Case details

Defense claimed plaintiff was still using alleged injured leg

SUMMARY

$66950

Amount

Verdict-Plaintiff

Result type

Not present

Ruling
KEYWORDS
anxiety, back, bulging disc, contusion, emotional distress, lower back, lumbar, mental, neck, psychological, spine
FACTS
On May 30, 2012, plaintiff Jennifer Lewis, 52, a typesetter and advertiser for a newspaper, was entering a Food Maxx store in Clovis when she slipped and fell on water near the front entrance. Lewis claimed to her lower back, tail bone, hips, and buttocks. Lewis sued the operator of Food Maxx, Save Mart Supermarkets. Lewis alleged Save Mart failed to properly maintain the store, creating a dangerous condition. Save Mart admitted liability., Lewis claimed the fall caused a curvature of her spine and a possible coccyx or sacral injury, based on the results of an X-ray that was performed. She also claimed she sustained a lumbar disc protrusion, a lower back/coccyx contusion, and sacroiliitis. Lewis initially attempted to treat at home and tried to work as normal, but a week later, she attempted to see her primary care doctor. However, her doctor would not see Lewis, as the physician did not want to be involved in a potentially litigated case. As a result, Lewis was referred to a medical center as a walk-in and she subsequently received chiropractic manipulation at the medical center through July 9, 2012. On July 30, 2012, an MRI was performed, but the sacrum and coccyx were determined to be negative for an injury. However, there was an incidental note on the MRI of a vertebral haemangioma at the L5 level, but there was no evidence of sacroiliitis. A former attorney then referred Lewis for chiropractic X-rays on Oct. 17, 2012, and everything appeared normal, including for the sacrum and coccyx. On Nov. 27, 2012, Lewis saw an orthopedic surgeon, who told Lewis that she could not work anymore, as Lewis had complaints of lower back pain radiating into her right and left legs. Lewis then underwent an MRI of her lower back and right hip in March 2013, and the MRI showed a diffuse bulge at L3-4 and L4-5 with mild narrowing of the central foramina, as well as at L2-3 and L5-S1 without significant narrowing. An arthrogram was attempted, but Lewis could not lie on her right hip. She was then referred to her treating pain management physician, who examined her in May 2013. The treater ultimately performed a lumbar epidural steroid injection on Lewis. Although the treater’s records noted that Lewis had relief, Lewis claimed that she did not. As a result, Lewis underwent another injection on Oct. 24, 2013. By 2014, Lewis was diagnosed with a possible contusion of the right sciatic nerve, and in May 2014, she saw another orthopedic surgeon, who recommended that she continue treating with Ambien. In September 2014, she saw another pain management physician and complained of ongoing pain in her lower back, coccyx, and right hip, as well as and numbness and tingling in her left leg and pain in her right leg. Lewis was subsequently diagnosed with right hip arthritic changes, lumbar degenerative disc disease, lumbar facet syndrome, and a coccyx contusion. As a result, she was referred to imaging for an MRI arthrogram, and it was noted that she had a tear in her superior anterior labrum in her right hip. As a result, Lewis requested a wheelchair. She then found another orthopedic surgeon, who also assessed her with a right hip labral tear with atypical presentation. The surgeon opined that surgery was not necessary, but that Lewis should have a cortisone injection in her hip. The plaintiff’s physical medicine expert opined that all of Lewis’ and treatment were related to the subject fall. Prior to the accident, Lewis worked as a typesetter for a newspaper and also did advertising calls. She claimed she could no longer work due to her and that she ultimately had to leave her job after attempting to work for six months after the accident. Lewis stopped working in October 2012. Lewis claimed that she is in constant and continuing, severe pain to her lower back, right hip, buttock, and leg. She alleged that as a result, she was bedridden and that her life is shattered. Lewis claimed that she developed emotional distress — including frustration, anxiety, and hopelessness — because she felt guilty about her condition and about allegedly no longer being able to work or walk. As a result, she treated with a counselor and psychologist. Thus, Lewis sought recovery of $30,508.37 in past medical costs, $120,050 in past loss of earnings, between $264,000 and $330,000 in future loss of earnings, $40,000 in future medical costs for psychological treatment for the next 21 to 22 years, $2,000 in future medical costs for a pain medicine doctor/physical medicine doctor, $5,000 in future medical costs for a psychologist, $1,000 in future medical costs for epidural injections, and $1,500 per year in future medical costs for medication. She also sought recovery of $1 million in damages for her pain and suffering. Lewis’ husband, Bryan Butts, presented a derivative claim seeking recovery of $500,000 in damages for his loss of consortium. The defense’s expert orthopedic surgeon opined that Lewis’ limp and gait were not consistent with the injury Lewis was claiming. The expert claimed that on exam, he noted no numbness, redness or swelling to areas. He also opined that Lewis had soft tissue that healed within a few months after the accident. He further opined that when he measured Lewis’ calf girth of her right calf versus her left calf, he noted that Lewis’ right calf was three quarters larger than her left. Thus, the expert concluded that Lewis’ right leg was dominant and that she continued to use it after the accident. The orthopedic surgeon opined that there were no true objective findings of Lewis’ from the fall and that Lewis’ treating pain management physician’s opinion was unsupported by medical evidence. The expert further opined that Lewis’ treatment had no medical benefits and that Lewis only needed four to eight weeks of treatment. In addition, the defense’s expert opined that Lewis has some underlying medical condition, but that it would be hard to identify, as Lewis had no other medical attributes that would suggest a medical condition. As a result, the expert concluded that it was troubling that none of the treatment that Lewis had allegedly undergone was effective for her.
COURT
Superior Court of Fresno County, Fresno, CA

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