Perez v. State Farm Mutual Automobile Insurance Co.

496 So. 2d 1171, 1986 La. App. LEXIS 7945
CourtLouisiana Court of Appeal
DecidedOctober 14, 1986
DocketNo. 86-CA-145
StatusPublished

This text of 496 So. 2d 1171 (Perez v. State Farm Mutual Automobile Insurance Co.) 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
Perez v. State Farm Mutual Automobile Insurance Co., 496 So. 2d 1171, 1986 La. App. LEXIS 7945 (La. Ct. App. 1986).

Opinion

BOWES, Judge.

Plaintiff-appellant, Betty Perez, instituted suit against her own insurer, State Farm Mutual Automobile Insurance Company (hereinafter State Farm) under the uninsured motorist provision of her policy, claiming damages for personal injuries she claimed were sustained as a result of an automobile accident in Baton Rouge, Louisiana, on October 21, 1980.

Prior to trial, it was stipulated that:

1. Mrs. Perez was involved in an automobile accident in Baton Rouge on October 21, 1980, and that the driver of the other vehicle was Gregory Tir-cuit;
2. That plaintiff was involved in a second accident on December 18, 1981, with a vehicle being operated by Rebecca Clark;
3. That State Farm had paid $1,562.43 to appellant for medical expenses claimed to have been necessitated by the October, 1980, accident;
4. That Mrs. Perez’s State Farm policy provided uninsured motorist coverage in the amount of $100,000.00.

Prior to the actual taking of testimony, plaintiff offered, introduced and filed into evidence, without objection, the affidavit of the Department of Public Safety, Office of Motor Vehicles, attesting to the fact that the vehicle being operated by Gregory Tir-cuit was uninsured, which, under La.R.S. 22:1406, is prima facie proof that Gregory Tircuit was uninsured.

Plaintiff alleged that as a result of the October, 1980, accident she sustained the following:

1. Injuries to her neck, which, in turn, caused complaints of pain down to her shoulders, arms and hands;
2. Injuries to her mouth, i.e., the biting down of her teeth, causing a crown to crack, which lead to facial pain and a temporomandibular joint dysfunction and earache; and
3. The aggravation of dormant pre-ex-isting hydrocephalus condition, which necessitated treatment by Dr. Gor-bitz and physicians at Charity Hospital.

Defendant State Farm claimed that the “injuries” suffered by Mrs. Perez as a result of the accident of October, 1980, were less serious in nature, required conservative treatment, and that the subsequent complaints of Mrs. Perez, particularly with regard to her claimed activation of hydrocephalus, developed too late so as to be reasonably related to the October, 1980, accident, and were, therefore, either developed mentally in nature (as was likely the case with the hydrocephalus) or were caused by the second accident of December, 1981 (as was plaintiff’s left hand carpal tunnel syndrome).

[1173]*1173The trial judge gave astute and logical reasons for judgment, finding that the first accident did not cause the onset of the hydrocephalus and he awarded to plaintiff “only those medical expenses directly incurred as a result of the October 21, 1980 accident” in the award of $3,353.00, subject to an appropriate credit for previously-paid expenses, and $15,000.00 in general damages.

The plaintiff appeals that finding, alleging that the district court erred in the above findings and abused its discretion in the amounts awarded.

We affirm.

Medical testimony adduced at trial established that Mrs. Perez’s hydrocephalus was of the congenital type; that the most obvious symptom of the condition is a persistent throbbing headache; and that, as the condition progresses, other symptoms, such as nausea, vomiting, failing vision, drowsiness, semi-coma, and coma, occur, and that, left untreated, the condition results in death.

Three medical doctors and one chiropractor testified at trial. Upon her initial visit to the chiropractor, Dr. Willie Sacks, on December 9, 1981, nine days before her second accident, the appellant filled out a questionnaire stating as her chief complaint: “Intense pain in neck and shoulders and sore and it feels [like] I had a boil in them.” When she returned for her second visit on December 28, 1981, ten days after her second accident, Mrs. Perez was asked to fill out another form because of her accident; at that time, under symptoms, she wrote “Nausea and dizziness, severe headaches, can’t sleep, very irritable, short temper, left hand stays numb, trouble with — trouble with on the left hand [sic].” Dr. Sacks testified that plaintiff had not related any specific “left hand problems” to him before her second accident.

Dr. Richard Warren Levy, an expert in the field of neurosurgery, was called by the defense. Doctor Levy testified thusly:

Q. Doctor, in your opinion, is it likely that someone is going to be able to endure these symptoms you’ve talked about, beginning from the onset of such symptoms for a period of a year and a half or two years?
A. No, I wouldn’t think would be reasonable ...

A hypothesis paralleling the plaintiff’s case was then posed to Dr. Levy, to which he replied:

Based on that information, I think it’s quite apparent that Accident Number I failed to produce symptoms commonly associated with the condition known as hydrocephalus, or advancing hydrocephalus, because the lady did not have any symptoms suggestive of increasing intra-cranial pressure, to-wit: headaches, drowsiness, failing vision, nausea, vomiting, semi-coma, and eventually coma. I think I can state with a reasonable degree of medical certainty, assuming what you’ve asked in your question to be true, that Accident Number 1 of October, 1980, was not the cause of the hydrocephalus found by the neurosurgeon in the spring of 1982.

Dr. Joseph J. Frensilli, an orthopedic surgeon, who was the first doctor to see Mrs. Perez after her October 1980 accident, saw her only once (post-accident), on October 28, 1980. At that time, plaintiff made no complaint of headaches, but rather complained of pain in the posterior cervical spine with numbness to her hands and toes.

The next physician consulted by appellant was another orthopedic surgeon, Dr. Neville J. Reehlmann. Dr. Reehlmann testified that the first time he saw the plaintiff, November 7, 1980, he made no record of any complaint of headache and neither did he record any such complaint on the patient’s seven subsequent office visits. According to Dr. Reehlmann: “I initially saw her complaining of neck pain, arm pain, shoulder pain, and facial pain.”

The only reference that Dr. Reehlmann makes to complaints of headache by Mrs. Perez is in his discharge summary of February 24, 1982 (over two months after the second accident):

[1174]*1174Q. Could you read us your discharge summary?
A. Sure. “Patient was admitted for severe intractible headache and right facial pain which she dates to an automobile accident which happened approximately two years ago. We have on multiple occasions attempted to get this patient to the hospital for complete C-spine examination with no success. Ultimately she was admitted and the results of our entire workup was negative for an ideology for her headache pain, which we still believe to be cervical spine in origin. This was especially permanent because the patient —” well, it should be “This was especially prominent because the patient was related to motion activity, et cet-era. Patient did not have any classical presentations such as headache, intensifying with flexion or blackout periods.

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Bluebook (online)
496 So. 2d 1171, 1986 La. App. LEXIS 7945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-state-farm-mutual-automobile-insurance-co-lactapp-1986.