Fay v. Mincey

• Decision Date: 27 June 1984
• Docket Number: No. 83-683,83-683
• Parties: Patricia A. FAY, Appellant, v. Edgar MINCEY, an individual, and Sentry Insurance Company, a corporation, Appellees.
• Court: Florida District Court of Appeals

Page 587

454 So.2d 587

Patricia A. FAY, Appellant, v. Edgar MINCEY, an individual, and Sentry Insurance Company, a corporation, Appellees.

No. 83-683.

District Court of Appeal of Florida Second District.

June 27, 1984.

Rehearing Denied July 26, 1984.

Paul Antinori, Jr. of Antinori & Thury, P.A., and Rudy G. LaRussa, Tampa, for appellant.

Michael S. Rywant of Prugh & Rywant, Tampa, for appellees.

RYDER, Judge.

Patricia Fay, plaintiff below in a negligence action brought pursuant to section 627.737(2), Florida Statutes (1981), ¹ appeals the final judgment entered in favor of appellees, Mincey and his insurance company, which confirmed the jury's findings that Mincey had been negligent but Fay had not sustained permanent injuries. More specifically, she challenges the trial court's decisions (1) to preclude her chiropractic physician from testifying as to liquid crystal thermography (LCT) ² and his use of that diagnostic procedure in determining the permanency of her injuries and (2) to exclude from evidence the thermographic photographs of Fay taken by him. We reverse because the trial court abused its discretion with respect to these rulings and the exclusions were not harmless error.

Fay filed a complaint against appellees Mincey and Sentry Insurance Company (Sentry) to recover damages recoverable under section 627.737(2) for personal injuries she allegedly suffered in an automobile collision which occurred on May 14, 1981. The amended complaint alleged the accident was caused by Mincey's negligence in maintaining, operating, or controlling the vehicle he was driving and that she received "serious and permanent injuries to her head, neck, back, body and extremities ... all of which injuries and conditions resulting therefrom are either permanent or continuing in their nature" as a direct and proximate result of Mincey's negligence. It was further stated that Mincey was insured under a liability insurance policy issued by Sentry. Appellees filed an answer denying Mincey's negligence and asserted Fay's comparative negligence as one defense and the "no-fault" tort liability exemption provision of section 627.737 as a second defense.

The following is a chronicle of Fay's encounters with the health-care system subsequent to the accident:

After the auto accident on May 14, 1981, Fay was taken to the emergency room of St. Joseph's Hospital in Tampa, according to the emergency room report. Both the ambulance driver's report and the hospital emergency room report indicated Fay had complained of a lower back pain after the accident. A physical examination was conducted and then x-rays of Fay's back were taken. The physicians' reports indicated that no physical trauma injuries were observed and that no abnormalities were present on the x-rays. Fay did not consult further health care practitioners for her lower back pain until August 27, 1981, when she saw a licensed Florida chiropractic physician, Dr. Jeffrey Poritz. After conducting a chiropractic orthopedic examination of Fay, including the taking of x-rays, Dr. Poritz referred her to Norman Rosenthal, M.D., a licensed Florida physician specializing in diagnostic radiology. On November 12, 1981, Dr. Rosenthal made an LCT study of Fay's lumbar spine area and cervical spine area. Thereafter, Fay remained under the care of Dr. Poritz until he discharged her from formal treatment on February 10, 1982. Fay also saw Donald Vesley, M.D., a psychiatrist, and he treated her until July 19, 1982. On October 26, 1982, Frank Kriz, M.D., an orthopedic surgeon, performed an independent medical examination of Fay on appellees' behalf. Kriz gave Fay a physical examination and took x-rays.

Prior to trial, Dr. Vesley examined Fay at the request of her counsel in preparation for trial. Dr. Poritz re-examined Fay on February 9, 1983, also at the request of her trial counsel for the purpose of obtaining a more current opinion and diagnosis of Fay's condition. At that examination, Dr. Poritz, in addition to repeating the diagnostic tests performed at the initial visit, performed his own LCT study of Fay with his own equipment. ³

At the jury trial, Fay offered Dr. Rosenthal as an expert witness in the areas of radiology and thermography. The trial court accepted Dr. Rosenthal as an expert in radiology and then allowed Fay's counsel to inquire as to his qualifications in the area of thermography. Dr. Rosenthal described LCT and explained how the procedure enables experts to determine the presence of soft tissue injuries in the area of a patient's back and extremities. ⁴ Dr. Rosenthal opined that if the procedure is done properly, LCT can objectively indicate a soft tissue injury "as much as 95% of the time."

