330 415,thurs-dowd
TRANSCRIPT
EST. 1950 ILLINOIS & INDIANA
Defending the Low Impact Case – Beware of Hidden Exposure
Patrick Dowd Dowd & Dowd
Chicago, IL
Defending the Low Impact Case – Beware of Hidden Exposure
Patrick Dowd Dowd & Dowd
Chicago, IL
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“Bummer of a birthmark, Hal.”
Typical MI/LE Cases
• Minor incident • Defendant/ respondent is a commercial
establishment/ major corporation • No apparent injuries at scene • Minor property damage • Claimant says they are alright • No ambulance summoned or refused at scene
Demand Letter
Our “Perfect World” Accident Video
Typical Treatment Progression: • The event • Often no immediate medical care • After hours/days seeks treatment/ X-rays • Physical Therapy (Rounds 1,2) • Referral to ortho/neuro/pain management • Studies/Diagnostic Testing • Inflammatory Injections (1,2 or 3) • Surgery/Follow-up pain management
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“Birthmark Entities” -- Required Minimum Steps On First Notice of Claim
• Take multiple, quality photographs/ videos • Take statements of parties/ witnesses • Record contact information • Retain/ preserve documents
The Photograph
Record and Preserve • Contact information • Vehicle information (ECM, Qualcomm) • Police/Incident/Accident Reports • Drive Cam • Premises Surveillance • Social Network Activity
Statements
• Insured • Potential claimant • Witnesses • Police Report • Incident/Accident Report
Steps upon MILE Notification
• Check for previous lawsuits/WC filings • Disability • Prior injuries/ treatment • Department of Employment • School records/ Military records • Prior employment records • Interview ex-spouses
Independent Medical Exam
Other Experts • Accident Reconstructionist • Biomechanical Engineer
TEMPLATE
Photos – showing instrumentality Video/ Audio – Mechanics of accident/ What they said Statements – parties/witnesses
TEMPLATE
Police/Incident Report – No injury claimed at scene Cell phone records - Texting Ambulance Report / Fire Department/EMT
TEMPLATE
Doc – no immediate medical treatment (or gaps in treatment) Emergency Room Report / x-ray / initial diagnosis Doc – No diagnostic testing
TEMPLATE
Prior medical/employment records Any record of plaintiff’s prior physical/mental or educational level Social media activity
TEMPLATE
Prior accident – same part of body
Pre-existing medical condition
Experts 1. Accident – didn’t cause injuries – medical
expert 2. Biomechanical Engineer – Forces were not
great enough to cause that type of injury
Facts
• Driver pulling out of a parking space with his tractor when he struck plaintiff’s truck
• Independent witness reported the accident occurred at no faster than 5-10 mph
• Plaintiff was in the bunk of the truck and described the collision as an “earthquake”
Injuries
• 9/13/06 – Emergency Room • Alleged severe back pain • X-rays showed degenerative changes • Dx – Thoracic muscle strain
Subsequent Medical Care
Four Surgical Procedures – Goldberg, MD
• 3/22/07 - Laminectomy and spinal fusion (L3-L4) • 5/15/08 – Hemilaminectomy & discectomy (L5-S1)
– Lubenow, MD • 8/17/09 – Implant of spinal cord stimulator
– Rinella, MD • 10/17/11
– Removal/replacement of instrumentation at L3-4 – Posterior spinal fusion L4-5
Treating Physician’s Testimony
• M.D. – Emergency Room – Plaintiff could expect to recover fully in a few
weeks – Dx “back strain”
Treating Physician’s Testimony
• Lubenow, M.D. • All surgeries causally connected and spinal
stimulator necessary as a result thereof
Defense Experts
• Biomechanical Engineer – Forces exerted were negligible compared to
those during routine driving – It is clear that the injuries were not caused by
the low-speed collision
Defense Expert – Surgical procedures were for pre-existing
degenerative conditions unrelated to the accident
– No causal connection between alleged injuries and accident
– Plaintiff would have suffered a soft tissue strain which could have been adequately treated by four weeks of physical therapy
Wage Loss
• Lost Wages Claim: $700,000 – Alleged $60,000 to $70,000 in gross profit
loss annually as truck driver – Claims total employment related disability and
loss of earning capacity – All physicians stated he could not return to
work driving
In Summary • Minimum impact • Immediate onset of medical care • Degenerative condition • Follow up care • Surgical intervention • No pre-existing condition • Could not return to occupation as driver • Plaintiff’s demand (prior to two mediations) -
$4,500,000