Souhlas v. Le Tam

897 So. 2d 762, 4 La.App. 5 Cir. 1029, 2005 La. App. LEXIS 257, 2005 WL 356566
CourtLouisiana Court of Appeal
DecidedFebruary 15, 2005
DocketNo. 04-CA-1029
StatusPublished
Cited by1 cases

This text of 897 So. 2d 762 (Souhlas v. Le Tam) 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
Souhlas v. Le Tam, 897 So. 2d 762, 4 La.App. 5 Cir. 1029, 2005 La. App. LEXIS 257, 2005 WL 356566 (La. Ct. App. 2005).

Opinion

SOL GOTHARD, Judge.

Plaintiff, Ernest N. Souhlas, Jr., is appealing a March 15, 2004 judgment confirming the jury verdict rendered on March 11, 2004 and an April 20, 2004 judgment denying plaintiffs motions for a new trial and judgment notwithstanding the verdict.

This case arises out of a November 24, 2000 motor vehicle accident. On July 30, 2001 Ernest N. Souhlas, Jr. (hereinafter plaintiff) filed a petition for damages against Linda Thanh Le Tam, Nboc T. Do, and then’ insurer American National General Insurance Company. Also named as a defendant is plaintiffs underinsured motorist carrier USAA Casualty Insurance Company. Plaintiff alleged that he was slowing to a stop when a vehicle driven by Linda Thanh Le Tam and owned by Nboc T. Do, rammed the rear of plaintiffs vehicle causing plaintiff to sustain severe and disabling injuries, including cervical herniated discs. Plaintiff subsequently settled his claims with Linda Thanh Le Tam, Nboc T. Do, and American National General Insurance Company and they were dismissed from the suit, with prejudice, on November 6, 2001, leaving USAA Casualty Insurance Company (hereinafter defendant) as the sole remaining defendant in the case. On |3August 18, 2003 the court granted plaintiffs motion for summary judgment on the issue of liability, declaring Linda Tam Thanh Le one hundred per cent (100%) at fault in causing the automobile collision. The subsequent jury trial was bifurcated, with the trial on damages held first and the trial on plaintiffs claims for penalties and attorney fees held after the rendering of the judgment on the damages portion of the trial. The jury rendered a verdict on February 11, 2004 and made the following damage awards to plaintiff:

Past Medicals $12,347.06
Future Medicals $ 0
Future Loss of Earning Capacity $ 0
Disability (20% of anatomical & function) $ 0
Loss of Enjoyment of Life $ 0
Mental Anguish $ 0
Pain and Suffering $25,000.00
Total $37,347.06

In its March 15, 2004 judgment, the court adopted this award and dismissed plaintiffs claims for statutory penalties and attorney fees at plaintiffs cost. An April 20, 2004 judgment denied plaintiffs “Motion for Judgment Notwithstanding the Jury Verdict of February 11, 2004 or In the Alternative Motion for New Trial.” Plaintiff appealed.

There are no liability issues presented for our review. Therefore our review will be restricted to the award of damages to plaintiff.

At trial, the jury was presented with the following evidence and testimony regarding the injuries that plaintiff sustained as a result of the motor vehicle accident.

Plaintiff testified that he first sought medical treatment for the November 24, 2000 accident on Monday, November 27, 2000 at East Jefferson General Hospital.1 In the hospital emergency department he complained about his neck, back, and a tingling numbness in his left hand. They x-rayed him, treated him with|4medication, and directed him to see his primary care physician if the condition persisted. The Emergency Department Report indicates that the x-ray films of his cervical spine, lumbar spine and left hand were normal.

Dr. Pedro N. Romaguera, a specialist in internal medicine, testified plaintiff visited [764]*764his office on December 18, 2000 complaining of back and neck pain after being involved in a car accident. Dr. Romagu-era’s medical records indicate that plaintiff described the pain as 8 out of 10. The physical exam was remarkable for spasms at the cervical and lumbar spine and the range of motion at the cervical and lumbar spine was decreased with pain. Dr. Roma-guera prescribed various medications for the pain and spasms. Plaintiff visited Dr. Romaguera four more times, and though medication did give plaintiff some relief, his neck pain persisted. Plaintiffs last visit with Dr. Romaguera was on October 17, 2002 for treatment of anxiety. Plaintiff was still complaining of severe neck pain. Dr. Romaguera further testified plaintiffs medical problems were probably caused by the November 24, 2000 accident.

Plaintiff testified that Dr. Romaguera advised him that it would take time for plaintiffs body to heal and that in the meantime all Dr. Romaguera could do was give him medication to make him more comfortable. He did not restrict plaintiffs work but told plaintiff not to overwork himself. However, plaintiffs employer allowed him to go on light duty and Dr. Romaguera agreed. Plaintiff continued to see Dr. Romaguera and the medication relieved his symptoms for brief periods.

Dr. Romaguera referred plaintiff to an orthopedic surgeon, Dr. Jeffrey Sketchier, in May 2001. Dr. Sketchier testified at trial that he treated plaintiff from May 3, 2001 until November 20, 2002. It is clear from Dr. Sketchler’s medical report that the visit was prompted by the November 24, 2000 automobile accident. An examination on the initial visit showed hypoac-tive reflexes in the biceps bilaterally. Plaintiff had near full range of motion of the cervical spine, with the |fiexception of rotation, but rotation reproduced some of his symptoms. Cervical spine compression also reproduced symptoms into the scapula and left upper extremity. A subsequent MRI of the cervical spine showed a disc herniation of C5-6 that lateralized toward the right side and a disc herniation at C6-7 that lateralized mainly toward the left side. Dr. Sketchier prescribed conservative treatment and physical therapy, which plaintiff followed from May 2001 through June 6, 2001. Following physical therapy, plaintiffs condition improved but did not completely resolve itself. He was subsequently instructed on home exercises and a home traction unit was prescribed. During the following period plaintiffs condition essentially remained unchanged and required additional medication on numerous occasions. At the last visit, on November 20, 2002, plaintiff was still having pain and his overall condition had not improved.

Dr. Sketchier opined that plaintiff has reached maximum medical improvement. He estimated plaintiffs permanent partial disability rating to be at 20% total body. Dr. Sketchier estimated the disability as both a functional and anatomical impairment. Assuming that plaintiffs condition did not worsen, Dr. Sketchier doubted that plaintiff would need surgery.

Dr. Sketchier referred plaintiff to Dr. John D. Jackson, an expert in the field of neurosurgery, for a neurological medical evaluation. Dr. Jackson testified that plaintiff visited his office on October 14, 2002. He determined that plaintiff had ruptured discs at C5-6 and C6-7, with the main pathology at C6-7 but could not tell when the ruptures occurred. There was no compression of the spinal cord and plaintiff had good nerve root involvement. Dr. Jackson did not recommend surgery during this visit because he thought that plaintiff had a chance of resolving the problem without surgery. He told plaintiff that he would recommend surgery if plaintiffs pain became unbearable or if the [765]*765discs began to irritate and compress the nerves and paralysis was a risk. Dr. Jackson agreed with Dr. Sketchler’s | (¡assessment that plaintiff has a twenty percent permanent partial disability, both functional and anatomical. Dr. Jackson opined that cervical surgery would take care of the pain problem but would limit motion in plaintiffs neck.

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897 So. 2d 762, 4 La.App. 5 Cir. 1029, 2005 La. App. LEXIS 257, 2005 WL 356566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/souhlas-v-le-tam-lactapp-2005.