In serious accident and personal injury cases, it is common practice for defense counsel to hire a doctor as an expert witness in order to state an opinion as to whether the accident in question caused the injury complained of by the plaintiff. As an example, this tactic is frequently used when the plaintiff has a knee, ankle or spinal injury, and radiology records indicate that they have arthritis. This is because arthritis happens to commonly occur in these joints, and because arthritis can cause pain and disability.
Being involved in an accident, minor or serious, can be a scary and time-consuming process. You may need to deal with insurance companies, medical providers, auto repair shops and recovery from injuries. The personal injury attorneys of Lipkin & Apter have over 20 years of legal experience, and are here to help you know what to anticipate throughout your case.
The Role of the Defense Expert Witness
Keep in mind that the defense expert in your personal injury case will never have examined, seen or spoken to you, they will have only reviewed your medical records. Of course, if the defense expert’s opinion is favorable to the plaintiff, you will never learn of it, because the defendant will obviously not name a witness who is favorable to its opponent. However, when the defense expert's opinion is that your need for medical treatment--generally surgery--is related not to your accident, that is when the defense expert’s opinion will become known. In short, the defense view is that you would have needed the same treatment with or without the accident, due to your arthritis. In the experience of the personal injury lawyers at Lipkin & Apter, this type of defense is all too often a sham, intended to prevent an injured person from recovering the fair and reasonable compensation to which he is entitled.
Proving the Accident Was An Aggravating Factor
During a personal injury lawsuit, the focus should be on examining the plaintiff's activities and lifestyle before the accident. For example, when considering the plaintiff with arthritis, mentioned previously:
• Was the plaintiff working?
• Being treated by doctor?
• Were there any restrictions on their activities?
• Were they taking pain or anti-inflammatory medication?
• Was the plaintiff able to fully participate in his usual social and recreational activities?
The plaintiff’s claim will almost never be that the (recent) accident caused his arthritis; but rather that the accident aggravated the arthritis to the point of the condition becoming symptomatic. “Symptomatic” refers to pain that results in loss of work, restriction of activity, and need for medical treatment. It is one thing if the plaintiff was being treated for arthritis just before an accident, quite another thing if they weren't. At deposition, the defense's expert witness will be interrogated on whether the plaintiff was symptomatic at the time of the subject accident. If not, when was the last time (pre-accident) that plaintiff complained of pain for which he saw a doctor?
Most often, the response will be that it is unknown when the plaintiff last sought medical treatment for arthritis, if ever. The defense's expert witness will then be asked if they know the rate at which plaintiff's arthritis had been advancing, year after year. Given that all patients are different, there is no universal rate of progression for arthritis and therefore the answer will always be “no.” Similarly, the defense's witness expert will not know when plaintiff would have become symptomatic and required medical treatment if the subject accident had not occurred. Often times, a plaintiff will not even know he had arthritis, a sure indication that his arthritis was not symptomatic before the accident.
Lipkin & Apter Experience Helps Combat Common Defense Claims
Knowing how to combat common defense claims and expert witnesses based on years of experience, and knowledge of medicine, is a service offered by the personal injury attorneys at Lipkin & Apter to our clients. If you are injured in an accident, contact us for a free consultation to discuss your case.