Jones v. Harris

896 So.2d 237 (2005)

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Nature of the Case

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Facts

P was driving and preparing to turn into the driveway of her place of place of employment when she was rear-ended by a Jeep driven by D. P, and her co-worker were returning to work from their lunch break. P noticed that D was bending down. P alerted her passenger as to a collision. D was looking down because the soft drinks she had just purchased from Rally's had spilled. D was in the course and scope of her employment with the State. P sued D and her insurer, Allstate. Mr. Jones joined in the suit to assert a loss of consortium claim. Ps filed an amended petition adding the State as a defendant. The trial court granted Ps' motion for summary judgment on liability. Ds did not contest that decision. A three-day jury trial was held on the issues of causation and damages. P experienced escalating pain in her left leg and lower back. P complained of pain in the lower back, the left buttock, the left shoulder, and the neck region. She gave a history indicating that she was forty-four years old and that she was in good health until June 30, 1998, when she was in a motor vehicle accident. The accident occurred on a Tuesday, that she returned to work on Wednesday and Thursday, and that she has been on vacation since then. During the nine-day period between the date of the accident and the date she first saw Dr. Kewalramani, she reported that she took Motrin, but her pain continued and gradually increased in severity. Eventually by January 14, 1999, Dr. Kewalramani discharged her with the recommendation that she continue with the home physical therapy program. Ten months later, on November 12, 1999, she returned complaining of progressively increasing lumbar pain and discomfort radiating along the left lower extremity. An EMG revealed abnormal potentials in the muscles supplied by the L5-S1 nerve roots as well as abnormalities in the leg muscles. Because of the abnormal EMG findings, Dr. Kewalramani ordered an MRI, which was done on March 20, 2000. The MRI, like the EMG and x-rays, showed a problem at the L5-S1 level. Based on the abnormal EMG and MRI results coupled with the fact that he had treated her conservatively for a lengthy period over which she had progressed and then regressed, Dr. Kewalramani recommended that Mrs. Jones get a second opinion from a neurosurgeon of her choice. Dr. Vogel recommended that she undergo a micro-surgical diskectomy. He informed her that this surgery has a 90 to 95% success rate and that a successful surgery is one that resolves 80 to 90% of the pain. P underwent a microsurgical laminectomy, L5- S1, left; lumbar medial branch neurotomy, L4-5, and L5-S1, left and a lumbar epidural block. In his operating report, Dr. Vogel stated that he was able to see through the microscope that the disc herniation at L5-S1 had actually occurred. On June 26, 2001, Dr. Vogel discharged her from active care. He found P had a 10 to 15% medical impairment of the body as a whole and imposed the following permanent functional restrictions on her. He advised her that she may return to work on July 17, 2001.On August 27, 2001, she saw Dr. Kewalramani. A second EMG, which was performed which revealed more problems. Dr. Vogel's impression was that she had recurrent herniated lumbar disc with possible lumbar instability suspected. Dr. Vogel's opinion was that she fell into the category of the 5 to 10% of patients who after the first surgery have complications and require additional treatment. On March 19, 2003, she underwent the following multiple operative procedures: an intradiscal electrothermal annuloplasty, posterior lumbar interbody cage fusion, microsurgical diskectomy, L5-S1, bilateral, medial branch neurotomy, L4-L5 and L5-S1, bilateral and lumbosacral epidural block. The second surgery confirmed that she had a recurrent disc herniation. In his operating report, Dr. Vogel stated that he found the herniation was encroaching on the S4 nerve root, which is considered grossly abnormal. On June 17, 2003, Dr. Vogel dismissed Mrs. Jones from his active care. Dr. Vogel placed her on permanent partial disability and rated her disability as 15 to 20%. On June 18, 2003, she returned to see Dr. Kewalramani. At the time of trial, she was still seeing Dr. Kewalramani. The State's expert examined her and testified that there was a definite change in her condition for the worse after surgery and that 'surgery is not without trauma.' He attributed her back pain not to the accident, but the surgeries. As to her future prognosis, he testified that he did not believe there would be much improvement and that she is 'probably pretty much stuck with what she has, which he defined as 'fatal back syndrome,' a 'failed effort to treat a very minor problem.' The back surgeries should not have been performed, and the back pain is attributable to those surgeries presented a causation issue. Damages were awarded: Past Medical Expenses $154,326, Future Medical Expenses 80,000, Loss of Past Wages 80,206 Loss of Future Wages/ Earning Capacity, Including loss of fringe benefits 348,864, General Damages 500,000. Total Damages $1,163,396. The jury also awarded $40,000in loss of consortium damages. The court limited the State's liability for the combined general damages award to $500,000 pursuant to La. R.S. 13:5106(B). The trial court denied the State's motions for judgment notwithstanding the verdict and new trial. This appeal followed.