Case details

Plaintiff excessively treated injuries, defense argued





Result type

Not present

back, neck, shoulder, soft tissue
On June 22, 2011, plaintiff Myisha Brown, 25, a clerk for the Department of Motor Vehicles, was in her 2002 Mazda Protégé DX, stopped at a red traffic light at the intersection of Ashby Avenue and Wheeler Street in Berkeley, when she was rear-ended by a 1993 Chevrolet LeBaron operated by Ernest Hayes. Brown claimed neck, shoulder and back from the collision. Brown sued Hayes, alleging the defendant was negligent in the operation of his vehicle. Hayes admitted liability, but disputed damages. The matter proceeded to a non-binding arbitration, where Brown was awarded $9,350, but Hayes rejected the award and requested a trial de novo., On June 23, 2011, the day after the accident, Brown presented to her primary care physician at Kaiser Permanente in Vallejo with complaints of neck and back pain, as well as to the trapezius muscle in each shoulder. She was subsequently referred for physical therapy and had a one follow-up exam scheduled for July 8, 2011. However, before returning to Kaiser, Brown sought chiropractic treatment at Chau Chiropractic on July 5, 2011. She then returned to Kaiser Vallejo on July 8, 2011, but continued to treat at Chau Chiropractic through Sept. 20, 2011. Brown later had her physical therapy evaluation at Kaiser Walnut Creek on July 25, 2011, followed by a single physical therapy session in October 2011. The plaintiff’s primary care physician took Brown off of work for 14 days, followed by 14 days of modified duty at no more than four hours of work per day with no heavy lifting, bending, twisting or stooping. Brown claimed that she had $747 in Kaiser charges and $2,100 in chiropractic charges. She also claimed a wage loss of $1,503.06 as a result of having to take off 94 hours of work. In addition, Brown sought recovery of damages for her past and future pain and suffering, since she claimed she continues to suffer occasional neck stiffness and residual pain. Defense counsel disputed the extent of Brown’s alleged and damages, as well as the necessity and reasonableness of her chiropractic treatment and the extent of her wage loss. Defense counsel argued that Brown’s chiropractic treatment was unreasonable and that she excessively treated her alleged . Counsel contended that while Brown initially sought treatment with Kaiser on June 23, 2011, a full service medical facility, she initially ignored her doctor’s instructions and referral to have physical therapy. Counsel also contended that, instead, without recommendation or instruction from Brown’s primary treating physician or any physician at Kaiser, Brown sought chiropractic treatment. In addition, counsel contended that Brown did not have physical therapy until July 25, 2011, over one month after the referral. Thus, defense counsel argued that Brown did not timely follow the treatment recommendations of her treating physician at Kaiser Vallejo, and thereby failed to mitigate her medical and wage loss damages. Defense counsel noted that Brown was also involved in a 2004 automobile accident, which resulted in a similar injury that she did not report to her treating chiropractor. Counsel further noted that, instead, Brown received, by her estimate, around 18 to 20 chiropractic treatments for the prior injury.
Superior Court of Alameda County, Oakland, CA

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