Permanent injury for psych injury not proven here in car accident

Permanent injury for psych injury not proven here in car accident

    
H.K.S.,1

          Plaintiff-Appellant,

v.

PAUL M. KENSEY,

          Defendant-Respondent,

and

CARMELA MORRIS and
WILLIAM MORRIS,

     Defendants.
__________________________

                   Argued telephonically March 25, 2020 –
                   Decided May 18, 2020

                   Before Judges Koblitz, Whipple and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Docket No. L-0531-17.


1
  Because plaintiff was a victim of sexual abuse as a child, we use initials to
protect her confidentiality. See R. 1:38-3(c)(9).
           NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1329-18T2



PER CURIAM

      Plaintiff appeals from the October 29, 2018 summary judgment dismissal

of her auto accident related personal injury complaint filed against defendant

Paul Kensey. The complaint was dismissed on the ground that she failed to meet

the verbal threshold under  N.J.S.A. 39:6A-8(a), which is part of the Automobile

Insurance Cost Reduction Act (AICRA),  N.J.S.A. 39:6A-1.1 to -35.

            Under AICRA, to vault the verbal threshold's limitation
            on the right to claim non-economic damages, a plaintiff
            must establish that "as a result of bodily injury, arising
            out of the . . . operation . . . or use of" an automobile,
            she has "sustained a bodily injury which results in" one
            of the enumerated categories of serious injury,
            including "a permanent injury [2] within a reasonable
            degree of medical probability."

            [Davidson v. Slater,  189 N.J. 166, 186 (2007)
            (alterations in original) (quoting N.J.S.A. 39:6A-8(a)).]



2
  For purposes of AICRA, a permanent injury is "when the body part or organ,
or both, has not healed to function normally and will not heal to function
normally with further medical treatment."  N.J.S.A. 39:6A-8(a).
                                                                         A-1329-18T2
                                        2
 Based on our review of the record and the applicable legal principles, we affirm.

      We derive the following facts from evidence submitted by the parties in

support of, and in opposition to, the summary judgment motion, viewed in the

light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc.,  213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co.,  142 N.J. 520, 523

(1995)). On April 11, 2015, plaintiff was involved in an automobile accident

with a vehicle owned and operated by defendant, during which defendant's

Honda pick-up truck struck plaintiff's Honda Accord with such force that her

vehicle rear-ended the Ford Escape in front of her being driven by Carmella

Morris. 3 On February 1, 2017, plaintiff filed a complaint, alleging she "suffered

severe and permanent injuries" as a result of defendant's negligence. Although

plaintiff initially asserted she sustained permanent physical and psychiatric

injuries from the accident, she recovered from the physical injuries but

maintained her claim for psychiatric injuries.

      One month after the accident, on May 11, 2015, plaintiff, then fifty-seven

years old, began treating at Princeton House Behavioral Health Center



3
  Carmella Morris and William Morris, owner of the Ford Escape, were also
named defendants in plaintiff's complaint, but they were granted summary
judgment dismissal of the claims and cross-claims against them on May 11,
2018.
                                                                         A-1329-18T2
                                       3
 (Princeton House) based on a referral from her treating psychiatrist for a "higher

level of care due to increasing symptoms of depression, anxiety, and [post-

traumatic stress disorder (PTSD)]." Plaintiff had "a history of Bipolar Disorder

type II, polysubstance dependence, noted to be in full remission for over

[eighteen] years, Generalized Anxiety Disorder [GAD], and [PTSD]."

Previously, she had "multiple treatment episodes" at Princeton House, having

last treated there "in August 2012."

      Plaintiff's medical records, including her treatment notes at Princeton

House, were reviewed on November 3, 2017, by Alain De La Chapelle, M.D., a

Board-certified psychiatrist retained by plaintiff's auto insurance carrier.

According to Dr. De La Chapelle, the treatment notes indicated that since the

accident, plaintiff expressed a "re-triggering of PTSD related to sexual abuse

while she was a child, including increased nightmares about being chased and

trapped, feelings of loss of control, being bothered by noises, erratic sleep,

increased isolation and lack of activity, and increasing depression." Plaintiff

was admitted to Princeton House's "partial hospital program" based on her report

of "depressed mood, social isolation, loss of interest, insomnia, nightmar es,

hypervigilance, intrusive memories, poor concentration, feelings of dread, panic

attacks, and suicidal ideation" resulting in "multiple functional impairments."


                                                                          A-1329-18T2
                                         4 From August 3 to 12, 2015, plaintiff was admitted for inpatient treatment at

Princeton House "for stabilization." The treatment notes specified that while

plaintiff "initially experienced an aggravation of her symptoms due to the

accident," hospitalization was required because plaintiff "shifted to a hypomanic

state, which [was] related to [her] bipolar condition." Following her discharge,

plaintiff continued to receive outpatient psychiatric therapy, including

psychotropic medications.

