Over the years, Picciano & Scahill has obtained defense verdicts on the issue of causation on high policy exposure claims on herniated disc injuries, shoulder tears with surgery, knee tears with surgery and numerous other surgical cases where the pre-existing nature of the plaintiff's injuries was the central issue.  Here are some of the strategies we use in preparing the causation defense.    
 
1.      Preparing for Plaintiff's Deposition.  No plaintiff should be deposed until medical records relating to the claim are obtained and reviewed.  At the very least, the plaintiff's no-fault file and hospital records should be thoroughly reviewed by defense counsel and the claim representative prior to the deposition.  The plaintiff should not just be asked what complaints he or she made at the scene to EMS and to the police, but also, should be confronted with the record and asked to verify whether the chief complaint listed is accurate. The same holds true for the hospital record.  A thorough inquiry is required as to what transpired in the hospital, whether the plaintiff was interviewed by the Triage nurse, what was asked and what was said.  When the plaintiff indicates a lack of memory, the findings from the hospital records should be quoted and the examining attorney should ask if that refreshes the plaintiff's memory as to what transpired in the hospital.  Defense counsel should inquire as to what tests were performed, what medication was given, what instructions were given upon discharge, what follow-up care was suggested and what did the plaintiff do in response to these instructions.

2.      Investigating the Plaintiff's medical history. The most effective causation defense is built on a thorough examination of the plaintiff's medical records and an exhausting inquiry into the plaintiff's medical history by counsel and claims professionals. 

The ambulance call report and hospital record are key elements and perhaps the most important foundation of a causation defense.  We have been successful over many years convincing a jury that the hospital record and the EMS call report are a window into the truth as to what actually happened to the plaintiff as a result of the accident.  The ambulance call report and the emergency room record is a real time recording of what the plaintiff was actually experiencing and complaining of the day of the accident.  This is a key piece of evidence.  Plaintiff's counsel may try to explain that his or her client only experienced back pain two weeks post accident when he visited a multi-specialty medical clinic which the attorney recommended, however, the fact that the hospital record contains notations such as "FROM extremities X 4, chief complaint, "My head hurts"; no loc; no other injury" is an opportunity for defense counsel to argue causation.  A defense attorney should be able to effectively discount EMG/NCV findings of radiculopathy and nerve conduction abnormalities where no complaint whatsoever was made at the scene or the emergency room. 
 
The ISO search for prior claims history and Trace America search for prior hospitalizations prove to be gold mines of discovery for defense counsel.  Too often these findings are wasted and records from prior claims are not obtained. Through the use of e-law and e-Courts in New York, civil suit checks to identify prior litigation by the plaintiff should be undertaken in every claim.  If a prior claim is identified our first call is to the defense firm who was assigned to defend the prior claim.  The prior defense counsel is much more likely to be cooperative in providing copies of prior testimony and records as that attorney makes the same request on cases that his or her office is handling. 
 
If the plaintiff had negative x-rays, a normal neurological exam, no CT or MRI ordered, and was discharged with instructions to rest and take Tylenol, that plaintiff will have a much more arduous road convincing a jury that the lumbar surgery he underwent two years later was causally connected to the accident of record.
 
3.      Proper disclosure pre-trial is key to an effective causation defense at trial.  Building a causation defense demands constant attention to detail by both defense counsel and claims professionals.  Activity along the entire life of the file is critical. While it is important to obtain all medical documentation prior to depositions, it is equally important that post deposition demands are fulfilled.  A critical link that is perhaps overlooked is the assignment of a competent physician to examine the plaintiff and what medical records are provided for review prior to the physical exam. 
 
4.      Preparing for the IME.  The following statement in an IME report is the death knell to the causation defense and provides fodder to plaintiff's counsel on cross-examination: "If the history provided by the claimant is accurate, the motor vehicle accident described could be a competent producing cause of the injury claimed."  This statement is often written when the IME physician is given sparse information about the case, has no idea how the accident happened, is devoid of knowledge of prior claims or other similar injuries.  Unless the examining physician can rule out the cause of the claimed injury was the accident of record, no comment should be elicited from the IME expert as to the issue of causation. 
 
5.      Cross examination of a treating physician.   During cross of the plaintiff's treating physician, emphasis should be placed on the history provided by the plaintiff vis a vis the accuracy of the physician's diagnosis.  Every physician will concede the more accurate the history provided, the more accurate the diagnosis would be.  If the history recorded by the physician testifying in court is missing critical information, (i.e., prior similar injuries, severity of impact, lack of immediate medical care), then defense counsel should use the inaccuracy of the plaintiff's history on cross-examination of the plaintiff's testifying expert as a means to discredit his diagnosis. 

P&S Results that Matter 

Jason Tenenbaum won another No Fault Appellate Decision for Mercury Insurance. (Bronze Acupuncture, P.C. as assignee of LAVEL FOLKS, Respondent against Mercury Ins. Co., Appellant).  Read the decision here.