Opinion
C.A. No. 98C-11-022
Submitted: June 8, 2000
Decided: September 25, 2000
This is an action which plaintiff Katina Hood ("plaintiff") has filed against defendant Colonial Insurance Company of California ("defendant"), plaintiff's auto insurance carrier, seeking payments for unpaid medical and physical therapy expenses pursuant to 21 Del. C. § 2118. Defendant has refused to pay the bills for these expenses, arguing that they were not necessary. A bench trial was held in this matter on May 1, 2000. This is my decision after trial.
21 Del. C. § 2118 (a) requires insurance coverage which provides:
(2)a. Compensation to injured persons for reasonable and necessary expenses incurred within 2 years from the date of the accident for:
1. Medical, hospital, . . . medicine, x-ray, . . . professional nursing . . . .
FACTS
Plaintiff was involved in an automobile accident on November 26, 1996 ("the accident"). The medical records show that a vehicle travelling at about 25 to 30 miles per hour rear-ended plaintiff's stopped vehicle. She suffered whiplash injuries.
Plaintiff was treated for her injuries, and defendant, who provided insurance coverage on the accident date, paid all medical expenses and lost wages up until July 7, 1997. However, defendant refused to pay medical expenses incurred after July 7, 1997 and expenses for physical therapy performed from July 7, 1997 through August 20, 1997, because it took the position that those expenses were not necessary as a result of the accident. Defendant based this position upon the opinion of Edward F. Quinn, III, M.D.
After defendant refused to pay plaintiff's expenses, plaintiff filed this suit. The parties presented evidence as to whether the medical expenses and the treatment were made necessary by the accident. Defendant did not dispute the reasonableness of the expenses. As the Court views it, the issue to decide is whether plaintiff suffered from a radiculopathy and whether that radiculopathy was caused by the accident.
A bad faith claim, which was an element of the complaint, was resolved before the trial in this matter.
The records show that plaintiff had contact with medical professionals beginning at the time of the accident.
Radiculopathy is an injury or disease to the nerve root in the neck. It occurs very close to the neck. According to Dr. Quinn, "[r]adiculopathy" does not "say anything about whether it's an injury or whether it's a disease process at all." Beshara N. Helou, M.D., who testified on plaintiff's behalf, testified that there can be different causes of radiculopathy, but usually the cause is known. Dr. Quinn explained that radiculopathy can come from a disc herniation, a spur formation in the neck, diseases of the nerve root, compression, or an evulsion of the nerve root.
There are no findings in the records of plaintiff's initial visit to the Emergency Room ("ER") on November 26, 1996, that indicate plaintiff suffered a radiculopathy. Nothing in the notes regarding her December 4, 1996 visit to the ER shows that plaintiff was complaining of any type of pains that radiated to her hands, although she did complain of stiffness to the neck and pain that radiated to both shoulders and of neck/arm pain. She went to Bonnie Y. Hofstetter, a registered nurse practitioner ("the nurse practitioner"), on December 9, 1996, and a note of the nurse practitioner indicates that plaintiff's only complaints are of neck, back and headache. There is nothing demonstrating subjective or objective evidence of some type of a nerve injury.
There is nothing in the nurse practitioner's note of a December 13, 1996 examination to suggest either an objective or subjective finding of any type of a nerve injury.
In a note dated December 17, 1996, there are complaints of intermittent radiation; numbness; and tingling down both hands, particularly the left. According to Dr. Helou, those are subjective symptoms of radiculopathy and the symptoms may persist. They may get better or they may get worse. Sometimes, once they get better, they may thereafter worsen.
During examinations on April 17, 1997; May 21, 1997; June 23, 1997; July 18, 1997; August 26, 1997; and October 28, 1997; there were no complaints of numbness or tingling down both hands. However, on October 28, 1997, there are complaints of pain and that the left arm goes numb.
Dr. Quinn examined plaintiff on June 26, 1997 and reviewed her medical records. He testified as follows regarding this examination, plaintiff suffered an injury as a result of an automobile accident. She had a soft tissue injury which involved the muscles and ligaments of the neck region and she also had some symptoms in the thoracic spine region due to the accident. On June 26, 1997, plaintiff complained of pain in her neck that lasted a few minutes; stiffness in her neck that would improve after some range of motion exercises. She denied any weakness or locking or swelling. She related that she had numbness in both arms intermittently but the occurrences were not as frequent as they had been.
