Case Study: Allstate tries to deny, delay, and defend. Part #2

Based on Theresas MRI findings, the chiropractor recommended that she undergo an epidural steroid injection by a medical doctor at Radiology Consultants of Washington. Theresas back pain after this injection did not go away, which suggested that perhaps the L5-S1 disc protrusion was not the primary pain generator in her low back.

Theresa was then referred to a spine specialist M.D. in Seattle. This doctor continued to treat Theresa over the next 18 months. He ordered additional physical therapy. Theresa experienced moderate improvement but her low back pain complaints continued. Theresas doctor would later testify that Theresas ongoing symptomatology was consistent with a chronic low back injury. The doctors impression was that Theresa was suffering from a chronic injury to the lower lumbar facet joints. The disc protrusion at L5-S1 was also a secondary pain generator that could not be ruled out.

Theresa received another injection into her lumbar spine. This time the injection was inserted into Theresas facet joints at L4-5. Theresa received a good response to this injection leading her doctor to opine that Theresa likely sustained injuries to her lumbar spine joints at L4-5 and L5-S1.

At trial, Theresas doctors testified that her low back injury was likely permanent given that her pain complaints were constant and continuous over the previous four years. The only treatment options available for Theresa were to minimize or manage her ongoing pain. Theresa was recommended to undergo additional spinal injections. She was also considered a good candidate for a minimally invasive spine surgical procedure known as neurotomy.

A neurotomy is a procedure where a hot needle is inserted into the spine joint. The nerves of the joint believed to be responsible for the patients ongoing pain are then burned away. Unfortunately, a neurotomy is not a permanent procedure. On average, a typical neurotomy will last just 9-12 months before the affected nerves innervate, or grow back.

The defendant was insured by Allstate Insurance Company. In an effort to avoid trial, Theresa submitted her case to the King County Superior Court mandatory arbitration program. In this type of proceeding, the court appoints an experienced attorney to hear a shortened version of the case and then issue an award. Theresas arbitration hearing was conducted on December 10, 2004. She along with her parents and her boyfriend testified at the hearing. Theresas doctors also testified by telephone. The hearing lasted 5 hours. The arbitrator later issued an award in favor of Theresa in the amount of $30,000, which included her past medical expense of approximately $8,000.

The defendant, by and through his insurance carrier Allstate, promptly appealed the arbitration award and demanded that the case be tried to a 12-person jury in King County Superior Court. The defendants attorney (hired by Allstate) repeatedly told plaintiffs attorney that Theresas injury was just a mild soft tissue back strain.

Allstates last and final offer before trial was just $18,000.

The defendant (i.e., Allstate) hired his own doctor, osteopathic physician Patrick Bays, D.O., to examine Theresa and give opinions at trial about her injuries, treatment and current condition. Dr. Bays issued his 10-page report finding that Theresa only sustained a soft tissue back sprain but that all of her treatment was reasonable, necessary and appropriate. Dr. Bays further stated that Theresas MRI findings of the disc protrusion and mild facet arthropathy were unrelated to the automobile collision and instead were caused by Theresas high activity level (i.e., she like to go hiking and snowboarding before the accident).

On week before trial, the defendant videotaped Dr. Bays trial testimony for the purpose of showing it to the jury. It was at this time that Theresas attorney learned for the first time that Dr. Bays was now changing some of the opinions which were set forth in his report. For example, Dr. Bays testified that Theresas medical treatment after she stopped treating for 2 years was unrelated to her injuries. Dr. Bays also testified that the pain complaints Theresa communicated to him were unrelated to her injuries suffered in the car crash.

Theresas attorney later asked the trial judge to exclude the opinions that Dr. Bays had changed in his report due to surprise and violations of the discovery rules. Judge Michael Hayden granted this request. Dr. Bays was prohibited from offering any medical opinion at trial that differed from the opinions he issued in his 10-page report. The attorneys for both parties spent considerable time during trial arguing which parts of Dr. Bays videotaped testimony would be shown to the jury.

Trial commenced on May 23, 2005 and lasted four (4) complete days. The jury then returned a verdict in the total amount of $114,558. The defendants automobile insurance policy limits with Allstate were just $100,000. This means that Allstate will now be forced to pay the excess amount above policy limits.

Because the jury verdict exceeded the amount of the $30,000 arbitration award, the defendant was obligated to pay Theresa's attorney fees and costs. The final judgment amount entered was for $154,212 .

*Name has been changed to protect the clients privacy.