Opinion
Civil Action No: 02-3805, SECTION: "R" (2).
October 29, 2004
ORDER AND REASONS
The Court held a trial to determine whether Tammie Holley is entitled to damages for injuries allegedly arising out of an automobile accident with U.S. Marshall Justin Vickers on September 11, 2000. Holley seeks to recover for pain and suffering, physical disability, and medical expenses as a result of a whiplash injury she suffered on September 11, 2000, which she asserts caused a disc protrusion at level C5-6 of her cervical spine. After hearing the testimony of the witnesses and reviewing the documents in evidence, the Court rules as follows.
I. FINDINGS OF FACT
On September 11, 2000, Justin Vickers, U.S. Marshal, rearended Tammie Holley while she was stopped at a red light at an intersection in downtown New Orleans. Holley heard a loud crash and her neck jerked forward and then back. Nelson Altamirano was a passenger in Holley's car. When Holley and Vickers exited their cars, Holley told Vickers that she was all right. She sustained minimal, if any, damage to her car and incurred no repair expenses. Holley and Vickers did not call the police. That night, Holley, who is a nurse, applied ice to her neck. Her neck was stiff the following day. She took ibuprofen and scheduled an appointment with her chiropractor, Dr. Kenneth Pace on September 15, 2000.
Testimony of Holley.
Id.
Id.
Testimony of Holley; testimony of Vickers.
Testimony of Holley.
Id. (stating that there were some minor scratches and maybe a small dent). See also Testimony of Justin Vickers (stating that there was no damage).
Testimony of Holley; testimony of Vickers.
Testimony of Holley.
Id.
Id.; Pl.'s Ex. 1.
Holley had a history of back and neck problems, and she had seen Dr. Pace in the past. She testified that her previous neck problem involved the C2-3 discs. When Holley saw Dr. Pace after the September 11 accident, Dr. Pace treated her with neuromuscular stimulation, ice, and spinal manipulations. His notes reflect that his treatment during this period was for neck and back pain and stiffness, and he noted decreased intersegmental motion at levels C2-3 and C5-6 of Holley's cervical spine. He did not note any radiating pain into Holley's arms. Dr. Pace treated Holley for her injury until January 5, 2001. On that date, Dr. Pace discharged Holley from treatment for the injury she sustained in the car accident.
Testimony of Holley (noting that she began seeing Dr. Pace in 1993; she saw him fourteen times in 1994 for upper back pain and stiffness; she saw him in 1995 and 1997 for injuries she sustained while working as a nurse; and she saw him in 1998 for whiplash from a car accident). See also Def.'s Ex. 2.
Testimony of Holley.
Id.
Pl.'s Ex. 1.
Id.
Id.
Id.; see also testimony of Holley.
Holley testified that she returned to Dr. Pace to resume treatment for her injury on March 5, 2001 and that her treatment continued through December of 2002. Dr. Pace did not testify at trial, but in contrast to Holley's testimony, he stated on a form, supplied in Exhibit 1, that he treated Holley for her injuries from this accident from September 15, 2000 to January 5, 2001. Dr. Pace's exam records also show that he treated Holley until January 5, 2001, at which time she assessed herself at zero pain. Dr. Pace released her from active and scheduled care at that time and told her to return as needed. In a letter dated March 13, 2001, Dr. Pace notified Holley's insurer, State Farm, that as of March 2, 2001, he discharged Holley from treatment for the injuries sustained on September 11, 2000, as she had achieved maximum improvement. Notably, Dr. Pace wrote this letter after March 5, 2001 — the date on which Holley testified that she returned to Dr. Pace for continuing treatment for injuries arising out of the car accident. Moreover, Dr. Pace did not bill State Farm for any of Holley's subsequent visits.
Testimony of Holley.
Pl.'s Ex. 1. The form itself is not dated. It has a fax transmission date of August 4, 2004.
Id. (exam notes).
Id.; see also testimony of Holley.
Def.'s Ex. 1.
Testimony of Holley.
On July 16, 2001, Holley filed an administrative claim with the U.S. Marshall's Service for damages arising out of the September 11, 2000, accident. She claimed $12,200.00 for personal injuries and she waived any claims for property damage. The U.S. Marshall's Office denied her claim on June 25, 2002.
Def.'s Ex. 1.
Id.
Id.
