Jury Awards $267,500 for Auto Accident Victim
Sunday, July 1st 2007
Each year thousands of people suffer injuries not detectable through traditional means, such as x-rays, CT’s or MRI’s. Whiplash and other soft tissue trauma fall into this category. Yet, the injuries exist and can cause chronic, sometimes debilitating pain. Many are led to believe that soft tissue injuries are not worthy of legal prosecution for compensation due to low medical expenditures (surgery is typically not required), vague or transitional limitations, and of course, our inability to point to an x-ray and prove an obvious injury. This is simply not true.
At age twenty-seven, life was full of all the promise a young newlywed woman could imagine. A short drive to the library after work in 2002, however, sent both her dreams and automobile into an uncontrollable spin when another car ran a stop sign and struck her.
Soft tissue injuries to her neck, shoulders and upper back were the result of acute strain and sprain of muscles; a condition associated with chronic pain, and in this case, assisted only by long-term therapy and medication for pain management. By trial in April 2007, she had exhausted all avenues of viable treatment alternatives.
Unwilling to forego the life she had planned with her husband before the accident, and determined to somehow rise above her physical limitations, she pushed through the pain and later returned to school as planned, earning her teaching degree. Her accomplishment in the face of painful adversity, however, brought criticism by attorneys for the insurance company, citing it was proof of a life uninterrupted by injury.
The driver of the car who struck her never denied responsibility for the accident, but lawyers for the Defendant, State Farm Insurance, continued to deny that there were injuries. Without clear evidence from an x-ray, which is impossible with soft tissue damage, combined with a limited out of pocket expense of $9000 for outpatient pain management, the Defendant argued that the Plaintiff was not entitled to receive any monetary judgment, requesting an award of zero.
Over the course of three years prior to trial, attorneys Valerie Barich and Ari Telisman of Horwitz, Horwitz & Associates, Ltd, tried to negotiate with the insurance company for the policy limits of 50,000, or a sum reasonable to their client’s needs, but the insurance company refused and/or ignored all negotiation attempts.
"The insurance carrier was betting that we would sell the case short and be beaten down to accept an amount under $50,000, rather than spend the money it takes to go to a jury trial. However, our firm tries more cases before a jury than most law firms,“ Says Barich. “It's a lot more work, but that’s why I got into this profession in the first place.”
During the years following the accident, the Plaintiff discontinued the use of pain medication for extended periods of time, initially because she underwent surgery for possible kidney cancer in which a kidney was removed. Pain medication was deemed detrimental to her care and the surgical procedure; so acting upon her physician’s recommendation she endured without relief from pain medication. She also became pregnant and thus, discontinued her pain medication through term. The insurance company pointed to these two extended time periods as evidence that she was in fact able to live without pain medication by choice. Barich and Telisman convinced the jury otherwise.
According to Ms. Barich, “Pain medication posed significant risk to our client’s unborn child, so there was no alternative but to forego it during her pregnancy. The medication also posed significant risk to her personal health during the crisis surrounding her kidney disease and subsequent surgery for kidney removal, thus forcing her to endure enormous levels of pain without adequate relief. Neither incident,” Barich added, “should be considered a casual choice by our client not to medicate for pain, but rather a testament to this young woman’s will despite incredible difficulty and prolonged suffering.”
The attorneys for State Farm Insurance also argued that the Plaintiff had declined more aggressive, alternative therapies, such as surgery, and often did not see her physician for extended periods of time. “Patients have the right to discuss aggressive, alternative treatment options with their physician, weigh the risks and disability/recovery time involved, and determine the treatment plan they’re most comfortable with.” Says Telisman. “They’re under no obligation to pursue all options, including surgery, to appease an insurance company when the risk factors are great, and for which a successful outcome can not be guaranteed. In consultation with her physician, our client determined that the possible benefit of such options (however impossible to predict) did not outweigh the risk and/or rehabilitation requirement. Her current treatment does not require frequent office visits, nor are the frequency of such visits a measurement of her pain.”
Life today remains as it has been for five long years following the accident; a daily exercise in pain and challenge. Still, this case was not based on what their client could or couldn’t do, but more so the fact that whatever she does in the course of her life is done in the presence of pain. Attorney Telisman explains, “Through no fault of her own, our client’s day begins and ends in pain without a prognosis of recovery as a direct result of the actions taken by the Defendant’s client. End of story.”
Speaking to their client’s ability to pursue a full life in spite of her pain, the Horwitz team cited John F. Kennedy, who became President despite years of chronic back pain that required heavy medication and long periods of bed rest, as well as Helen Keller, regarded as the most famous advocate of life beyond disability.
What the attorneys for the insurance company failed to acknowledge was the vast expertise now available regarding soft tissue injuries and the specialty physicians whose medical practice is dedicated to pain management for such victims. The only expert witness during trial was the Plaintiff’s treating physician; a Triple Board Certified physician of Chronic Pain Management.
“In addition to their arrogant display of contempt for our client’s enormous courage to make a better life for herself and her family despite incredible pain,” Barich explains, “the Defendant’s attorneys had ignored the vast amount of knowledge available today regarding soft tissue injuries and the field of pain management.”
Such arrogance, however, was not lost on the jury, nor was the testimony of the Plaintiff’s physician. The jury awarded the Plaintiff $267,500; a far cry from the $50,000 offered by the insurance company attorneys the day before trial began.
“There’s a great lesson to be learned here,” says Telisman, “in that many people suffer from injuries that are difficult to define and even harder to treat from a pain management perspective. It does not mean, however, that injuries have not occurred, or that their right to seek a remedy through the courts are any less viable. Juries understand and are willing to acknowledge the presence of pain regardless of one’s level of disability, even if insurance company lawyers don’t. To her credit, our client faced her pain with courage and grit. The arrogance and unwillingness of the insurance company to acknowledge this played a very large role in the jury’s decision …and rightfully so. We’re grateful to the jury and pleased with their decision.”
Managing Partner and Lead Trial Attorney, Cliff Horwitz, welcomes your comments on this article and can be reached at (866) 228-5016 or by visiting http://www.horwitzlaw.com.