Byrd v. Fulton

259 So. 2d 384, 1972 La. App. LEXIS 5735
CourtLouisiana Court of Appeal
DecidedMarch 7, 1972
DocketNo. 4963
StatusPublished
Cited by2 cases

This text of 259 So. 2d 384 (Byrd v. Fulton) 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
Byrd v. Fulton, 259 So. 2d 384, 1972 La. App. LEXIS 5735 (La. Ct. App. 1972).

Opinion

REGAN, Judge.

The plaintiff, Mrs. Rita Mae Byrd, filed this suit against the defendants, Whitney G. Fulton, his wife, Mrs. Lena G. Fulton, and Phoenix of Hartford Insurance Company, the liability insurer of the Fulton vehicle, endeavoring to recover the sum of $90,000, representing damages which she alleges were sustained as the result of an automobile accident which occurred on U. S. Highway 90 near its intersection with Alba Road in New Orleans.

[385]*385The defendants answered and denied the accusations of negligence contained in the plaintiff’s petition. However, the defendants’ liability to the plaintiff was subsequently stipulated, and the trial was devoted to a determination of the quantum of damages to which the plaintiff might be entitled.

After a trial on the merits, the lower court rendered a judgment in favor of the plaintiff for the sum of $65,000. From that judgment, the defendants have prosecuted this appeal. The plaintiff answered their appeal and requested that the judgment be increased to $75,000.

The record discloses that the collision occurred at 4:30 p. m., on January 27, 1968. The plaintiff, a woman 51 years of age, was a guest passenger and occupied the right front seat of an automobile driven by her husband. The photographs and other evidence inscribed in the record clearly reveal that the accident was most severe, causing the complete demolition of both vehicles. Plaintiff was rendered unconscious. The hospital records disclose that she was removed from the scene of the accident to Charity Hospital in New Orleans, and from there transferred to Touro Infirmary by ambulance while undergoing intravenous infusion. Upon admission, her condition was listed as critical, and it was medically apparent that no more than secondary preservative procedures, such as debriding or cleansing of her wounds and injuries, could be accomplished at that time.

Plaintiff’s injuries were diagnosed as a cerebral concussion with the possibility of traumatic subarachonid hemorrhage, a comminuted fracture of the left humerus, an avulsed laceration of the right leg below the knee, fractures of four ribs, and multiple lacerations of the face and scalp.

Plaintiff’s treating physician was Dr. Irving Cahen, a respected orthopedic surgeon. Because of the other injuries incurred by the plaintiff, he immediately sought the services, on a consulting basis, of other specialists including Dr. Arnold Lupin, an internist, and Dr. Richard W. Levy, a neurosurgeon.

Dr. Cahen’s chief concern was the severity of brain damage, which conclusion was substantiated by Dr. Levy’s recommendation that nothing be done other than to give supportive therapy and to keep the plaintiff under observation. Consequently, surgical intervention was not possible for some eight days. After regaining' consciousness, the testimony of Dr. Cahen and of lay witnesses shows conclusively that Mrs. Byrd was confused, disoriented, and irrational. In spite of the fact that heavy sedation was administered and despite the fact that her left arm was in traction, it was nevertheless necessary to place the plaintiff under physical restraint to keep her from thrashing about. Dr. Cahen classified her condition during this period of her hospitalization as “rather wild.”

On February 5, 1968 Dr. Cahen and Dr. Richard W. Vincent, a plastic surgeon, performed surgery to the wound appearing on the plaintiff’s right leg. The injury was below the kneecap and was roughly triangular in shape. Two sides of the wound were severed, and the third side, which formed the base of the triangle, was attached to the plaintiff’s leg. The laceration was sufficiently deep so as to expose the bone beneath it. The surgery consisted of cleansing and irrigating the wound, removing necrotic tissue, and the area was reconstructed as well as was possible under thé circumstances. Some areas of tissue were regarded as questionable as to their vitality but they were permitted to remain in the wound with the hope that they would heal. The wound was closed with sutures, a pressure dressing applied, and a cast was then fitted to the leg for the purpose of immobilization. It remained on Mrs. Byrd’s leg for approximately two or three weeks when it was removed before she was discharged from the hospital on February 28, 1968. Dr. Vincent and Dr. Cahen continued to treat her for her leg injury for several months, and it was pos[386]*386sible for them to reduce limitation of motion to the point where she only felt discomfort when she placed her leg in a kneeling position. It was established by medical evidence adduced in connection therewith that she could not kneel for any period of time without experiencing pain.

On February 17, 1968, Dr. Cahen performed an operation to reconstruct the fracture to the plaintiff’s left humerus. He related that the fracture was commi-nuted, in that more than one fracture line was present. Plaintiff’s shoulder area had been disrupted, including that part of the bone which fits into the scapula, or shoulder blade, with the total result that plaintiff’s arm was disaligned. Moreover, a tendon was caught in the bone fragment and several muscles were torn from their points of attachment to the bone. The bone fragments were placed in alignment and secured with a metal pin. The arm was then placed in a cast and remained therein for approximately six weeks, or until March 29, 1968. Dr. Cahen was visited by the plaintiff at frequent intervals until September 27, 1968, at which time he examined her and offered advice with respect to exercise, massage, and therapy. He thereafter discharged her for the reason that he had accomplished as much as he could orthopedically.

Subsequent evaluation by Dr. Cahen disclosed that the plaintiff had permanent difficulty in raising her arm above shoulder level, and as a result he estimated her disability as a 5% limitation in the function of the shoulder.

No special treatment was administered to the plaintiff for her four broken ribs, since she was confined to bed in any event by her other injuries, and bed rest is the usual recommendation for injuries of this nature. Her ribs healed with little or no residual effect.

Dr. Cahen also testified with respect to the lacerations of plaintiff’s forehead and scalp. He explained that when her head struck the windshield, the glass shaved the skin and hair on her forehead back into the scalp, and there also resulted a split in some of the skin layers of the temple. The laceration also extended into the eyebrow, and Dr. Cahen sutured skin containing plaintiff’s hair follicles back in place for cosmetic purposes. There was also a cut on her lip, which caused Mrs. Byrd no difficulty. According to Dr. Cahen, the facial and head lacerations healed reasonably well, and they are somewhat difficult to see.

The most serious injury incurred by the plaintiff obviously resulted from her head striking some object in the vehicle. Dr. Cahen testified that during his treatment of Mrs. Byrd she continued to complain of headaches and vertigo, and she was still complaining of these symptoms when he discharged her. It was his understanding that she was going to consult another physician for this condition for the reason that she staggered when she walked.

Dr. Cahen’s clinical opinion as to the seriousness of plaintiff’s head injury is well expressed by the following excerpt from his testimony, given in explanation of the delay involved in engaging in surgical intervention after the plaintiff was admitted to the hospital.

“Then, as I said, she had had a head injury.

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Bluebook (online)
259 So. 2d 384, 1972 La. App. LEXIS 5735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byrd-v-fulton-lactapp-1972.