On December 25, 2002, Holley sustained a fairly serious injury when she turned a patient at work. Holley sought medical care in the emergency room at West Jefferson Hospital for her injury. Afterwards, she sought treatment from Dr. David Rosenfeld, a pain management specialist and anesthesiologist, beginning January 16, 2003. When she saw Dr. Rosenfeld, she complained of back and neck pain. Dr. Rosenfeld referred her for MRI scans. On January 23, 2003, Holley underwent three MRI scans of her lower back, upper back, and neck. The results of her neck scan were normal with the exception of a "[s]mall midline disc protrusion at C5-6 effacing the ventral thecal sac." Dr. Rosenfeld treated Holley for the protrusion with cervical epidural steroid injections and pain medication. Since that time, Holley has received extensive treatment for pain management and, consequently, has encountered difficulties with drug addiction. She asserts that the accident was a significant factor in the breakdown of her life, including psychiatric problems, drug addiction which necessitated inpatient hospitalization, mental anguish, and loss of earnings as a lawyer in 2003.
Testimony of Holley.
Def.'s Ex. 3.
Testimony of Dr. Rosenfeld.
Id.
Id.
Pl.'s Ex. 3. See also testimony of Dr. Rosenfeld.
Pl.'s Ex. 3. See also testimony of Dr. Rosenfeld.
Testimony of Dr. Rosenfeld.
Testimony of Holley; Pl.'s Ex. 7, 23; testimony of Dr. Rosenfeld.
Testimony of Holley.
II. ANALYSIS
Holley argues that the car accident caused her initial whiplash injury and her later-discovered C5-6 disc protrusion. Therefore, she asserts that she is entitled to medical expenses stemming from those injuries, expenses for her psychiatric problems and drug addiction treatment, and pain and suffering.
A. Initial Injury
The government admits that Vickers was negligent in causing the accident. Therefore, Holley must prove a causal relationship between her injuries and the accident that caused her injury. Marato v. Goodyear Tire Rubber Co., 650 So.2d 757, 759 (La. 1995). Holley must prove the causal relationship by a preponderance of the evidence. Id. "The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident." Id. See also Oubre v. Union Carbide Corp., 747 So.2d 212, 224 (La.App. 1999) (noting that the plaintiff must prove the causal link by a preponderance of the evidence, and the test for determining whether the plaintiff has carried her burden is whether she proved through medical testimony that it is more likely than not that the injuries were caused by the accident). If Vickers caused Holley's injuries, the government is liable for not only the injuries directly caused, but also for exacerbation of pre-existing injuries. Lasha v. Olin Corp., 625 So.2d 1002, 1005-06 (La. 1993).
Holley presented sufficient evidence that the accident caused her a minor neck injury. She saw Dr. Pace, the chiropractor, five days after the accident happened. Dr. Pace's records indicated that he treated her for the injury she sustained in the car accident. Moreover, she saw Dr. Pace regularly for a period of approximately four months following the accident. On January 5, 2001, she reported no pain to Dr. Pace. He cancelled her regular appointments and told her to return as needed. Therefore, the evidence shows that, more likely than not, the car accident caused Holley a minor injury, for which she is entitled to medical expenses and pain and suffering through January 5, 2001, when Dr. Pace released her from treatment for her injury.
B. Disc Protrusion
The Court must determine whether the accident caused Holley's C5-6 disc protrusion that she discovered in January of 2003. The government suggests that Holley's work-related injury of December 25, 2002 caused her C5-6 Disc protrusion. The government is not liable if an intervening act caused Holley's C5-6 disc protrusion. Williams v. Harris, 848 So.2d 26, 29 (La.App. 2003), Hill v. Abraham, 770 So.2d 824, 827 (La.App. 2000). In other words, Holley cannot recover if her C5-6 disc protrusion was the result of a separate, independent, intervening cause. Williams, 848 So.2d at 29 (noting that the plaintiff cannot recover if his injuries were the result of separate, independent, and intervening causes); Hill, 770 So.2d at 827 (same); Broussard v. Razdin, 763 So.2d 644, 652 (La.App. 1999) (same); Guillie v. Comprehensive Addiction Progs., 735 So.2d 775, 778 (La.App. 1999) (same).
There is insufficient evidence for the Court to find that, more likely than not, the September 11, 2000 accident caused Holley any injury that lasted beyond January 2001. Specifically, the Court does not find that the accident caused Holley's C5-6 disc protrusion and her subsequent psychiatric problems and drug addiction.
Although Holly testified that she received ongoing care for her C5-6 cervical area from the time of the accident through December 2002, the available medical records do not support her assertion. The Court notes that there are no medical records in evidence that explain the substance of Dr. Pace's treatment of Holley between January 5, 2001 and October 4, 2001. Dr. Pace's office experienced technical difficulties and lost examination notes for certain patients over certain periods of time. As a result, the office was unable to provide the examination notes for Holley from January 5, 2001 to October 4, 2001. The office was, however, able to supply the billing records for that time period. The billing records show that from March 2, 2001 through February 19, 2002, Holley saw Dr. Pace twenty-nine times. The first twenty eight visits, Holley appears to have had "SPI-ADJ"-presumably spinal adjustments. The final visit was "therapy only." Holley admits that during this time, she was seeing Dr. Pace for a back problem wholly unrelated to any injury from the car accident.
