Istre v. Bratton

653 So. 2d 1205, 94 La.App. 3 Cir. 1182, 1995 La. App. LEXIS 588, 1995 WL 92748
CourtLouisiana Court of Appeal
DecidedMarch 8, 1995
DocketNo. 94-1182
StatusPublished
Cited by1 cases

This text of 653 So. 2d 1205 (Istre v. Bratton) 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
Istre v. Bratton, 653 So. 2d 1205, 94 La.App. 3 Cir. 1182, 1995 La. App. LEXIS 588, 1995 WL 92748 (La. Ct. App. 1995).

Opinion

liKNOLL, Judge.

This case involves the review of a jury’s award of general damages and the jury’s decision not to award special damages for disability, future medical expenses, and loss of future earning capacity. Gladue Istre, the father of Chad Istre, a minor, filed suit against David Bratton, Sr., David Bratton, Jr., and the Bratton’s automotive liability insurer, Horace Mann Insurance Company, for injuries Chad suffered when the Bratton vehicle rear-ended a stopped vehicle at a speed of approximately 40 miles per hour. Liability was stipulated and only the question of quantum was presented to the jury. The jury awarded $27,500 for Chad’s pain and [1207]*1207suffering and reimbursed him for the medical expenses incurred at the time of trial, $6,667.40.

The Istres contend on appeal that: (1) the jury’s general damage award was abusively low; and, (2) the jury was manifestly erroneous in denying Chad’s damage claims for physical injury or disability, loss of future earnings, and future medical 12expenses. We affirm in part, amend in part, and reverse in part.

FACTS

On April 6, 1991, Chad, who was 14 years of age, was riding in the passenger seat of an automobile owned by David Bratton, Sr., and driven by Chad’s best friend, David Bratton, Jr., when the Bratton auto struck the rear of a vehicle that was stationary in the left-turn lane. Although Chad was wearing a lap belt, he hit his head on the dashboard when he was thrown forward. As a result of the accident, Chad suffered a laceration on his forehead, together with compression fractures of the spine, two non-displaced transverse fractures of the spine at the L2 and L3 levels, and an epidural hematoma. Chad was hospitalized at University Medical Center (University Medical) in Lafayette for 3 to 4 days and remained bedridden at home for 2⅜ months.

Although no one from University Medical testified about the extent of his follow up care there, Chad and his mother stated that he visited the hospital clinic intermittently following the accident.1 In February of 1992, approximately ten months after the accident, Dr. John Humphries, an orthopedist, examined Chad one time for purposes of evaluating a settlement petition pending before the trial court; he reviewed the diagnostic films taken at University Medical, confirmed the compression fractures and transverse process fractures at L2, L3, and found that Chad had a Class V back due to spondyloly-sis 2. Based upon these findings, the Istres withdrew from the settlement offer and filed this suit.

Chad was next examined on April 24,1992, by Dr. Stuart I. Phillips, an ^orthopedist. Dr. Phillips diagnosed Chad as having low back muscle spasms, pain, an epidural hema-toma, anterior wedging of one vertebra, a unilateral spondylolysis at the L5 level, and a spondylolisthesis3 at the L5 level. He opined that Chad’s spondylolysis was traumatically caused by the accident and that this back defect later manifested itself as spondylolisthesis. As of the time of trial, Dr. Phillips was still treating Chad and in the last examination of Chad, approximately three months earlier, Dr. Phillips observed muscle spasms in Chad’s lower back. Considering continued pain and inability to heal, Dr. Phillips assigned Chad a 20% disability of the back, restricted his activities, and opined that he would have to decide whether future surgery was needed when Chad was 19 or 20 years of age.

Dr. Charles Aprill, a radiologist to whom Dr. Phillips referred Chad, conducted various radiological tests. He disagreed with Dr. Phillips’ opinion that the accident was the cause of spondylolysis, finding instead that this defect significantly predated the accident. However, Dr. Aprill confirmed Dr. Phillips’ diagnosis that Chad also suffered a mild spondylolisthesis.

Dr. James Charles McDaniel, an orthopedist, examined Chad and reviewed the diagnostic films at the request of the defendants. He saw Chad only once. He opined that Chad did not have a spondylolisthesis and was unsure that he had a spondylolysis. He concluded that Chad did not require medical treatment and that his activities should not be restricted.

The only other physician to testify was Dr. J.J. Laborde, a radiologist employed by the defendants to perform additional radiological testing. Dr. Laborde acknowledged the [1208]*1208presence of Chad’s spondylolysis and agreed with Dr. Aprill that it predated the accident. Dr. Laborde also conducted an experiment in an attempt to |4show that Dr. Aprill’s selection of the angle at which the MRI was taken resulted in the appearance of vertebral slippage when none in fact existed. Based on his experiment, Dr. Laborde, in contradiction of Dr. Aprill, opined that Chad did not have a spondylolisthesis.

QUANTUM

The Istres contend that the jury’s award of general damages in the amount of $27,500 is abusively low. They argue that the jury either ignored or improperly discounted Dr. Phillips’ conclusion that the accident caused or aggravated Chad’s spondylo-lysis.

When damages are insusceptible of precise measurement, much discretion is left to the trial court to assess reasonable damages. LSA-C.C. Art. 2324.1. Before the appellate court can disturb an award of general damages, the record must clearly reveal that the trial court abused its discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Further elaborating in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, — U.S.-, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the court noted that the initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the much discretion of the trier of fact. The question for the appellate court is not whether a different award may have been more appropriate, but rather whether the trial court’s award can be reasonably supported by the record. Nejame v. Hamiter, 614 So.2d 848 (La.App. 2nd Cir. 1993).

As highlighted in the thumbnail sketch of facts hereinabove, the area of greatest disagreement at trial involved the determination of whether Chad had a spondylolithic defect at the L5-S1 level prior to the accident, whether the accident 15aggravated that condition, and whether the accident caused him to suffer spondylolisthesis.

In a personal injury suit the plaintiff bears the burden of proving a causal relationship between the accident and the injuries complained of. American Motorist Ins. Co. v. American Rent-All, 579 So.2d 429 (La.1991). A defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct; where a defendant’s negligent action aggravates a preexisting injury or condition, he must compensate the victim for the full extent of his aggravation. Pemiciaro v. Brinch, 384 So.2d 392 (La.1980).

The Istres contend that the jury erred in failing to give greater weight to the testimony of the treating orthopedist, Dr. Phillips. It is well settled that the testimony of the treating physician is entitled to greater weight than the testimony of a physician who examines the patient only once or twice. Streeter v. Sears, Roebuck & Co., Inc., 533 So.2d 54 (La.App. 3rd Cir.1988), writ denied, 536 So.2d 1255 (La.1989). However, for such expert opinion to be valid and to merit much weight, the facts on which it is based must be substantiated by the record. Russ v.

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653 So. 2d 1205, 94 La.App. 3 Cir. 1182, 1995 La. App. LEXIS 588, 1995 WL 92748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/istre-v-bratton-lactapp-1995.