Case details

Defense claimed plaintiff over treated his alleged neck injury





Result type

Not present

head, headaches neck, neck, neck injury, whiplash
On Dec. 4, 2010, plaintiff Rees Roberts, self-employed man in his 40s, was driving in the right lane on DeAnza Boulevard in San Jose. DeAnza is a two-way street with three lanes in each direction. Roberts’ family were passengers in the vehicle. As Roberts’ vehicle was passing the exit for a parking lot near an Indian grocery store, going approximately 30 mph, it was broadsided on the passenger’s side by a vehicle operated by Jayanthi Prakash, who was exiting the parking lot. Roberts’ vehicle was not totaled and his airbags did not deploy. However, Roberts, who was seat-belted at the time of the accident, claimed he suffered a neck injury. Roberts sued Prakash, alleging the defendant was negligent in the operation of the vehicle. Prakash conceded liability., Neither an ambulance nor the police came to the scene of the accident, and Roberts did not report any injury to the investigating officer. However, Roberts, who was 5-foot, 10-inches tall and weighed 268-pounds, claimed to his head and neck, where he allegedly first experienced pain one to two hours after the accident. He later claimed he experienced pain in his left arm. Roberts has been a Kaiser member continuously from the time of the subject accident to the present. He did not start treating until Dec. 7, 2010, three days after the accident, when he presented to his treating internal medicine physician, Dr. Richard Hopf, of Kaiser. During an exam by Hopf that day and another exam the following day, by Roberts’ other treating internal medicine physician, his primary care physician, Dr. Dharti Patel, Roberts was found to have tenderness in his neck and back, but had full range of motion. However, Patel diagnosed Roberts with a neck whiplash injury based on the subjective complaints and tenderness on exam. It was also determined that Roberts’ neck pain was caused by the subject car accident. However, Roberts denied there was any shoulder pain, back pain, or radiating symptoms, such as numbness, tingling and weakness at that time. As a result, Patel prescribed Flexoril, as needed, and ordered a health checkup. Roberts subsequently had a neck X-ray, which showed a muscle spasm, but Patel did not review the film, as she relied on the radiologist’s opinion. Following the exam, Roberts was anticipated to have a full recovery in two or three weeks to two or three months. Patel also instructed Roberts to return if his condition worsened. On Dec. 23, 2010, Roberts returned to his primary care physician, Patel, complaining of stiffness, intermittent burning over his neck, and intermittent clicking. He again denied there was any numbness, tingling or weakness, and also claimed he had no headaches. On exam, the only positive finding was objective tenderness. However, Patel was unable to replicate the clicking, cracking, popping or instability Roberts reported to her. In addition, Roberts was again found to have full range of motion in his neck and shoulder. Thus, Patel assessed Roberts with a neck whiplash injury, prescribed Vicodin, and referred Roberts to physical therapy. On March 10, 2011, Roberts again returned to Patel. This time, Roberts complained of a rash, constipation from the medication he was taking, and possible neck complaints. Patel did not note any symptoms regarding the car accident in her record, but again noted Roberts had full range of motion in his neck. Thus, she assessed him with eczema, neck strain and high blood pressure. By custom and practice, Patel asked Roberts if he had neck issues based on her prior exam, and Roberts reported he did have neck symptoms. He did not initiate the reporting of neck symptoms to Patel. Roberts also reported that he missed his prior physical therapy appointment and he requested a re-referral to physical therapy, which Patel provided. Thereafter, on March 21, 2011, Roberts started physical therapy at Kaiser, based on the referral. During therapy, Roberts reported that his pain was a four out of 10, but the physical therapist opined that Roberts’ neck range of motion was normal. While Roberts was going to Kaiser for treatment, he was also treating with his chiropractic expert. On March 21, 2011, more than three months after the subject accident, Roberts started chiropractic treatment with his treating chiropractor, whom he had previously sought treatment from for tension headaches, and neck and lower back pain. At Roberts’ first visit to his chiropractor, the chiropractor noted Roberts had limited range of motion in his neck. The plaintiff’s treating chiropractor spent an average of 10 minutes per visit with Roberts and the treatment allegedly provided minor, short-term relief. The chiropractor again noted limited range of motion on March 30, 2011. On April 6, 2011, Roberts followed up at physical therapy, having missed his prior physical therapy appointment. Thus, he had missed two of his three physical therapy appointments before this visit. However, Roberts reported that he was seeing a chiropractor twice a week for the prior three weeks even though his primary care physician did not refer him to the chiropractor. During this appointment, Roberts’ range of motion may have been full on exam by the physical therapist, but Patel could not tell for sure, based on the note. The chiropractor again noted limited neck range of motion on April 8, 2011 and April 13, 2011. In between those dates, on April 12, 2011, Roberts returned to Patel, complaining of neck pain and intermittent radiating symptoms to his left arm. However, he reported he had full range of motion, and he denied numbness, tingling or weakness in his arm, hands and fingers. Objectively, his only positive finding was tenderness. Thus, Patel assessed Roberts as having chronic neck pain, based on Roberts’ subjective complaints and tenderness on exam. She also diagnosed him with chronic headaches, based on Roberts’ subjective complaints only. As a result, Roberts underwent a brain MRI on April 27, 2011. Patel felt it did not show any positive findings related to the subject accident, but she did not review the film, as she relied on the