Case details

Defense claimed plaintiff over-treated her minor injuries





Result type

Not present

neck, shoulder, soft tissue
On Dec. 21, 2009, plaintiff Cheryl Chin, 33, a marriage and family therapist, was operating her 1985 Honda Accord on northbound Interstate 80 when traffic came to a stop. As a result, a 2003 Chevrolet Tracker operated by Gloria Downs rear-ended Chin’s Accord. The police were called to the scene, but neither party requested an ambulance. Chin claimed soft-tissue of her neck and left shoulder. Chin sued Gloria Downs and the co-owner of the Chevrolet Tracker, Michael Downs. Chin initially alleged that Ms. Downs was negligent in the operation of her vehicle and that Mr. Downs was vicariously liable for her actions. However, the case ultimately continued against Ms. Downs only. Ms. Downs claimed that she applied her brakes, but was not able to avoid rear-ending Chin’s vehicle. Thus, she admitted liability., The day after the accident, Chin presented to the minor injury clinic at Kaiser Permanente Walnut Creek Medical Center and was diagnosed with a neck muscle strain. On Dec. 30, 2009, Chin first treated with myofascial release massage therapy. She then continued with massage therapy for over 80 visits, as well as physical therapy, pain management, acupuncture and chiropractic treatment for over 24 visits with two separate providers over the following three years. Chin claimed that her current symptoms include pain in her neck and the left, upper shoulder region of her back. She also claimed that she has difficulty carrying groceries and other heavy items up several flights of stairs to her condominium. She also claimed to have trouble lifting and playing with her 2-year-old daughter. However, Chin did not miss any time from work, but she claimed that working with small children has become difficult due to her . She claimed that although she continues to ice skate, she now wears a helmet and is fearful of falling. In addition, Chin claimed that due to her level of pain, she is a “shell” of the person she was before the accident. The plaintiff’s pain management expert reviewed Chin’s medical records, examined her, and opined that Chin had a chronic pain condition related to the subject accident. He testified that Chin’s spine was like a “jelly doughnut full of toothpaste” and that some of the “toothpaste” was likely being squeezed out as a result of the accident and causing her symptoms. The expert also testified that even though Chin did not have any radiculopathy, she could try a cervical epidural steroid injection to see if it helped alleviate her symptoms. However, defense counsel noted that the plaintiff’s expert performs epidural steroid injections in a surgery center under fluoroscopy at a cost of approximately $2,500. Thus, Chin sought recovery of damages for her hospital and medical expenses, and future medical expenses. She also sought recovery of general damages. Defense counsel contended that Chin over-treated and that her treatments were excessive for the type of injury she allegedly suffered. Counsel also contended that Chin did not require an ambulance at the scene and that her physicians initially diagnosed a soft-tissue cervical strain. Defense counsel noted that due to ongoing subjective pain complaints, Chin was referred to Kaiser’s pain management program, where she was diagnosed with myofascial pain syndrome. Counsel also noted that Chin then had treatment for over two years post-accident, even though objective findings supported that she could have only suffered a soft-tissue injury. Defense counsel argued that a soft-tissue injury would have resolved within 12 weeks with proper treatment. In addition, counsel noted that Chin became pregnant post-accident, did not miss any time from work and continued functioning normally in her activities of daily living. Defense counsel noted that Chin confirmed that she stated under oath in her deposition testimony that she gained weight as a result of the accident and that she weighed 130 pounds when the accident occurred. When presented with the medical record from the day after the accident that listed her weight as 164 pounds, she had to admit that her sworn deposition testimony was inaccurate. Defense counsel called the plaintiff’s treating physician, a non-retained expert witness who treated Chin in the spine clinic at Kaiser Permanente in Martinez. The expert, a spine specialist, testified that he was not concerned about the findings on Chin’s cervical MRI study, including a disc protrusion and an annular tear, because those MRI findings were atypical in the population and usually asymptomatic. He further testified that because certain treatments that target the spine, such as medial branch blocks, did not provide significant relief to Chin, he determined that Chin did not have a spine injury and he referred her to Kaiser’s pain management program. The defense’s expert orthopedic surgeon performed a record review and examined Chin. The expert testified that upon examination, Chin exhibited normal range of motion in her neck. She also testified that Chin’s strength was normal, there were no neurological findings, and she found nothing of concern after reviewing the report of the cervical MRI. The orthopedic surgery expert also testified that she identified a chiropractic record where Chin was noted as stating she had neck and shoulder pain “most of her life.” Thus, the expert opined that there were no objective findings to support Chin’s ongoing subjective complaints of pain.
Superior Court of Alameda County, Oakland, CA

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