Case details

Plaintiff should have used comprehensive care: defense





Result type

Not present

back, injuries, neck, pregnant 34 weeks, soft tissue
At around 6:14 p.m. on Oct. 29, 2011, plaintiff Shannon Lesniewski, 37, an unemployed woman who was 34 weeks pregnant, was driving her vehicle in Roseville with her fourth-grade daughter, Shalynn Lesniewski, in a child-safety car seat located in the rear, passenger side of the vehicle. When their vehicle came to a stop, it was rear-ended by a vehicle operated by Derrick Davies. As a result, Shannon Lesniewski had to pull Shalynn out of the “smoking” vehicle, though a shattered rear window. Shannon Lesniewski claimed to her neck and back, while Shalynn claimed soft-tissue (whiplash-type) to her neck, which resolved in two weeks. Shannon Lesniewski and her daughter, Shalynn, sued Davies, alleging that Davies was negligent in the operation of his vehicle. Shalynn ultimately settled her claim prior to trial. Plaintiff’s counsel contended that the Lesniewski vehicle was at a complete stop when it was struck and that the impact speed was between 35 and 40 mph. Davies conceded liability, and the matter proceeded to a trial on and damages. (Defense counsel noted that they were assigned to the case the day before trial.), Shannon Lesniewski claimed that she suffered a traumatic brain injury, and trauma to her lumbar and cervical discs and the connective tissue. She also claimed she lost consciousness after pulling her daughter from her smoking vehicle. Lesniewski and her daughter were subsequently transported via ambulance to the Emergency & Trauma Services Department at Sutter Roseville Medical Center, in Roseville. Since she was 34 weeks pregnant, Lesniewski remained inpatient for fetal monitoring for approximately 3.5 days.Lesniewski then underwent multiple radiofrequency ablations, epidural steroid injections, chiropractic manipulations, massages, and surgical consults between 2012 and 2015. However, she testified that none of the pre-trial pain management treatment had been successful, causing her to suffer 4.5 years of pain and suffering and necessitate a two-level cervical intervention at C5-6 and C6-7. The plaintiff’s medical experts opined that all of Lesniewski’s care and treatment were reasonable and necessary, including the proposed two-level cervical fusion. The surgical recommendation was issued approximately four months before the commencement of trial in response to Lesniewski’s complaints to her treating neurosurgeon that all of the “conservative care” to date had failed and that she was ready for cervical fusion surgery. The plaintiff’s treating neurosurgeon testified that Lesniewski had suffered sufficient disc and/or connective-tissue-related trauma to warrant anterior cervical fusions at the C5-6 and C6-7 levels. Lesniewski’s husband, Ben Lesniewski, presented a derivative claim, seeking recovery for his loss of consortium. However, shortly after the defense questioned a plaintiff’s witness about a pending petition for dissolution of marriage filed by Mr. Lesniewski against Ms. Lesniewski in 2000, and a temporary restraining order filed the month before the accident showing that the couple had legally separated, Mr. Lesniewski voluntarily dismissed his case. Thus, Ms. Lesniewski sought recovery of $740,000 or more in total damages, including the cost of the future surgery, which was estimated by the plaintiff’s medical billing expert to be at least $100,000. Defense counsel admitted that the collision caused some of Ms. Lesniewski’s soft-tissue pain and emotional concern over the health of the unborn child. However, counsel argued that not all of Ms. Lesniewski’s care and treatment was reasonable or necessary, including the proposed two-level cervical fusion, which was recommended due to the patient’s subjective complaints. Defense counsel also disputed Ms. Lesniewski’s claim of losing consciousness. Counsel noted that although Ms. Lesniewski told her treating chiropractor several months after the collision that she had lost consciousness at the scene, there was no such evidence in the emergency medical technicians’ records, or in the Sutter Roseville E.R. or follow-up records. Defense counsel contended that upon her release from the hospital, Ms. Lesniewski retained her counsel, who then referred her to a “med-legal” chiropractor, Ms. Lesniewski’s treating