Wanda Turner v. Gumarco C. Escobedo

• Court: Louisiana Court of Appeal
• Decided: May 16, 2012
• Docket: CA-0012-0072
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

12-72

WANDA TURNER

VERSUS

GUMARCO C. ESCOBEDO AND IMPERIAL FIRE & CASUALTY INSURANCE COMPANY

**********

APPEAL FROM THE ABBEVILLE CITY COURT PARISH OF VERMILION, NO. 16,130 HONORABLE RICHARD J. PUTNAM, III, CITY COURT JUDGE

PHYLLIS M. KEATY JUDGE

Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

Byron A. Richie Paul D. Oberle, Jr. Richie, Richie & Oberle, L.L.P. Post Office Box 44065 Shreveport, Louisiana 71134-4065 (318) 222-8305 Counsel for Defendant/Appellant: Imperial Fire and Casualty Ins. Co.

Patrick Damas Moresi The Moresi Firm Post Office Box 1140 Abbeville, Louisiana 70511-1140 (337) 898-0111 Counsel for Plaintiff/Appellee: Wanda Turner KEATY, Judge.

In this personal injury case, the trial court awarded $8,500.00 in general

damages and $1,800.00 in special damages to a plaintiff who allegedly injured her

neck and back and began suffering from migraine headaches as a result of a motor

vehicle accident. After carefully reviewing the record, we affirm the trial court‟s

judgment in part, reverse the judgment in part, and render judgment.

Facts and Procedural History

Plaintiff, Wanda Turner, a forty-seven-year-old female, was involved in a

motor vehicle accident on September 4, 2010. Liability was not disputed. In this

accident, Ms. Turner‟s airbag did not deploy, and she did not allege damages to her

vehicle. At the time of this accident, Ms. Turner was being treated for high blood

pressure, general anxiety, major depression, and chronic back pain, among other

things. She was taking four Lortab pills each day in addition to a myriad of other

medication.

Approximately seven weeks later on October 28, 2010, Ms. Turner was

involved in a second accident in which she rear-ended a trailer. This at-fault

accident caused her airbags to deploy and knocked her unconscious. She was

brought to the emergency room by ambulance, where she complained of neck and

back pain but, ultimately, disconnected herself from the monitors and stretcher and

abandoned the emergency room because, as she testified, she believed the hospital

is “an animal hospital.”

On December 4, 2010, Ms. Turner filed suit against the owner of the vehicle

involved in the September 4 accident and his insurer, Imperial Fire and Casualty

Insurance Company, which is the appellant in this appeal, alleging that she injured

her neck and back and began suffering from migraines as a result of the

September 4 accident. At trial, the only evidence presented was a certified copy of the insurance

policy, certified medical records, a few medical bills, and Ms. Turner‟s self-serving

testimony. Ms. Turner testified that she had only been involved in a 2007 work-

related accident and the two 2010 accidents. On cross-examination, however,

Ms. Turner admitted that she was involved in four additional accidents which took

place in 1995, 2001, 2003, and 2006.1 Her testimony at trial that her neck pain

lasted several months conflicted with her deposition testimony in which she said

the neck pain only lasted five weeks. When questioned on cross-examination

about this difference, she blamed it on her depression, saying, “I was in a

depression. I couldn‟t tell you if it was Monday, Friday, five weeks, six months.”

Ms. Turner was being treated with medication for depression when the accident

occurred, thereafter, and at the time of trial. Ms. Turner also credits all of her

injuries to the first accident, in which the impact of the collision was not strong

enough to trigger the airbag, rather than the second accident in which the airbag

deployed and Ms. Turner was brought to the emergency room on a stretcher after

losing consciousness. When questioned about whether the second accident made

the pain worse, she would only admit that it “irritated” the pain from the

September 4 accident and denied that the second accident caused any of the pain

from which she was allegedly suffering. Ms. Turner also admitted at trial that back

surgery and physical therapy had been recommended prior to the September 4

accident, and she had not engaged in either.

Ms. Turner‟s testimony is inconsistent with the certified medical records

admitted into evidence. Although she claims her pain from the accident was so

1 A fifth additional accident took place in 2009 and is reflected in her medical records. When questioned about the 2009 accident, she denied having been in that accident, saying it was her mother who was involved, and that Dr. Alleman wrote it in the wrong patient‟s chart. Dr. Alleman‟s records indicate that Turner suffered from a neck injury as a result of the 2009 accident. 2 bad that she could not walk without help, Ms. Turner did not see a single doctor

specifically for her accident-related injuries. She was well enough to drive a car by

October 28. In the time between the September 4 and October 28 accidents,

Ms. Turner saw Dr. Edgardo Concepcion once on September 9, 2010, and

Dr. Howard Alleman once on October 13, 2010. She testified that both of these

visits had been scheduled prior to the accident. Her medical records are void of

any mention of back pain prior to the October 28 accident. Her alleged neck pain

is referenced in a single notation in Dr. Alleman‟s records. In that same entry, he

notes that she was complaining of headaches. There is not a scintilla of evidence

that Ms. Turner was suffering from migraines, save for her own word choice.

