Plaintiff treats for neck pain after auto accident; followed by one year gap in treatment.
Past medical specials: $12,886.64
Past loss of income: $1,176
Future medical specials: $75,000
Future loss of income: $9,600
Past pain & suffering: $55,000
Future pain & suffering: $50,000
San Diego Injury Law Center by Zhiming Wang, San Diego.
Boles & Di Mascio by Sandra Smith, San Diego.
Eric Korsh, M.D., spinal surgery, San Diego.
Howard Tung, M.D., neurosurgery, La Jolla.
On February 15, 2013, defendant Zenaida Ortega was driving a 2010 Honda CRV northbound on John Jay Hopkins Drive. Plaintiff was driving a 1997 Lexus southbound on the same road. When defendant was making a left turn to a driveway, she collided with plaintiff’s car.
Plaintiff was transported to ER and was reported to have a concussion. He was diagnosed with post-concussion syndrome. He developed neck pain the following day, so he saw his family doctor.
After taking pain medications for one month, he went back to his family physician and reported persistent neck pain. At this point plaintiff's family doctor prescribed physical therapy. Plaintiff participated in eight sessions of PT and missed five appointments. His neck pain was rated 0/10 during the last two sessions and he told the physical therapist that he had paddle-boarded on the weekend and there was no pain.
Then there was a one-year gap in treatment. Plaintiff saw his family doctor twice during that one-year period of time but there’s no mention of neck pain on the record. One year after the physical therapy, he told his family doctor again that he had some neck pain. He then attended another three sessions of PT, which didn’t help.
The neck pain started traveling down to his left arm and left hand. He didn't know how to deal with it, so he retained an attorney (1 1/2 years after the accident). He was referred to Dr. Korsh, who ordered an MRI of the neck. The MRI showed 2 mm osteophyte complex on C5-6. After doing neurological testing and reviewing the MRI film, Dr. Korsh diagnosed him with cervical disc herniation with C6 nerve root impingement. He recommended cervical decompression and fusion surgery.
That plaintiff suffered 8-month post concussion syndrome from the collision. That within a reasonable degree of medical certainty, the collision caused the cervical disc herniation with C6 nerve root impingement. And, that as a result of the cervical disc injury, plaintiff will require neck surgery and miss 6 months of time of work.
That plaintiff continued doing his home exercises during the one-year period of time when he was not professionally treated and he is not the type of person who would go see a doctor every time his neck hurts.
That plaintiff failed to comply with physical therapy prescription after the collision (i.e., he missed five appointments). That plaintiff reported no pain at the conclusion of his physical therapy. That there was a one-year gap in treatment.
That plaintiff's neck pain is from the degenerative condition which has nothing to do with the collision. That the MRI film does not show disc herniation nor does it show any nerve root impingement. That surgery is definitely not warranted. Plaintiff has not exhausted conservative treatment such as epidural injections.
Defense expert Dr. Tung testified that plaintiff did not suffer from a concussion but his symptoms of dizziness, head aches and minimal forgetfulness at work were more likely related to plaintiff's pre-existing anxiety disorder, stress related to fertility issues and side effects from
Plaintiff's treating general practitioner Gerald Paul, MD who had seen plaintiff before and after the accident testified that many of the medications plaintiff was taking were unrelated to any injury caused by the accident and could have also caused the complaints plaintiff claimed were from a head injury.
Dr. Tung also testified that the neck surgery, although not related to the MVA, would have cost no more than $30,000, not the $132,000 Dr. Korsh testified to.
8-month post concussion syndrome and C5-6 cervical disc herniation with nerve impingement.
Per defense counsel:
Plaintiff requested the jury return a verdict of at least $750,000 which
Past economic loss: (medical specials $12,885,64 and past LOE $1176);
Past noneconomic loss for 3 years since the MVA: $200,000 (awarded $55,000)
Future Medical Expenses: $132,000 (awarded $75,000)
Future lost income: $17,000 for 3 months (awarded $9600)
Future noneconomic loss for 33 years of life expectancy: $550,000 (awarded $50,000)
The defense requested a verdict of $25,000 based upon about $3,000 in past medical specials and past LOE of $1,176.
A few members of the jury who stayed to discuss the verdict said the most important factors in rendering the verdict were that:
1. Plaintiff did not have any neck complaints before the MVA;
2. Plaintiff had a prior unrelated shoulder injury that he had rehabilitated on his own over several years by doing exercises recommended by his health care providers.
Because of this background, the jury believed plaintiff was still in pain during the year gap in treatment..
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