Why Honesty With Your Doctor Can Make or Break an Ohio Injury Case

Published November 23, 2011 · Ohio Appeals Courts

The other driver admitted the crash was his fault. The plaintiff had spinal surgery. Her surgeon testified, to a reasonable degree of medical certainty, that the surgery was caused by the collision. No defense doctor contradicted him. She asked the jury for $82,494 in medical bills.

The jury gave her $7,338.21, and last month the Eighth District Court of Appeals in Cleveland said that was fine.

Banas v. Shively, 2011-Ohio-5257, decided October 13, 2011, is not a case about a legal technicality. It is a case about credibility, and about what happens when a jury decides it cannot trust what the injured person told her doctors. It is worth reading closely, because the mistakes in it are avoidable, and because the same mistakes are made in Dayton-area cases every year.

What the jury heard

Galina Banas was in a crash on July 3, 2007. The defendant's car pushed hers off the road and into a large rock. He admitted negligence; the only questions at trial were what injuries the crash caused and what they were worth.

The problems started with the emergency room record. Ms. Banas testified she was in severe pain, never got out of her car, and was removed by paramedics. The ER chart said the collision was low-speed and glancing, that she was walking at the scene, that her neck and back were non-tender, and that she was discharged in good condition. Six weeks later her own chiropractor recorded that her neck symptoms had improved by 90 percent.

Then came the second crash. On July 19, 2007, sixteen days after the first, Ms. Banas was a back-seat passenger in a car her husband was driving when it was rear-ended. She testified it was a minor bump, that she was not hurt, and that she sought no treatment. But her primary care doctor's record from the next day showed a complaint of whiplash, and a follow-up visit five days later to reassess injuries from that second collision. And in a separate lawsuit in Lake County, she had alleged that the second crash caused injuries exceeding the other driver's $25,000 policy, and sought underinsured motorist benefits of $100,000 on top of it.

Her spinal surgery came in February 2010. The surgeon who performed it, and who testified that the crash caused the need for surgery, was never told about the second collision. He had not reviewed the ER records, the primary care records, the chiropractic records, or any records from before the first crash. He acknowledged that her imaging showed bone spurs, a sign of arthritis that predated the crash, at the very level where he operated.

What the court held

Ms. Banas argued on appeal that the jury was bound to accept her surgeon's uncontradicted causation opinion. The court disagreed. Quoting earlier Ohio decisions, it explained that a jury may accept or reject any witness's testimony, including an expert's, and that "Expert testimony is permitted to supplement the decision-making process of the fact finder, not to supplant it." An expert's opinion is only as good as the facts it rests on. When the defense shows that the expert was missing key facts, or was given inaccurate ones, the jury may reasonably discount the opinion even without a competing expert.

The court also held it was proper for the defense to confront Ms. Banas with her Lake County complaint. A party's own prior statements can be used to impeach her, and a sworn pleading claiming serious injury in the second crash directly contradicted her trial testimony that she was uninjured in it. The verdict, the court concluded, reflected a jury that believed the ER visit and a follow-up were caused by the crash and that the rest was not proven.

The real lesson

It would be easy to read this case as a plaintiff being punished for lying. I do not think that is the right reading, and it is not the useful one. People in pain, with two crashes a couple of weeks apart, genuinely lose track of which symptom came from which event. People tell a surgeon about the injury they think matters and leave out the one they think did not.

None of that is dishonesty in the moral sense. All of it is fatal to credibility in a courtroom. The defense does not have to prove you lied; it only has to show the jury that the story told to the surgeon was not the whole story. Once the jury doubts the story, it doubts the expert who relied on it, and the medical bills follow.

Here is what the case actually teaches:

Tell every treating doctor about every prior and subsequent injury. Your surgeon, your physical therapist, your chiropractor. If there was a second crash, a fall, a sports injury, or an old back problem, say so. A doctor who knows about it and still attributes your condition to the crash is a powerful witness. A doctor who learns about it for the first time on cross-examination is a liability.

Tell your lawyer first, and tell your lawyer everything. Prior claims, prior injuries, prior lawsuits, other crashes. A lawyer who knows about the second collision can get the second crash's records, coordinate the two claims so they do not contradict each other, and prepare the surgeon. A lawyer who finds out at trial can do nothing.

Make sure your expert has the complete file. Ms. Banas's surgeon had not seen the ER record, the primary care notes, the chiropractic notes, or her pre-crash history. In a case where causation is contested, the expert must review all of it and address it head-on, including pre-existing degeneration. Ohio law allows recovery for the aggravation of a pre-existing condition, but only if the expert says so.

Understand that what you tell any insurer becomes evidence. We have warned before about recorded statements to the other driver's insurer. The same is true of claim forms, applications for benefits, and pleadings in any other case.

Why this matters for case value

The arithmetic in Banas is stark. The jury accepted roughly the cost of an ER visit and a follow-up and rejected a $69,000 surgery, because the plaintiff could not carry her burden of proving the crash caused it once her credibility collapsed.

We have written about how juries evaluate medical bills, including the difference between what is billed and what is paid, and about why seeing a doctor promptly after a crash creates the record that ties your injuries to the collision. The injured person's own honesty, with doctors, with lawyers, and under oath, is the foundation the whole case is built on.

What this means for you

If you have been hurt in a crash and you have a complicated history, whether it is an old injury, a prior claim, or a second incident after the crash, that history does not mean you have no case. It means your case has to be built honestly from the start, with every doctor and your lawyer working from the same complete set of facts. Handled that way, a pre-existing condition or a second accident is a detail the jury weighs. Hidden, it is the detail that ends the case.