Although she testified that she was suffering from migraines several times a week

and the pain was a ten on a scale of one to ten, she never saw a doctor for or was

diagnosed as having migraines. When questioned about her migraines on cross-

examination by Imperial Fire‟s attorney, she retorted, “I want to jump this man!”

Ms. Turner‟s records indicate that she did not tell a physician about the

September 4 accident until October 13, and that she did not mention the

October 28 accident to either of her doctors. Her records indicate that she did not

mention back pain to any doctor until after the October 28 accident. At that time,

Dr. Alleman ordered an MRI, but noted that he did not think the September 4

accident caused the back pain. The MRI was performed on November 8, 2010,

and did not present evidence of any additional trauma to her back. Ms. Turner‟s

records are also void of any reference to her needing assistance to enter or exit the

office or examination room or being incapable of moving her extremities.

Although Ms. Turner testified that her physician‟s records are better than her

memory and that she would defer to Dr. Alleman‟s records, saying “whatever he

says is the honest to God‟s truth, yes,” she blamed any inconsistency between her 3 testimony and her medical records on the doctors, claiming they “forgot” to write

down things she told them, or they wrote down incorrect information.

Despite the many inconsistencies in her testimony and the minimal

references to the complained-of illness in her medical records, the trial court found

in favor of Ms. Turner and awarded her a total of $8,500.00 in general damages

($3,500.00 for the migraines, $3,000.00 for exacerbation of her back condition, and

$2,000.00 for her neck pain), and $1,800.00 in special damages for past medical

treatment related to the September 4 accident.

Imperial Fire appealed, asserting that the trial court erred in “ignoring the

medical evidence, [or] lack thereof, and accepting without question the

unsupported and uncorroborated testimony of the plaintiff with respect to her

alleged injuries,” and the trial court erred in “crediting plaintiff with any credibility

for testimony provided in support of her claims of injury.” Ms. Turner answered

the appeal seeking an increase in the damages awarded. For the following reason

we affirm in part, reverse in part, and render.

Discussion

A. General Damages

Appellate review of a trial court‟s findings in a medical malpractice action is limited. It is well settled that a court of appeal may not set aside a jury‟s finding of fact in the absence of manifest error or unless it is clearly wrong, and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). In reviewing a factfinder‟s factual conclusions, an appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court‟s conclusion, and the finding must be clearly wrong. Kaiser v. Hardin, 06-2092 (La.4/11/07), 953 So.2d 802, 810; Guillory v. Insurance Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029, 1031. Where there are two permissible views of the evidence, the factfinder‟s choice between them cannot be manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, if a witness‟s story is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit 4 the witness‟s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. Rosell, supra at 845.

Johnson v. Morehouse General Hosp., 10-387, pp. 11-12 (La. 5/10/11), 63 So.3d

87, 96.

The trial court found Ms. Turner to be a credible witness. Accordingly, we

must afford great deference to the trial court‟s determination that the testimony she

provided was true.

After carefully reviewing the record, we find that Ms. Turner did mention

her neck pain and headaches to Dr. Alleman prior to her second accident. In his

notes, she attributes the pain to the September 4 accident. Although detail about

the type and severity of neck pain and headaches Ms. Turner suffered from are not

in the record, it is reasonable to conclude that these two injuries resulted from the

September 4 accident. Accordingly, the awards for these injuries ($2,000.00 for

the neck pain and $3,500.00 for the migraines) are affirmed.

The record does not support an award for back pain. Prior to the

September 4 accident, Ms. Turner was being treated for chronic back pain. At the

time of the accident, she was taking four Lortab pills per day. After the

September 4 accident, she made no mention of back pain to either of her treating

physicians, even though she did ultimately mention neck pain and headaches to

one of them several weeks after the accident. The first mention of back pain after

the September 4 accident was on the date of the second, more severe accident.

Ms. Turner told the medical staff in the emergency room that she was experiencing

neck and back pain and then abandoned the emergency room when she felt she was

not receiving adequate care. Several days later, on November 4, 2010, Ms. Turner

complained of back pain to Dr. Alleman. She did not mention the second accident

to him. Dr. Alleman ordered an MRI, the results of which “indicate[] the presence 5 of multiple relatively minor deviations from normal . . . which I doubt are related

to recent trauma.”