chiropractor. Defense counsel contended that the plaintiff’s treating chiropractor then referred Ms. Lesniewski to all of the other physicians, all of whom treated Ms. Lesniewski on liens, which amounted to approximately $129,000, even though Ms. Lesniewski had medical coverage available through Medi-Cal. Defense counsel subsequently admitted into evidence a fee agreement that was previously redacted, as Ms. Lesniewski testified that she was essentially bedridden from the day of the accident until delivery of a healthy baby in December of 2011. In addition, counsel contended that all of Ms. Lesniewski’s health care providers who testified, except for the plaintiff’s treating neurosurgeon, had referred patients to each other. Thus, defense counsel argued that the plaintiff’s treating chiropractor recommended the care or examinations he expected the physicians to conduct and that, in all instances, the physician’s complied. Counsel further argued that plaintiffs’ counsel’s law firm and the plaintiff’s treating chiropractor had done substantial med-legal work together in the past and that all of Ms. Lesniewski’s imaging studies were done at University Imaging, in Sacramento, which was owned in part by Clayeo Arnold, the owner of plaintiffs’ counsel’s law firm. (Plaintiff’s counsel conceded Arnold’s interest in University Imaging on opening statement.) Thus, defense counsel argued that the plaintiff’s lawyers attempted to direct their client into lien-based care in order to circumvent a major California Supreme Court decision (Howell v. Hamilton Meats), which stated that plaintiffs can only recover the amounts “paid” by unnamed health insurers as the basis for both past medical bills, and subsequent appellate decisions, which have extended the rule so that it also applies to future medical costs. Defense counsel further argued that Ms. Lesniewski failed to mitigate her damages by not using her Medi-Cal coverage. Counsel argued that available, but unused, health insurance did not violate the collateral source rule because that rule only applies to paid medical bills. In addition, defense counsel argued that had Ms. Lesniewski gone into a comprehensive health care system, such as U.C. Davis Medical Center, Dignity Health, or a similar integrated, physical-led, centralized health care system, she would not be “surgical” at all. According to defense counsel, the plaintiff’s treating neurosurgeon, answering hypothetical questions under cross-examination, described the kind of comprehensive, physician-directed care he would have recommended had Ms. Lesniewski, or someone similarly situated, first consulted with him under like or similar circumstances. Specifically, the expert did not endorse the chiropractic-led, pain-management care that Ms. Lesniewski had undergone for over 4.5 years. The defense’s billing expert testified as to the lien amounts incurred, the reasonable amount for that care in the greater Sacramento medical community, and the amount that hypothetically would have been paid by Medi-Care, had Ms. Lesniewski accessed that care. Thus, defense counsel argued that attorney/chiropractic-directed, lien-based care was evidence of the failure to mitigate damages. In addition, defense counsel presented surveillance videos and Facebook postings from Ms. Lesniewski to challenge Ms. Lesniewski’s claims that she was in constant pain and surgical. Plaintiff’s counsel moved to prevent defense counsel from mentioning anything related to the medical liens, relying on Evidence Code § 780(f), but the motion was overruled. However, the court granted plaintiff’s counsel’s motion to exclude any mention of medical insurance, but after several weeks of trial plaintiff’s counsel moved to set aside that order to allow Ms. Lesniewski to explain why she treated on liens. According to Ms. Lesniewski, she believed that Medi-Cal would only cover the pregnancy, but not the trauma-related health care. In response, defense counsel argued that there was evidence to contradict Ms. Lesniewski’s explanation, including Ms. Lesniewski’s responses to written discovery and medical intake forms, in which Ms. Lesniewski stated that she provided her Medi-Cal card information to several health care providers who refused to take Medi-Cal while insisting on lien-based treatment.
Superior Court of Placer County, Placer, CA

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