When is a Medical Expert Required to Prove Proximate Cause & Damages?

Expert witnesses are a necessary evil in many cases.  They are not cheap and many clients understandably try to avoid hiring them where possible.  In the personal injury context, are there cases where a medical expert can be skipped?

In Nevada medical expert testimony is usually necessary to satisfy link the injuries to whatever harm the plaintiff alleges.  “Generally, because an injury is a subjective condition, an expert opinion is required to establish a causal connection between the incident and the injury”[1]  “It is well-settled law that in a personal injury action causation must be proven within a reasonable medical probability based upon competent medical testimony.  Mere possibility alone is insufficient.”[2]

“Generally” obviously implies an exception.  An easy example is when a person gets into a cab, the cab has a collision, and the person exits the cab with a fractured pelvis.  The plaintiff did not need a medical expert to establish the fractured pelvis was proximately caused by the accident.  However, he did need an expert to discuss the reasonableness of the treatment for that fracture and any future treatment.

Nevada’s Court of Appeals recently evaluated the extent of this exception in Behr v. Diamond, an unpublished disposition.[3]  After a bench trial, the court entered judgment that included an award for future pain and suffering.  First, a “claim for damages for future pain and suffering arising from subjective physical injury must be supported by expert testimony to the effect that future pain and suffering is a probable consequence rather than a mere possibility.” First, it is necessary to distinguish subjective from objective.  “A subjective disability is one that is not demonstrable to others or not readily observable by the court.  Subjective injuries include headaches, low-back pain, remorse, guilt, mental worry, distress, grief, and mortification.”  Objective injuries “include those such as shoulder injuries that cause a demonstrably limited range of arm motion and broken bones.  These latter types of injuries do not require expert testimony because the extent to which a broken bone causes pain and suffering is common knowledge.”

Applying these standards, the district court’s award for future pain and suffering lacked an evidentiary basis.  “First, the court erred to the extent it factored Diamond’s lower-back pain into the award. Low-back pain is a subjective injury, and therefore expert testimony must establish probable future low-back pain before the court may award damages for future pain and suffering.”  Before the accident that generated the lawsuit, “Diamond had surgery on her lumbar spine to correct a genetic defect.”  At trial she testified “she continued to experience lower-back pain even after the surgery, and experienced increased lower-back pain after the subject accident. She testified, however, that her lower-back pain had “gone away . . . for the most part,” but still “comes and goes” and “always will.”  Missing from her case in chief was “expert testimony to establish she suffered increased back-pain as a result of the accident or probable future pain and suffering based on her lower-back pain.”  This deprived the district court of an evidentiary basis to consider lower back pain in an award of future pain and suffering.

The second basis for the future pain and suffering award was a shoulder injury.  This was improper.  “A shoulder injury that substantially reduces one’s range of arm motion is an objective injury and thus, a plaintiff’s testimony alone can support an award of damages for future pain and suffering.”  No expert was needed but the plaintiff testified she no longer had shoulder problems.

The third basis for future pain and suffering were alleged “post-concussion syndrome and consequent headaches.”  “Because the court can not readily observe these injuries, expert testimony was needed to establish probable future pain and suffering based on these symptoms.”  None was presented, so this third basis lacked support.

Deciding whether medical expert testimony is needed varies with each case and the injuries alleged.  Be wary!

[1] Grover C. Dils Med. Ctr. v. Menditto, 121 Nev. 278, 112 P.3d 1093, 1100 (2005).
[2] Layton v. Yankee Caithness Joint Venture, 774 F. Supp. 576, 579-80 (D. Nev. 1991).
[3] No. 66612, 2015 Nev. App. Unpub. LEXIS 504 (Nev. App. 2015).