Goldsby v. Blocker, 51,584 (La.App. 2 Cir. 09/27/17), West reporter citation not yet available
CPI adjustments calculated using U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index values for case/judgment date and the most recent update.
L5-S1 bulging/herniation treated conservatively with gap prior to subsequent accident - IDET procedure performed after subsequent accident - inconclusive which accident created necessity for IDET - jury awarded approximately 50% of all medicals, including $17,695 of $39,144.71 incurred after second accident
Lumbar disc bulge
Physicians/Health Care Providers:
treating surgeon (Neurosurgeon)
Blake Eugene McGehee
defense examiner (Diagnostic radiologist)
Part tags: L5-S1
Treatment tags: Surgery (IDET)
Description tags: Lumbar disc bulge
Physicians/Health Care Providers:
- Kenneth Vogel : treating surgeon (Neurosurgeon)
- Blake Eugene McGehee : defense examiner (Diagnostic radiologist)
Cervical and thoracic strain
Part tags: Cervical, Upper back
Description tags: Sprain/strain/soft-tissue
Itemized general damages Pain and suffering $15,000.00 Mental anguish $15,000.00 Loss of enjoyment of life $15,000.00
|Total medical expenses||$25,000.00|
In January 2014, Goldsby moved to New Orleans, Louisiana, and began seeing Dr. Ryan Russo for continued chiropractic treatment. Dr. Russo referred Goldsby to Dr. Kenneth Vogel, neurosurgeon, for an MRI and evaluation. The MRI was taken in March 2014, but Goldsby did not review this MRI with Dr. Vogel until after she was involved in a second vehicular collision.
On April 2, 2014, Goldsby's vehicle was rear-ended by another driver while stopped at a traffic signal. Subsequent to this second collision, Goldsby went to an appointment with Dr. Vogel, who went over her March 2014 MRI results, which showed disc bulging at L5-S1. Dr. Vogel recommended continued conservative treatment; however, Goldsby discontinued all recommended treatment. A year later she returned to Dr. Russo, who again referred her to Dr. Vogel. In May 2015, Dr. Vogel sent Goldsby for a CT scan which also revealed disc bulging at L5-S1. In July 2015, Goldsby elected to have an intradiscal electrothermal therapy procedure ("IDET"), which is a minimally invasive treatment for spinal disc-related chronic low back pain. The IDET was successfully performed by Dr. Vogel without complications.
A primary issue at trial was what role each collision played in causing the disc bulging and eventual surgery. During opening statements, defense counsel stated to the jury that Goldsby had received a settlement from the second collision which covered the cost of her medical bills. Goldsby objected to the statement and later testified that the settlement she received was from an unrelated matter with Sallie Mae concerning student loans and not related to the second collision. Goldsby requested a curative instruction be given to the jury to clarify the matter, but the parties could not agree on the wording for a curative jury instruction, and none was given.
After all testimony and evidence was presented at trial, Goldsby made oral motions for directed verdict as to fault and causation. The trial court denied the motion in regard to fault, finding there were some potential comparative fault issues. The trial court partially granted the motion for directed verdict concerning causation, finding that this collision clearly caused some damage to Goldsby, but that it was for the jury to determine the extent of the damage caused by the collision with the DOTD dump truck.
The jury returned a verdict finding both parties to the collision at fault, allocating 95% of the fault to Blocker/ DOTD and 5% to Goldsby. The jury awarded Goldsby the following amounts as compensation for the damages she sustained as a result of the collision: $15,000.00, pain and suffering; $15,000.00, mental anguish; $25,000.00, medical expenses; and, $15,000.00, loss of enjoyment of life. A subsequent judgment was rendered in Goldsby's favor awarding to her $66,500.00 together with legal interest—the total amount of damages awarded to her by the jury, less the 5% of her allocated fault. Goldsby appeals.
In her second assignment of error, Goldsby argues the damages awarded by the jury are inconsistent with the medical evidence and abusively low. The jury awarded Goldsby $25,000.00 in medical expenses and $45,000.00 in general damages ($15,000.00 respectively: pain and suffering, mental anguish, and loss of enjoyment of life). Goldsby claims that the jury abused its discretion in awarding to her only half of her actual medical expenses, and seeks an increase in her awards for both medical and general damages. However, after reviewing the medical testimony, we find the awarded damages in this particular circumstance are not beyond that which a reasonable trier of fact could assess for the injury to Goldsby.