See Pl.'s Ex. 1 and supplement.
Pl.'s Ex. 1, supplement.
Id.
Id.
Pl.'s Ex. 1 and supplement.
Id.
Id.
Testimony of Holley.
No medical records after January 5, 2001 show that Holley was treated for a C5-6 cervical disc injury until after December of 2002. For example, the daily notes from Dr. Pace beginning October 4, 2001, and continuing through February 13, 2002, reveal that Holley complained of pain in her neck, upper and lower back. The notes do not, however, identify the C5-6 area as a an area that Dr. Pace treated. Instead, they show that treatment centered on the C2-3 area, where Holley had suffered a pre-existing injury for which she received treatment before the accident. See Dixon v. Travelers Ins. Co., 842 So.2d 478, 487 (La.App. 2003) (affirming jury's award of damages for only C6-7 treatment based on the jury's apparent finding that the accident caused the C6-7 injury and that pre-existing injuries caused C4-5 and C5-6 injuries). Significantly, Holley was not diagnosed with a C5-6 disc protrusion until more than two years after the September 11, 2000 car accident. She discovered the disc protrusion as a result of MRI scans ordered during treatment for the serious injury she sustained at work on December 25, 2002. Cf. Williams, 848 So.2d at 29 (finding that the plaintiff could not recover for expenses she incurred after she suffered an intervening injury).
Pl.'s Ex. 1.
Id.
Id.
Def.'s Ex. 1 (showing neck pain on January 28, 1997; November 30, 1999; and July 5, 2000).
Testimony of Holley; testimony of Dr. Rosenfeld.
Moreover, Dr. Pace diagnosed her injury from the September 11 accident as a "hyperextension/hyperflexion injury," not a C5-6 disc protrusion. In answering how long Holley will require treatment for this injury, Dr. Pace answered "N/A." In answering what type of treatment Holley will need in the future, Dr. Pace answered "N/A." In answering whether the accident caused Holley's chronic pain, Dr. Pace replied "unknown." In stark contrast, Dr. Pace sent a two-sentence letter dated February 19, 2003, in which he conclusorily states that "[o]n 09/11/2000 [Holley] sustained a whiplash injury. I believe that her current pain and injury is due to this whiplash injury." Dr. Pace does not substantiate his conclusion with any reasons or evidence, nor did he testify at trial. His letter is an insufficient basis to determine that the accident, more likely than not, caused Holley's disc protrusion and attendant chronic pain, given its lack of substantiation and the intervening injury. Cf. Williams v. State Farm Mut. Automobile Ins. Co., 830 So.2d 379, 382-83 (La.App. 2002) (declining to find error in trial court's judgment that the plaintiff failed to carry her burden on causation where her doctor was equivocal as to whether the accident caused her injury). Cf. also Broussard v. Razden, 763 So.2d 644, 652-53 (La.App. 1999) (declining to find error where the jury did not award damages for the plaintiff's medical expenses after the date that her doctor told her she was doing "pretty well" and after the plaintiff she suffered an intervening injury). Indeed, no medical witness at trial testified that Holley's accident caused her to suffer a disc protrusion at C5-6.
Pl.'s Ex. 1 (undated form with August 4, 2004 fax date).
Id.
Id.
Id.
Id.
The Court notes that Holley's choices regarding her medical treatment coupled with her ability to work further support the conclusion that the September 11, 2000 accident did not cause Holley a debilitating and continuing neck injury. Instead, they indicate that her C5-6 disc protrusion was more likely a result of the December 25, 2002 work-related injury. For example, Holley, a nurse, sought only chiropractic care following the accident. She knew that a chiropractor cannot prescribe medication. In contrast, she sought emergency medical treatment and then regular treatment from medical doctors following her December 25, 2002 injury. Furthermore, Holley continued to work after the car accident. Notably, she did not miss work until after her December 25, 2002 work-related injury. Compare Gunn v. Robertson, 801 So.2d 555, 563 (La.App. 2001) (noting that the plaintiff suffered constant difficulties with his back following the accident and the defendant produced no evidence to indicate that some other injury caused the plaintiff's difficulties) and Peden v. Irvin, 729 So.2d 87, 89 (La.App. 1999) (affirming the lower court's decision awarding plaintiff damages where there was no evidence in the record to support defendant's claim that plaintiff was in another accident).
Testimony of Holley.
Id.
