Burnaman v. Risk Management, Inc.

698 So. 2d 17, 97 La.App. 3 Cir. 250, 1997 La. App. LEXIS 1644
CourtLouisiana Court of Appeal
DecidedJune 18, 1997
StatusPublished
Cited by9 cases

This text of 698 So. 2d 17 (Burnaman v. Risk Management, Inc.) 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
Burnaman v. Risk Management, Inc., 698 So. 2d 17, 97 La.App. 3 Cir. 250, 1997 La. App. LEXIS 1644 (La. Ct. App. 1997).

Opinion

698 So.2d 17 (1997)

Sharon W. BURNAMAN, et ux., Plaintiff — Appellant,
v.
RISK MANAGEMENT, INC., et al., Defendant — Appellee.

Court of Appeal of Louisiana, Third Circuit.

June 18, 1997.
Writ Denied October 31, 1997.

*18 Jimmy Roy Faircloth, Jr., Alexandria, for Sharon Burnaman et ux.

Randall Brian Keiser, Alexandria, for Risk Management Inc. et al.

Before YELVERTON, SAUNDERS and GREMILLION, JJ.

SAUNDERS, Judge.

Plaintiff, injured in an automobile accident in which she was unquestionably free of fault, disputes the quantum awards rendered by the trial court. We find favor in her argument that she is entitled to an award of $37,000.00 for necessary surgical expenses, and increase to $50,000.00 her awards for lost earning capacity and lost earnings, and to $60,000.00 her award for general damages.

FACTS

This litigation arises from an automobile accident which occurred on June 21, 1994, in Pineville, Louisiana, when a Pineville police unit driven by Officer Charles Dyess rearended a compact vehicle driven by plaintiff, Sharon W. Burnaman. Fault is not at issue, as at the time of the accident, Ms. Burnaman's vehicle was stopped at a red light.[1]

The only questions raised by this appeal concern the quantum awards rendered by the trial court some seven months following plaintiff's January 1996 trial against the City of Pineville in written reasons dated August 21, 1996, and judgment dated September 10, 1996. The judgment awarded plaintiff past medical expenses of $8,050.90; future medicals of $3,500.00; total loss of past and future income of $6,000.00; general damages of $20,000.00; and loss of consortium to plaintiff's husband of $2,000.00.

Following this judgment, plaintiff appealed assigning three errors, alleging:

(1) that the trial court erred in failing to award future medical expenses for a surgery she believes is needed;
(2) that the trial court abused its discretion in awarding only $6,000.00 for lost past and future income and earning capacity; and,
*19 (3) that the trial court abused its discretion in awarding only $20,000.00 in general damages.

FUTURE MEDICAL EXPENSES: SURGERY

Initially, plaintiff suggests that the trial court abused its discretion in not awarding her the means to undergo a surgical fusion at L5-S1. According to plaintiff, she was advised of the need for surgery by treating physicians Drs. Fritchie and Ricciardi, and the trial court erred when it denied her the means of having the surgery performed.

In Veazey v. State Farm Mutual Auto Ins., 587 So.2d 5, 8 (La.App. 3 Cir.1991), we discussed future medical expenses:
Future medical expenses, like any other damages, must be established with some degree of certainty. The plaintiff must show that, more probably than not, these expenses will be incurred. Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost. [Citations omitted]. An award for future medical expenses cannot be based on mere speculation of the jury. Much stronger proof, such as medical testimony of the specific expenses to arise, should be required for such an award. [Citations omitted].

Este' v. State Farm Ins. Co, 96-99, p. 11 (La.App. 3 Cir. 7/10/96); 676 So.2d 850, 858.

Plaintiff cites Este and other authority to suggest that the trial court improperly equated her treating physician's decision to leave the final say as to whether or when to have surgery to her together with her unyielding efforts to avoid it, with an absence of need to have the operation which was recommended by her treating physician. Plaintiff maintains that the fact that her long course of conservative care has proven ineffectual all the more establishes her present need to endure the risky operation if she is to have any chance at all of being restored to her pre-accident physical condition.

Defendant's reply is that plaintiff's treating physician, Dr. Ricciardi, never indicated that surgery was necessary, but rather that the surgical option could be pursued only if plaintiff chose it. Defendant complains that it should not be required to pay for such optional treatment. Second, defendant alludes to the testimony of another orthopedist, Dr. Robert Po, who saw plaintiff on September 22, 1994, and was then of the opinion that plaintiff's symptoms were associated with degenerative arthritis. Finally, defendant alludes to the testimony of two physicians, Dr. Lawrence Russo, an orthopedic surgeon, and Dr. Scott Kendrick, a physiatrist and general practitioner, respectively. According to defendant, both were of the opinion that plaintiff probably was magnifying her symptoms.

In reply to defendant's thrusts, plaintiff points out that, unlike the doctors upon whose testimony her case rests, Drs. Fritchie and Ricciardi, Dr. Kendrick never examined plaintiff and Dr. Russo, who was not a treating physician, only examined her once, on an Independent Medical Examination request. Additionally, plaintiff maintains that defendants misconceive or mischaracterize Dr. Ricciardi's recommendation. According to plaintiff, Dr. Ricciardi thought it advisable to let his patient decide whether she was willing to accept the risk of proceeding with such an operation because he simply could not guarantee its outcome.

We have reviewed the law and the record and find favor in plaintiff's appeal.

In a personal injury case, the plaintiff bears the burden of proving the existence of injuries and a causal connection between them and the accident. The test is whether plaintiff has shown through medical testimony that more probably than not the subsequent medical treatment was necessitated by the trauma suffered in the accident. Petersen v. State Farm Auto. Ins. Co., 543 So.2d 109 (La.App. 3 Cir.1989), writ den., 546 So.2d 1223 (La.1989); Aucoin v. State Farm Mut. Auto. Ins. Co., 505 So.2d 993 (La.App. 3 Cir.1987); Wells v. Allstate Ins. Co., 510 So.2d 763 (La.App. 1 Cir.1987).

Jaffarzad v. Jones Truck Lines, Inc., 561 So.2d 144, 156 (La.App. 3 Cir.), writ denied, 565 So.2d 450 (La.1990).

*20 This is all that must be proven. An injured accident victim is not to be denied her only chance at recovering any or all of her pre-accident health status only because the outcome is uncertain.

Although the possible result and complications of any future surgery are unknown and cannot be fixed with precision, future medical expenses are a legitimate item of damages. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Cushman v. Fireman's Fund Ins. Co., 401 So.2d 477 (La.App. 2 Cir.1981).

Guillory v. Avondale Shipyards, Inc., 448 So.2d 1281,1287 (La.1984).

In this case, the record shows that plaintiff sought conservative medical care as long as possible, and only when this conservative care proved ineffectual did she and her treating physician opt for the more invasive procedure. First, plaintiff saw Dr. Wynn Harvey, a chiropractor. With no relief forthcoming, plaintiff was seen by Drs. Fritchie and Ricciardi, both of whom seemed to believe, consistent with plaintiff's assertions, that surgery offered plaintiff her only hope of physical improvement.

This was all that the law required of plaintiff, particularly since defendant's liability is conceded.

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