Vegas Personal Injury Law Blog

Recently, I reviewed a Federal  case that was posted on the Nevada Justice Association list-serve.  This 9th Circuit case interpreted Arizona law regarding the testimony of treating physicians. This decision answers the question:  When does a treating physician’s testimony morph him into an witnesses hired to render expert opinions? If a treating physician renders opinions that go beyond the usual scope of a treating doctor’s testimony, the proponent of the testimony must comply with FRCP 26 (a) (2), which requires a full-fledged expert report stating opinions and the bases for those opinions.

A treating physician is not considered an expert to render expert opinions when his testimony is confined his examination, diagnosis and prognosis of the patient. That testimony is not considered specially retained expert opinion.  But, once the lawyer for the claimant undertakes to elicit an opinion from the physician concerning whether or not a particular traumatic event caused the condition, as opposed to another cause, the physician has been transformed into the type of expert envisioned by the report requirement of FRCP 26.

Treating physicians are often confused about the difference between their role as a  treating physician and their role as an expert witness.

An expert witness is one retained to provide expert testimony in a case.  Generally, the treating physicians are excused from the requirement of this procedural rule requiring a party to timely disclose an exert witness.  A treating doctor may be provided with additional documentation by plaintiff’s counsel.  He may be asked to opine on matters outside the scope of treatment that he provided.  This may involve rendering opinions on the medical care rendered by other physicians.

Physicians are allowed to testify to opinions they formed in the course of caring for the patient.  As soon as the treating physician reviews bills and records outside of what is normally in their file, they become a hybrid expert.

The 7th circuit recently held that a treating physician, who is offered to provide expert testimony as to the cause of the plaintiff’s injury, but who did not make that determination in he course of providing treatment, is required to submit an expert report under FRCP 26(a) (2). The 8th Circuit requires the disclosure of a written report at any time a party seeks to have a treating physician testify concerning the causation of a medial condition, as opposed to merely the existence of a medical condition.

Therefore, it appears that a treating physicians are only exempt from the written report requirement when their opinions are confined to their  course of treatment of the patient.

The Nevada Rules of Civil Procedure provide for  expert disclosure dates deadlines for the exchange of initial expert disclosures.  Rebuttal disclosures are usually due 30 days  after the initial expert disclosure deadline.  Failure to meet these deadlines can be fatal to personal injury case.

So, the treating physician should always assume that his written report will be required in any normal litigation case.  Normal litigation involves those cases that are exempted from arbitration program, and involve damages in excess of $50,000.00.

In Nevada, in cases where damages have a value of $50,000.00 or under,  go first go into the mandatory Court Annexed Arbitration program.  If either side appeals, (assuming no exemption),  the case then automatically goes into the short trial program (one day trial). Although a report may not be essential in an arbitration or short trial case, a  report can be entered as evidence in the arbitration/short trial, and the physician does not need to testify.

If the case involves emergent care, chiropractic treatment or physical therapy, diagnostic testing and  treatment by a M.D. or a D.O., then the M.D. or the D.O. in heir discharge report should comment on causation,  the medical necessity of treatment of all of the patient’s providers, as well as and the reasonable and customary nature of the charges of all providers.

NRCP 16.1 requires the expert report to contain a complete statement of all opinions of the expert,  the basis and reasons for his opinions, the data or other information considered by the expert in forming his opinions, any exhibits or information that he reviewed to support his opinions, the qualifications of the expert, including a list of all publications authored by the expert within the preceding 10 years, the compensation to be paid for his review and testimony, and a list of other cases in which the witness testified as an expert at trial or by deposition, within the preceding four years.

Therefore, a treating physician’s perfect discharge report should cover the physician’s opinions concerning the causation of the patient’s injury (stated to a reasonable degree of medical probability), the medical necessity of the patient’s treatment and the reasonable and customary nature of the charges for all of the patient’s medical treatment. All physicians that are involved with treating  personal injury victims should have a current CV, testimony list, and fee schedule prepared for use in litigation cases.

