Procida v. McLaughlin
| Decision Date | 13 April 1984 |
| Citation | 479 A.2d 447,195 N.J.Super. 396 |
| Parties | Mary A. PROCIDA and James A. Procida, her husband, Plaintiffs, v. Theresa Cline McLAUGHLIN and Joseph McLaughlin, Defendants. |
| Court | New Jersey Superior Court |
Edward C. Curcio, Berlin, for plaintiffs (Console, Marmero, LiVolsi, Wood, Curcio & McMahon, Berlin, attorneys).
Peter P. Green, Haddonfield, for defendants (Green & Lundgren, Haddonfield, attorneys).
In this damages trial arising out of an automobile accident which occurred on October 21, 1981 the plaintiff, Mary A. Procida, sought to present thermograms taken by Dr. Henry Fichman. The defendant, Theresa Cline McLaughlin, objected to their use. An Evid.R. 8 hearing was held to determine if thermograms may be admitted as reasonably reliable diagnostic tests to support the doctor's diagnosis of post-traumatic cervical strain and sprain and post-traumatic lumbrosacral strain and sprain.
There are no reported cases in New Jersey deciding this issue. Thermography has very recently been developed in the medical field and presented in courts as objective evidence of soft tissue injury in personal injury negligence actions. It has been accepted in other areas of medicine, particularly in the detection of breast cancer, for at least two decades. It is widely used in industry and space for many purposes.
The plaintiff presented as her first expert Dr. Harry Rein. Dr. Rein is licensed to practice both medicine and law in the State of Florida. He is currently Medical Director of Thermographic Medical Associates and supervises clinics in Florida, Ohio and Alaska. He has written numerous texts including The Primer on Thermography, The Primer on Medical Malpractice, The Primer on Soft Tissue Injuries and The Weight of Medical Evidence (Harry Rein, J.D., M.D.1983) and teaches seminars throughout the United States on these subjects.
It is Dr. Rein's testimony that thermography may be used by a physician to answer the questions of whether or not there is nerve injury, whether or not there is soft tissue injury and whether or not there is a reason for pain. However, he states that the thermogram does not quantify these answers.
Thermography accurately measures differential skin surface temperature by measuring and recording the infrared light emitted by the body. The body constantly emits infrared light which is invisible to the human eye. The wavelength of the emitted infrared light is directly related to the temperature of the point on the body emitting it. In electronic thermography, machine sensors measure the infrared light coming from the body and convert these measures into electronic energy. This energy is then transformed by the computer into a graphic representation of the skin temperature depicted on a television screen. To preserve the depicted graphic representation, called a thermogram, a photograph may be taken. Thus, infrared thermography may be defined as heat photography.
An alternative method to infrared thermography is liquid crystal thermography. This technique involves applying a flexible rubber sheet containing heat-sensitive liquid crystals to the affected area. The sheet can be blown up like a balloon and adapts closely to the body contours. On the liquid crystal scale, the gradual transition from brown (cold) to blue (warm) indicates skin temperature differentials.
Among the instructions given to the patient prior to testing are the following: no smoking two hours prior to the test, no hot or cold beverages one hour prior to test, no lotions or ointments 24 hours prior to test, no physical therapy 24 hours prior to test, no sunbathing two weeks prior to test, no pain medications 24 hours prior to test, and bathe the night before the scheduled examination. Following this protocol, the patient cannot create an abnormal thermogram.
Thermography must be done in a properly prepared setting. The rooms for testing and preparation require temperature stability in the 66-75 degree Fahrenheit range and should be draft free. Fifteen to twenty minutes prior to thermographic examination, the patient's skin must be allowed to cool to a temperature which will become stable when exposed to the surrounding room temperature. The patient is placed in a cooling-dressing room and is required to remain free of pressure contact with clothing, belts, bands, furniture, appliances, the wall or seat if a lower body study is to be done. A proper study consists of three repetitive studies separated by twenty minute intervals and a significant interpretation depends on consistency of the findings with time over all three studies.
After the thermographic examination, the physician must interpret the thermograms to see if a pattern exists. Thermograms are considered normal when the thermal patterns are bilaterally symmetrical. In contrast, thermograms that are asymmetrical or have marked localized differences in the thermal map are abnormal and may indicate an injury.
The test is based upon the physiological principles of the sympathetic nervous system. In general, when a nerve is irritated it will cause a sympathetic overactivity and result in vascular constriction of the small skin capillaries accompanying the nerve. This results in the appearance of a cold spot, as seen by the thermogram machine, in the upper or lower extremity along the course of sensory distribution of the affected nerve. Other injuries, such as bruises or those resulting in inflammation, will cause vasodilation of the involved area. This results in the appearance of a warm spot, as seen by the thermogram machine, in the affected area.
Thermography is objective because a diagnosis of abnormality may be made even without seeing the patient. However, Dr. Rein indicated it is better to use thermographic diagnostic tests in conjunction with the patient's history and other diagnostic tests such as an EMG to arrive at a diagnosis. An EMG is a good test of the motor nervous system, whereas thermography will test both the motor and sensory nervous systems. A combination of these two tests will give a diagnostic accuracy of 90-94%.
Dr. Rein admits that there are differences among advocates of thermography as to certain interpretations. However, he gives the opinion that the thermogram is scientifically reliable and that in most cases a practitioner who understands thermography will interpret a thermogram the same as any other practitioner. There will be clear normal thermograms and clear abnormal thermograms with some difference in the diagnosis of the area inbetween.
George Hershman, Ph.D. in material science, who was qualified as an expert in physics, electronics and thermography, testified as to the construction, operation reliability and self-calibration of the thermographic machine used by plaintiff's physician, Dr. Fichman. The Probeye machine, manufactured by Hughes Aircraft Company, is based upon and developed on principles of electronics and physics. Argon gas, a coolant, is used to hold the detector at a constant temperature. Indium antimonide, a substance sensitive to the range of infrared wavelengths emitted by the human body, is used in the Probeye machine to detect the body's infrared waves. The detectors convert the infrared rays to a voltage signal which is then transformed into a graphic of the emitted temperatures. It was...
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...1985); Grey v. Eastern Airlines, Inc ., 480 So.2d 1341 (Fla. 1985); Fay v. Mincey , 454 So.2d 587 (Fla. 1984); Procida v. McLaughlin , 195 N.J.Super. 396, 479 A.2d 447 (1984); Thornton v. United States Dept. of Agric ., 715 F.2d 1508 (11th Cir. 1983). 18 Kluck v. Borland , 162 Mich.App. 695......
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Table of Cases
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