      After filing the complaint, on June 1, 2018, plaintiff underwent an

independent medical evaluation conducted by Steven Lomazow, M.D., a

psychiatrist and neurologist.    Dr. Lomazow opined that plaintiff's ongoing

psychiatric treatment, which she would receive "for the remainder of her life,"

was not related to the accident. According to Lomazow, plaintiff's psychiatric

treatment was of the same "frequency that she had prior to the [accident]" and

would have continued "whether or not she had had the intercurrent motor vehicle

accident."

      On June 25, 2018, plaintiff was deposed. She testified that she "was

traumatized" as a result of the accident and "not functioning very well." She

explained that "[a] week" after the accident, she "[a]void[ed] driving," and had

"[p]anic attacks, night terrors, [and] depression." She also testified that she was


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                                        5
 "not doing good self[-]care," such as bathing, and she was "not doing any normal

activities," such as frequent attendance at "[narcotics anonymous (NA)]

meeting[s]," volunteering for NA, socializing "with friends," participating in

"hobbies," "shopping" or "cleaning."         She explained that when she had

experienced "these incidents of acute mental illness" in the past, she would

"bounce[] back" in "[t]hree" to "four months" after undergoing "inpatient" and

"outpatient" treatment.    However, since the accident, she has not "gotten

substantially better."

      Thereafter, on August 3, 2018, defendant moved for summary judgment 4

on the ground that plaintiff failed to provide any evidence of permanent injur y,

and failed to provide the requisite physician's "Certificate of Permanency,"

establishing that she sustained permanent injuries as a result of the accident. See

Casinelli v. Manglapus,  181 N.J. 354, 364-66 (2004) (explaining that the

physician certification requirement of AICRA "provide[s] evidence that a

plaintiff's claim is meritorious in that he or she has, in fact, sustained an injury

that qualifies for the recovery of non-economic damages under the revised

AICRA verbal threshold," and when "a plaintiff is unwilling or unable to



 4 On May 11, 2018, plaintiff was granted summary judgment against defendant
on the issue of liability only.
                                                                            A-1329-18T2
                                         6
 produce a physician certification . . . . the litigation cannot go forward and . . .

the complaint should be dismissed."). Further, defendant asserted that because

plaintiff had "documented psychological disorders, a Polk[5] [a]nalysis was

required to satisfy the requirements of . . . N.J.S.A. 39:6A-8(a)."

      In the accompanying statement of material facts, defendant recounted

Lomazow's opinion and the Princeton House treatment notes, as well as

plaintiff's interrogatory responses, and deposition testimony. Defendant noted

that despite plaintiff's claim that the accident caused "a relapse and

exacerbation" of her prior psychiatric condition, the Princeton House records

indicated that plaintiff's complaints of nightmares were "related to the sexual

trauma," not the car accident. Further, in her deposition testimony, plaintiff

indicated that "panic attacks and nightmares/night terrors occurred prior to the

. . . accident," and her diagnosis of bipolar disorder and depression, to which she

"attributed her difficulties with activities," "dat[ed] back ten years."

Additionally, plaintiff "had anxiety related to driving as a result of [a] prior

accident" that occurred on July 21, 2011.



5
  Polk v. Daconceicao,  268 N.J. Super. 568, 575 (App. Div. 1993) (holding that
"[a] diagnosis of aggravation of a pre-existing injury or condition must be based
upon . . . an evaluation of the medical records of the patient prior to the trauma
with the objective medical evidence existent post trauma.").
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                                         7
       Plaintiff opposed the motion and submitted a physician certificate and

report dated September 14, 2018, prepared by Joel S. Federbush, M.D., a

psychiatrist, who examined plaintiff on September 12, 2018, at the request of

her attorney. In the certificate, Federbush stated "plaintiff presented with a

condition of depression and the inability to function as a result of the accident. "

"Upon [his] review of her past psychiatric history and [his] examination of her,"

he was of the opinion that plaintiff "sustained a chronic depressive condition as

a result of the accident," that plaintiff's "psychiatric injuries [were] causally

related to the . . . accident," and that plaintiff's injuries were "permanent."