Based upon his review of her records and the physical examination, Dr. Quinn was of the following opinion, which he based upon a reasonable degree of medical certainty. She did not need additional formal treatment for her injuries; she should avoid heavy lifting; and it would be good for her to do range of motion exercises and to have an exercise program that included swimming, walking, bike riding, rowing and other similar non-impact type activities.
In the summer of 1998, as a result of plaintiff's complaints of numbness in the hands, an EMG was performed by Dr. Michael Mark. He interpreted the EMG to show a radiculopathy. The EMG study reported radiculopathy at C6-7 and T1 and primarily at C7.
At trial, plaintiff presented the deposition testimony of Beshara N. Helou, M.D. Dr. Helou is board-certified in internal medicine, and he has practiced in Delaware for two and a half years. When questioned about his ability to testify knowledgeably on the matter at hand, he explained as follows. An internist treats people with soft tissue injuries. It is his belief that seventy percent (70%) of soft tissue and mechanical injury cases are treated at primary care offices. Such cases usually are referred out only when they are complicated or refractory to treatment. Dr. Helou has diagnosed patients with injuries caused by accidents and has treated patients so injured.
Dr. Helou never examined plaintiff. However, he did review her medical records as well as Dr. Quinn's reports of 1997 and 1999.
He believes plaintiff suffered two types of injuries from the accident:
The first one is pure musculoskeletal related to muscle strain and spasms, which are quite common after a motor vehicle accident, and typically they get worse the first few days to week after an accident before they get better.
The second type is that of a nerve traction injury which can happen subsequent to muscle spasms, but that is my belief.
*** [S]he had a nerve injury secondary to muscle spasm because that would be the only way to explain her EMG findings in the absence of a radiculopathy or a positive finding on an MRI of that C spine.
Deposition of Beshara N. Helou, M.D. at 20-21 ("Helou at ___"). In sum, it is his opinion that initially she suffered a soft tissue muscular ligamentous injury of the neck, that soft tissue injury resulted in spasms, and the spasms caused a radiculopathy.
According to Dr. Helou, the EMG showed a bilateral cervical radiculopathy involving C-6 though C-8, maximum at C-7. This is a denervation/reinnervation phenomenon rather than active axonal loss and nerve deterioration. This may represent either a nerve traction injury or a distinct nerve root compression at the neck. Since she had a MRI, a distinct nerve root compression at the level of the neck is excluded. Thus, "you can conclude this is more likely a nerve traction injury, and this can happen at any level starting from the neck all the way distally at some point where there's any evidence of muscle spasm and/or damage." Helou at 12. It is his opinion that on December 17, 1996, plaintiff had the nerve traction injury.
Dr. Helou reads the records to reflect that plaintiff had fairly consistent complaints throughout her course of treatment. When asked whether he would have expected to see some documentation of a radiculopathy or some of the radiculopathy-type symptoms, within that first couple of weeks after the accident, he replied:
Not necessarily. See, that's where you have a problem with radiculopathy or nerve traction injuries, they can happen along any time during her musculoskeletal complaints. Neuronal damage can happen regardless of the time of original insult, but it typically happens over the course of weeks to months; unless it's a direct process where you have frank objective neurologic findings, then you expect it to be immediate and direct.
Helou at 29.
He explained that there were no complaints between December of 1996 and October of 1997 because the course of the disease waxes and wanes and plaintiff received treatments, such as anti-inflammatory medications, muscle relaxants, and physical therapy, which made her feel better during this period of time.
Doctor Helou acknowledged that it is fair to assume that a patient is not suffering from a problem if that person does not complain of symptoms at a medical office visit. The period of time between December 17, 1996 through October, 1997 when she did not complain is not bothersome because she had symptoms before and after those dates.
Dr. Helou disagrees with Dr. Quinn's conclusion that plaintiff has had multiple symptoms that are irrelevant to her accident. It is his opinion, to a reasonable degree of medical probability, that the treatments were directed towards symptoms that originated after plaintiff's accident and they have a direct relationship to the accident itself.