Therefore, in most personal injury cases involving litigation, the treating physician will be considered to be  at least a hybrid expert. Treating physicians should look at the format for their narrative and discharge reports to see if it meets all of the requirements of an expert report as stated in this blog.

Between the dates of September 5, 2008 and October 9, 2008 five infants, all under the age of 3 months died from similar symptoms.  Each of the infants lived in a separate building of this Section 8 apartment complex. One infant died in each five of the  separate  buildings of the six-building complex.

All the infants passed away within one week one week of experiencing the first symptoms.

Adults living with the infants experienced skin rash similar in appearance to poison ivy, fatigue and headaches.

It is reported that weird looking flies appeared from the air conditioning ducts.

The pesticide utilized in these buildings possibly contained Bifenthrin. A product sold by Nu-Calgon was used to clean the coils of the apartment air conditioners. The Nu-Calgon product consists of aqua ammonia, diethylene glycol monethyl ether, etheline glycol, n-butyl ether tetrasodium EDTA, caustic soda sodium metasilicate, sodium nitrate, butane and propane (volatile components are butane and propane).

Just prior to Thanksgiving 2008 all of the air conditioning duct work, water heaters and water heater water lines were replaced in these apartment buildings.

Toxic mold, Sudden Infant Death Syndrome and Radon have been ruled out as causes of death.

As revealed by autopsies, common symptoms and pathology  experienced by the infants prior their death were as follows:

Some prospective clients expect the attorney to get all their documentation. This undoubtedly will slow down the progress of their claim. Others are very meticulous and come to initial appointment very prepared. Obviously, this preparation will expedite the successful conclusion of their claim.

This Blog will provide you with valuable information so that you can be fully prepared for your initial consultation with your attorney. Your attorney will be impressed if you provide him with all this documentation at your initial consultation.

1. The Accident Report.

One of the most important documents in assessing the liability aspect of a personal injury claim is the accident report. On auto accident cases, the traffic accident report contains useful information concerning the identity of the involved vehicles and the identity and contact information for the parties for your attorney to report your claim to your insurance carrier and the adverse insurance carrier. It contains information concerning how the accident occurred, the issuance of citations and factors contributing to the occurrence of the accident. This information is helpful to the attorney in determining who was at fault for the accident. It can provide information on comparative negligence. (Sometimes, more than one driver causes an accident.) Contact information of independent witnesses is also contained on the report. Before an adverse insurance company will pay for your property damage, they need to take a statement from their insured and/or driver; and, they need to have a copy of the traffic accident report.

Unfortunately the traffic accident report will not be available from law enforcement agencies in Las Vegas for approximately ten days to two weeks after your accident. If the accident involves a DUI or hit and-run, the report won’t be available until the accident investigation is complete. It may take a month or longer before these reports are available.

Your investigating officer should give you a computer printout that has the identity of the drivers, owners and passengers; and, the names of the auto insurance companies and their telephone numbers of the insurance companies, or the insurance agents or brokers. No addresses or telephone numbers of the drivers are contained on the printout. The is printout also contains the event number which will be helpful to your attorney in obtaining a copy of our traffic accident report, so bring the printout to your attorney.

On premises liability cases, the business owner or managers may complete an accident report. You should always request a copy. If you fill out a statement always request a copy. Most businesses will not give you a copy of their report. In most cases, your attorney will not be able to get a copy of your report until after litigation has been commenced. So, be persistent and assertive about getting a copy of your report. This report is helpful to our attorney for the same reasons that an auto accident report is helpful. Casinos are generally self-insured, so you generally do not find insurance information on premises accident reports.

