Case Review of Bascope v. Kovac, submitted by personal injury attorney, Jeffrey Hark.
In this case the issue arose at the time of trial when the plaintiff asked the court to give the jury the aggravation of pre-existing condition jury charge. The court denied plaintiff’s request and the jury returned a verdict of no cause. The court reviewed the record and determined the plaintiff a) failed to discuss with his/her doctors at any time during the course of treatment the exacerbation of any pre-existing condition that was made worse as a result of the collision, and b) the plaintiff’s doctor’s failed to present any OBJECTIVE evidence of aggregation of a pre-existing condition. As a result, plaintiff’s own testimony concerning this pre-existing condition and aggregation of same, without any objective testing, was not enough to entitle the jury charge to be given and the verdict sheet to reflect the aggregation claim.
The examination of the record is as follows:
We must examine the evidence presented and the jury charge as a whole to determine whether the trial court’s rejection of the requested instruction prejudiced plaintiff’s right to a fair determination of the issues. We begin by noting that plaintiff’s claims were subject to the so-called verbal threshold of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. In the circumstances of this case, the “limitation on lawsuit option,” N.J.S.A. 39:6A-8(a), required that plaintiff prove a permanent injury caused by the motor vehicle accident in order to recover non-economic personal injury damages such as emotional, mental, and physical pain and suffering. Davidson v. Slater, 189 N.J. 166, 174 (2007). In her complaint, plaintiff alleged the accident was the sole cause of her injuries. She did not allege that any pre- existing condition or disability was aggravated by the accident. In her interrogatory answers, she confirmed that she “does not claim an aggravation, acceleration or exacerbation of a previous injury, disease, illness or condition.” Moreover, the report prepared by plaintiff’s medical expert at trial, Dr. Ruoff, did not contain any conclusion or other statement that the accident had aggravated a pre-existing condition of plaintiff. By choosing not to plead or pursue damages for aggravation of a pre-existing condition, plaintiff avoided any requirement that she affirmatively produce evidence comparatively analyzing her prior condition and the impairment and disability she alleged was caused by the car accident. See id. at 186. The first time that plaintiff offered a theory that her pre-existing condition was aggravated by the trauma of the accident was in the middle of the trial. Plaintiff and three members of her family testified that she never complained about any back or neck pains before the accident. After the accident, plaintiff was seen by Dr. Ruoff because of pain in her back, neck, and right leg. When physical therapy was unsuccessful, Dr. Ruoff referred plaintiff for magnetic resonance imaging studies (MRIs) of her cervical and lumbar spine. An MRI taken in January 2010 revealed no disc herniation of the cervical spine. According to Dr. Ruoff, the MRI of the lumbar spine showed “two of the lower discs, the L4-5 and the L5-S1, were narrowed and she had some, what we call stenosis or some narrowing of the — the area where the nerve exits the spine at the L5-S1 level.”
On direct examination, Dr. Ruoff testified as follows regarding how the MRI findings correlated with plaintiff’s complaints of pain:
DR. RUOFF: Those findings indicatepathology that there’s — there’s something abnormal with respect to her back. The degenerative — the loss of height of the disc probably represents some pre-existing degenerative changes that were there at the time of the accident, but they were probably aggravated by the — by the impact. It can cause pain in a number of ways. . . .
PLAINTIFF’S COUNSEL: Doctor, a person such as [plaintiff] who has this ongoing degenerative process, does it make them more susceptible to pain or injury?
DR. RUOFF: Depending on the — the trauma. Many people have changes such as this and don’t have symptoms. And she apparently had no symptoms prior to this — this accident.
PLAINTIFF’S COUNSEL: And, Doctor, would a motor vehicle accident such as you’ve described and what the patient has described cause the back, the lower back, to be — then become sympt — symptomatic?
DR. RUOFF: Yes. The impact from a rear-end collision and then a front-end collision can certainly cause enough trauma to — to affect the — that condition. [(Emphasis added).]
On cross-examination, Dr. Ruoff explained the natural deterioration of the spine: “[E]very disc when you’re born is probably about 80 percent water. As you go through life, the disc will lose some of its water content. Some people, it happens faster than others. Injuries can accelerate that.” Defense counsel asked whether “the loss of water content is a natural degenerative condition, aging condition[,]” to which the doctor replied “yes.” Dr. Ruoff further testified that a disc’s loss of water is usually a “slow process,” but “[i]t can be accelerated by an injury.” The doctor also testified about the results of an electromyography (EMG) study to which he had referred plaintiff when her complaints persisted. The EMG was positive for a “right L5 radiculopathy, meaning that the fifth nerve root, the L5 nerve root on the right side had findings that were consistent with damage.” Dr. Ruoff’s cross-examination included the following additional testimony related to a pre existing condition:
DR. RUOFF: Well, there’s the — at L5-S1, there’s neuroforaminal stenosis or severely stenotic on the left. The right foramen is mild — mildly narrowed. I believe that the – the foraminal stenosis is, I think the pathology, the compression of the nerve.
DEFENSE COUNSEL: And that was pre-existing; isn’t that right?
DR. RUOFF: Yes.
DEFENSE COUNSEL: So the L5 radiculopathy was probably pre-existing, wouldn’t you say?
DR. RUOFF: Well, she had no symptoms prior to that and . . .
DEFENSE COUNSEL: Okay. Well, how do you know that, Doctor?
DR. RUOFF: I have no evidence that indicates she had prior treatment for anything and the patient . . . verbally told me that she had no problems prior to that. Dr. Ruoff testified that the motor vehicle accident was thecause of permanent injury to plaintiff, and also stated hisopinion that: within a reasonable degree of medical probability . . . [plaintiff] has some pre- existing degenerative disc disease. It was asymptomatic because she had no pain prior to that and . . . the impact caused an injury to the disc — further injury to the disc which led to the symptoms which are the back pain and the pain radiating into her leg.
Defendant’s medical expert, Dr. Joseph Willner, examined plaintiff in September 2012. He testified that the disc at the L5-S1 level was narrowing, and that the condition existed before the accident. In his opinion, the accident did not cause permanent injury to plaintiff. Dr. Willner explained that x- rays taken at the emergency room on the day of the accident revealed changes to plaintiff’s discs, but these changes were not caused by trauma. He stated that plaintiff had a degenerative condition of her spine unrelated to the accident and that the condition would keep getting worse in the future. He also indicated that he “discounted” the EMG results because he found them to be inconsistent with plaintiff’s MRI and physical exam, as well as inconsistent with her complaints on the day of the accident. In the emergency room, plaintiff had complained of back pain on her left side, not any pain in her right leg.
IN OTHER WORDS, IN THE INITAL PLEADINGS, AND AT EVERY DOCTORS’ APPOINTMENTS ONCE THERE IS CONVERSATION OF A PRE-EXISTING CONDITION BEIUNG AGGRAVATED AS A RESULT OF A COLLISION, THEN THE DOCTOR HAS TO PERFORM THE NECESSARY OBJECTIVE MEDICAL TESTING AND THEN PUT THE FINDINGS IN HIS FINAL REPORT. THAT WAY THE JURY CAN HEAR ABOUT IT AND THEN THE COURT WILL BE OBLIGATED TO GIVE THE PRE-EXISTING CHARGE.