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Defense Attorney Rebuts MD's Diagnosis by Attacking Plaintiff's Credibility: GA Trial Highlight

Posted by Steve Silver on Oct 16, 2015 3:48:39 PM


In many auto accident trials, defendants concede liability for the collision, and the issues for the jury become the extent and cause of the plaintiff’s injuries. Often, those trials turn into a credibility contest as jurors weigh conflicting testimony from the plaintiff’s treating physician and the defense’s consulting expert. In one recent case in Whitfield County Superior Court, however, the defense called no medical witnesses at all to dispute plaintiff’s testimony on the issue, instead using the plaintiff’s alleged lack of credibility to rebut the medical evidence. Christy Carr Fowler v. Shelby McFarland (14-CI-197-J).

The case arose out a seemingly minor auto accident near Dalton, GA, on Marrch 29, 2012. Christy Fowler’s car had stopped in a line of traffic where it was rear-ended by Shelby McFarland’s vehicle. Damage appeared minimal, although Fowler was taken to the emergency room for treatment. Fowler began complaining of neck and back pain and sought treatment from a variety of doctors and chiropractors up until the time of the trial. She also missed considerable time from work and eventually quit her waitress job within a couple of months of the accident, alleging severe pain, and had not worked since.New Call-to-action

At the trial, Fowler introduced video depositions of Dr. Murrah Watson, her primary care physician, and Dr. Stephen Dreskin, a pain management specialist. Dr. Watson began treating Fowler for her neck and back pain shortly after the accident and prescribed a number of pain medications. After treating her for approximately a year, he referred Fowler to an orthopedic specialist, and she eventually began treating with Dr. Dreskin in September 2013.

Both doctors reported that Fowler claimed to have been symptom-free before the accident, and, in addition, Dr. Dreskin said that his first examination of Fowler showed objective as well as subjective signs of pain. Dr. Dreskin also reported that MRI’s taken after the accident showed some bulges in Fowler’s spine that could have been degenerative but, in his view, likely resulted from the accident. He also thought Fowler’s condition could be permanent.

Dr. Dreskin summed up his findings, “Based on her history presented to me, that was she was basically asymptomatic for a significant period of time prior to the car accident and, immediately following the car accident, she had significant pain in her neck with radiation to the upper extremities, … based on that history, I made the determination to a reasonable degree of certainty was that her current injuries related to that automobile accident.” Fowler’s attorney Sutton Slover later re-read that quote for the jury’s benefit during his closing statement.

In the face of that evidence from Fowler’s physicians and Fowler’s own testimony regarding the accident, McFarland’s attorney E. Alan Miller decided not to call any medical witnesses. His only witnesses were McFarland and her father, who disputed some of Fowler’s testimony concerning McFarland’s conduct in the aftermath of the accident.

Instead of calling any medical witnesses, Miller asked the jury to consider Fowler’s own credibility. During their testimony, both Dr. Watson and Dr. Dreskin had testified under cross examination that Fowler never mentioned to them that she was hurt by a chiropractor she visited a month after the accident, something she would testify to at trial. Nor, when she related her medical history to them, did she mention being injured in a one-car rollover accident or a fall in her home, both of which occurred several years before the accident involving McFarland.

Miller used Fowler’s statements, or lack thereof in reporting her history, to call into question Dr. Murrah’s and Dr. Dreskin’s diagnoses. First, he suggested that Fowler’s injuries were caused by the chiropractors she visited, who, according to Fowler’s testimony, hurt her and made her cry. Second, he pointed out to the jury that the diagnoses depended on Fowler’s reported symptoms and her medical history, which omitted several severe traumas she had suffered in the past.

Miller noted Dr. Dreskin’s testimony that some aspects of Fowler’s medical condition, including degeneration and bone spurs, predated the accident, “Put that all together with a bump like this, and what do you get, an abundance of evidence justifying a zero award. She had a sore neck before this accident; she had a sore neck after the accident.”

Miller then focused on Fowler’s credibility. He started by pointing out discrepancies between Fowler’s description of McFarland after the accident as an abusive, cursing person, and McFarland’s and her father’s testimony. Miller said he brought up the disputed testimony because “it hinges upon credibility, and that credibility, that same credibility is what the doctors depend on in order to treat a patient.”

Miller then discussed other discrepancies in Fowler’s testimony, including claims she had never been treated for neck and back pain before and discrepancies in testimony involving her medications. Miller mentioned the one-car accident, an accident so severe that emergency room physicians ordered a CT scan out of fear that Fowler might have suffered a fractured skull. He noted that Fowler had a full recovery from the earlier accident. “You’ve got to wonder, is there some type of secondary game going on here? Maybe she recovers so well because it was a one-car accident. Because there was no one to blame but herself. Maybe she was fine because it was a one-car accident back in 2006, a pretty serious accident. But here, a minor bump, and she’s got all these medicals …”

Miller concluded by emphasizing, “Unless Ms. Fowler tells her doctors, unless she’s credible, the doctors are never going to know. And the doctors are going to say, ‘Well, she’s telling me it’s causing the accident; I guess I’ll believe her.’”

In his closing statement, Sutton Slover tried to counter Miller’s arguments. “If you were to believe this didn’t happen, that she didn’t get injured, then you’re going to have to disbelieve, that she didn’t need to go [to a pain doctor], that she didn’t need to go to a chiropractor, that she didn’t need all these pain medications, that she didn’t drive up to Hixson Spine Center … you’re going to have to disbelieve that. You’re going to have to disbelieve these slew of doctors who every single one of them related it to the accident.” He added that the jurors would need to “run them out of town” for treating patients incorrectly.

The jury apparently agreed with Miller’s contentions regarding the severity and cause of Fowler’s injury. They reached a verdict for the defense in the case. Courtroom View Network’s gavel-to-gavel coverage of this trial can be found here. Check here for CVN’s earlier article about the case.

Steve Silver can be contacted at ssilver@cvn.com.

 

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Topics: Georgia, Fowler v. McFarland