      In his report, Federbush stated that plaintiff "described the same

psychiatric symptoms to [him]" as those documented in the Princeton House

medical records, which symptoms were also "consistent with [her] deposition

testimony." In that regard, Federbush stated that during his examination of

plaintiff:

             We discussed her past history of bi-polar disorders and
             anxiety[] depressions. [Plaintiff] told me that the . . .
             accident had been traumatic and caused her great
             psychiatric harm. She had prior incidents of depression
             some of which required brief hospitalization but on
             each prior occasion she has . . . recovered quickly from
             the depression and had significant periods of normalcy
             during which she lived a relatively stable life. She said
             that she has yet to "bounce back" from the . . .
             [accident]. She reported night terrors, lack of sleep or

                                                                             A-1329-18T2
                                         8
             motivation, the inability to concentrate when reading,
            and lack of interest in her past activities such as visiting
            museums and botanical gardens. . . . She also noted that
            she was active in [NA], playing a leadership role. . . .
            She has very little interest in attending or becoming
            involved in these meetings. She even finds normal
            daily activities such as showering, bathing or eating to
            be stressful. [Plaintiff] also noted that she found
            [driving] a car to be very stressful and is reluctant to
            travel long distances.

      Based upon his examination and review of plaintiff's "psychiatric record

and history," Federbush opined "within a reasonable medical certainty, that

[plaintiff] suffered a severe and permanent psychiatric injury as a result of the

. . . accident." Federbush found that plaintiff

            has developed chronic long lasting depression. It is
            now three years and five months since the accident and
            there has been little improvement in her depressive
            state. The psychiatric injuries as a result of the . . .
            accident are more severe than previous admissions. In
            all of the other instances, [plaintiff] "bounced back"
            from bi-polar depressive episodes. Those instances
            lasted three or four months. Her chronic depressive
            state from this incident has lasted three year[s] and five
            months and continues[.] In all medical probability it is
            a permanent condition that did not exist before. Based
            upon the lengthy period after the . . . [accident] during
            which [plaintiff] has been suffering . . . depression
            related symptoms, within a reasonable degree of
            medical certainty this condition is permanent.

      During oral argument, defendant argued that even with Federbush's report,

which was provided "well after the discovery end date," there was "no objective

                                                                           A-1329-18T2
                                         9
 evidence of any permanent injury" and no "[Polk] [a]nalysis." In support,

defendant pointed out that "to form his conclusions," the doctor "relie[d]

completely on . . . plaintiff's own subjective complaints," failed to "perform any

. . . testing," and failed to "perform an analysis of her condition before the

accident as well as after the accident."       Plaintiff countered that Federbush

provided objective evidence of plaintiff's psychiatric injury by reviewing her

records, examining her, and discussing her symptoms with her.              Plaintiff's

counsel conceded that Federbush failed to perform a Polk analysis but indicated

"that could be done at a future time."

      In an October 29, 2018 order, the motion judge granted defendant

summary judgment. In an accompanying written opinion, after applying the

governing principles, the judge concluded that "[e]ven granting all favorable

inferences to [p]laintiff" as required, plaintiff "has failed to raise a genuine issue

of material fact that the tort threshold was satisfied." The judge explained that

plaintiff relied on Federbush's "Certification of Permanency" and "narrative

report" as well as De La Chapelle's "review of medical records" "as objective

evidence of her lasting psychological harm." However, Federbush's "opinions

were based solely on his psychiatric examination of [p]laintiff, which involved




                                                                              A-1329-18T2
                                         10
 only a discussion with [p]laintiff of her complaints and the review of [p]laintiff's

medical records." Further, "a [Polk] [a]nalysis was required and was not done."

      According to the judge, as a result, plaintiff

            failed as a matter of law to meet AICRA's requirement
            of objective, credible evidence to support her claims of
            a permanent injury because the documents provided by
            her doctors rely solely on [p]laintiff's subjective
            complaints. The record is devoid of any evidence of
            any testing performed which reflects any objective
            proofs to support plaintiff's claim of permanent injury.

      On appeal, plaintiff argues Federbush's "objective examination of

[plaintiff's] psychiatric injuries along with assessing her history" as reflected in

his report and certification provided "sufficient evidence to prove that [plaintiff]

suffered severe and permanent injuries as a result of [defendant's] negligence ."

Plaintiff asserts "[t]here is no objective testing that [plaintiff] could have

undergone to determine the severity and permanency of the psychiatric injuries

caused from the motor vehicle accident" and the judge erred in finding otherwise

and granting summary judgment on that basis.

      We review a grant of summary judgment de novo, applying the same

standard used by the trial court. Steinberg v. Sahara Sam's Oasis, LLC,  226 N.J.
 344, 366 (2016). That standard is well-settled.

            [I]f the evidence of record—the pleadings, depositions,
            answers to interrogatories, and affidavits—"together

                                                                            A-1329-18T2
                                        11
             with all legitimate inferences therefrom favoring the
            non-moving party, would require submission of the
            issue to the trier of fact," then the trial court must deny
            the motion. On the other hand, when no genuine issue
            of material fact is at issue and the moving party is
            entitled to a judgment as a matter of law, summary
            judgment must be granted.

            [Ibid. (quoting R. 4:46-2(c)).]

