Case details

Plaintiff claimed broadside crash caused lower back injury





Result type

Not present

abdomen pain, back pain, numbness, tingling feet
On Nov. 17, 2010, plaintiff Nasser Dastmalchi, 52, an IT director, was driving west on Sunflower Avenue, in Costa Mesa. As he entered the intersection with Harbor Boulevard, his vehicle was struck by a vehicle operated by Victor Bernedo, who was driving south on Harbor Boulevard. Dastmalchi claimed to his back. Dastmalchi sued Bernedo and the registered owner of Bernedo’s vehicle, Barbara Villacin. Dastmalchi alleged that Bernedo was negligent in the operation of the vehicle and that Villacin was vicariously liable for Bernedo’s actions. Villacin was ultimately dismissed from the case by a stipulation of the parties. Dastmalchi contended that he entered the intersection from Sunflower Avenue on a green light and that Bernedo ran a red light on southbound Harbor Boulevard, causing the collision. Bernedo did not contest liability., Dastmalchi was taken by ambulance to a hospital with complaints of a three out of 10 back pain, crampy in nature. A CT scan of his abdomen and pelvis was performed, and an X-ray of his neck showed normal findings. As a result, he was discharged home that same night. Five days later, Dastmalchi saw his primary care doctor and complained of back pain. He then saw a chiropractor two days later and reported numbness and tingling in his feet, as well as back pain that radiated into both thighs. Dastmalchi was subsequently treated 17 times within five months, and he was seen by a treating general orthopedic physician three times in the interim. By the time he is discharged, Dastmalchi demonstrated full range of motion, with minimal residual complaints of left calf pain. Overall, he was discharged with improvement, and only intermittent back pain was noted in his final orthopedic exam. However, 13 months after the accident, Dastmalchi had three visits with an orthopedist and complained of lower back and bilateral leg pain. Dastmalchi underwent an MRI, which showed an 11-millimeter extrusion at L5-S1. As a result, the orthopedist recommended a discectomy. Four months later, Dastmalchi saw an expert neurosurgeon, Dr. Brian King, who reaffirmed the surgical recommendation for a discectomy. Dastmalchi did not undergo the surgery and, eight months later, he saw another neurosurgeon, who sent him for a second MRI. This time, the MRI showed that Dastmalchi’s lumbar disc has partially resorbed and has shrunken down to a 4-millimeter herniation. Since the disc height loss was severe, Dastmalchi opted for an L5-S1 spinal fusion, which was performed one month later. He then followed up with his treating neurosurgeon twice post-operation, but had no other physician visits beyond March 2013. With respect to his job, Dastmalchi did not initially miss a single day of work, even showing up the day after the accident for an important presentation. However, he took time off in January 2013 for his back surgery, using accrued vacation days, and returned to work 10 days post-surgery with a brace and walker. Thus, he did not make a claim for any loss of earnings. Dastmalchi claimed that his past medical costs amounted to $199,000, of which the surgical fusion cost was for $175,000. He also noted that his expert neurosurgeon testified that he, more likely than not, will require an additional adjacent level fusion within 10 to 15 years, with a projected cost of $220,000 to $300,000 for that procedure. Thus, plaintiff’s counsel asked the jury to award Dastmalchi between $157,000 and $200,000 for past medical costs and $300,000 for future medical costs, $1 million in past general damages, and $2 million in future general damages. Defense counsel contended that although Dastmalchi denied having any prior back complaints during his deposition and to all of his physicians, records from a primary care physician, dated 1.5 years before the crash, were found where Dastmalchi complained about back pain that lasted two months, numbness and tingling, and nocturnal cramping in lower extremities and feet that would keep him awake at night. Counsel noted that the records noted that Dastmalchi’s complaints were made up until nine months before the accident, after which there was a note that said “Doing Fine, Exercising Regularly and no neuropathic symptoms.” Defense counsel also noted that although Dastmalchi is a diabetic and his doctors were adjusting his medications, Dastmalchi was not sent for imaging or treatment for his back. Thus, according to defense counsel, Dastmalchi was impeached for denying in deposition that he ever had lower back complaints when asked about it. Defense counsel argued that the extrusion found 13 months post-accident was unrelated to the crash and was due to Dastmalchi’s pre-existing degenerative condition of his back. Counsel relied on the CT scan taken on the night of the crash, which, according to the defense’s expert radiologist, did not show any nerve displacement at L5-S1, but showed a very degenerative back at that level. Defense counsel also argued that all Dastmalchi’s exams were normal until 13 months later, when the MRI showed an extrusion. The defense’s expert radiologist opined that the bright signal on the MRI revealed that there was a new extrusion that could not be related to the crash 13 months earlier. He further opined that this was supported by the fact that the disc shrunk in the second MRI, taken one year later, proving that it was an acute injury. The defense’s expert orthopedic surgeon opined that surgery was not necessary after the second MRI because the disc shrunk and could have been treated with physical therapy and more conservative measures. He testified that when the disc extrusion was 11-millimeters, the doctors wanted to do a discectomy, but that when the disc shrunk, they did fusion. However, the defense’s orthopedic expert opined that the plaintiff’s doctor’s decision to perform the fusion was wrong. He also corroborated with the defense’s expert radiologist by opining that the plaintiff’s surgeon fee, which was charged by Dastmalchi’s treating neurosurgeon, should have been $8,000, and not $137,000. In addition, the defense’s billing expert essentially cut all the bills in half under her calculations. Thus, defense counsel asked the jury to award Dastmalchi only $64,000, if anything, which includes $14,000 for past medical costs and $50,000 in general damages. Counsel contended that this was based on the argument that Dastmalchi only suffered a soft-tissue injury that had resolved after five months of treatment and that no other damages were caused by the crash. In response, plaintiff’s counsel argued that Dastmalchi’s lumbar disc was damaged in the accident and that the disc began to seep over time, leading to its eventual demise and resulting in the fusion. Counsel also noted that both of the plaintiff’s expert neurosurgeons opined that due Dastmalchi’s age (55 at the time of the fusion), Dastmalchi was more likely than not going to require an adjacent segment fusion at the L4 level. However, the plaintiff’s billing expert also cut the plaintiff’s treating neurosurgeon’s bills, but only decreased them from $137,000 to $95,000.
Superior Court of Orange County, Orange, CA

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