Marcum v. Johnston

750 So. 2d 1186, 2000 WL 61335
CourtLouisiana Court of Appeal
DecidedJanuary 26, 2000
Docket32,634-CA
StatusPublished
Cited by9 cases

This text of 750 So. 2d 1186 (Marcum v. Johnston) 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
Marcum v. Johnston, 750 So. 2d 1186, 2000 WL 61335 (La. Ct. App. 2000).

Opinion

750 So.2d 1186 (2000)

Jodi M. MARCUM and Daniel A. Marcum, Plaintiffs-Appellants,
v.
Carey S. JOHNSTON and Allstate Insurance Company, In Solido, Defendants-Appellees.

No. 32,634-CA.

Court of Appeal of Louisiana, Second Circuit.

January 26, 2000.

*1187 John F. Frederickson, Shreveport, Counsel for Appellants.

Rice & Kendig By M. Carl Rice William F. Kendig, Jr., Rountree, Cox, Guin & Achee, Billy J. Guin, Jr., Shreveport, Counsel for By Appellees.

Before STEWART, GASKINS and PEATROSS, JJ.

STEWART, J.,

At issue is whether the trial court erred in awarding only $5,500 in general damages to Jodi Marcum for soft tissue injuries sustained in a rear-end collision and in denying Daniel Marcum's claim for loss of consortium damages. We affirm.

FACTS

On July 8, 1996, Jodi Marcum ("Marcum") was involved in an automobile accident while driving on Olive Street in Shreveport, Louisiana. Marcum's 1988 Ford Escort was hit from behind by a vehicle driven by Carey Johnston. The impact forced Marcum's vehicle into the vehicle in front of it. Marcum exited her vehicle to check on the other drivers. After completion of the police investigation, Marcum drove her vehicle home to have lunch with her husband. As a result of the accident, the trunk of the vehicle would not close properly and the radiator leaked fluid.

Marcum returned to work that afternoon at the office of Dr. McIntyre Bridges where she was employed as a medical assistant. During the afternoon, Marcum began to experience some soreness and tightness in her neck and lower back. However, surgical wounds healing from an abdominoplasty that Marcum underwent ten days prior to the accident were not disrupted. The tightness in her back increased that evening, so she took some Tylenol before going to sleep. When Marcum awoke the next morning, she could not get out of bed without help from her husband. She took a hot shower, worked the entire day, and then went to the emergency room at Willis-Knighton that evening. The medical records from the emergency room visit on July 9, 1995, show that Marcum complained of pain in her neck, right shoulder, and lower back. The x-rays taken were negative. Examination of Marcum detected no muscle spasm. Marcum was diagnosed with acute cervical strain, given Soma for pain, and released.

Marcum sought chiropractic treatment three months later from Mohammed Shamsabady, D.C., for recurring lower back pain. Dr. Shamsabady's records show that Marcum complained of headaches, lower back pain and stiffness, muscle pain, and insomnia. He found tenderness in her lumbar area accompanied by restricted range of motion in that same area. Diagnosis included lumbar myofascitis and myospasms, lumbar neuritis, acute/moderate lumbar sprain/strain, *1188 sciatica, and discogenic syndrome. Treatments included specific manipulative corrections, application of moist heat, inter-segmental traction, deep muscle massage, cryotherapy, and electric muscle stimulation. Marcum saw Dr. Shamsabady seven times in October and one time in November. She was released from his care as of December 23, 1996, upon having reached maximum medical improvement.

Approximately ten months later, Marcum sought treatment from Dr. Baer Rambach, an orthopedic surgeon, for her continuing back pain. Marcum had been experiencing low back pain with sharp, shooting pains down her right leg. She also began to notice intermittent tingling and numbness in her right arm and neck accompanied by a lump on the back of her neck that seemed to fluctuate in size. Marcum reported these complaints to Dr. Rambach on her first visit to him on September 15, 1997. Dr. Rambach's examination revealed some tenderness in the cervical and lumbar regions of her spine, but no muscle spasm and no significant restriction of motion. The x-rays produced negative results. Dr. Rambach's diagnosis was that Marcum sustained "significant myoligamentous and myofascial sprains and strains to the cervical spine and lumbar and lumbosacral regions of the spine." He recommended a limited period of physical therapy and home exercises to be done at least twice per day. He provided support aids for sitting and sleeping and recommended mild medications such as Advil or Aleve. Dr. Rambach also noted that it is not unusual to experience ongoing problems from one year to eighteen months after an accident.

At a follow-up visit on November 17, 1997, Marcum still reported discomfort in her lower back, but had no complaints of neck pain. Dr. Rambach believed that she was improving and that the lower back discomfort should gradually dissipate. He expected maximum medical improvement over the next several weeks with no residual problems. Marcum returned to Dr. Rambach on March 12, 1998, again complaining of lower back pain. Dr. Rambach noted some soreness, tenderness, and pain with extreme motion of the lumbosacral spine. He also noted that Marcum had not availed herself of any consistent physical therapy and suggested that she would notice definite improvement if she attended physical therapy three times a week for four weeks.

Marcum saw Dr. Rambach for the last time on August 17, 1998. She reported intermittent problems with her neck and lower back depending on her activity level at work, difficulty sleeping, and concerns about the lump on her neck. Dr. Rambach noted some tenderness in the lumbosacral spine and pain associated with extremes of motion. With regard to the neck lump reported by Marcum, Dr. Rambach found some asymmetry or induration of musculature that appeared more pronounced on the right side of the posterior aspect of the cervical spine. He believed that the lump could be permanent scarring from the injuries Marcum sustained in the accident. He urged Marcum to continue an exercise program and noted that she could be symptomatic indefinitely. At his deposition taken on August 18, 1998, the day after his last appointment with Marcum, Dr. Rambach stated that he anticipates a fairly good prognosis for Marcum. He described her ongoing problems as a soft tissue injury and opined that physical therapy would help. However, he noted that Marcum is unable to avail herself of physical therapy due to her work schedule, but that she is able to exercise at home. Dr. Rambach's deposition was admitted into evidence at trial in lieu of live testimony.

After her initial visit with Dr. Rambach, Marcum attended three physical therapy sessions then discontinued the treatment due to difficulties in arranging the appointments around her work schedule. She did continue some exercises at home, but quit doing those that seemed to increase her pain. Marcum did not miss any work due to pain from her injuries. She explained that she felt a responsibility *1189 to be there for the doctor and patients. She generally treated her symptoms with Tylenol, ice packs, heating pads, Flex-All, and Bengay. Marcum explained that her injuries are aggravated by the level of her activity at work and by the weather. With regard to the effect of the pain on her activities, Marcum stated that the pain interferes with her sleep approximately three to four nights per month causing her to be moody on days when she does not get eight hours of sleep. The pain also interferes with her activities approximately five to six times per month. Marcum reported that she is able to care for her home but that her husband helped with activities such as lifting heavy laundry and carrying the garbage outside. However, Daniel Marcum, a member of the United States Air Force, was transferred to Korea for one year beginning in September 1997.

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Cite This Page — Counsel Stack

Bluebook (online)
750 So. 2d 1186, 2000 WL 61335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcum-v-johnston-lactapp-2000.