      If there is no genuine issue of material fact, we must "decide whether the

trial court correctly interpreted the law." DepoLink Court Reporting & Litig.

Support Servs. v. Rochman,  430 N.J. Super. 325, 333 (App. Div. 2013) (citation

omitted). We review issues of law de novo and accord no deference to the trial

judge's legal conclusions. Nicholas v. Mynster,  213 N.J. 463, 478 (2013).

Applying these principles, we agree with the judge that plaintiff failed to provide

competent objective medical evidence from which a jury could reasonably find

that she suffered a permanent psychiatric injury caused by the accident of April

11, 2015.

      "The practical effect of [Rule 4:46-2(c)] is that neither the motion court

nor an appellate court can ignore the elements of the cause of action or the

evidential standard governing the cause of action." Bhagat v. Bhagat,  217 N.J.
 22, 38 (2014). Pertinent to this appeal,  N.J.S.A. 39:6A-8(a) neither includes nor

excludes permanent psychiatric or psychological injury in its definition of


                                                                           A-1329-18T2
                                       12
 "bodily injury" or "permanent injury."      However, our Supreme Court has

construed similar "bodily injury" language in other statutes to encompass

permanent psychological or psychiatric injury. In Collins v. Union County Jail,

 150 N.J. 407, 420-23 (1997), the Court held that the verbal threshold provision

in the Tort Claims Act (TCA),  N.J.S.A. 59:9-2(d), which limits a plaintiff's right

to recover pain and suffering damages in a suit against a public entity or

employee for "permanent loss of a bodily function," did not bar recovery for "a

claim of permanent psychological harm in the form of post-traumatic stress

disorder" resulting from a corrections officer's rape of a prison inmate. Collins,

 150 N.J. at 409.

      Similarly, in Saunderlin v. E.I. DuPont Co.,  102 N.J. 402 (1986), the Court

interpreted the provision of the Workers' Compensation Act,  N.J.S.A. 34:15-36,

permitting coverage for a "'[d]isability permanent in quality and partial in

character . . . which restricts the function of the body or of its members or

organs,'" to encompass "claims of psychiatric disability." Saunderlin,  102 N.J.

at 405 (quoting  N.J.S.A. 34:15-36). In reaching that result, the Court explicitly

rejected "the argument that [the statutory] language excludes from compensation

injuries that restrict the function of the mind as distinguished from the body. "

Id. at 408 n.4.


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                                       13
       Because "the Legislature is presumed to be aware of judicial construction

of its enactments," DiProspero v. Penn,  183 N.J. 477, 494 (2005) (citation

omitted), we may conclude that at the time of AICRA's enactment in 1998, the

Legislature consciously omitted from AICRA's lawsuit threshold any language

limiting "bodily injury" and "permanent injury" to physical injury, so as to

exclude permanent psychiatric injury from the purview of the statute. Thus,

psychiatric injury may constitute a qualifying injury under  N.J.S.A. 39:6A-8(a).

See also Granowitz v. Vanvickle,  264 N.J. Super. 440, 445 (Law Div. 1993)

(finding psychological injuries compensable under the prior no-fault statute).

However, the injury must be established by "'objective clinical evidence' derived

from accepted diagnostic tests and cannot be 'dependent entirely upon subjective

patient response.'" Davidson,  189 N.J. at 181(quoting Serrano v. Serrano,  183 N.J. 508, 515 (2005)).

      Additionally,

                   [w]hen aggravation of a pre-existing injury is
            pled by a plaintiff, comparative medical evidence is
            necessary as part of a plaintiff's prima facie and
            concomitant verbal threshold demonstration in order to
            isolate the physician's diagnosis of the injury or injuries
            that are allegedly "permanent" as a result of the subject




                                                                          A-1329-18T2
                                       14
             accident. . . .[6] In such matters, a plaintiff generally
            bears the burden of production in respect of
            demonstrating that the accident was the proximate
            cause of the injury aggravation or new permanent injury
            to the previously injured body part. Such evidence
            provides essential support for the pled theory of a
            plaintiff's cause of action and a plaintiff's failure to
            produce such evidence can result in a directed verdict
            for defendant.

            [Davidson,  189 N.J. at 185-86 (citations omitted).]

      In Saunderlin, the Court set forth guidelines for determining whether

psychiatric injuries satisfy the "demonstrable objective medical evidence"

standard prescribed by  N.J.S.A. 34:15-36 for workers' compensation claims.

 102 N.J. at 411. That standard is sufficiently similar to the "objective medical

evidence" standard governing proof in limitation on lawsuit or verbal threshold

cases to be instructive. See DiProspero,  183 N.J. at 495 (holding that the

Legislature adopted the "objective medical evidence" standard applied to the

prior no-fault insurance law under Oswin v. Shaw,  129 N.J. 290 (1992), by

requiring "objective clinical evidence" in  N.J.S.A. 39:6A-8(a)); see also Agha

v. Feiner,  198 N.J. 50, 60-61 (2009).




