330 415,thurs-dowd

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

EST. 1950 ILLINOIS & INDIANA

PATRICK C. DOWD - PatrickDowd@dowdanddowd.com

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