Def.'s Ex. 3; Testimony of Holley.
Testimony of Holley. See also Pl.'s Ex. 25 (providing tax returns that show that Holley's income decreased only after her December 25, 2002 injury).
Considering the trial testimony and the exhibits in evidence, the Court finds that Holley failed to demonstrate by a preponderance of the evidence that the September 11, 2000 accident caused her disc protrusion or the other physical and mental problems she has encountered.
C. Damages
Holley is entitled to damages for medical expenses and pain and suffering through January 5, 2001. Dr. Pace's billing records show that Holley incurred $4,049.00 in medical expenses for chiropractic care from September 15, 2000 to January 5, 2001. Holly attributes 50% of these treatment expenses to her pre-existing condition, and 50% to the accident of September 11, 2000. Therefore, the Court finds that Holley is entitled to $2,024.50 in medical expenses. The Court also finds that Holley is entitled to $6,000.00 for pain and suffering.
See Pl.'s Ex. 1, supplement. See also Testimony of Holley.
Testimony of Holley.
The government argues that Holley cannot recover her medical expenses. This is because State Farm paid for Holley's medical expenses and ultimately settled out-of-court with the government for reimbursement in the amount of $2,739.00. The government argues that State Farm became subrogated to Holley's rights by virtue of the settlement.
The Court finds that the government's argument is without merit. Louisiana recognizes the collateral source rule. Under the collateral source rule, a tortfeasor cannot raise collateral sources as a defense. Martin v. Louisiana Farm Bureau Cas. Ins. Co., 638 So.2d 1067, 1069 (La. 1994). Subrogation is an exception to the collateral source rule. Sutton v. Lambert, 657 So.2d 697, 707 (La.App. 1995). "The Louisiana Civil Code provides that subrogation takes place only by written contract executed between the parties or by operation of law under certain limited conditions." Watters v. State, 768 So.2d 733, 737 (La.App. 2000) (citing Martin, 638 So.2d 1067).
Subrogation does not operate by law in this case. Here, State Farm was Holley's insurer which provided first-party coverage for medical expenses. Under these circumstances, the Louisiana Supreme Court has indicated that subrogation does not arise by operation of law, and for subrogation to apply, it must be by virtue of a subrogation agreement. See Fertitta v. Allstate Ins. Co., 462 So.2d 159, 164 n. 7 (La. 1985). See also Martin, 638 So.2d at 1069 (noting that a medical insurer pays its own debt, not that of the tortfeasor, and therefore subrogation does not occur by operation of law); Watters, 768 So.2d at 737 (noting that the insured may recover from a third party tortfeasor and retain what he has been paid by the insurer in the absence of a provision in the insurance policy granting subrogation to the insurer). The rationale is that subrogation by operation of law arises when the obligation to pay the plaintiff's expenses is solidary among those liable to pay. Martin, 638 So.2d at 1068-69; Fertitta, 462 So.2d at 164 n. 7. In this case, State Farm was liable to pay Holley's medical expenses because of its contract with Holley, and not because of Justin Vickers's negligence. Therefore, State Farm is not solidarily liable with Vickers (or the government).
Moreover, there is no evidence of conventional subrogation in this case. Although subrogation does not take place by operation of law, State Farm could have stipulated for conventional subrogation in the insurance policy contract with Holley. See Martin, 638 So.2d at 1070. The government has provided the Court with no evidence of a subrogation agreement or contract between Holley and State Farm. For proof of subrogation, the government points to the settlement agreement between State Farm and the United States. This agreement refers to State Farm as subrogee of Tammie Holley. The document is signed only by State Farm's attorney. The government also points to the stipulation of dismissal filed in the action between State Farm and the government. That document also refers to State Farm as subrogee of Holley. It is signed by counsel for State Farm and the Assistant United States Attorney. The government provides no policy or contract signed by Holley to the effect that she relinquished her right of action to State Farm. See, for example, Southern Farm Bureau Cas. Ins. Co. v. Sonnier, 406 So.2d 178, 179 (La. 1981) (providing the subrogation clause from the insurance policy); Durham Life Ins. Co. v. Lee, 625 So.2d 706, 709 (La.App. 1993) (providing the insurance contract between the insured and the insurer containing subrogation clauses); Smith v. English, 586 So.2d 583, 592 (La.App. 1991) (same). Therefore, the Court does not find sufficient proof of a written subrogation contract and declines to reduce Holley's damages by the amount that the government paid to State Farm.
Def.'s Ex. 1.
Id.
Id.
Id.
III. CONCLUSION
For the above reasons, Tammie Holley is entitled to damages in the amount of $2,024.50 for medical expenses and $6,000.00 for pain and suffering.