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Neurologist Background, Methodology, Video Testimony Sufficient Despite Deviation from AMA Guidelines


A man made a left hand turn in front of a vehicle driving through an intersection. The cars collided. The driver proceeding through the intersection sued the driver who turned left in front of her for negligence. The complaint alleged that as a result of the accident, she sustained injuries to her spine, neck, shoulders, head, and chest. The complaint sought economic damages, including medical expenses and lost wages, as well as noneconomic damages, including damages for the permanent impairment to her ability to enjoy and participate in life's activities.

 

The case was tried before a jury. The woman presented the expert testimony of a neurologist, who opined on the extent and permanency of the woman's injuries. He testified that, in his professional opinion, the woman's injuries were caused by the automobile accident. Furthermore, he stated that, in his opinion, the woman suffered chronic injuries that would persist for the rest of her life. The neurologist also opined that these injuries resulted in a permanent partial impairment of five percent of the woman's brain. The neurologist explained why his impairment rating did not follow the American Medical Association Guidelines to the Evaluation of Permanent Impairment (AMA guidelines).

 

The New London Superior Court instructed the jury: “In this case, the plaintiff's neurologist... rendered an opinion that [the plaintiff] suffered a 5 percent permanent partial impairment to the brain, which translates to a 5 percent whole person permanent partial impairment as a result of her headaches, which were caused by her permanent neck injury. [The plaintiff's neurologist] opined that the plaintiff's permanent injuries are a direct result of the motor vehicle collision of October 20, 2006. If you find by a fair preponderance of the evidence that the plaintiff did suffer a permanent injury as a result of this collision, then she should be fairly compensated for that.” The court additionally instructed the jury that the plaintiff claims that she suffered “injuries to her spine, neck, back, shoulders, head and chest....”

 

At the conclusion of the trial, the jury returned a verdict in favor of the woman, awarding her $10,169.24 in economic damages and $306,296.60 in noneconomic damages. The jury assigned 80 percent comparative fault to the male vehicle driver and 20 percent comparative fault to the woman. As a result, the woman's total recovery was reduced by 20 percent to $253,172.67. The man then filed a motion to set aside the verdict and a motion for remittitur. The trial court denied the motions and rendered judgment in accordance with the verdict.

 

The Appellate Court of Connecticut affirmed. The court held that the trial court conducted a proper validity assessment of the plaintiff's neurologist’s underlying methodology, the charge to the jury was proper, and the trial court did not abuse its discretion when it denied the defendant's motion to set aside the verdict and a motion for remittitur.

 

The trial court conducted a proper validity assessment of the plaintiff's neurologist’s underlying methodology. The court noted that a preliminary assessment was generally required to determine the validity of an expert's underlying methodology. The trial court held a short hearing on the morning of the trial before it ruled on the defendant’s motion to exclude the plaintiff’s neurologist’s testimony. Prior to the hearing, the court had reviewed the transcript of the plaintiff’s neurologist’s deposition testimony, which would later be shown to the jury in lieu of live testimony. The deposition testimony detailed the plaintiff’s neurologist’s extensive background as a neurologist. The court found that, on the basis of these statements, the trial court reasonably could have concluded that the plaintiff’s neurologist’s had the expertise and background to support his testimony and would be capable of explaining his findings to the jury in a way that would allow it to reach an independent conclusion. The plaintiff’s neurologist’s testimony also explained the methodology underlying his conclusions. First, the plaintiff’s neurologist’s testimony revealed that the impairment rating was based primarily on his direct observation, treatment, and oversight of the plaintiff. The court found that the plaintiff’s neurologist’s methods were developed or used for extrajudicial purposes rather than having been implemented solely to develop evidence for in-court use. Second, the plaintiff’s neurologist also based his conclusions on his review of the plaintiff's other medical records. On the basis of this information, he concluded that his opinions were consistent with the findings of the plaintiff's other health care providers. The court found that this consistency between the plaintiff’s neurologist and other medical professionals served as the equivalent of a “peer review” in determining reliability, and provided another factor weighing in favor of admitting his testimony. Finally, the plaintiff’s neurologist’s testimony described impairment ratings, including the process he used in developing the plaintiff's rating. He explained why he did not follow the fifth edition of the AMA guidelines, as was his custom. He also explained why he rated the brain rather than the muscles in the woman’s neck. The court concluded that, on the basis of this information, the trial court reasonably could have concluded that the plaintiff’s neurologist’s methodology, which was based on his experience treating the plaintiff, his review of her medical records, and the guidance of the AMA guidelines, was reliable. The trial court also could have concluded that the plaintiff’s neurologist was capable of presenting his methodology in such a way that the fact finder could reasonably and realistically draw its own conclusions therefrom. The court concluded that the plaintiff’s neurologist’s impairment rating was based on reliable scientific and medical methods of treatment. Therefore, any challenge regarding the actual application of the impairment rating must bear solely on the weight of the evidence. The court noted that because the plaintiff’s neurologist's testimony was shown to the jury by video, the trial court was in the unique position to review the actual trial testimony when evaluating its reliability.

 

The charge to the jury was proper. The trial court’s jury instructions properly summarized the plaintiff's allegations by stating that although the plaintiff’s neurologist categorized the injury as a brain impairment, the substance of the claim was that the plaintiff suffered from headaches as a result of an injury to the neck. The court additionally instructed the jury that the plaintiff claimed that she suffered “injuries to her spine, neck, back, shoulders, head and chest....” The jury was never instructed to consider a cognitive injury to the brain, nor was the plaintiff ever allowed to argue such an injury at trial. The trial court's instructions provided sufficient guidance for the jury to consider the credibility of the plaintiff’s neurologist's testimony. The trial court properly tailored the instructions to identify the plaintiff's allegations of injuries to her neck, head, and shoulders and not as injuries to her brain. The court concluded that the trial court's instructions were proper because they were correct in law and adequately relayed the substance of the defendant's requested instructions.

 

The trial court did not abuse its discretion when it denied the defendant's motion to set aside the verdict and a motion for remittitur. The trial court explained in its written opinion that the jury verdict was reasonably supported by the facts and law. The court’s review of the transcript confirmed that additional evidence of impairment was provided through the testimony of three of the plaintiff's family members. Each family member described the plaintiff's active lifestyle, the physical demands of her profession, as well as how her life has been impacted by her injuries. Additionally, evidence was presented that the plaintiff was a young individual who could be expected to live with her injuries for fifty-four years. The court concluded that based on those facts it did not find a clear and palpable mistake in the jury's conclusion or that the jury verdict was unreasonable or unfair. Therefore, the trial court's rulings denying the defendant's motions to set aside the verdict and for a remittitur were not an abuse of discretion.

 

The Appellate Court of Connecticut affirmed the trial court’s entry of judgment on a jury verdict in favor of the woman.

 

See: Scandariato v. Borrelli, 2014 WL 6657008, 153 Conn.App. 819 (Conn.App., December 2, 2014) (not designated for publication).

 

See also Medical Law Perspectives, May 2012 Report: Repeat Brain Trauma That Is More Than a Bump on the Head: Multiple Concussion Injury and Second Impact Syndrome

 

See also Medical Law Perspectives, December 2011 Report: When Pain is the Only Proof: Subjective Impairments

 

 

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