The South Dakota Supreme Court recently upheld summary judgment against the plaintiff in an auto accident case who failed to submit an affidavit from a medical expert on the issue of causation. Cooper v. Brownell, https://ujs.sd.gov/uploads/sc/opinions/28559bp72kyp.pdf. The plaintiff testified at his deposition that the accident had caused his injuries, and he argued that his treating physicians would be able to provided expert opinion testimony on the issue of proximate cause. However, his opposition to the motion for summary judgment did not include an affidavit from any of those treating physicians. Not good enough, said the court:
[T]he causal relationship between this accident and Cooper’s claimed injuries cannot be determined by a jury absent expert testimony. This is because Cooper seeks to recover for extensive injuries to his neck, head, back, right foot, right ankle, right hip, both shoulders and both knees. Yet there is no dispute that prior to the 2009 accident he suffered from injuries and ailments to his feet, head, neck, knees, shoulder and spine….At most, [the plaintiff has shown that] he may have been injured during the accident and that he received medical care following the accident. Yet [he] failed to submit any affidavits or deposition testimony from the physicians identifying with personal knowledge “such facts as would be admissible in evidence” and “showing affirmatively that the affiant is competent to testify to the matters stated therein.” [Citation omitted.]
At first glance, this ruling seems unexceptional. However, the court’s footnoted reference to a previous South Dakota decision that reached the opposite result piqued my curiosity. In that case, Hanson v. Big Stone Therapies, https://ujs.sd.gov/uploads/sc/opinions/28465yn61bzm.pdf, a malpractice suit against a physical therapist, the plaintiff’s opposition to summary judgment included an affidavit from a physical therapist opining on both standard of care and causation. The court pointed out that a PT is not qualified to testify on medical causation. Nevertheless, based on a carefully documented sequence of events (which I will not detail here), the court held that a jury could conclude, without the benefit of expert testimony, that the defendant PT’s deviation from the standard of care fractured the plaintiff’s femur. In a separate opinion concurring in the result, Retired Justice Konenkamp cited a surprisingly large (to me) number of personal injury cases in which expert testimony on causation was not required:
In similar circumstances, other jurisdictions have ruled that expert testimony is not required to prove causation. Immediate outward manifestation of symptoms that naturally follow from an accident constitutes the usual grounds for holding expert opinion unnecessary. E.g., “[T]he causal relationship between [plaintiff’s] fall and her immediate symptoms in the ankle, knee and back (the pain, swelling, and the inability to sit, stand, or walk without assistance) is within the usual and ordinary experience of the average person.” “[I]f a plaintiff suffers a cut in an accident, the jury can readily determine without expert testimony that the accident caused the cut.”…Other courts have acknowledged that broken bone cases are particularly amenable to lay opinion on causation because the experience is so common…. “No expert testimony is necessary for lay jurors to appreciate that allowing a nursing home patient to fall to the floor could cause a broken bone.” [Citations omitted.]
Here, Anita Hanson suffered an immediate outward manifestation of symptoms that naturally followed from the accident. Beforehand, her pain was under control and her therapy sessions were progressing well. When the footrest shut abruptly, “Anita screamed out in pain.” When the pain persisted, an x-ray the next morning revealed the fracture. Although a medical expert might refute her opinion on how her fracture occurred, she is nonetheless entitled to offer her lay opinion on its cause. [Emphasis added.]
I’ve bolded that last sentence because I think it sets out the prudent course for plaintiff and defense counsel alike. If a person falls down, and an x-ray taken shortly thereafter shows a broken bone, then yes, it seems obvious that the fall caused the fracture. And if an “obvious” personal injury case can be settled on that basis, well and good. But if the defendant moves for summary judgment, the plaintiff’s attorney who doesn’t submit a medical expert’s affidavit on causation is taking a big risk. Hanson’s attorney gambled and won, but Cooper’s attorney gambled and lost. And if the Hanson case went to trial, you can be sure that the defendant’s attorney did exactly what Retired Justice Konenkamp suggested, namely, produced a medical expert to testify that the fractured femur was not caused by anything the physical therapist did, but was due to some other cause. One can only hope that Hanson’s attorney presented a medical expert to support the plaintiff’s causation theory at trial, rather than doubling down on the gamble.