radiologist’s opinion. On May 2, 2011, Roberts underwent a neck MRI. Again, Patel felt there were no significant abnormalities related to the subject accident, but again relied on the radiologist’s opinion and did not review the films. Roberts testified that Patel and the two rehabilitation spine specialists at Kaiser all told him the MRIs were negative. Conversely, Roberts’ chiropractor told Roberts his neck MRI showed a bulge. Roberts returned to Patel on May 9, 2011, reporting a rash. He also reported his neck had improved and he denied having headaches. The only positive objective finding that day was the rash, as he had full range of motion in his neck and no tenderness to palpation. Thus, Patel assessed Roberts as having a rash, and noted the headaches and neck pain had resolved. Since this meant he was symptom free, the plan was to continue with the medication for one to two months, and then taper it down. However, Roberts contacted Patel again on July 11, 2011, due to ongoing neck pain for more than three months. He claimed he wanted a referral to an orthopedic surgeon to go over his MRI because his chiropractor felt he had a disc issue. However, on July 14, 2011, Roberts told his Kaiser doctor his pain was 0 out of 10 with the medication. On Sept. 29, 2011, Roberts underwent a nerve conduction study, based on a referral, and was told there were no obvious positive findings. He then treated with another internist at Kaiser for a cough and fever on Nov. 12, 2011, and his neck was noted as being supple with no positive objective findings that day. Roberts then followed up with his primary care physician, Patel, on Jan. 27, 2012, regarding a chest X-ray. During the visit, Patel examined Roberts’ neck and noted no positive objective findings on exam. Roberts again followed up with Patel on April 12, 2012, in regard to bumps on his upper back. At that time, Roberts requested a refill of his neck pain medication and requested a second opinion regarding his neck. Patel did not examine Roberts that day, but assessed him with folliculitis regarding his bumps on his upper back and chronic neck pain. Roberts treated with a physiatrist at Kaiser on April 19, 2012, based on Patel’s referral due to Roberts’ request for a second opinion regarding his neck pain. Roberts reported the subject accident and noted his pain did not start immediately. He denied he was in litigation, but reported he was dealing with insurance issues related to the accident. In particular, Roberts stated he was frustrated with there being no definitive diagnosis and no answer regarding the chronicity of his pain problem. Patel claimed she most likely previously told Roberts that there was no explanation for why he continued to have ongoing symptoms because on exam and in his MRIs there were no significant findings. However, Patel could not state for sure that she had told Roberts that, but she did concede that the chart notes were consistent with her having done so, and by custom and practice she would typically do that. Roberts again denied numbness or tingling in his arms. Roberts once again returned to Patel with complaints of neck pain on Aug. 7, 2012. He reported the medication helped, but he had mild, daily headaches. Objectively, the only positive finding was neck tenderness. So, Patel again assessed Roberts with chronic neck pain and refilled his medication. She also assessed him with a headache. On Oct. 30, 2012, the plaintiff’s expert chiropractor completed a report, noting Roberts had limited range of motion in his neck. During Roberts’ last exam at Kaiser, he claimed he continued to have symptoms and was 0-percent improved. Roberts has not treated with any health care provider for his alleged in 2013. However, he claimed he has not improved at all with respect to his headaches and neck pain. He also claimed that he continues to have daily headaches and neck pain that are a three or four on a zero-to-10 scale, but that his left arm problem resolved in 2011. Roberts claimed that as a result, he is limited in playing with his children, carrying his 5-year-old child on his shoulders for more than 10 minutes, and doing home repairs. He also claimed the medication affected his vision, causing blurry vision, and affected his sex life with his wife. Specifically, he claimed he would have to stop in the middle of sex and then start again. Roberts sought recovery of $9,993 in past medical costs from Kaiser and $1,359 in past medical costs from his chiropractor. He also sought recovery of future medical costs, as well as recovery of damages for his pain and suffering. Defense counsel contended that Roberts’ physicians are more qualified to comment on Roberts’ MRIs than a chiropractor. Counsel noted that Roberts’ treating primary care physician, Patel, claimed that the treating chiropractor’s range-of-motion findings were inconsistent with her, and the other reputable Kaiser health care providers’, repeated findings of full range of motion in Roberts’ neck. Defense counsel also noted that Patel also claimed that the chiropractor’s chart notes stating that Roberts had limited neck range of motion were inconsistent with her Kaiser chart notes and exams, as well as those of the other doctors and physical therapists’ at Kaiser, in which they noted that Roberts had full range of motion. Thus, defense counsel asserted that Roberts over treated, and that Roberts’ visits on Nov. 12, 2011, and Jan. 27, 2012, were consistent with full recovery. Defense counsel contented that prior to the accident, Roberts had head and neck symptoms for years, which Roberts’ treated with his chiropractor. Counsel contended that Roberts reported that he had head and neck symptoms once every three months, which rated as an eight or nine out of 10. Counsel further contended that Roberts was working 50 to 70 hours per week at that time and attributed his head and neck problems to work stress. Thus, defense counsel asserted that Roberts’ records showed that Roberts had neck and back pain for years before the subject accident. However, Roberts claimed he did not have any left arm symptoms before the subject accident.
Superior Court of Santa Clara County, Santa Clara, CA

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