Opinion
SA-03-CA-0658-RF.
February 23, 2005
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On January, 27 and 31, 2005, a bench trial was conducted in the above styled and numbered cause. After considering the weight and credibility of all the evidence and the parties' respective arguments, the Court awards Plaintiff $120,000 in damages for physical pain and suffering for injuries caused by the negligent acts of a federal government employee acting within the course and scope of her employment. The Court hereby enters the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
FINDINGS OF FACT
Plaintiff brought this personal injury action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) and § 2671 et seq. Plaintiff alleges that a vehicle accident in March 1998 resulted in injuries to his spine that required surgical correction in 2001.
Plaintiff has a long history of back problems, which is typical for one doing heavy labor for a lifetime. For example, on June 3, 1994 he was seen at Trinity Medical Group by Dr. Richard Palmer and complained of chronic lumbar back pain. The medical history Plaintiff submitted stated that he injured his back in 1985 when he lifted a heavy box. Plaintiff was instructed to wear a back support at all times.
On August 5, 1996, Plaintiff was seen again at Trinity Medical Group by Dr. Palmer for an injury Plaintiff sustained to his back while working at Kelly Air Force Base. In what appears to be an insurance claim form signed on that date, Plaintiff wrote, "I was picking up boxes and I felt a sharp pain in back." Dr. Palmer's assessment noted low-back pain consistent with Sciatica, a history of lower back pain, increased pain with climbing up and down from vehicle, and radiation of pain in the left posterior thigh.
Government Exhibit 5, medical records from Well Med, at 411.
On August 13, 1996, Plaintiff returned to the Trinity Medical Group for a follow-up visit. Plaintiff reported that he was "getting better." His neurological examination was normal, and the doctor recommended that Plaintiff remove his wallet from his back pocket to reduce his symptoms. Plaintiff had a negative straight leg raising test. The doctor diagnosed a "mild lumbar strain," and Plaintiff was released to return to work with no restrictions.
Three weeks before his accident in March 1998, Plaintiff received a pre-employment physical at the Texas Med Clinic. Plaintiff reported that he had prior back sprain and an occasional back ache, but he stated he never had required physical therapy or a epidural steroid injection. The physician found no back problems and the straight leg raising test was normal. Plaintiff was cleared to work for EGG Management Services.
On March 16, 1998, Plaintiff began working for EGG as a vehicle operator. In the course and scope of his employment driving a 1½ ton government-owned truck, Plaintiff was struck by a vehicle driven by Technical Sergeant Vicky L. Taylor, an active duty Air Force non-commissioned officer acting in the course and scope of her employment. Both drivers were approaching an intersection, and Sergeant Taylor ran a red light and struck Plaintiff's vehicle. Neither party was driving at an excessive speed. Defendant has admitted that Sergeant Taylor's negligence caused the accident. Neither driver complained of any pain or injuries at the accident scene. Plaintiff, however, reported feeling back pain the night of the accident and stated that he took over-the-counter medications and received a back rub from his wife that night.
On March 17, 1998, Plaintiff reported to work, but due to his pain, he was sent to the Texas Med Clinic by his employer. Plaintiff was seen by Dr. Knight who diagnosed him with Low Back Strain and referred him to physical therapy.
On April 7, 1998, Dr. Knight saw Plaintiff in a follow-up visit, and Plaintiff stated that his "back is great" and that he was "OK now." Dr. Knight released Plaintiff to return to full duty without restrictions.
On July 21, 1998, Dr. Sanjay Misra at the San Antonio Orthopedic Group diagnosed Plaintiff with a herniated disc, and Dr. Misra and Plaintiff chose to treat the symptoms conservatively rather than perform surgery at that time. On July 30, 1998, an MRI was obtained that showed Plaintiff had a herniated disc on L3-4.
Physical therapy records dated August 6, 1998 found that Plaintiff was experiencing posterior left thigh radicular symptoms with a diagnosis of low back strain/left sciatica.
On March 7, 2000, Dr. Misra saw Plaintiff, and Plaintiff complained of back pain that extended down his left leg. Plaintiff had a long-standing diagnosis of degenerative disc disease, and Dr. Misra testified that the degeneration of Plaintiff's spinal disc was obvious to him upon review.
Because Plaintiff continued to be symptomatic of back problems, Dr. Misra and Plaintiff decided that Plaintiff should have back surgery. Dr. Misra stated that it was his opinion and the opinion Plaintiff's workers' compensation provider that the motor vehicle accident on March 16, 1998 caused Plaintiff's back injury. Dr. Misra recognized that Plaintiff had suffered from back problems before the accident and had his left knee replaced but stated that the accident caused an increase in Plaintiff's symptoms and necessitated spinal surgery.
Dr. Misra performed a two-level fusion, diskectomy, and decompression of levels L3-4 and L4-5 on June 6, 2002. As a result of the back injury and subsequent treatments, Dr. Misra has prescribed Plaintiff with permanent restrictions including no bending, stooping, lifting more than ten pounds, and no kneeling or twisting activities. Dr. Misra stated that Plaintiff can do sedentary work and that his limitations are permanent.
