatment later on during her treatment, 6) The Plaintiff did not go to physical therapy for a month, 7) No surgery, 8) This is a case where the plaintiff is taking advantage of the poor old defendant who was sorry for her actions 9) The medical bills are too high The Plaintiff s Attorney and expert witness John Postlethwaite, D.C. presented objective evidence of ligament damage through the effective use of Digital Motion X-Ray which clinically matched the complaints and symptoms that the Plaintiff was experiencing. In light of her excellent health, and lack of any complaints before the crash for at least 2 years, the evidence proved that this minor impact caused her injuries. After extensive discovery of the evidence that was going to be presented at trial, the insurance company settled the claim for $200,000.00, despite their initial refusal to offer any money. Summary: Type of Action: Defendant: Original Defense Settlement Offered: Final Settlement Awarded: Critical Evidence: Digital Motion X-Ray Performed & Interpretive By: Claim for Injuries following Motor Vehicle minor impact claim USAA Insurance $0.00 $ 200, Digital Motion X-Ray Dr. John Postlethwaite

6 Case Summary Plaintiff, an adult female, was involved in a motor vehicle accident in Las Vegas, Nevada. The accident occurred when a hit-and-run drive struck the side of plaintiff s vehicle and thereafter fled the scene of the accident. Although plaintiff was shaken at the scene of the accident, she was not bleeding and felt that she did not have to seek immediate emergency care. However, the next day the plaintiff continued to have tightness and spasming of muscles with ongoing pain and therefore sought treatment with Dr. Alan Long. Dr. Long found the plaintiff to have spasming in the cervical and lumbar area and she was diagnosed with acute cervical and lumbar strain/sprain. Dr. Long instituted conservative chiropractic care and continued said care until, in his opinion, plaintiff was not progressing as Dr. Long anticipated. Accordingly, Dr. Long recommended to plaintiff a Digital Motion X-ray of the cervical spine which was thereafter performed. The results of the Digital Motion X-ray, which was read by Dr. William Orrison indicated anteroilsthesis of C3 on C4, retrolisthesis on C3 as well as C4 demonstrating damage to the posterior and anterior longitudinal ligaments. Additionally, Dr. Orrison found a 4 millimeter lateral translation of C1 on C2 bilaterally which demonstrated injury to the alar and accessory ligaments. The Digital Motion X-ray was also sent to and read by Dr. John Postlethwaite who confirmed and agreed with Dr. Orrison s findings. Thereafter, the plaintiff was seen and evaluated by an orthopedic surgeon who confirmed the presence of the ligamentous injury consistent with the findings of Dr. Orrison and Dr. Postlethwaite. Unfortunately, because of the permanent nature of the ligamentous injury, there was not much more active care that could be done to improve plaintiff s condition other than fusion surgery of the cervical spine. The plaintiff did not desire to undergo or consider surgical intervention in her cervical spine and was released from active care. Plaintiff was to be seen on an as-needed basis but continued to have symptoms of pain and headaches consistent with the ligamentous injuries. Throughout the course of treatment, the plaintiff incurred medical specials totaling $20, Since the adverse vehicle could not be located, a demand was made on behalf of the plaintiff against the underinsured motorist policy of the vehicle she was driving at the time as well as her own personal underinsured motorist coverage. Needless to say the underinsured motors carriers did not view the plaintiff s injuries as permanent nor anything more than soft tissue strain/sprain. Accordingly, the case not settled and instead both parties agreed to be head in a private binding arbitration. The parties engaged in private binding arbitration and a decision was rendered granting the plaintiff the sum of $210, as a result of the permanent ligamentous injuries she sustained. Plaintiff s Counsel: Gabriel Martinez of Greenman, Goldberg, Raby and Marinez Plaintiff s Experts: Dr. Alan Long, Dr. Roger Russell, Dr. John Postlethwaite