Case details

Crash into concrete divider caused back injury: passenger





Result type

Not present

back, facet syndrome, lower back, neck, nerve damage, neurological, neuropathy, radicular pain, radiculitis
On Dec. 2, 2010, plaintiff Shirley Buswell, 66, a retired widow, was a front seat passenger in a minivan driven by Timothy Stewart, traveling south on Interstate 5 in Shasta County in snowy conditions. At approximately 5:30 p.m., when they were a few miles south of Dunsmuir, Stewart lost control of the minivan, which spun around before colliding with the concrete divider separating northbound and southbound traffic. Buswell claimed primarily to her lower back and left leg. Buswell sued Stewart and the owner of the minivan, Kathleen Kealy, who was also a passenger in the back of the vehicle at the time of the accident. Buswell alleged that Stewart was negligent in the operation of the minivan and that Kealy was vicariously liable for Stewart’s actions. Specifically, Buswell claimed that Stewart should have driven with more caution considering the snowy conditions. Stewart claimed he lost control of the van after one of the tires blew out. As such, the defendants admitted liability for the accident., Following the accident, Buswell claimed pain to her right ribs, right arm/elbow, and lower back, with pain radiating into her left leg. She claimed that she was pressured by Stewart and Kealy to not ask for an ambulance when the police arrived at the scene. She also claimed that since she was traveling from her home in Oregon to the Bay Area in California at the time of the accident, she borrowed pain medication from her brother, whom she was visiting, to treat her complaints. Buswell ultimately presented to her treating doctor back in Oregon on Dec. 16, 2010, as her doctor was unavailable beforehand and she hoped her pain would resolve on its own. On Dec. 23, 2010, Buswell underwent a lumbar MRI, which showed multilevel degenerative disc disease and facet arthropathy, most pronounced at the lumbosacral junction. The MRI also revealed mild to moderate left lateral recess and foraminal narrowing at L5-S1. Buswell claimed that due to her age and pre-existing heart condition, she initially treated conservatively with pain medication, an epidural steroid injection, and 24 physical therapy sessions throughout 2011. She also underwent an EMG nerve conduction study on Feb. 14, 2011, which was consistent with left L5-S1 radiculopathy and left femoral mononeuropathy. Buswell claimed that when there was no lasting improvement of her symptoms by January 2012, her doctors were prompted to schedule a two-level translateral interbody fusion at L4-5 and L5-S1 for March 2012. However, at her preoperative appointment three days before the procedure, Buswell learned that her heart condition necessitated postponement of the back surgery. A few days later, she suffered a heart attack and underwent heart surgery, with complications, which postponed the back surgery indefinitely. Thus, Buswell claimed past medical costs of $9,171 (paid by Medicaid). She also claimed she will require $300,000 in future medical costs for prescription pain medication, home care assistance, future hospitalizations for due to falls, and durable medical equipment that includes a scooter. However, she claimed that should she undergo back surgery, with cardiac clearance, the surgery would cost $100,000. In addition, Buswell sought recovery of $100,000 in damages for her past pain and suffering and $100,000 to $150,000 for her future pain and suffering. Defense counsel acknowledged that Buswell was injured in the accident, but argued that Buswell’s pre-existing myotonic dystrophy condition and degenerative conditions shown on MRI were the cause of her ongoing pain and problems. Counsel also argued that Buswell caused further injury to her back in a fall while walking a dog in January 2012, about a year after the accident, and that this resulted in the surgery being postponed.
Superior Court of San Mateo County, San Mateo, CA

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