Dr. Helou testified to the following regarding the expenses for which plaintiff seeks reimbursement in this action.
1) $168 charge from Dr. Hogan. et al.. for services rendered on July 21. 1997 through November 25, 1997. These were treatments offered for symptoms mostly related to plaintiff's neck stiffness, upper extremity numbness and tingling which originate from any sort of whiplash injury where there can be significant muscle spasm or traction injury on nerve roots originating from that area. She had no symptoms prior to the accident, and the symptoms were present on her second emergency room visit. The amount charged is reasonable.
2) $267.50 for Physical Therapy. This was necessary treatment for her symptoms which arose from her accident. He thinks the amount of $267 is reasonable, but offers the caveat that he is not an expert in that field. He disagreed with Dr. Quinn's determination that additional formal physical therapy was unnecessary, stating:
When you are faced with a young patient who has clear-cut predictable persistent symptoms that are going on with a while, and she's had a fluctuation, and she's had a good response to the first set of sessions of physical therapy, then I believe I would give her a second chance.
Helou at 52.
3) $475.00 to Bonnie Y. Hofstetter. MSN. RNCS. FNP and $4305.00 to Barker Therapy Rehabilitation for services from May 25. 1998 through August 14. 1998. These treatments were made necessary by the accident and the charges were reasonable.
4) $1345.00 to Dr. Michael Mark for the EMG. Dr. Mark's diagnostic test, the EMG, was necessary to assess plaintiff's physical condition in June, 1998. Where the situation is such as plaintiff's, a treatment provider needs to give such a test in order to exclude causes of symptoms which may or may not be related to the original accident, and if there is any significant nerve damage related to the accident, it may help show it or prove its absence.
5) $138.00 and $26.00 to Beebe Medical Center and Southern Delaware Imaging. These were bills from radiologists who, in July, 1998, read X-rays of both shoulders. They were reasonable and necessary because of the accident.
Dr. Quinn testified on behalf of defendant, by deposition, and he testified to the following. Dr. Quinn is an orthopedic surgeon. He has practiced in Delaware for a little over twenty-five years and he specializes in orthopedic surgery, particularly involving the cervical and lumbar spine. He is certified by the American Board of Orthopedic Surgery, the American Board of Neurological and Orthopedic Surgery, the American Board of Disability Evaluating Physicians, the American Board of Medical Forensic Examiners, and the American Board of Forensic Examiners. He sees about seventy (70) people per week for spinal problems. In general, he has been one of the few surgeons who does spinal surgery in the area.
In early 1999, Dr. Quinn was asked to, and did, review additional records and express an opinion regarding the relationship of treatment that occurred after his June 26, 1997 examination of plaintiff. He reviewed the EMG nerve conduction study done on June 15, 1998, by Dr. Mark; Tidewater Physical Therapy from July 7, 1997 to August 20, 1997; and an MRI report dated January, 1997.
The EMG report may not be correct. He cannot definitively state she has a radiculopathy since there is no evidence by a physical examination that she has a radiculopathy. His physical examination of her in June, 1997, revealed no evidence of the radiculopathy. He could not express an opinion as to the cause of the radiculopathy, but the findings on the EMG do not comport with the history of the injury she had in the accident. There was no evidence of nerve injury at the time of the accident. It is his opinion, to a reasonable degree of medical probability, that the findings demonstrated on the EMG or the symptoms of the tingling and numbness in the arms are not related to the November, 1996 accident. The basis for this opinion is the lack, early on, of any nerve symptoms such as numbness, weakness, tingling, pins and needles sensation. None of these symptoms were noted in the first three weeks after the accident. Any kind of injury to the nerve that is due to a traction injury would be seen maximally around the time of the injury and it would taper off as time goes on. He explained further:
Now if she had a disc injury or injury to the structure of the neck that allowed progressive pressure on the nerve, then we could see a pattern where there was significant symptoms in the beginning but that they would get worse with time.
But a traction injury is an injury that gets better with time.
Deposition of Edward F. Quinn, III, M.D. at 17 ("Quinn at ___").
