Atlanta Injury Attorney Blog
In any personal injury case, medical records and expert opinions with regard to injuries can be important in helping to establish the cause of the injuries. It can be difficult to prove exactly how an accident may have occurred absent external objective measures, such as video recordings. Medical records and the opinions of medical doctors, however, can provide additional, factually based evidence that can help judges and juries reach determinations of fault or liability. In a recent case, Rangel v. Anderson, S.D. Ga. (2016), the court engaged in an extensive review of the factors required in order for physician testimony to be allowed in the capacity of “retained expert” opinion.
The case arose out of a car accident in which the plaintiff claimed the defendant rear-ended her vehicle, causing injuries. Following the accident, the plaintiff sought medical treatment for neck and back pain from several physicians. The plaintiff sought to introduce evidence from one of her treating physicians in an expert witness capacity but failed to identify the doctor as an expert witness by the necessary deadline. The plaintiff also failed to provide a written report of the doctor’s opinion.
The defendant sought to exclude certain opinions offered by the doctor but agreed at a hearing that the doctor could provide factual testimony regarding the treatment of the plaintiff. The defendant sought to prevent the doctor from offering opinion testimony, based on the plaintiff’s failure to properly disclose him as a retained expert and based on the failure to provide the written report as required by the Federal Rules of Civil Procedure. The defendant further argued that the opinion failed to meet the reliability standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
The court turned to the relevant rule, Fed. R. Civ. P. 26(a)(A), which provides that parties must disclose the identity of witnesses they intend to use as expert witnesses, and in addition to the disclosure, they must submit a written report for any “retained” witnesses, including certain specified information, such as what the witness intends to say during the course of trial.
The types of disclosures required for physician witnesses depend upon the nature of their forthcoming testimony. The types of disclosures made will then determine the scope of the testimony actually allowed. For example, physicians who are disclosed as so-called lay witnesses can only testify to lay–rather than medical-related–facts. Treating physicians for whom summary disclosures are submitted can testify with regard to treatment. If the treating physician has an expert report submitted on their behalf, the treating physician may testify as a retained expert about matters that go beyond treatment and diagnosis, such as opinions related to causation.
Although the plaintiff in the current case did not submit an expert disclosure or a written report containing the physician’s opinions, he offered several opinions during his deposition. He stated his opinion that the plaintiff had a possible “nerve root impingement” in her cervical spine and that the accident likely caused an acute injury to the plaintiff’s cervical region, among other statements related to the plaintiff’s pre-existing conditions and injuries. The defendant contended that such opinions go beyond the knowledge of an ordinary (lay) juror, and therefore, an expert report was required. Since such a report was not submitted, the defendant argued that the opinion testimony should be excluded from the evidence in the case.
The plaintiff urged the court to excuse her failure to file the required reports by arguing that the error was harmless. The court examined whether the failure truly was harmless on the basis of five factors developed in prior cases.
As to the various factors, the court found that the plaintiff’s claim that the defendant should not be surprised was dispositive. Furthermore, the plaintiff’s claim that she did not believe the doctor would serve in an expert witness role, due to having only seen her in a treating capacity on two occasions, lent further credence to the defendant’s surprise as far as the requirement was considered. The court also found that the plaintiff still had not submitted an expert witness report to the defense, and it remained unclear which opinions the physician’s report might contain. The court also found that the report would likely disrupt the flow of litigation. It further discussed the fact that the plaintiff still had other evidence to present and had been aware that she would have to present opinion testimony with regard to establishing causation.
The court then turned to the matter of whether the physician was qualified to offer such an opinion in a retained expert capacity. The standard is that “[t]he proponent of the expert opinion bears the burden of establishing qualification, reliability, and helpfulness by a preponderance of the evidence.” Daubert, 509 U.S. at 592, n.10.
Specifically, with regard to being unqualified to offer an opinion subject to the Daubert rule, the defendant challenged the witness’ ability to offer such an opinion, based upon the physician’s alleged failure to review various CT & MRI scans and other diagnostic tests prior to reaching his conclusions related to the car accident that contributed to an exacerbation of the plaintiff’s pre-existing condition and other related considerations. The defendant argued that the physician having only relied on radiology reports, but not other potential evidence from before the car accident at issue in the case, was an insufficient amount of data.
The court had found that a physician who relied on several other types of tests in another car accident case, in which the plaintiff there had also been involved in a prior accident and had a pre-existing condition, had an insufficient basis for his conclusion. Here, it remarked, the physician was relying on even less data, that of radiology reports alone, in order to reach a conclusion related to causation.
The defendant also pointed to the witness’ uses of the words “likely” and “possible” as failing to meet the reliability requirement under Daubert, since the statements were not expressed to a reasonable degree of medical certainty. Expert testimony is inadmissible unless a competent expert testifies “to a reasonable degree of medical certainty” that a given event caused the plaintiff’s injuries. The court thus found that the physician’s statements did not express more than a potential medical possibility that the accident caused the injuries, and thus the testimony was inadmissible on the reliability basis, since it would not necessarily help the jury reach a conclusion.
Lastly, the plaintiff challenged the defendant’s attempt to introduce evidence related to a third-party company that was paying for the plaintiff’s medical bills while she awaited the resolution of her case. The court found that the evidence was admissible and probative because among other factors, the third party referred the plaintiff to several treating physicians, including the one who was attempting to serve as an expert witness. Thus, the court found it would be fair to allow the jury to determine the nature of the relationship with the company, whether the plaintiff’s medical bills related to the company were reasonable, and so on.
The court thus granted the defendant’s motion to exclude the expert testimony and denied the plaintiff’s motion to exclude the evidence related to the third party.
Because of Georgia’s tort liability system and fault laws, pursuing the compensation that you think you deserve after a car accident is not always as straightforward as it should be. We can help you prove fault, gather evidence for your claim, and handle negotiations with an insurance adjuster. Contact one of our experienced Atlanta car accident attorneys today to discuss your case.
Read More:
Georgia Court of Appeals Affirms Dismissal in Auto Shop Negligent Training Case, Atlanta Injury Attorney Blog, published December 28, 2016
When Does Georgia Law Allow for the Recovery of Punitive Damages in Motor Vehicle Accident Cases?, Atlanta Injury Attorney Blog, published October 18, 2016