Causation is an issue in almost every personal injury case. By “causation,” I mean did the accident cause a particular injury or symptom suffered by the injured person.
In a recent case we represented a woman involved in a head-on collision. There was no question that she had significant bruising on her shoulder following the accident. However, there was a significant question whether the head-on collision had caused the tear in her rotator cuff.
A couple of months before the accident our client injured her shoulder picking up a child. She received treatment for the injury. A doctor’s note on the day of the collision – in fact, only a few hours before the collision – noted that over several months our client had experienced no improvement and her shoulder was so tender she would not let even the doctor touch it. The doctor ordered additional imaging to see if there was a tear.
Not surprisingly the insurance company argued that the rotator cuff tear pre-existed the head-on collision. Fortunately, we were able to enlist the assistance of the client’s doctor who testified that on a more likely than not basis, with reasonable medical certainty, her rotator cuff was not torn prior to the accident.
Based on this testimony we were able to obtain a favorable settlement. If the case were to go to trial, however, invariably the insurance company would hire what is loosely referred to as an Independent Medical Examiner. This person would testify that, despite the doctor’s testimony and based on the medical records, it was apparent the rotator cuff was not caused by the collision and rather pre-existed (albeit in an undiagnosed condition) the head-on collision.
In successfully prosecuting a personal injury case, not only is it important to have a good command of the law, but also to be able to persuasively interact with client providers. When causation is at issue, as is usually the case, it’s essential to make sure that all favorable witnesses are enlisted and their testimony is elicited early.