In the fall of 1988 Julie Miramon was involved in a serious car crash. Subsequently, she experienced symptoms of anorexia, gastroenterological problems, stress, and she became fearful when she had to drive. In January of 1990 she sought treatment from a team of professionals, including a nurse, psychiatrist, dietitian, and specialist in internal medicine.
Later in 1990, Miramon was involved in a second car accident. After this accident, Miramon experienced soreness in her neck. Further, several of the health professionals involved in her treatment testified that Miramon's treatment was set back until later that year as she experienced aggravation of her psychological and gastroenterological symptoms. Despite Miramon's treatment, she had difficulty talking about her accidents and did not report the second accident to her doctors, if at all, until some time after the incident.
Miramon brought an action against her insurance company under her policy's uninsured and underinsured driver provision for damages arising from the 1990 accident. The insurance company stipulated to liability and coverage leaving the only issue to be a determination of damages, if any. The trial court, relying on the fact that Miramon's doctors could not isolate the 1990 accident as the lone factor responsible for the aggravation of Miramon's injuries and her failure to immediately report the second accident to her doctors, found that no damages were caused by the 1990 accident and dismissed the case. Miramon appealed.
Holding: The trial court incorrectly denied all damages, and the court reversed the trial court's decision and awarded damages to Miramon. The court acknowledged that Miramon did not prove that the second accident had permanently aggravated her previous injuries. However, the court found no reasonable basis for the trial courts conclusion that no damages resulted from the 1990 accident. The court pointed to the uncontradicted testimony of Miramon and her doctors that the 1990 accident caused minor physical injury and aggravated her medical problems associated with the 1988 accident. The court rejected the trial court's finding that isolation of the 1990 accident as the sole cause of Miramon's injuries was a prerequisite for recovery, nor did the court find it fatal to Miramon's claim that she did not report the 1990 accident to two of the health professionals who were treating her. Thus, the court held that the 1990 accident was responsible for Miramon's minor physical injuries and aggravating her previous injuries and awarded her $760 in medical expenses and $6,000 for pain and suffering.
 | Abraham Halpern, M.D. Professor Emeritus New York Medical College |
Dr. Halpern comments: It is important for the expert employed by the defendant to be aware that there are many relevant factors involved in the assessment of psychological symptoms occurring subsequent to a second accident. Details of the injuries sustained in the first accident must be obtained. Were the symptoms of brief duration? Did they subside completely prior to the case being adjudicated or settled? If the first case is still in litigation, is the plaintiff still complaining of symptoms? Do the symptoms appear exaggerated or is out and out malingering suspected? Following the second accident, are the symptoms complained of similar to the symptoms experienced after the first accident? Do the new symptoms appear to be exaggerated or malingered?
The defense expert should know that plaintiffs expert witness is usually the treating therapist, whose testimony will be stemming from "narrative truth" rather than "historical truth"; that is, the plaintiffs (patient's) account will be given expression through the lips of the "expert" (in reality, a fact witness). When was psychiatric or psychological treatment begun? In my experience, the plaintiff is usually referred for therapy by the plaintiffs attorney for the purpose both of establishing that a mental disorder has occurred requiring treatment and of employing the therapist as an expert in order to avoid the more costly services of a forensic consultant. (The therapist's fees are frequently borne by a health insurance carrier or Medicaid.) The defendant's expert, on the other hand, is usually a forensic specialist who is far more likely than the plaintiffs "expert" to be an impartial evaluator of the claimed psychological injury.
Important factors to be considered are the past history of the plaintiff to determine the plaintiffs vulnerability; whether the patient required treatment in a psychiatric hospital; whether psychotropic medication was required; and whether the patient was compliant with treatment. The defense expert should be careful not to unfairly minimize genuine symptoms merely because the plaintiff has resumed usual activities or gainful employment.
Whenever possible, a comprehensive psychodiagnostic study should be performed by a forensic psychologist. If the forensic expert is a psychiatrist who is restricted to "one bite of the apple," then an objective test such as the MMPJ or the Millon (or both) should be included in the forensic examination.
