Academy of Chiropractic’s
Lawyers PI Program
From the Desk of:
Mark Studin DC, FASBE (C), DAAPM, DAAMLP
"Pre-Exiting Issues and Court Rulings"
"05-2-2607 Haz v. Tomon, App. Div. (per curiam) (10 pp.) The grant of summary judgment dismissing plaintiff's complaint under the Automobile Insurance Cost Reduction Act and the denial of her motion for reconsideration are affirmed. Although the judge erred in concluding that a Polk analysis was required because plaintiff did not claim the accident resulted in an aggravation of a pre-existing injury, and the untimely filing of a certification of permanency is not necessarily fatal to plaintiff's claim since it is not a fundamental element of an AICRA cause of action, since the expert reports that plaintiff attempted to submit after the close of discovery were properly excluded, and the expert reports that were admitted failed to articulate any certification as to permanency, the motion judge correctly found that she had failed to raise a genuinely disputed issue of fact establishing that she had sustained a permanent injury under AICRA" (ALM Media Properties, LLC, 2011, Retrieved from http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202498589975).
This is a recent ruling from New Jersey that defines the necessity for documenting pre-existing issues with your patients. As experts, this is required not only in New Jersey, but in every state in the country. This case underscores how important it is to document all pre-existing issues as lawyers nationally can argue either new bodily injury or exacerbation of pre-existing findings. IF...there is an underlying issue, you do not document it and the lawyer argues for new injuries, this can be the cause of your patient losing his/her case and your being exposed to not following the standards of your license. Most state chiropractic boards mandate that pre-existing issues be documented as it is an issue we all learned about while in professional school.
The above ruling discusses a "Polk" analysis. Although that is specific to New Jersey, the same concepts are accepted by courts nationally. The following article clearly explains the issue. In order to understand the "business of the lawyer" in an ethical manner, you have to understand the issues from the lawyer's perspective.
"THE NEW JERSEY SUPREME COURT DETERMINES COMPARATIVE-MEDICAL ANALYSIS IN VERBAL THRESHHOLD CASES IS NOT REQUIRED WHEN PLAINTIFF HAS NOT ALLEGED AGGRAVATION OF PRE-EXISTING INJURIES.
Prior to the enactment of the Automobile Insurance Cost Reduction Act ("AICRA"), a plaintiff in a verbal threshold case, claiming that a pre-existing injury had been aggravated, was required to provide a comparative medical analysis to prove that the injuries claimed were the result of the current accident, and not from a past one. Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).
However, on January 30, 2007, the New Jersey Supreme Court ruled that, under AICRA, a plaintiff is not required to present a comparative-medical analysis between pre-existing and current injuries unless there is an allegation that the pre-existing injuries were aggravated by the current accident.
In Davidson v. Slater, 2007 WL 218734, the Plaintiff was a passenger in a vehicle involved in an accident . She brought suit, alleging a lumbar disc protrusion with radiculopathy at L5-S1. The Plaintiff previously sustained soft tissue injuries to her lower back in a prior accident, and was also involved in a subsequent accident, for which she underwent treatment for sprains to her back and neck.
The Plaintiff did not present a Polk analysis comparing her previous and subsequent injuries from the injuries she claimed in her current lawsuit. The Defendant moved for summary judgment, arguing that the Plaintiff was required, under AICRA, to segregate her injuries.
The trial court dismissed the Plaintiff’s Complaint based upon her failure to distinguish the injuries pursuant to Polk. The Appellate Division reversed, holding that the Plaintiff was not required to make such a distinction under AICRA because she was not alleging aggravation of her prior injury.
The Supreme Court agreed, finding that, in order to pierce the verbal threshold under AICRA, a plaintiff need only establish that "as a result of bodily injury, arising out of the. . .operation. . .or use of" an automobile, she "sustained a bodily injury which results in" a serious injury, including "a permanent injury within a reasonable degree of medical probability. See N.J.S.A. 39:6A-8A(a).
The Supreme Court further found that, when a plaintiff does not claim aggravation of a prior injury, AICRA does not require the plaintiff to conduct a Polk analysis. However, a Polk analysis may still be required, even under AICRA, in those cases where a plaintiff has plead an aggravation of a pre-existing injury.
Is the Polk analysis dead? The answer to that question depends upon whether Plaintiffs, in the future, will seek to avoid the Polk analysis by purposely alleging that each injury is a "new" condition, wholly separate from any prior or pre-existing injuries" Golden Rothschild Spagnola Lundell Boylan & Garubo P.C., 2011, Retrieved from http://www.grsl.com/e-bulletin/2007/is-the-polk-analysis-dead.html).
The conclusion we derive from this is that you MUST document, in detail, all pre-existing issues.