Vial v. Armstrong

479 So. 2d 583
CourtLouisiana Court of Appeal
DecidedNovember 19, 1985
DocketCA 84 0987
StatusPublished
Cited by10 cases

This text of 479 So. 2d 583 (Vial v. Armstrong) 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
Vial v. Armstrong, 479 So. 2d 583 (La. Ct. App. 1985).

Opinion

479 So.2d 583 (1985)

Mary Janet VIAL
v.
Dr. H.P. ARMSTRONG and Zurich Insurance Company.

No. CA 84 0987.

Court of Appeal of Louisiana, First Circuit.

November 19, 1985.
Writs Denied January 24, 1986.

Leon C. Vial, III, Hahnville, R. Bruce Macmurdo, Baton Rouge, for plaintiff-appellant Mary Janet Vial.

R. Michael Caldwell, Baton Rouge, for defendants-appellees.

Before LOTTINGER, COLE and CRAIN, JJ.

CRAIN, Judge.

The only issue presented in this personal injury suit is quantum.

On May 1, 1980, plaintiff, Mary Janet Vial, was driving north on Nicholson Drive in Baton Rouge when she was involved in a vehicular collision with a car driven by *584 Keith Armstrong, the minor son of Dr. H.P. Armstrong, defendant. Dr. Armstrong's liability insurer, Zurich Insurance Company, was also made a defendant. Trial of this matter was held on January 17, 1984, after which the case was taken under advisement. On May 29, 1984, judgment was rendered in favor of Ms. Vial awarding her $20,000 for general damages and $2,130.06 for past medical expenses. Ms. Vial's claims for loss of earning capacity and future medical expenses were denied as being too speculative. Ms. Vial appealed this judgment, contending the amount awarded is inadequate compensation for her injuries.

Ms. Vial was the only witness who testified in person at the trial held on this matter. In addition, the depositions of four medical doctors were introduced.

Immediately after the accident Ms. Vial began experiencing severe pain in her shoulders and neck. A friend took her to the emergency room of the Baton Rouge General Hospital, where she was examined and released. A few days later she saw Dr. Grace in Plaquemine. No evidence was offered regarding this visit, although Ms. Vial stated Dr. Grace found the results of her examination to be normal.

Approximately two weeks later Ms. Vial, who was an LSU student at the time, returned to her home in Hahnville for the summer and attended Nicholls State University in Thibodaux. She testified she suffered pain in her neck and shoulders throughout the summer. During this period she consulted Dr. Phemister in Luling on May 15, July 20 and September 15, 1980. No evidence was offered regarding these visits.

Ms. Vial returned to LSU for the fall semester. She stated she continued to suffer pain throughout the fall, but did not seek further medical treatment until February 2, 1981, when she consulted Dr. Moss Bannerman, an orthopedic surgeon. This examination was apparently normal. No evidence was introduced regarding it.

On April 21, 1981 Ms. Vial saw another orthopedic surgeon, Dr. Charles Strange, complaining of pain in her neck and shoulders. She indicated this pain was accentuated by strenuous physical activity or extended sitting. The results of the examination performed by Dr. Strange were essentially normal, except for some pain experienced by Ms. Vial at the very extremes of flexion and motion. The x-rays taken on that date also appeared normal. Ms. Vial saw Dr. Strange again on August 6, at which time she had the same basic complaints. Dr. Strange stated Ms. Vial told him at this time she felt she was getting better slowly. At trial Ms. Vial denied making such a statement. In any event, at her last visit on September 18, 1981, Ms. Vial's complaints were again basically the same as those initially given by her. Dr. Strange felt her complaints of pain were authentic. He diagnosed Ms. Vial's injury as a subacute and chronic cervical sprain, which he did not feel would cause any permanent residual disability.

On March 12, 1982, Ms. Vial was seen at the request of the defendant insurance company by Dr. Robert Hanchey, a neurosurgeon. Dr. Hanchey stated his examination was essentially negative, except for some mild weakness in the right triceps and some sensory loss. He felt a myelogram was necessary for a conclusive diagnosis, although he believed it would probably be negative.

