Pregnant or Breastfeeding? The Jury Should Get to Know

Personal Injury

12/16/2009
Kelly L. Rooth
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Pregnant or Breastfeeding When Injured? The Jury Should Get to Know

Last month, in Martinez v. United Automobile Insurance Company, a circuit court in Miami-Dade County evaluated whether the trial court erred in withholding evidence that the insured was pregnant when the accident occurred. 

The court determined the jury should have been told about the pregnancy because the pregnancy materially affected how the doctor was able to treat the insured’s injuries.  After the accident, the insured met with a board certified orthopedic surgeon who was limited in what he could do in light of the pregnancy.  He did not order x-rays or prescribe pain medication.  Rather, he gave the insured a neck brace, an orthopedic pillow, and recommended hot towels and exercise for pain relief.  During later visits to the doctor, the insured had given birth but was breastfeeding so the doctor still did not prescribe pain medication.  Later, an MRI was ordered and reviewed two herniated disks in her back and neck. 

The insurance company’s own medical expert determined only three of seven visits to the orthopedic surgeon were reasonable.  The trial court granted the insurance company’s motion for a directed verdict and an appeal followed. 

The circuit court found that the jury should have determined the issue of reasonableness and evidence of the pregnancy should not have been limited.  The insured was unable to receive the customary plan of treatment until she had given birth and completed breastfeeding.  By not allowing the jury to understand the reasons for the insured’s specific treatment, the jury may have decided the treatments were unreasonable.

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