When asked about the December 4 emergency room report's notation of muscle spasm, he answered that a soft tissue injury, the stretching of the muscle, would cause that spasm. "[T]he picture that is present there is a very typical flexion/extension type injury to the neck and the findings that we see with that." Quinn at 23. He attributed her arm pain to her neck injury. With regard to the notation of pain in the arm in the December 4 emergency room report, Dr. Quinn explained as follows why such would not change his opinion:
The pain in the arm is referred most likely from the neck and indicates that there was an injury and that pain was from the injury, the car accident. But that's not evidence of nerve injury. And certainly, if she had a traction injury of the nerves, she would be having the numbness and tingling and problems with the nerves at that time.
Quinn at 19.
With regard to an assertion that the nerve injury discovered on the EMG was a result of spasms, he stated that muscle spasms do not cause nerve injuries. This is because traction takes stretching apart, whereas spasms actually will shorten the length that the nerve has to go.
He explains plaintiff could have received either a compression injury or a traction injury from the accident. The history and the EMG study do not correspond to a traction injury and the MRI does not correspond to a compression injury. The type of injury plaintiff suffered from in the accident was a combination of traction and compression. It is a flexion/extension type injury "so it gives a traction to the front of the neck primarily and then, because the body goes at different speeds in the car, then it will be a traction injury at the back of the soft tissues, not of the nerves." Quinn at 37. The radiculopathy reflected in the EMG was not related to a traction or compression injury.
Dr. Quinn further testified that it was his, opinion to a reasonable degree of medical probability that treatments from August 6, 1997 through August 20, 1997, which plaintiff incurred at Tidewater Physical Therapy, were not necessary for the treatment of injuries plaintiff sustained in the accident. The symptoms she had which he related to the accident were stiffness and aching and limitation of motion of the neck. He was of the opinion that the symptoms were accident-related but physical therapy was not warranted. Physical therapy is most effective and beneficial when it is given shortly after the accident. He is not saying she should not have had any treatment. Instead, he is saying she should not have had formal treatment. The appropriate treatment should have been range of motion exercises, heat at home, use of a collar if she would have liked, anti-inflammatory medicine. These treatments could have been done at home. plaintiff began this physical therapy on the day he saw her and he knows she did not need physical therapy on that day.
If she had been his patient on June 26, 1997, he would have told her to come back after a year for a reevaluation of her condition. If she returned and complained of terrible pains and tingling and numbness in her arms, he would have obtained an EMG study. Dr. Quinn was of the opinion that the EMG was not related to the accident. He so concluded because the test was done at a point when the numbness and tingling were not related to the accident. Before the study, it was evident she did not have a neurologic injury related to the accident. However, the EMG test was the appropriate test for numbness and tingling. In his opinion, the study should have been done three to six weeks after the accident because three weeks after an injury, changes on the EMG study will appear which will allow the doctor to relate the change to the injury.
It was his opinion that after the accident, she had sclerotic pain, not neurogenic type pain.
DISCUSSION
In order to render a decision in this matter, I must determine which doctor's testimony to accept since their respective opinions are conflicting. I accept the testimony of Dr. Quinn for several reasons. First, he examined plaintiff while Dr. Helou did not. In addition, he, and not Dr. Helou, is an expert in the field which deals with injuries such as plaintiff alleges. Finally, Dr. Quinn is far more experienced in dealing with the type of injury of which plaintiff complained because of the years he has practiced in the field and the large numbers of persons he has examined. By accepting Dr. Quinn's testimony over Dr. Helou's, I conclude that plaintiff has not established she suffered a radiculopathy, or even if she did, she suffered it as a result of the accident. I also conclude that, with the exception of the EMG, the treatments and medical procedures which plaintiff undertook after July 7, 1997, were not necessary as a result of the accident. However, I do find that the EMG was a necessary expense. Even Dr. Quinn testified at a point that he would have given such a test if plaintiff was his patient in order to determine the cause of her complaints. Although he also testified the test was not necessary, I conclude that it was necessary to determine that the symptoms of which she suffered did not result from the accident. The Court will not hold that a test is not necessary just because it establishes that the accident was not a cause.
CONCLUSION
Based on the foregoing, I award plaintiff judgment in the amount of $1,345.00 plus interest plus costs.