6
   "Although Polk predated [amendments to N.J.S.A. 39:6A-8(a)], a Polk
analysis continues to be required in cases governed by [the statute]." Bennett v.
Lugo,  368 N.J. Super. 466, 473 (App. Div. 2004) (citations omitted).
                                                                         A-1329-18T2
                                        15
         When dealing with a psychiatric injury, objective medical evidence is

viewed more broadly than when dealing with physical injury. Saunderlin,  102 N.J. at 411-14. To fit within this paradigm, the "'diagnostic criteria' of mental

disorders" as described in the Diagnostic and Statistical Manual of Mental

Disorders (DSM), published by the American Psychiatric Association, must be

followed. Id. at 413. "These diagnostic criteria typically include not only

physical manifestations observable independently of the patient's statement but

also descriptions of states of mind discoverable only through that statement. "

Ibid.   By following the DSM framework, which includes consideration of

"diagnostic criteria manifestations of physical symptoms or descriptions of [the

patient's] states of mind," objective medical evidence, as conceived by the

profession of psychiatry, will be demonstrated. Id. at 415. Such evidence

"might suffice to interpose a professional psychiatric judgment between the

subjective statement of the [claimant]" and the ability to recover non-economic

loss, within the parameters set by the Legislature. Id. at 415-16.

        However, the component of such "objective" psychiatric evidence that

consists of subjective statements by the patient must include a professional

analysis of those statements. Id. at 416. The "mere 'parroting' of the patient's

statement [will never] be sufficient." Ibid. Courts will rely to some extent "upon


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                                       16
 the psychiatrist's professionalism in deploying the clinical method to insure that

his or her analysis meaningfully exceeds parroting the subjective statement of

the patient." Ibid. Because "[t]he psychiatrist is perfectly aware of the fact that

the clinical history obtained from the patient is distorted and self-serving," and

the "reports of other physicians are not the whole story of the case, " the clinical

method requires the psychiatrist "to assimilate information from a wide variety

of sources, to evaluate each fact, to discount some, to emphasize others, and to

ignore still others."   Id. at 416 n.11 (citing Diamond and Louisell, "The

Psychiatrist as an Expert Witness: Some Ruminations and Speculations," 
63

Mich. L. Rev. 1335, 1353-54 (1965)).

      Combined with "personal observations of [the] patient," the psychiatrist

then "puts everything together, and arrives at a conclusion."           Ibid.   The

psychiatrist must explain what information was accepted and what was rejected,

what information was given great weight and what was minimized, and explain

why the clinical material was evaluated in a particular way. Id. at 416-17. See

also Patterson v. Bd. of Trs., State Police Ret. Sys.,  194 N.J. 29, 49 (2008)

(finding that within the medical profession, there are objective standards for

determining both the existence and cause of a psychiatric illness, such as post -




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                                        17
 traumatic stress disorder. (citing Diagnostic and Statistical Manual of Mental

Disorders Text Revision 466 (4th ed. 2000) (DSM-IV-TR))).

      Here, Federbush's analysis did not employ the clinical method

contemplated in Saunderlin. His opinion, based entirely on parroting plaintiff's

statements and the reports of other physicians, presented no objective medical

evidence of permanent psychiatric injury, no objective comparative analysis of

plaintiff's pre- and post-accident condition, and is nothing more than an

inadmissible net opinion. See Townsend v. Pierre,  221 N.J. 36, 53-54 (2015)

("The [net opinion] rule requires that an expert give the why and wherefore that

supports the opinion, rather than a mere conclusion" and "forbids the admission

into evidence of an expert's conclusions that are not supported by factual

evidence or other data." (citations and internal quotation marks omitted));

Hisenaj v. Kuehner,  194 N.J. 6, 23-24 (2008) (explaining in a verbal threshold

case that a medical expert must provide the "why and wherefore" of his or her

opinion).

      Federbush provided no discussion of the DSM diagnostic criteria, no

analysis of plaintiff's statements, and no observations of the physical

manifestations of any symptoms subjectively claimed by plaintiff. Federbush

provided no explanation of what information was accepted, what was rejected,


                                                                        A-1329-18T2
                                      18
 what was given great weight, and what was minimized, and failed to explain

why the clinical material was evaluated in a particular way. Thus, plaintiff

failed as a matter of law to meet AICRA's objective clinical evidence

requirement to withstand summary judgment dismissal.

     Affirmed.