On February 1, 1982, Ms. Vial consulted Dr. John Jackson, a neurosurgeon, with complaints of pain in her right arm, right hand and neck. She also complained of numbness in her right hand and radiating pain in her right shoulder. During his initial examination, Dr. Jackson noted a marked difference in the grip strength of Ms. Vial's right and left hands, with the right hand being much weaker. In addition, he noted some decreased sensation in the third, fourth and fifth fingers of her right hand. The results of this examination were otherwise normal. From this examination and x-rays taken on that date, Dr. Jackson concluded Ms. Vial probably suffered either a nerve stretch injury or a cervical disc injury. Based on the results *585 of an EMG later performed, he initially thought it more likely she had sustained a nerve stretch injury. However, another EMG subsequently performed appeared to rule out this possibility.

Dr. Jackson felt an x-ray taken on April 17, 1982 showed a definite fracture of the lamina at the C2 level. Although he had not noted a fracture on earlier x-rays, Dr. Jackson indicated it was not unusual for a fracture not apparent on earlier x-rays to show up on a subsequent x-ray. He stated there were many reasons for this, ranging from the angle of the camera to the fact some fractures become more distinct as time passes. In any event, while Dr. Jackson did not think this fracture was the major cause of Ms. Vial's problems, he believed it may have caused some of the pain in her neck. Additionally, he felt it demonstrated Ms. Vial had experienced a rather severe trauma to her cervical spine.

Ms. Vial visited Dr. Jackson again on May 4, June 24 and August 30, 1982. On the August 30 visit she complained that her pain had worsened. A CT scan was performed on September 8, 1982. The results of this scan were essentially normal, except for a possible bulge at the C5-6 level. At that time, Dr. Jackson did not believe this finding was significant since there appeared to be sufficient room in the area of the possible bulge. Subsequently, however, he changed his opinion and came to believe it was likely Ms. Vial suffered from a cervical disc injury. This conclusion was based primarily on the presence of the possible bulge on the CT scan and the longevity of Ms. Vial's complaints of pain and numbness in her right hand. Dr. Jackson indicated the next step in making a positive diagnosis was a myelogram, which he believed would probably show a bulging disc at the C5-6 level. However, he recommended Ms. Vial wait before having a myelogram because he thought there was a chance her injury might heal without surgery, due to her youth. Ms. Vial had not undergone a myelogram at the time of trial.

Ms. Vial's last visit to Dr. Jackson before trial was on December 19, 1983. She was going through a relatively good period at that time and had not experienced a great deal of pain since Thanksgiving. However, she still had soreness in her neck and a burning pain radiating up the back of her right shoulder if she attempted any type of strenuous activity. Any strain in her right shoulder also caused her to suffer headaches and pain in her neck. Ms. Vial had not been released from Dr. Jackson's care at the time of trial.

Ms. Vial was also seen on several occasions by Dr. Monica Vial Benson, her first cousin. Dr. Benson is a specialist in physical medicine and rehabilitation. She saw Ms. Vial on February 8, March 17 and April 17, 1982; and on March 14, 1983. As did Dr. Jackson, Dr. Benson felt the longevity of Ms. Vial's complaints and the CT scan showing a possible bulge indicated she had suffered a disc injury. Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Peterson v. Western World Ins. Co.
536 So. 2d 639 (Louisiana Court of Appeal, 1988)
Perkins v. Ricks
514 So. 2d 180 (Louisiana Court of Appeal, 1987)
Gobert v. Aetna Casualty & Surety Co.
509 So. 2d 544 (Louisiana Court of Appeal, 1987)
Daigle v. Lajet, Inc.
504 So. 2d 1126 (Louisiana Court of Appeal, 1987)
Dominick v. CNA Ins. Co.
497 So. 2d 758 (Louisiana Court of Appeal, 1986)
Thibodaux v. Acme Truck Line, Inc.
496 So. 2d 499 (Louisiana Court of Appeal, 1986)
Wattigny v. Breaux
488 So. 2d 419 (Louisiana Court of Appeal, 1986)
Sherlock v. Berry
487 So. 2d 555 (Louisiana Court of Appeal, 1986)
Vial v. Armstrong
481 So. 2d 634 (Supreme Court of Louisiana, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
479 So. 2d 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vial-v-armstrong-lactapp-1985.