With respect to his qualifications in this area, Dr. Rosenthal stated he received formal training in thermography courses and lectures conducted at meetings of the American Thermographic Society, the recognized professional association in this area. He indicated he was a member of the Society and that he had read current literature and scientific treatises dealing with thermography. He added he had employed LCT as a diagnostic tool on at least 250 occasions. He stated the procedure was being used in between 70 and 100 hospital and "pain centers" throughout the country and was also being taught in several United States medical residency programs.

As for trustworthiness of this diagnostic device and its test results, Dr. Rosenthal testified that LCT was scientifically reliable and more accurate in many cases than the use of a myelogram to diagnose the presence of spinal root or cord syndrome disease in soft tissue injury cases. ⁵ He stated he had conducted statistical studies pertaining to LCT's reliability in connection with his patient's complaints and personally found the procedure to be about 95% accurate for detecting soft tissue injuries. He mentioned he had read several statistical studies undertaken to demonstrate the reliability of LCT to detect such injuries, and he indicated these published studies both recognize LCT and generally substantiate the findings he had personally made. Dr. Rosenthal also testified a person can be taught to properly perform the LCT procedure in twenty minutes. He admitted there are times when the results of the process can be inaccurate due to procedural and control deficiencies.

During their voir dire, appellees' counsel did not dispute the validity of Dr. Rosenthal's statements and did not present any evidence to counter his testimony. Subsequently, over appellees' objections that LCT had not obtained scientific reliability and that Dr. Rosenthal was not qualified to testify as to thermography and his use of that procedure on Fay, the trial court permitted Dr. Rosenthal to testify as to thermography in general and as to the results of the thermographic study he conducted on Fay. Additionally, the thermograms were admitted into evidence.

Dr. Rosenthal stated that on November 12, 1981, he performed an LCT study on Fay utilizing the established procedures, including considering surrounding room temperature and other control factors. He opined that the thermographic photographs of Fay's cervical and lumbar spine areas revealed the presence of soft tissue injuries as of November 12, 1981.

Appellant then offered Dr. Poritz as an expert in chiropractic medicine and thermography. He stated he began a private chiropractic practice in Florida after receiving his degree in chiropractic medicine from the National College of Chiropractic and spending approximately three years in internship programs working with various medical disciplines, including orthopedics and neurology. After practicing general chiropractic medicine for approximately five years, Dr. Poritz undertook a post-graduate program in the specialty of chiropractic orthopedics which involves the advanced study of bone and joint disorders from a chiropractor's viewpoint. He completed the program over a five-year period while he practiced chiropractic medicine. The trial court accepted Dr. Poritz as an expert in chiropractics. He then testified that the results of his physical examinations of Fay indicated her as having a lower back sprain because of a tearing of muscle tissues and ligaments due to trauma to the lower spine area. The x-rays taken by him were received into evidence without objection, and he testified that those x-rays revealed an injury to Fay's lower spine. Based upon his physical examinations and x-rays, he opined that it was within a reasonable medical probability that Fay had sustained a permanent injury of her lower spine area due to the automobile accident, and, as a result, she would suffer a 10% permanent disability.

When Fay proffered Dr. Poritz as an expert witness in thermography, specifically LCT, appellees objected on the basis of his qualifications. The trial court then allowed an inquiry into those qualifications. Dr. Poritz stated thermography was being currently taught at the National College of Chiropractic and was being widely used by chiropractors across the country on a routine basis. With respect to his expertise in LCT, Dr. Poritz explained he received formal training in two courses he had taken in the past two years, one sponsored by the American Thermographic Society and the other conducted by the Albert Einstein Medical School four weeks prior to his utilization of LCT on Fay. As a result of his participation in the latter program, he received a certificate of successful completion of the courses and also received fourteen continuing education credits which could be applied to fulfilling his state license renewal requirements. ⁶ Dr. Poritz added thermography was utilized in many of the post-graduate orthopedic courses he had taken during the past five years, he had read extensively the scientific literature relating to LCT, and had studied with Dr. Rosenthal for a long period of time prior to undertaking to perform the procedure...