Britt v. City of Shreveport

55 So. 3d 76, 2010 La. App. LEXIS 1505, 2010 WL 4336076
CourtLouisiana Court of Appeal
DecidedNovember 3, 2010
Docket45,513-CA
StatusPublished
Cited by7 cases

This text of 55 So. 3d 76 (Britt v. City of Shreveport) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Britt v. City of Shreveport, 55 So. 3d 76, 2010 La. App. LEXIS 1505, 2010 WL 4336076 (La. Ct. App. 2010).

Opinion

STEWART, J.

| ,This appeal arises from a trial court judgment in favor of the plaintiffs, Glenn and Carolyn Britt, and against the defendant, the City of Shreveport (“City”). The suit concerns damages resulting from a tree falling on Carolyn Britt’s car. The City now appeals the trial court’s judgment. For the reasons stated herein, we affirm.

FACTS

On August 5, 2003, Carolyn Britt was traveling on Thornhill Street toward a crew of City employees, who were engaged in trimming a tree. One of the employees signaled Mrs. Britt to proceed through the area. While she was passing, a large tree limb, approximately three feet in diameter and ten feet in length, fell and landed on top of her vehicle. Mrs. Britt did not *79 receive any medical attention at the scene of the accident, choosing instead to call her daughter to pick her up from the accident scene and take her home.

As a result of the accident, Mrs. Britt sustained multiple injuries to her head, neck, shoulder, lower back, and legs. Her vehicle, a 1991 Astrovan, sustained about $3,500.00 in damages, and was declared a total loss.

On August 13, 2003, Mrs. Britt sought treatment for the first time from a local chiropractor, Dr. John A. Thompson. Dr. Thompson diagnosed Mrs. Britt with a cervical sprain/strain with muscle spasms; a lumbar sprain/strain with moderate to severe muscle splinting/spasming across the left SI level and lumbar radiculitis with pain along the L5 nerve root into the left hip and lower extremity; a thoracic sprain/strain with muscle 12splinting/spasming along the paraspinals; and headaches. After providing chiropractic treatment to Mrs. Britt from August 13, 2003, to December 8, 2003, Dr. Thompson noted remarkable improvements in the cervical and thoracic regions, as well as a decrease in headaches.

Dr. Thompson referred Mrs. Britt for an MRI of the lumbar region, so that he could isolate the source of her complaints. Mrs. Britt did not have the suggested MRI. Dr. Thompson released Mrs. Britt from his care, since she was not improving in the lumbar region.

Approximately six months after the August 5, 2003, accident, Mrs. Britt sought treatment from Dr. Richard Kamm. At her initial visit, Mrs. Britt complained of neck pain, lumbar pain with pain radiating into her left buttock and posterior thigh, and headaches. Dr. Kamm instructed her to avoid any activity that produced pain or discomfort to the affected areas, including lifting, bending, and stretching. Additionally, he instructed her to apply cold to the affected areas and prescribed her the medications Bextra, Soma, and Lortab.

On February 11, 2004, Mrs. Britt returned to Dr. Kamm complaining that there weren’t any improvements in her physical condition. Dr. Kamm recommended that she be evaluated by an orthopedic surgeon or neurosurgeon. Dr. Kamm also recommended an MRI of the lumbar region. On April 21, 2004, Mrs. Britt returned to Dr. Kamm for a followup visit. Again, she reported no change in her physical condition. She also informed him that she had not made an appointment for her MRI, but she had seen Dr. Austin Gleason, an orthopedist, as requested.

Is At time of her next appointment with Dr. Kamm on June 16, 2004, Mrs. Britt had not scheduled her MRI. On September 4, 2004, Mrs. Britt informed Dr. Kamm that the severity and frequency of her headaches had decreased and that she also had the MRI. However, she had not scheduled a follow-up appointment with Dr. Gleason to receive the results of the MRI. She also told him that Dr. David Adams performed a nerve conduction study, which was negative. After Dr. Kamm reviewed the MRI, he determined that she had received maximum medical improvement under his care and that she should see Dr. Gleason for further treatment.

