Francis v. Brown

671 So. 2d 1041, 1996 WL 120069
CourtLouisiana Court of Appeal
DecidedMarch 20, 1996
Docket95-1241
StatusPublished
Cited by23 cases

This text of 671 So. 2d 1041 (Francis v. Brown) 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
Francis v. Brown, 671 So. 2d 1041, 1996 WL 120069 (La. Ct. App. 1996).

Opinion

671 So.2d 1041 (1996)

Michelle Lee FRANCIS, Plaintiff-Appellant,
v.
Mona G. BROWN et al., Defendants-Appellees.

No. 95-1241.

Court of Appeal of Louisiana, Third Circuit.

March 20, 1996.

*1043 Bennett Boyd Anderson Jr., Lafayette, for Michelle Lee Francis.

Patrick J. Briney, Lafayette, for Mona G. Brown et al.

Before COOKS, DECUIR and GREMILLION, JJ.

GREMILLION, Judge.

In this appeal, plaintiff, Michelle Lee Francis, claims a jury award to her for injuries received in an automobile accident is unreasonable low and manifestly erroneous. After reviewing the record, we reverse the finding of the jury with regards to damages and render a judgment on this issue.

PROCEDURE

On December 19, 1990, Francis was injured when her car was struck from behind by a van driven by Mona Brown. On October 16, 1991, she brought suit against Brown and her insurer, American Manufacturers Mutual Insurance Company. Prior to trial, Francis' Motion for Summary Judgment was *1044 granted finding Brown at fault. A trial on the issue of damages was held from April 18 through April 20, 1995. The jury returned a verdict in favor of Francis awarding damages of $5,500 for past medical expenses, $3,500 for past lost wages, and $1,000 for past, present, and future pain and suffering, both physical and mental. From this verdict, Francis appeals asserting the following assignments of error:

1. The jury's total award of special damages in the amount of $9,000.00 is manifestly erroneous.
2. The jury's total award of general damages of $1,000.00 is manifestly erroneous.
3. The trial court erred in failing to instruct the jury on the proper weight to give to opinions of a treating physician versus a physician who makes a one-time evaluation for purposes of trial.
4. The trial court erred in failing to exclude collateral source information (guarantee and/or payment by plaintiff's attorney of plaintiff's medical expenses).

FACTS

Francis went to the emergency room the day after the accident complaining of cramps in her neck which were diagnosed as cervical muscle strain. A week later, she began complaining of pain in her right shoulder. On January 14, 1991, Francis saw Dr. Thomas Callender who diagnosed a cervical strain and right shoulder and leg strain. She was not allowed to return to work on his orders and was to return for an appointment with him in two weeks. Dr. Callender also recommended that she see an orthopedic surgeon. On February 6, 1991, Dr. Callender saw Francis again and made a similar diagnosis and recommended physical therapy. On February 26, 1991, Francis was examined by an orthopedic surgeon, Dr. Clifton Shepherd. He diagnosed Francis as having tenderness and muscle spasms on both sides of the neck; tenderness and limited motion in the front and top part of the shoulder; and a strain in the middle back. On April 16, 1991, Dr. Shepherd noted a clicking in the right shoulder. On June 21, 1991, an MRI and bone scan were read by the radiologist as normal; however, Dr. Shepherd noted some slight abnormal activity in the right shoulder as compared to the left. He surmised that she was developing an impingement syndrome and suggested surgery to relieve the impingement. Surgery was performed on the right shoulder on August 21, 1991. During the surgery, the coracoacromial ligament was found to be putting considerable pressure on the rotator cuff and was removed. A couple of days after the surgery, Francis reported to Dr. Shepherd that the deep pain in her shoulder was beginning to subside. A couple of months later, she complained that she experienced pain that was associated with overhead use and Dr. Shepherd opined that she had a 5% to 10% impairment.

Francis saw Dr. Stuart Phillips on November 17, 1992 for a second opinion because she was still feeling some pain in her right shoulder. Dr. Phillips determined that the procedure used by Dr. Shepherd, the Neer decompression, relieved most of the pain, but it did not eliminate all of the pain in her shoulder. He reported that she had an abnormal examination in her neck: a loss of about 50% of motion in her neck; tenderness in the muscles accompanied with muscle spasms; weakness in the grasp of her right arm and a decreased sensation over the thumb part of the right arm signifying a C-5 dermatome; and a loss of abduction of the right shoulder of about 10 degrees. After an MRI, CAT scan, and thermogram he made the determination that she would not regain a full range of motion in her right shoulder and fixed her degree of impairment at twenty-five percent of the shoulder and fifteen percent of the entire arm, corresponding to a twenty-five percent loss of total function.

Dr. James McDaniel, at defendant's request, conducted an independent medical examination of Francis on October 10, 1993. As a result of this examination and his review of plaintiff's medical records, he opined that there was no objective evidence of either neck or back pain. He also disputed the claim that her shoulder disability could have been caused by the automobile accident, stating that this type of injury is usually associated with a repetitive motion and exercise *1045 such as throwing a ball. He testified that he had never heard of nor read about anyone developing that injury from a single blow to the shoulder; rather, he stated if, in fact, she had a shoulder injury, it was probably caused by playing softball, something Francis had engaged in some two years before the accident. Finally, he disparaged Dr. Phillips' professionalism claiming, "[t]he only thing I've ever learned from Dr. Phillips is how not to practice orthopedics."

Before the accident, Francis had no problems with her shoulder. It was only afterwards that pain in her shoulder began to manifest itself. There was no evidence that she in anyway further injured herself after the accident until she made her first complaint to Dr. Callender on January 14, 1991. The physicians who treated Francis do not appear skeptical about her complaints. Her doctors attended her for several months treating her for pain. Dr. Shepherd suggested surgery only after trying physical therapy and conservative treatment with no appreciable relief of her pain. After surgery, her pain began to diminish.

ASSIGNMENT OF ERROR NUMBER 3

We shall consider Assignments of Error 3 and 4 before considering Assignments of Error 1 and 2. Generally, the testimony of the treating physician is entitled to more weight than the testimony of a physician who examines a plaintiff for diagnosis. Chevalier v. L.H. Bossier, Inc., 617 So.2d 1278 (La.App. 3 Cir.1993). Likewise, the testimony of an attending physician should be accorded more weight and probative value than that of a physician who has made an examination solely for the purpose of giving expert testimony regarding a patient's condition. Hunter v. Kroger Company, 600 So.2d 837 (La.App. 3 Cir.1992); Lougon v. Era Avaition, Inc. 609 So.2d 330 (La.App. 3 Cir.1992). An alternative cause must be more than mere speculation in order to defeat a recovery of damages. Dabog v. Deris, 625 So.2d 492 (La.1993). Defendant takes her victim as she finds her and is responsible for all damages resulting from her tortious conduct. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

This court recently visited the issue of jury instructions regarding the opinion of a treating physician's testimony versus that of an examining physician. In Iorio v. Grossie, 94-846, p. 2 (La.App. 3 Cir.

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Cite This Page — Counsel Stack

Bluebook (online)
671 So. 2d 1041, 1996 WL 120069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francis-v-brown-lactapp-1996.