Plaintiff’s attorney told the jury in his opening statement on July 10, 2007 that a pedestrian knockdown car accident on October 3, 2002 was defendants’ fault and caused his client, 46 year Harry Soriano, to sustain traumatic brain injuries (TBI) along with herniated discs in his back and neck. Counsel also told the jury that when he summed up at the end of the trial they would understand why the evidence forced him to ask for at least $2,000,000 for Mr. Soriano’s pain and suffering – $1,000,000 for the past five years and $1,000,000 for the future.
He never made it to closing arguments because the trial judge dismissed plaintiff’s case after testimony from his lone medical witness failed to show a casual connection between the accident and the injuries claimed.
This week, though, in Soriano v. Inao, an appellate court reversed the trial judge’s decision and ordered a new trial based on its finding that the trial judge improperly limited the scope of the doctor’s testimony.
Struck by a car as he was crossing the street in the dark of night at the corner of East Tremont Avenue and the Grand Concourse in the Bronx, Mr. Soriano was knocked to the ground unconscious.
Here is where the accident happened:
Rushed by ambulance to the local hospital, Soriano was admitted to the intensive care unit and treated for a closed head injury. He remained hospitalized for several days and followed up three weeks later at a nearby medical clinic known as Neuro Care Associates.
Soriano’s entire medical treatment from the time he was discharged from the hospital up to the date of trial consisted of five visits with neurologists at the clinic plus 48 physical therapy visits, all within five months after the accident.
In his lawsuit against the driver and owner of the car that hit him — and also the City of New York on the claim that the traffic lights were not working — Soriano called as his medical witness Hal Gutstein, M.D., one of the principals of the medical clinic, who would testify that that the accident caused a brain contusion from head trauma.
The defense objected to the doctor’s trial appearance because they’d been unable to obtain his clinic’s records. Soriano purported to allow access to his records but his medical care providers rejected and returned Soriano’s written authorizations as defective under HIPPA (the federal Health Insurance Portability and Accountabilty Act of 1996 that strictly governs the disclosure of medical records).
The defense thus never received Soriano’s medical records until 21 days before trial (and then only some, not nearly all) when plaintiff’s attorney served notice that Gutstein would be a testifying medical expert. Accompanying the expert notice was a report of Soriano’s initial visit to the clinic on November 1, 2002 that included references to an old brain injury and a pulmonary arrest from a stabbing attack just three months before the car accident (that required surgery to remove some of Soriano’s internal organs). The expert’s report also mentioned that at the hospital following the car accident Soriano was diagnosed with a subarachnoid hemorrhage (bleeding in the area between the brain and its covering thin tissues, a potentially deadly condition if there’s too much pressure from too much blood).
Defense counsel argued that Soriano’s prior injuries (especially the pulmonary arrest which implied that Soriano’s brain was deprived of oxygen resulting in brain damage) — about which nothing was known before trial — could well have been the cause of plaintiff’s current complaints and therefore it would be unfair to allow Gutstein to opine that the car accident alone caused TBI.
The judge agreed in an oral order that limited the doctor’s testimony severely and then dismissed the case completely because Dr. Gutstein’s testimony did not include evidence that the car accident caused the TBI.
After trial, there was a full written briefing of the preclusion and dismissal issues and then the judge adhered to his mid-trial oral order of dismissal of the case in a written post-trial decision.
On appeal, plaintiff argued that the trial judge’s preclusion was erroneous because the doctor was not really an expert (who may testify only on timely and full disclosure of the grounds for his anticipated testimony). Instead, plaintiff contended that Gutstein was a treating doctor and as such entitled to testify as to causation and permanence (so long as a HIPPA compliant authorization was given to the defense well before trial).
A cogent explanation of the expert versus treating doctor issues that often confound otherwise able lawyers is set forth in plaintiff’s (successful) appeal brief by the eminent appellate counsel Brian J. Isaac.
The appellate judges fashioned a compromise remedy by ordering a new trial that will allow plaintiff to have his day in court but requires him to deliver new authorizations so the defense will have the records well in advance. That way, the facts and records as to the prior injuries will be fully disclosed and their relevance, if any, properly ruled on by the new jury.
- Plaintiff’s attorney could have avoided this debacle by delivering all of the medical clinic’s records to the defense years earlier or even if he’d simply given new authorizations when the defense belatedly asked for them.
- The defense could have avoided this mess too had counsel acted promptly when the authorizations were rejected instead of letting them sit in a file for years until it was too late to get new ones. Had the request been made before the case was placed on the trial calendar – and it should have – then if new authorizations weren’t promptly delivered a judge would have ordered them to be provided and the records would have been obtained.
- Plaintiff’ history – Long unemployed and an ex-convict, plaintiff admitted at trial that he is a recovering alcoholic who lives out of state in a rehabilitation clinic. He also admitted to drinking two 16 ounce cans of beer on the street right before the accident but denied he was drunk. Defense counsel told the jury during her opening statement that the evidence would show plaintiff was the cause of his accident due to his intoxication at a level three times the legal limit. Plaintiff denied he was drunk at the time of his accident.
- Plaintiff’s injuries – Although by the time of trial he hadn’t sought any medical care for five years, plaintiff claimed residual and permanent brain injuries including memory loss, mood swings and headaches as well as daily debilitating low back pain.