Porter v. State ex rel. Dept. of Public Safety & Corrections

701 So. 2d 1069, 97 La.App. 5 Cir. 555, 1997 La. App. LEXIS 2624, 1997 WL 665072
CourtLouisiana Court of Appeal
DecidedOctober 28, 1997
DocketNo. 97-CA-555
StatusPublished
Cited by2 cases

This text of 701 So. 2d 1069 (Porter v. State ex rel. Dept. of Public Safety & Corrections) 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
Porter v. State ex rel. Dept. of Public Safety & Corrections, 701 So. 2d 1069, 97 La.App. 5 Cir. 555, 1997 La. App. LEXIS 2624, 1997 WL 665072 (La. Ct. App. 1997).

Opinion

JiDUFRESNE, Judge.

This is an appeal by the State of Louisiana, through the Department of Public Safety and Corrections, defendant-appellant, from an adverse judgment in a suit involving an automobile collision. Orelia Porter, plaintiff-ap-pellee, was a passenger in her daughter’s car when they were struck from the rear by a Department-owned car driven by one of its employees in the course and scope of her employment. Plaintiff subsequently underwent two spinal fusions, with medical bills totaling $130,379.77. At a bench trial, the [1070]*1070trial judge found that the accident was the cause of plaintiff’s injuries, and awarded her the medical expenses, as well as general damages of $300.000.00. Because we find no manifest error in the factual determination as to causation, we must affirm the judgment.

At the outset, we note that there is no real dispute as to the facts of the accident or the Department’s liability. On June 26, 1992, ^plaintiff and her daughter were in slow moving traffic on a side street and apparently stopped because of road work. Their car was struck from behind by a Department car traveling about 5 MPH. Plaintiff alleged that she suffered immediate pain which worsened over the next three years and ultimately resulted in a spinal fusion in July, 1995, and a second fusion in October, 1995. Her medical bills for these procedures were stipulated to be over $130,000.00. Thus, the only issues for trial were whether the accident was causally related to all, or only a part, of plaintiff’s injuries, and what general damages would fairly compensate her for those injuries.

The trier of fact found that the two surgeries were related to the accident and so awarded all medical expenses, and $300,-000.00 in general damages. The Department now appeals, urging that the trial judge erred:

1) In finding that the surgeries were related to injuries sustained in the accident:
2) In not reducing the award for plaintiffs failure to mitigate her damages by attending physical therapy sessions as recommended by her doctors; and
3) In awarding special and general damages based upon the surgeries, rather than on the basis of a short-term soft tissue injury.

Because defendant’s first alleged error relates to the factual finding of causation, the standard of appellate review is whether that finding was manifestly erroneous. In Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993), the court reiterated that application of the “manifest error” standard involves a two part inquiry for reversal of a factual finding. First, the reviewing court must determine that a treasonable factual basis does not exist for the trial court finding. Second, the court must then further determine that the entire record establishes that the finding is clearly wrong.

The evidence as to causation is as follows. There is no question that plaintiff suffered from pre-accident spondylolisthesis, a degenerative condition typically caused by aging in which the discs in the spine lose water causing the disc spaces to narrow, and sometimes resulting in slippage of discs. There was further agreement among the medical experts that many people with this condition do not suffer any pains at all. Plaintiff testified that she never experienced lower back and leg pains prior to the accident, and this testimony was found credible by the trier of fact. This is clearly a reasonable finding based on the testimony of both the experts and plaintiff.

At the time of the accident plaintiff said that she felt immediate sharp pains in her lower back and arm. Her daughter, a registered nurse, took her to an emergency room where X-rays were normal, and she was sent home to rest. Plaintiff had recently undergone a hysterectomy, and when her back pains continued for a week or so she saw her gynecologist, Dr. Kitty Hymes. By late July she was still suffering, and on July 29, 1992, she saw Dr. Mark Juneau, an orthopedic surgeon.

Dr. Juneau testified that plaintiff complained of pain in her neck, right shoulder, back, buttocks and legs, and was tender to touch in the back but without muscle spasms. X-rays showed spondylolisthesis, with a forward slippage at the L4-5 level. At a second visit of August |417, 1992, her condition was unchanged. His impression was a soft tissue injury, but with no signs of nerve root involvement or disc herniation. He was of the opinion that the spondylolisthesis was not caused by the accident, but did admit that it might possibly have been aggravated by the trauma, although that would have been unusual. When asked whether the later surgeries were related to the accident, he said:

I don’t think that a car accident causes spondylolisthesis. I’m not sure why she had these fusions, but it did not cause her to have spondylolisthesis.

[1071]*1071At the second visit, he advised her to see Dr. Walter Truax, a neurologist.

Dr. Truax first saw plaintiff on September 14,1992. Her complaints were of pain in the back and legs, with tenderness in the lumbar region. The examination was otherwise normal as was an EMG test, but a recent MRI of August 24, showed the L4-5 problem identified by Dr. Juneau from X-rays. This doctor’s impression was soft tissue injury, and he recommended that plaintiff seek physical therapy. He continued to treat her conservatively for the next ten months during which he saw her five more times. He said that he never found either nerve root involvement or any disc herniation. He said that he had no doubt that plaintiff was in pain, but could not find any obvious cause. He also was of the opinion that if the accident had aggravated the pre-existing spondylolisthe-sis, those symptoms should have subsided within two or three months.

Plaintiff testified that after her last visit to Dr. Truax in June, |s1993, her pains continued off and on for the next 16 months, during which she saw her family doctor and a chiropractor, but got no relief. In September, 1994, she saw Dr. Elliot at the Tulane Medical Center, and this doctor sent her for physical therapy. Plaintiff said that she was unable to participate in this because of pain, and she was sent to a pain clinic' where steroid injections were tried. By November problems had developed with side-effects of the injections, and at that point she was referred to a neurosurgeon, Dr. Dzung Dinh, also of the Medical Center.

Dr. Dinh, first saw plaintiff on November 22, 1994. A second MRI of September 29, 1994, showed the spondylolisthesis at the L4r-5 level, and this doctor recommended a de-compressive lumbar laminectomy and fusion to stabilize that level. Plaintiff resisted surgery originally, but returned to this doctor in June, 1995, with significant spasms and tenderness in the back.

The surgery was done on July 5, 1995. The procedure involved placing a rod and screws in the spine to immobilize the L4-5 level, and the doctor said that significant pain was involved, usually requiring a morphine or demarol drip. There was a five day hospital stay, followed by a recuperation of two to three months, during which plaintiff could not get out of bed without using a corset type brace to prevent any movement in the spine during healing.

The surgery and recovery were unremarkable, and plaintiff was doing reasonably well until mid-November when she suddenly developed shooting pains in her right buttock and thigh.

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701 So. 2d 1069, 97 La.App. 5 Cir. 555, 1997 La. App. LEXIS 2624, 1997 WL 665072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-state-ex-rel-dept-of-public-safety-corrections-lactapp-1997.