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Drinkard v. Hernandez

August 6, 2009

VERA DRINKARD AND BYRON DRINKARD*FN1 , PLAINTIFF-RESPONDENT,
v.
GEORGE HERNANDEZ AND GLORIA HERNANDEZ*FN2, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-320-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: June 9, 2009

Before Judges Axelrad and Winkelstein.

Defendant George Hernandez appeals from a judgment entered on May 19, 2008, after a jury rendered a verdict in favor of plaintiff awarding her $254,000 in non-economic damages, plus pre-judgment interest, costs, and attorney's fees. Defendant challenges the in limine ruling barring his medical expert from testifying because of his failure to read the MRI. We reverse and remand for a new trial.

This case arises out of a motor vehicle accident occurring on January 24, 2005, in which plaintiff, Vera Drinkard, was a passenger in the vehicle operated by defendant. Defendant made a left hand turn in front of oncoming traffic, resulting in impact to the passenger door where plaintiff was sitting. Plaintiff was initially treated for neck and back pain and later experienced pain radiating down her right leg. Plaintiff filed suit on January l3, 2006. Thereafter, defendant admitted liability; at issue was the nature and extent of injuries sustained by plaintiff as a result of the accident.

An MRI was performed of plaintiff's lumbar spine on February 25, 2005, with the radiologist concluding "spondylitic mild canal stenosis at L4-5," and further evidence of internal fixation devices, plates and screws that had been placed in plaintiff's lower back during prior surgery.*fn3 She had an MRI of her right hip and cervical spine on May 2, 2005. The hip was interpreted as normal. According to the doctors who testified, the cervical spine report provided that "[t]here is a very small, right paracentral disc herniation at the C5-6 level with reversal of the cervical lordosis; [r]ight spondylitic change narrows the right neural foramen at C4-5."

Plaintiff treated with Dr. Robert Labaczewski, a general practitioner who performed physical therapy; Dr. Jeffrey Polcer, an anesthesiologist and pain management specialist who injected spinal nerve blocks and surgically implanted a temporary spinal cord stimulator;*fn4 and Dr. Joan O'Shea, a neurosurgeon. Videotaped de bene esse depositions were taken of Drs. Polcer and Labaczewski on November 7, 2007 and January 10, 2008, respectively. Both physicians testified they reviewed the MRI films.

Dr. Polcer's testimony was consistent with the cervical MRI report, opining "the MRI showed a disc herniation at C5-6" and "there is a bulging out[,] putting a little bit of pressure toward the . . . central spine canal. . . . it's not impinging and it's not directly compressing the spinal cord, so I categorize this as a small to possibly moderate size, but it is abnormal." Dr. Polcer further stated the "right spondylitic change" was "more an arthritic degenerative condition." He testified it was his opinion plaintiff suffered a herniated disc in her cervical spine as a result of the accident, although he did not render an opinion in any report to that effect. Dr. Polcer further opined that any arthritis in plaintiff's neck was at the C4-5 level, not at the level of herniation.

As to the lumbar MRI, Dr. Polcer corroborated the radiologist's findings of spondylosis and mild stenosis (narrowing) of the spinal canal and opined the condition pre-existed the accident. He made a determination of lumbar radiculopathy related to the accident based on plaintiff's complaint of back pain with radiation down her right leg and upon a straight leg raising test, not with reference to any type of a nerve impingement reflected on the MRI. Relative to the MRI findings and his diagnosis of radicular pain, Dr. Polcer noted that "[w]hat we don't have is any kind of objective evidence as to whether or not there is inflammation, which there had to have been, and how much inflammation existed as a result of the injury. There is no way to quantify that."

Dr. Labaczewski's testimony based on his review of the MRI films was also consistent with the reports that plaintiff had herniation in two levels of her cervical spine in the neck area as a result of the accident and narrowing of her spine at L4-5 due to the arthritis she had in her lower back. He acknowledged that an MRI is merely a test that says what the condition is and is not determinative of causation.

The defense conducted the de bene esse deposition of Dr. Robert Bachman, an orthopedic surgeon, on January 8, 2008. Dr. Bachman testified that in addition to talking with plaintiff and obtaining her medical history and complaints and physically examining her on December 5, 2006, he reviewed medical records consisting of office notes or letters generated by the doctors who examined her, specifically including the emergency room records and treating doctors' reports; and reviewed diagnostic studies, such as the MRIs, EMG/NCS (nerve construction study) and electrodiagnostic test. Dr. Bachman stated these were the type of medical records he would normally review in rendering treatment, care or diagnoses of his own patients. He acknowledged he did not personally read the MRI films but stated he was unaware of a standard set by either the American Board or American Academy of Orthopedic Surgery "that mandates a personal reading of MRI films in order to render opinions or treat individuals." Over plaintiff's counsel's objection, Dr. Bachman quoted from the radiologist's reports of the MRIs and explained the definitions of "spondylitic," "stenosis" and "neuroforamen" in terms similar to that used by plaintiff's experts.

Based on forty years of experience, the history taken from plaintiff, the medical records he reviewed and the physical examination he conducted, Dr. Bachman opined that plaintiff sustained a strain of the neck and lower back as a result of the accident. When asked whether he made a determination as to whether plaintiff sustained a herniated disc to her neck, Dr. Bachman did not dispute what was reflected in the MRI -- a small disc herniation -- but said he "didn't find a clinical representation of such when [he] examined her." He testified there is a difference between a "clinical" and an MRI finding, commenting that "one never makes a diagnosis on the basis of an MRI" and explaining it has been "well-documented in the literature" over at least the past decade "that there are people walking around every day who have an MRI picture of a dis[c] herniation, yet have no complaints, no history of any injury, and so the only way you can decide on whether it's a dis[c] as a result of an injury or a clinical dis[c] herniation is to do a physical examination to see whether there is . . . any abnormality which the dis[c] is causing." He did not find any. Nor was Dr. Bachman of the professional opinion that plaintiff's "reversal lordosis" (straight spine) was the "probable" result of a muscle spasm.

With regard to plaintiff's complaint of pain down her right leg, Dr. Bachman commented that the MRI of the lumbar spine did not indicate there was a pinched nerve. Dr. Bachman further testified that based on his examination of plaintiff, including the ...


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