                                                                     A-1329-18T2

If You Have a Sports Injury Claim, Don't Delay

If You Have a Sports Injury Claim, Don't Delay

         Have you been in an sports accident and are considering making a claim, call a lawyer promptly, as there are time limits for making claims.  These time limits (called "statutes of limitations") have harsh results if not followed. Recently, a woman who was hurt in a car accident made a claim one day after the statue of limitations for injury actions passed. Despite this minor violation, a court dismissed her claim, and she could not recover for her injuries and losses. In addition, a "Notice of Claim" must be served on a Public Entity within 90 days. However, don't let the fact that your signed a waiver scare you away from at least speaking with an attorney.

http://www.njlaws.com/sports_accidents.html?id=1302

   Los Angeles attorneys Greene Broillet & Wheeler on their website give helpful suggestions to injured persons.

Was your child injured because the paid coach was playing with their cell phone instead of supervising the activities?

        A sprained ankle or broken arm might be expected in a rigorous sporting event, but few parents think their child’s life could be in danger when they head off to the football field on a summer day, or to a municipal swimming pool or day camp. Yet every year dozens of people die and hundreds are seriously injured in sports and recreational accidents

https://www.gbw.law/los-angeles-sports-injury-lawyers/

     From dangerous conditions on the property to a lack of sufficient training for coaches, there are many ways that your child or family member can sustain a catastrophic injuryon the training field or during a sporting event. Depending on how this accident occurred, there could be multiple parties responsible for you or your child’s injuries.

Some common causes for serious sporting injuries:

         Negligent coaching

         Defective or dangerous products

         Failure to remove property hazards

         Lack of appropriate supervision

         Abuse and acts of violence

         Alcohol or substance abuse

In many cases, those who participate in athletic events or sports camps are asked to sign a liability waiver to protect the organization from lawsuits later on. However, don’t assume there is no way to hold the right party accountable just because you or the victim signed a waiver of liability. Sports and recreation accidents happen in a number of ways, and sometimes the waiver of liability does not apply because of dangerous pre-existing conditions or because a different party was responsible. This is especially true in the case of defective products, as a manufacturer or seller may actually be to blame for injuries.

https://www.gbw.law/los-angeles-sports-injury-lawyers/

         What happens in a Personal Injury Sports Claim:

    We will not handle a case unless there is bona fide negligence. You must have a serious permanent injury.

AT THE ACCIDENT SCENE

1. Stop . . . do not leave the scene of the accident.

CALL THE AMBULANCE, tell them where the accident occurred and (ask for medical help if needed).

2. Notify the property manager or owner, if possible.  Insist they observe where you fell.  For example, if you fall on debris at an ice skating, notify the manager.

3. Have immediate photos taken of accident site. 

4. Get names and addresses of all witnesses 

         Witnesses will be a tremendous help to you in any subsequent court action if there is any question of liability involved. Get the names and addresses of as many witnesses as possible. If they refuse to identify themselves, jot down the license plate numbers of their automobiles. Do not discuss the accident with the witnesses. Do not give the witnesses' names to anyone but the police, your attorney or your insurance company.

4. While waiting for ambulance, write down- Accident Information

Date   __    Time __

Location   __      

Weather __

conditions __

Damage __

Summary of accident __

6. Diagram of accident location

7. Call an ambulance.  If you have any reason to suspect you were injured in the accident, go to a hospital immediately or see a physician promptly. You'll want it on record that you sought treatment right away, not in a week or so.

8. Write down name of Ambulance crew Police Officers, Department and Badge Number,  etc. -  Be cooperative with the police.

9. Do not assign or accept blame for the accident.

- The scene of the accident is not the place to determine fault. Discuss  the accident only with the ambulance and medical personnel, your attorney and with representatives of your insurance company. Give the other party only your name and address. 

10. . Call a personal injury attorney immediately, not a real estate attorney.    

Call Kenneth A. Vercammen-  Trial Attorney

Attorney At Law      

(732) 572-0500

When you need help the most, we will be ready to help you. 

11. Never give a signed statement to the claims adjuster representing the property owner's insurance company.  The same goes for a phone recording.  They may be used against you in court to deny your claim. Speak with your personal injury attorney first.

IF YOU HAVE BEEN INJURED DUE TO NEGLIGENCE IN A SPORTS INJURY

 It is important that you --

1.      DO NOT discuss your case with anyone except your doctors and attorney.

2.      DO NOT make any statements or give out any information.

3.      DO NOT sign any statements, reports, forms or papers of any kinds, .

4.      DO NOT appear at police or other hearings without first consulting with your attorney.

INFORM YOUR ATTORNEY PROMPTLY of any notice, request or summons to appear at any hearings.

5.      Refer to your attorney anyone who asks you to sign anything or to make any statement or report or who seeks information concerning your case.