2. Your notes regarding the accident.

Your notes will contain information concerning the details of the accident, what happened at the accident scene, your symptoms and how they came on, the effect the injury is having on our daily life, witness identity and contact information, license plate numbers and conversations with involved parties. This is why it is important to keep a pen and writing pad in your car. Your notes may contain the names and addresses of your medical providers. You should bring your notes with you to your attorney consultation. I find that most people don’t know or can’t remember which ambulance company transported them the hospital. Your notes may contain this information. Your notes also may contain information about how your body moved during the collision, or may contain a description of any contact your body made with the interior of your vehicle.

3. Photographs.

It’s a good idea to keep a disposable camera in your car in case you’re involved in an accident. Today, almost everyone has a cell phone. Most modern cell phones contain a digital a camera. A picture is worth a thousand words. So, take some photos of your vehicle, and the other vehicles involved in the accident. Take a picture of the adverse driver and his passengers, his license plate, especially if there is an issue concerning who was driving the adverse vehicle, or if the adverse driver decides to leave the scene.

You should also provide the attorney with photos of your visible injuries. Some visible
injuries will dissipate with time. Some may not appear until the next day. (Black and blue marks and swelling). Some injuries, like seat belt injuries, may appear on or near your private parts. These photos, if they have to be taken at the attorney’s office, may be embarrassing to you, or they may be inappropriate to take at the attorney’s office.

4. The Declarations Page of Your Auto Insurance Policy.

This document is something that you get as every six months from your carrier. It is sometimes referred to as a premium renewal notice. This document is helpful into to your attorney in determining what coverages that you have available for the accident, such as med pay, uninsured/underinsurance coverages and collision coverage and the applicable deductible. If you have an umbrella policy bring a copy of that dec page with you. Umbrella policies should provide you with additional uninsured/underinsured coverages. If you reside with any relative that has auto insurance on their vehicle, bring that dec page, because their auto insurance may apply to afford you with additional coverage, especially when your injuries are severe.

5. Your Health Insurance Card.

Your attorney needs to know if your have health insurance available to pay your medical bills. The interplay between your health insurance coverage and your med pay can literally save you thousands of dollars on a n auto accident claim. Also, your health insurance will likely have a subrogation lien associated with the use of your health insurance on an auto accident claim. (Note: some private health policies do not contain a subrogbation clause.) To inquire about subrogation liens, your attorney will needs an address or telephone number, which will be found on your health insurance card.

6. Medical Bills or Records.

You may be given discharge instructions from the hospital. These may contain your patient number or medical records number which will be helpful to your attorney in ordering your emergent bills and records. Bring your prescription receipts. Pharmacies will charge exorbitant fees to produce copies of your prescriptions, so bring these receipts to your attorney.

7. Pay Stub.

If you missed work, or will miss work because of your injuries, your attorney will need this info to verify your wage loss, Your pay stub will contain contact information concerning the entity that processes our payroll. This can be an in-house or an independent company.

8. Clothing or Damaged Clothing.

If you are involved in a slip/trip and fall accident the shoes that you were wearing are an important piece of evidence. Provide your attorney with the shoes of photos of them. These shoes should not be discarded until your claim or case has been completed.

If your clothing was damaged in a slip/ trip and fall or auto accident, this can provide proof concerning the severity of the fall or collision and the location of your injuries.

Beginning July 1, 2009, Medicare Secondary Payor requires insurers to report any settlement, judgment or award to Medicare. Failure to report any settlement, judgment or award will result in a $1,000.00 per day penalty to the insurance company. Medicare Secondary Payor can sue for double damages, plus interest. The suit can be initiated against the insurance company, the Medicare beneficiary and his or her attorney, as well as the physician, if the settlement of the claim or suit does not protect Medicare’s subrogation interests.

Medicare is now contacting auto insurance liability insurance companies notifying them that funds be held for payment of Medicare liens. This may even include funds for payment of future medical services. If this happens, the attorney will probably receive a settlement check with Medicare’s name on it. This will certainly complicate and delay the settlement distribution to the medicare beneficiary.