The record is clear that Ms. Turner was being treated for pre-existing back

pain at the time of the accident and did not mention an increase in her back pain to

Dr. Alleman when she complained of neck pain and headaches. It is clear that on

the date of the second accident, Ms. Turner complained of neck and back pain and

that she complained of back pain to Dr. Alleman a few days later. Accordingly,

we find that the trial court was manifestly erroneous in finding that Ms. Turner

suffered from back pain as a result of the September 4 accident. We reverse the

portion of the judgment that awarded general damages in the amount of $3,000.00

to Ms. Turner for her back pain.

B. Special Damages

In addition to the general damages awarded, the trial court also awarded

Ms. Turner $1,800.00 for past medical treatment. “„A Plaintiff may ordinarily

recover reasonable medical expenses, past and future, which he incurs as a result of

an injury.‟” Revel v. Snow, 95-462, p. 10 (La.App. 3 Cir. 11/2/95), 664 So.2d 655,

660, writ denied, 95-2820 (La. 2/2/96), 664 So.2d 655 (quoting White v.

Longanecker, 93-1122, p. 9 (La.App. 1 Cir. 5/23/94), 637 So.2d 1213, 1218, writ

denied, 94-1704 (La. 10/7/94), 644 So.2d 640). At trial, Ms. Turner admitted into

evidence a receipt dated November 8, 2010, for $500.00 to Acadiana Physician

Corporation, a receipt dated October 13, 2010, for $60.00 to Dr. Alleman, 2 a

collection services letter dated August 28, 2011, indicating that a total of $906.00

was due to Acadiana Radiology Group and Abbeville Diagnostic Center for

services rendered on November 8, 2010, and a pharmacy receipt dated November 4,

2 We note that the transcript reflects that Exhibit P3 consisted of two receipts for Dr. Alleman, from October 13 and November 4, 2010; however, the record reflects that only one receipt was actually admitted into evidence. 6 2010, for $10.02 worth of medication. Ms. Turner testified that the $500.00

receipt was for the MRI, that the $60.00 receipt was for a visit to Dr. Alleman, and

the $10.02 was for medication. She further testified that the $906.00 was for X-

rays to see if anything was broken. We note that Dr. Alleman‟s records only

reference sending her for an MRI, not X-rays, and that Dr. Victor Gunderson with

Abbeville Diagnostic Center is the physician who reviewed Ms. Turner‟s MRI.

Abbeville Diagnostic Center is one of the entities seeking payment through

collection services. Regardless, the testing was performed after the second

accident. Although the total of these bills is $1,476.02, the trial court awarded

Ms. Turner $1,800.00 for past medical expenses.

“A tortfeasor is liable for the full amount of medical expenses incurred in

treatment of injuries for which he or she is responsible.” Revel, 664 So.2d at 661.

The converse must also be true; that is, a tortfeasor should not be liable for medical

expenses incurred in treatment of injuries for which he or she is not responsible.

Having found that the record does not contain evidence that Ms. Turner‟s back was

injured in the September 4 accident, we must reduce the award of past medical

expenses to exclude all back-related treatment. After reviewing the evidence that

was properly admitted and authenticated for past medical expenses, we find that

Ms. Turner is only entitled to reimbursement for the October 13 visit to

Dr. Alleman. Accordingly, we reverse the judgment insofar as it awarded

$1,800.00 to Ms. Turner for past medical treatment and render judgment in the

amount of $60.00, which reflects the evidence submitted by Ms. Turner for

medical treatment in connection with the September 4 accident.

Conclusion

For the foregoing reasons, we find that the trial court was not manifestly

erroneous in finding that Ms. Turner injured her neck and suffered from headaches 7 as a result of the September 4 accident. We affirm its awards of $2,000.00 and

$3,500.00 respectively for those injuries. We find that the trial court was

manifestly erroneous in finding that Ms. Turner injured her back as a result of the

September 4 accident. We reverse that finding and the damages award associated

therewith in the amount of $3,000.00. We further find that although Ms. Turner

submitted into evidence receipts totaling $1,476.02 for medical treatment, nearly

all of those bills and receipts were incurred after the second accident on October 28,

2010, and in connection with her back pain. Accordingly we reverse the trial

court‟s grant of $1,800.00 for past medical treatment and render judgment in favor

of Ms. Turner for $60.00, reflecting the amount paid for her visit to Dr. Alleman

on October 13. We deny Ms. Turner‟s request for additional damages on appeal.

Half of the costs of this appeal are assessed against Ms. Turner, and half are

assessed against Imperial Fire.