Dr. Gordon Gregory Grant, IV, an expert in chiropractic care, treated Goldsby from December 9, 2013, through January 13, 2014. He testified that Goldsby presented in his office with neck pain, upper back pain, low back pain, and headaches which she attributed to an automobile accident that occurred about two weeks before her initial appointment. The physical exam performed by Dr. Grant revealed a decreased normal range of cervical and lumbar motion. Orthopedic testing indicated nerve root irritation and injury to the low back and neck, as well as the thoracic spine. Dr. Grant performed digital palpation, confirming the existence of muscle spasms. He also ordered an X-ray that showed Goldsby had a decreased curvature of the spine. To reduce swelling and inflammation, Dr. Grant recommended cold therapy for Goldsby's back and a treatment plan of 3 visits per week for 15-20 weeks. Dr. Grant diagnosed Goldsby with back strain/sprain.
After about a month of treatment with Dr. Grant, 15 appointments in total, Goldsby moved to New Orleans seeking employment. Dr. Grant recommended Dr. Ryan Russo of Lakeside Chiropractic Clinic to Goldsby. Dr. Russo referred Goldsby to Dr. Kenneth Vogel, neurosurgeon. Dr. Vogel testified by video deposition that Goldsby related she was in relative good health until the incident in November 2013, which had caused back and left knee pain, and this pain was worsened by a second collision in April 2014. Dr. Vogel agreed with the radiologist concerning the 2014 MRI, showing cervical strain and herniated lumbar disc. His impression was that the symptoms described by Goldsby were likely caused by the collision on November 2013, with a doubling of pain after the April 2014 incident, and he recommended that Goldsby continue conservative treatment. Dr. Vogel testified that the next time he saw Goldsby was a year later, in June 2015. He re-evaluated her symptoms and noted continued cervical pain, with a mild degree of limited motion and muscle spasm, but knee pain resolving. Dr. Vogel noted Goldsby was unresponsive to conservative treatment and offered hospital admission for further evaluation. Goldsby underwent the IDET procedure a month later.
During the deposition, Dr. Vogel was asked which accident was responsible for the necessity of the IDET procedure. He testified that "the one that caused the pain initially and caused the abnormalities as shown on the MRI in all probability caused the injury. Now the second injury could have made it worse, but you and I will never know."
Dr. Blake McGehee, the defense expert who was not Goldsby's treating physician, agreed with Dr. Vogel that the second collision worsened Goldsby's injures. Goldsby also testified the second collision aggravated her back injuries.
The parties stipulated that Goldsby's medical bills total $46,449.71. Of that amount, $7,305.00 accrued after the first collision, but before the second, and $39,144.71 accrued after the second collision, with the majority of that amount attributable to combined charges related to the IDET procedure.
Goldsby demonstrated, through medical testimony, that more probably than not, the subsequent medical treatment was necessitated by the trauma suffered in the collision with the DOTD dump truck. Based on the evidence in the record it is unclear, and there is no medical evidence that can objectively show, which collision definitively necessitated the eventual IDET procedure to correct Goldsby's injuries. Goldsby established by her military discharge physical examination that she was in good medical health before the first collision; subsequent to the collision with the DOTD dump truck, symptoms of back injury appeared, and continuously manifested, leading to a reasonable possibility of causation between that collision and Goldsby's claimed injuries.
The question faced by the jury was whether the second collision caused or worsened Goldsby's injuries. The record reflects a lack of conclusive evidence that, more probably than not, the IDET procedure was necessitated by the first collision. The jury as fact finder is given vast discretion, and its findings shall not be disturbed on appeal absent a finding of abuse of that discretion. After review of the record in its entirety, we cannot find that the jury committed manifest error in awarding $25,000.00, roughly a little more than half Goldsby's proven total medical expenses, considering the fact that two collisions occurred and both likely contributed in some way to the eventual procedure undergone by Goldsby.
An appellate court may disturb a general damage award only when the record clearly reveals that the jury abused its discretion in making the award. Here, the jury awarded Goldsby $45,000.00. Based on the facts and circumstances peculiar to Goldsby, specifically the fact that she discontinued conservative treatment and went almost a year before returning to Dr. Russo, we do not find a clear abuse of discretion by the jury. Thus, this assignment of error is without merit.
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