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Plaintiff Unable to Meet Verbal Threshold Based Upon Family Doctor’s Opinion Of Decline in Mental Status Due to Car Accident

By on January 25, 2019 in Civil Lawsuits with 0 Comments

Plaintiff Ann Giesguth was in a motor vehicle accident with a car driven by defendant Anthony Costanza. A week after the accident, she was found unresponsive and was taken to the hospital.  She was diagnosed with a pulmonary embolism. The hospital notes indicated that she “apparently suffered a closed head injury, TBI (traumatic brain injury) and may be suffering from post-concussive, intermittent delirium with disorientation.” The issue in Giesguth v. Costanza, 2019 N.J. Super. Unpub. LEXIS 41 (App. Div. Jan. 8, 2019), was whether the plaintiff had satisfied the permanency requirement of the verbal threshold based upon the opinion of her family doctor that she suffered a “mental decline.”

After the motor vehicle accident, the plaintiff did not seek medical attention. It was not until one week later, when she was found unresponsive at her home, that she was taken to AtlantiCare Medical Center that she was diagnosed with a pulmonary embolism. The hospital’s progress notes indicated that she apparently suffered from a TBI. After being discharged from the hospital, she went to a rehabilitation facility where it was recommended that she undergo a neuropsychological evaluation to determine if the TBI was contributing to her “her loss of memory and behavioral aberrancies.” However, no such evaluation was ever performed.

Before trial, the defendant moved for summary judgment, contending that the plaintiff had failed to meet the limitation on lawsuit threshold (the “verbal threshold”). Because the plaintiff had selected the verbal threshold option in her automobile insurance policy, before she could sue for her noneconomic (“pain and suffering”) injuries suffered in this car accident, she was required to meet one of the listed categories of injuries, as set forth in the verbal threshold statute, N.J.S.A. 39:6A-8(a).

To satisfy the verbal threshold, a plaintiff must present objective clinical evidence that the injury meets one of the categories of injuries listed in the statute. The category of “permanent injury” is defined as follows: “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.”  A physician must provide a certification that the person suffered from a “statutorily enumerated injury” and must base his or her opinion upon “credible, objective medical evidence.”

The plaintiff contended that she had suffered a permanent brain injury due to her car accident and, hence, met the verbal threshold permanency requirement. Her attorney contended that “her mental acuity tests showed a mild cognitive impairment and mental decline…”

However, the trial court judge agreed with the defense that she had not satisfied the verbal threshold requirement and dismissed the plaintiff’s complaint. The judge pointed out that there was not “objective clinical evidence” of a permanent injury. He noted that there were no medical records specifically establishing a TBI and none of the plaintiff’s specialists opined that she suffered a permanent injury. The plaintiff relied solely on the certification of her family doctor who had treated her for 10 years and examined her shortly before the accident.

The family doctor opined generally that “plaintiff suffered a severe decline in mental status; that in his professional opinion the decline in mental status was caused by the car accident; and that this injury has not healed to function normally and will not heal to function normally with further medical treatment.” The trial court judge found that this opinion was a net opinion and was insufficient to satisfy the verbal threshold.

The Appellate Division reiterated that the physician opining on “the permanency of a plaintiff’s injury must make such determination through the use of objective medical evidence.” The Court noted that the plaintiff’s family doctor’s report was based only upon his own general observations of plaintiff’s behavior and he did not perform any objective testing on her. In fact, there were no medical tests performed on her and no neurological examination was conducted. Her family doctor’s permanency certification “simply states that the accident caused plaintiff’s mental decline.” There were no medical records to establish that she had suffered a TBI as well.

The Court pointed out that the plaintiff presented no evidence of a causal connection through “objective, critical medical evidence that her apparent mental decline resulted from the accident.” The Appellate Division found that the trial court judge aptly found that her family doctor’s opinion was a “net opinion because no records or medical tests substantiated his bare conclusions.”  Because his opinion was based upon speculation, it was, therefore, not reliable. Accordingly, the Court concluded that the plaintiff did not satisfy the required showing of a permanent injury and affirmed the trial court’s decision, granting summary judgment to the defendant.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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