This morning the Miami trial lawyer finds himself in the absolutely charming town of Roslyn, New York. Nestled in the North Shore of Long Island and only a short drive from the throbbing metropolis of Manhattan, it seems as if I have literally stepped back into a time when the pharmacist knew your name and the movie theaters only had one screen. The street is peppered with restaurants, boutiques, and a gorgeous bakery called Diane’s. In what looks like an old house, its two floors carry the scent of fresh baked breads and pastries and the sounds of jazz. Cecelia, one of the bakers, was kind enough to allow me to sit in a corner and write this blog a half hour before the blinds went up and the store officially opened. Her warm smile and the hot coffee they serve will make Diane’s my favorite new place in Roslyn. Para leer en español haga clic aquí.
Car Accident Case of the Day: Brown V Lunskis
And now for the case of the day: An example of how a small car accident cases in Florida can turn at trial into a battle of the experts on the issue of whether or not the claimant has suffered a permanent injury. After more than 20 years of representing people who have been hurt or killed in traffic accidents in Florida, rarely have I seen a question of permanency result in favor of a plaintiff. That issue is so hotly contested because under Florida law, in order for victims to get money for pain and suffering, they have to prove they have been permanently injured, at least to some degree, as a result of the accident.
In serious or catastrophic accidents, permanency is not difficult to prove. In other words, when the accident causes huge damage to a car or truck and the injuries are obvious, such as fractures or worse, the issue of permanency is not difficult for a jury to see and understand. The problem arises in minor impact, soft tissue cases (MIST), where the injuries are hard to see and understand, such as in the case of a Michael Lunskis, a 50-something-year-old retired librarian, who was hit by Brittany Brown on his way a doctor’s appointment. Ms. Brown was driving her father’s car when she turned left at an intersection and collided with Mr. Lunskis, causing $1,660.70 worth of property damage to his 1996 Mazda.
No Police or Ambulance Was Called to the Car Accident Scene
No police car or ambulance was called to the scene. Both parties were able to drive away from the accident in their own cars. It is unclear if Mr. Lunskis made it to his doctor that day, but the record indicates he received no medical treatment or care on that day for the accident. The next day, however, he felt “achy” but still did not seek medical care for another week. He ended up being referred by his primary care physician (PCP) to Dr. Creighton, a doctor who treats primarily car-accident victims at her injury clinic. The clinic doctor prescribed him medication and physical therapy for months and months.
This sounds like a typical soft tissue case in Florida, with minor property damage–until Dr. Creighton ultimately referred him to an orthopedic surgeon, who diagnosed him with a left knee injury consisting of a strained ligament, torn meniscus, and a Baker’s cyst. The orthopedic surgeon performed arthroscopic surgery on his knee and testified that he believed the injuries were caused by the car accident. Now he had a mild-impact case that allegedly resulted in a knee operation.
Car Accident Case Goes To Trial
Not surprisingly, the case went to trial, as given the minor impact and the delay in diagnosis and treatment, most auto insurance companies in Florida will view these facts as defensible on the issue of causation of permanency. In other words, his reconstructed knee clearly would classify him as having a permanent injury, but a very strong argument can be made that it was not “caused” by the accident, in light of these facts. Such scenarios are quite typical in terms of what I have experienced investigating hundreds of similar cases.
At trial, in addition to his knee injury, Mr. Lunskis claimed to have sustained back and neck distress, as well as bilateral temporomandibular joint syndrome (TMJ). Not surprisingly, the Browns maintained that the problems in his back and knee were long-standing degenerative conditions due to age and were unrelated to the accident. At trial the jury heard testimony from both Mr. Lunskis and his doctors as well as expert consultants–inaccurately called independent medical examiners (IME)–who were hired by the Browns’ insurance carrier to testify on whether or not his injuries were permanent and caused by the crash. In the end, the jury found no permanent injured but awarded him $58,763.43 in medical bills, which I imagine were all due and outstanding for his knee surgery and other treatment.
After the verdict, Mr. Lunskis was able to persuade the trial judge that both the judge and jury were wrong not to have found that his TMJ was caused by the accident, as the Browns failed to put forth any evidence or witnesses’ testimony to combat his experts’ opinions that they were entitled to a directed verdict on the TMJ claim. Directed verdicts are properly ordered only on factual disputes requiring a jury to decide.
Case Was Appealed and the Appellate Court Reversed the Verdict
An appeal followed to Florida’s 2nd District Court on the grounds that the trial judge erred in granting this extraordinary post-verdict motion regarding the TMJ. Oddly, at trial the only one who testified about the TMJ was Dr. Creighton, who apparently referred Mr. Lunskis to a TMJ specialist, but Mr. Lunskis never went. He also never mentioned having experienced any TMJ pain. The appellate court reversed the trial court’s post-verdict directed verdict based on three critical reasons:
- The Browns’ IME witnesses’ testimony that Mr. Lunskis did not have a “permanent injury” was itself reason enough to create a jury issue.
- Dr. Creighton is not an expert on TMJ, and therefore her credibility and ability to diagnose TMJ created a jury issue.
- Dr. Creighton testified without knowing all the facts. Apparently, she was never told by Mr. Lunskis that he had historical dental problems, a condition which may have affected her opinion on his TMJ, as dental problems are commonly associated with TMJ symptoms.
Whenever a doctor who testifies in a case like this is not given all of a patient’s’ medical history, the opinions are rejected by a jury. You can read the entire opinion in the case of Lunskis v. Brown here.
This case, like many others, shows just how difficult and expensive it is for both parties to prove injuries are related and permanent. I believe that one of the primary reasons the jury did not find permanency here was the delay in seeking medical care as well as the delay in the ultimate diagnosis and surgery. This is one reason why our office always works closely with our clients to ensure they seek immediate medical care from qualified doctors in their individual specialities. It is not uncommon for our office to refer our clients simultaneously to multiple different specialists–such as orthopedic surgeons, neurologists, neuropsychologists, and pain management physicians–so that they can benefit from a team approach to diagnosing and treating their injuries.
We are passionate about helping traffic accident victims obtain the full value of their claims, including medical expenses, lost wages, and compensation for pain and suffering. If you have been involved in a car, motorcycle, bicycle, truck, or pedestrian accident in Florida and have questions or need our help, please email me, Spencer Aronfeld, or call our experienced personal injury lawyers today at: 866-597-4529. We offer no-cost consultations 24/7. Our office is currently representing people in cases in Tampa, Orlando, Jacksonville, Daytona Beach, Fort Myers, Sarasota, Palm Beach, Hollywood, Fort Lauderdale, Miami, Homestead, and Key West. Let us be there for you, too.