Our last article looked at the basics of spinal MRIs and how they’re utilized in NJ Personal Injury cases. Let’s take a closer look into the logistics of using the MRI in a case.
Is getting the MRI enough for your case? Metaphorically, it gets you out of the gate but not necessarily across the finish line. A patient’s MRI that reveals a herniated disc is akin to the opening of the starting gate. The verbal threshold has been pierced. In a verbal threshold case, it must show that the patient sustained a permanent injury. Under the Automobile Insurance Cost Reduction Act, “an injury shall be considered permanent 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.” Disc herniations have been found to meet the verbal threshold.
Is that enough? No, in addition to a history of treatment and additional supporting diagnostic information, we need a Certificate of Permanency. The purpose of the certification of permanency requirement is “to provide 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 noneconomic damages under the revised AICRA verbal threshold standard and to thwart fraud by furnishing a legal foundation with a potential charge of perjury.”
Presenting the MRI findings in your filing. Hopefully your case settles, and you go home feeling good, knowing you’ve worked hard for your client, winning a fair and just settlement for them. But what if it doesn’t settle? What if it goes to trial and the MRI findings must be introduced in court? Things can get complicated. Having the radiologist testify every time, the one who initially read the MRI, is impractical and costly. Having the treating physician testify, the one who ordered the MRIs, incorporated the results into treatment, and signed the COP makes much more sense. But that isn’t always a wrinkle-free process.
Qualifying. First, the treating physician’s notes or report must state clearly that he or she personally reviewed the MRI and that he or she has come up with their own, independent findings. Second, the treating physician must be qualified to interpret the MRI before being able to testify in court on the findings.
When I started practicing in 1989, I would have a separate consultation with the patient to go over an MRI. I’d have the films up on my view box (and later, images from a cd up on my computer) and I’d have the radiologist’s report in hand. I’d go through the report, line by line with the patient, pointing out each finding on the films. Patients got a better understanding of their MRI this way. This does not fly in court today.
Introducing the findings in court. To testify in court as to the findings on an MRI, a doctor has to show evidence that he or she came up with their own independent opinion and, has to be qualified to interpret those findings.
For some time, I was frustrated with this change in the law. It made no sense to me. I argued that based on that thinking, a doctor who orders blood work can’t rely on the lab results because they didn’t put the blood under the microscope and assess the cells personally, coming up with their own independent opinion. It seemed nonsensical that a doctor could make the medical decision for the need of an MRI, submit a request for the MRI, have it approved, and then refer the patient for MRI. A doctor could read the MRI, come up with a diagnosis, and explain the results to the patient. A doctor could make medical decisions to change therapy or refer to a specialist, based on the MRI. But, good luck being able to mention the MRI findings in a court of law if the court deems you unqualified to do so.
I have since calmed down. I may still not necessarily agree with it but after reading many legal briefs I have now come to at least understand, from a legal perspective, why this is.
My understanding. If, in my testimony, I mention a report from another doctor, and that doctor is not, or will not be in court to testify, then that doctor can’t be cross-examined. Their report, however valuable, is an out-of-court statement, known as “hearsay” – the hearsay opinion of a non-testifying expert. Any expert testimony “should not be used as a vehicle for the wholesale (introduction) of otherwise inadmissible evidence.” The report of an out-of-court expert cannot be introduced for its “truth” or to “bolster” the opinion of the testifying expert.
To the issue of qualified expert, “an MRI report may not be admitted under N.J.R.E. 703 without the testimony of a qualified physician.” “Only an expert qualified to interpret an MRI” could testify as to the content of a report. The Supreme Court noted that a plaintiff cannot “bootstrap” the findings of an MRI into evidence through the testimony of an unqualified expert.
So now I have come to an understanding of why there are such challenges when attempting to introduce MRI findings into court testimony. I may not fully agree with them, but I at least understand the reasoning. Yet there remains the issue of qualifications.
What deems an expert witness, particularly a chiropractor, qualified to read and interpret MRI findings? There seems to be no set, agreed upon qualifications that deem one an expert. Currently, it lies in the examination by the attorneys for the plaintiff and the defense, and the decision of the justice. In my humble opinion, it appears to be up to the discretion of the court each time. As a plaintiff attorney, I think it would be in your best interest to examine your expert’s education and especially whether they’ve been deemed an expert to qualify in the past.