6.      Direct your doctor and other treatment providers  not to furnish or disclose any information concerning your case to any entity other than your insurance company without YOU AND YOUR ATTORNEY'S WRITTEN PERMISSION.

7.      You may have insurance coverages such as Blue Cross, Blue Shield or Major Medical, which require prompt attention.  However, be sure to have your treatment providers send bills immediately to all of your insurance companies.

8.      Notify your attorney promptly of any new developments.  Small things may be important.  Keep your attorney informed.

9.      Maintain accurate records of all information and data pertaining to your case.

10.    If you or any witnesses should move, be sure to notify your attorney of the new address.

Financial Recovery if injured while in sports events

1. Kenneth Vercammen Helps  Injured persons

         A person who is injured as a result of the negligence of another person is what we in the legal profession refer to as a personal injury claimant.  In other words, they have been injured as a result of an accident, and now wish to prosecute a claim against a negligent property owner and its insurance company.  As the attorney of record, I will be bringing this action for the injured person.  Therefore, I request that all clients do as much as possible to cooperate and help in every way.  The purpose of this article is to describe the procedure that we may follow and give you sufficient instructions to enable you to assist us in this undertaking. Needless to say, helping us is just another way of helping yourself. 

2. Clients should provide my office with the following

1.  Any bills

2.  All Hospital or doctor records in your possession

3.  Photos of scars, cuts, bruises

4.  Photos of damage to your clothes and property

5.  Photos of accident site

6.  Major Med Card

7.  Paystub if lost time from work

3. Attorney- Client Confidential Relationship

         First, I want to thank our clients for giving me the opportunity to assist them in their case.  I am a legal professional and I have great pride and confidence in the legal services that I perform for clients during our relationship as attorney-client. If you have concerns about your case, please call my office.  (732) 572-0500 

         We feel that this case is extremely important not only to you, but to this office as well. This is not simply a matter of obtaining just compensation for you, although that is very important; we take professional pride in guiding our clients carefully through difficult times to a satisfactory conclusion of their cases.   

4. Submission of Bills to Major Medical Second

         

5. Diary

         We want you to keep a diary of your experiences since your accident.  In addition to this daily record, we also ask you to start describing a single day in the course of your life.  In other words, describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort you put into your employment, what activities you engage in after work, etc.  In other words, we need you to describe the changes in your working life, your playing life, your life as a husband or wife or child or parent.  In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook. Remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family, friends, and co-workers.    

         Keep a diary of all matters concerning this accident-no matter how trivial you think it may be. You should include notes on the treatments you receive, therapy, casts, appliances, hospitalization, change of doctors, change of medication, symptoms, recurrence, setbacks, disabilities and inconveniences. If you have any doubt about the propriety of including some particular information, please call the office and let us assist you.

6. Record expenses

         You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail.  Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times.  

         From time to time, however, there will be expenses incurred that you must keep track of yourself.  We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth.  Keep your canceled checks and your list of expenses together, for we will need them at a later date.

         Your attorney will keep track of your legal expenses, which may include costs of filing, service of complaint, investigation, reports, depositions, witness fees, hospital/ medical records, etc.

7. Investigation and Filing of Complaint

     Procedurally, the following events occur in most personal injury cases. First, your attorney must complete the investigation. This will involve the collection of information from your physician, your employer, and our investigator. We will need your doctors to provide us with copies of all bills, medical records and possibly a medical report.

         When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement. If the insurance company will not make an adequate offer, then a Complaint and Case Information Statement is prepared by your attorney.  It is filed in the Superior Court, Law Division.  Your attorney then will prepare a summons and have the defendants personally served with the Summons and Complaint.  The defendant, through their insurance company, must file an "Answer" within 35 days.

8. Interrogatory Questions and Discovery

         The Answer is followed by a request for written interrogatories. These are questions that must be answered by each party. The Superior Court has set up certain "Form A" Interrogatory Questions, which are contained in the Rules of Court. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question. The deposition is just as important as the trial itself. In the event you are deposed during the course of this action, you will receive detailed instructions as to the procedure and will be required to watch a videotape. After taking depositions, the case will be set down for an Arbitration. If the parties do not settle after the Arbitration, the case will be given a trial call date.

         Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice.

9.  Doctor/ Treatment

         It will help your case to tell us and your doctors about any injury or medical problems before or after your accident. Good cases can be lost by the injured person concealing or forgetting an earlier or later injury or medical problem. Insurance companies keep a record of any and all claims against any insurance company. The insurance company is sure to find out if you have ever made a previous claim.

         Tell your doctors all of your complaints. The doctor's records can only be as complete as what you have given. Keep track of all prescriptions and medicines taken and the bills.  Also save all bottles or containers of medicine.