Mrs. Britt initially began treatment with Dr. Austin Gleason on March 9, 2004. After a physical examination, Dr. Gleason diagnosed her with chronic neck and back syndrome. He recommended an MRI of the lumbar spine. During her follow-up visit with Dr. Gleason on August 23, 2004, she complained of pain in her back with radiation into her left hip and leg, down to the calf. The MRI showed multi-level degenerative changes with only moderate spinal stenosis. Dr. Gleason opined that Mrs. Britt was not a candidate for surgery *80 at that time and recommended conservative management. He gave her a prescription for Neurontin and advised her to return in three weeks to check the progress of the medication. Mrs. Britt did not have the prescription filled, nor did she return for a follow-up visit.

On November 8, 2004, Mrs. Britt sought medical treatment from Dr. Marco Ramos, a neurosurgeon. Dr. Ramos diagnosed her with probable cervical myelopathy, secondary to lumbar and lumbosacral radi-culopathy. He requested an MRI of her cervical spine. The MRI revealed a herniated |4nucleus pulposus and osteophyte at the C5-C6 and C6-C7 levels, a corpectomy at C6 and a strut fusion to be followed by anterior instrumentation from C5-C7. Even though Dr. Ramos reviewed the same MRI that Dr. Gleason reviewed, he recommended surgery to correct these problems.

Mrs. Britt’s counsel referred her to Doug Tietjen, a physical therapist, for functional capacity examination. Tietjen determined that she was not a candidate for functional capacity testing, and suggested that she be enrolled in a physical therapy rehabilitation program with emphasis on McKenzie mobilization, exercises and traction. Mrs. Britt never enrolled in the recommended physical therapy rehabilitation program.

The City hired Dr. Anil Nanda to perform an independent medical examination on Mrs. Britt. This examination took place on August 7, 2007. Based on Mrs. Britt’s complaints and a review of the MRI, Dr. Nanda determined that Mrs. Britt had a tightness at C3-4, C5-6, C6-7, and L5-S1. Dr. Nanda noted that there were many alternative means of rehabilitating Mrs. Britt’s symptoms, such as physical therapy. He commented that surgery should be the last alternative. The City also retained Terry Eberhardt, a physical therapist who also opined that physical therapy is the favored means of rehabilitating Mrs. Britt.

Mrs. Britt, along with her husband Glenn Britt, filed a petition to recover damages resulting from personal injuries to Mrs. Britt, including pain and suffering, medical expenses, lost wages, loss of earning capacity and loss of enjoyment in life. The City stipulated to total fault in this action |sfor the August 5, 2003, accident. On July 10, 2009, the trial court awarded Mrs. Britt $371,963.96 in general and special damages. Mr. Britt was awarded $10,000 for loss of consortium. The trial court also assessed the costs, interests and fees of the medical experts against the City.

The City now appeals, asserting four assignments of error.

LAW AND DISCUSSION

Mitigation of Damages/Failure to Undergo the Recommended Surgery

In the City’s first assignment of error, it asserts that the trial court erred in finding that it only proved in part that Mrs. Britt had not dutifully mitigated her damages. More specifically, the City argues that the medical evidence proves that had Mrs. Britt submitted to the recommended physical therapy regimen, she would have had a 50% chance of not needing the recommended cervical and lumbar surgeries.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Thomas v. United States
W.D. Louisiana, 2025
Reed v. United States
W.D. Louisiana, 2025
Mouton v. United States
W.D. Louisiana, 2020
Young v. Marsh
153 So. 3d 1245 (Louisiana Court of Appeal, 2014)
Grinnell v. St. Francis Medical Center, Inc.
156 So. 3d 117 (Louisiana Court of Appeal, 2013)
Smith v. Escalon
117 So. 3d 576 (Louisiana Court of Appeal, 2013)
Caskey v. Merrick Construction Co.
86 So. 3d 186 (Louisiana Court of Appeal, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
55 So. 3d 76, 2010 La. App. LEXIS 1505, 2010 WL 4336076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/britt-v-city-of-shreveport-lactapp-2010.