         

10.  Bills 

         Retain all bills, which relate to your damages, including medical expenses, hospital expenses, drugs and medicines, therapy, appliances, and anything needed to assist in your recovery. If possible, pay these bills by check or money order, so that a complete record may be kept. If this is not possible, be certain to obtain a complete receipt with the bill heading on it, to indicate where the receipt came from and the party issuing it.

11. Evidence

         Be certain to keep anything that comes into your possession which might be used as evidence in your case, such as shoes, clothing, glasses, photographs, defective machinery, defective parts, foreign substances which may have been a factor in your accident, etc. Be sure to let the office know that you have these items in your possession.

   

12. Photographs

         Take photographs of all motor vehicles, accident site, etc., that may be connected--directly or indirectly--with your accident. Again, be sure to let the office know that you have such photographs.

.i.13. Keep your attorney advised

         Keep this office advised at all times with respect to changes in address, important changes in medical treatment, termination of treatment, termination of employment, resumption of employment, or any other unusual change in your life.

   

i.14. Lost wages 

         Keep a complete record of all lost wages. Obtain a statement from your company outlining the time you have lost, the rate of salary you are paid, the hours you work per week, your average weekly salary, and any losses suffered as a result of this accident. Where possible, also obtain other types of evidence such as ledger sheets, copies of time cards, canceled checks, check stubs, vouchers, pay slips, etc.

   

.i.15. New information

         In the event that any new information concerning the evidence in this case comes to your attention, report this to the attorney immediately. This is particularly true in the case of witnesses who have heretofore been unavailable.

16.   Do not discuss the case

         The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone.

         Obviously, we cannot stress too strongly that you DO NOT discuss this matter with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions, which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.

17.  Questioning

         If any person approaches you with respect to this accident without your attorney's permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorney's office.

18. Investigation by Defendant Insurance Company

         Permit us to reiterate at this time that the opposition's insurance company will in all probability have a team of lawyers and investigators working diligently to counter your claim. During the course of their investigation, it is quite possible that they may attempt to contact you through various (and sometimes, devious) methods. Please do not make their jobs any easier for them by answering their questions.

         We cannot emphasize too strongly that you should refrain at all times from discussing this matter with anyone--and that includes your employer, your relatives, your neighbors, and even your friends. Of course, there are exceptions to this rule.

         If there are friends or neighbors or relatives who know all of the facts and circumstances surrounding the accident and can be of assistance to you, then they should be referred to this office so that their natural sympathy can be channeled into an effective asset for you.

         Insurance companies pay money to claimants when they are satisfied there are both liability and damages that support a recovery. They can be expected to thoroughly investigate the facts of the accident and any past injuries or claims. The insurance company will obtain copies of all of the claimant's past medical records.

19. Surveillance by Insurance Companies

         Remember at all times that you may be under surveillance and, therefore, subject to being photographed or filmed by the adverse party. Be advised that there are cases where photographs and films have been introduced in court showing claimants who were allegedly in serious condition participating in activities which they alleged they were unable to do. You do not have to live in fear of being photographed, of course, if your cause is a just one.

         However, when carrying on your usual activities, keep in mind at all times that you are subject to investigation. If you have been seriously injured, do not do anything that will jeopardize your case during the course of your daily life. You should always follow your doctor's advice. If you have to do things, which cause you, pain, this can usually be explained to the full satisfaction of any court or jury.

         There are cases where the insurance agent has attempted to discredit a personal injury plaintiff by taking movies of the claimant engaged in various physical activities. In one case, large rocks weighing over one hundred pounds were placed at the door of the garage during the night so that claimant would have to be forced to remove the rocks in order to drive to work. This, of course, was filmed and used to discredit the plaintiff's claim in court.

         

20.  The value of a case depends on the Permanent Injury, medical treatment and doctor's reports

         Undoubtedly, you have questions as to how much your case is worth.  We are going to be frank:  The fact of the matter is there can be no answer to this question until we have completed the investigation in your case.  Once we complete our investigation, of course, we can make a determination as to the amount of the defendant's liability, if any, and even at that we will only be at a starting point.  After that, we must obtain all necessary information concerning your lost wages, your disability, your partial disability, your life changes, and your prognosis.  You may rest assured of one thing, however, and that is the fact that your case will not be settled below its true value, that is the fair compensation for the injuries you have received.  You may also rest assured that no settlement agreement will be entered into without your consent.

Conclusion

         We appreciate that this is a great deal of information to absorb.  We also appreciate that our requests for client's assistance have been numerous.  However, we are certain that our clients appreciate having this information from the outset.  Each request and bit of information given here represents an important part in recovering full value for your injury.  Therefore, we respectfully request your full cooperation. If you have questions or concerns regarding these instructions, we encourage you to feel free to contact the office at any time.