Plaintiff is not a reliable historian regarding the details of when his back pain occurred, his treatment, or his conversations with health care providers. Defendant's attorney clearly illustrated such unreliability when he cross examined Plaintiff. Yet, while his testimony from time to time was inconsistent with his declarations in his medical records, the Court is of the opinion that the inconsistencies were not indicative of an evasiveness or lack of truth. Plaintiff has been involved in strenuous labor from his teen years to his present age of sixty one, and while he has suffered through back problems with regularity, he has continually returned to heavy labor. Therefore, it is not surprising that he either minimized or even disregarded his history of medical difficulties in his testimony.
Physical therapy records show that Plaintiff did not comply fully with his physical therapy Home Exercise Plan. Dr. Misra testified that Plaintiff did not comply with all of his physical therapy prescriptions while he was in the hospital as well as after his discharge from the hospital. In addition, Plaintiff's failed to quit drinking and smoking in contradiction to his doctor's orders. Dr. Misra testified that Plaintiff's non-compliance with these orders may have limited the bone's ability to fuse properly after spinal surgery. Plaintiff claims that he has lost income from his catering business as a result of the accident, but he has been unable to present the Court with receipts or other evidence of income from the business.
CONCLUSIONS OF LAW
Any finding of fact herein above which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopted as a finding of fact.
This Court has jurisdiction over the subject matter pursuant to 28 U.S.C. § 1346(b). This action is brought pursuant to Federal Tort Claims Act 28 U.S.C. § 1346(b) and § 2671 et seq. Under the FTCA, the United States may be held liable for the negligent acts or omissions of its employees acting within the scope of their employment. In FTCA negligence suits, the state's substantive law of negligence controls. Consequently, the Court looks to Texas law for the controlling substantive law in this case.
28 U.S.C.A. § 2671 et seq.; Hayes v. United States, 899 F.2d 438 (5th Cir. 1990).
I. Standard of Review
The common law doctrine of negligence in Texas consists of (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. To establish causation in a personal injury case such as this one, Plaintiff must prove that Defendant's conduct caused an event and that the event caused Plaintiff to suffer compensable damages. The causal link between the event sued upon and Plaintiff's injuries must be shown by competent evidence. "Proximate cause includes two elements: (1) cause in fact and (2) foreseeability. Negligent conduct is a cause in fact of harm only if it is a substantial factor in bringing about the harm." "Foreseeability, the other aspect of proximate cause, requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. The danger of injury is foreseeable if its `general character . . . might reasonably have been anticipated.'"
Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Hayes, 899 F.2d at 443.
See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).
Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984).
Salisbury v. Arthur Andersen Co., 956 S.W.2d 601, 602 (Tex.App.-San Antonio 1997 Reh'g overruled).
Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995) (internal citations omitted).
II. Discussion
A. Physician Testimony
Plaintiff offers the testimony of Dr. Sanjay Misra as evidence that the accident on March 16, 1998 was the cause of Plaintiff's herniated disc and related back injury. Defendant contends that treating physicians such as Dr. Misra who have not been designated as testifying experts under Fed.R.Civ.Proc. 26 cannot testify regarding the cause of Plaintiff's injury. Dr. Sanjay Misra is a board certified orthopedic surgeon at the San Antonio Orthopedic Group. Dr. Misra diagnosed Plaintiff with a herniated disc on July 21, 1998 and saw him several times leading up to the fusion surgery Dr. Misra performed on Plaintiff on June 6, 2002. During the course of nearly four years of treating Plaintiff, Dr. Misra testified that he took a history from the Plaintiff, considered his activities before and after the accident, and evaluated MMIs and other medical records. As a treating physician, Dr. Misra certainly could testify to Plaintiff's treatment, recovery, and ongoing care. Moreover, Dr. Misra is more than a treating physician. He is an orthopedic surgeon with expertise in judging the full range of issues relating to back problems, including causation. Therefore, the Court holds that it is proper in this action to consider Dr. Misra's testimony as to the causation of Plaintiff's injuries.
The authorities cited by Defendant do not contradict the Court's holding on this matter. In Lowery v. Spa Crafters, Inc., cited by Defendant, the facts and issues presented were different than those before the Court today. Whereas Dr. Misra has provided Plaintiff ongoing treatment over the course of several years, the physician in Lowery never actually had treated or performed any tests on the plaintiff. Moreover, that physician expressly was asked to examine the plaintiff in anticipation of trial and did so three years after the incident occurred. Despite the more tenuous connection between doctor and patient in that matter, the Lowery Court still allowed the physician to testify that the plaintiff was unable to continue practicing law because of injuries he sustained in a bike crash with the defendant.
2004 WL 1824380 (W.D. Tex.).
Similarly, this Court's ruling to permit Dr. Misra to testify regarding causation is not in disagreement with the opinion in Robert Young, et al. v. United States, also cited by Defendant. In Young, the Court held:
181 F.R.D. 344 (W.D. Tex. 1997).
[A] treating physician . . . may be asked questions that implicate his expertise. For example, he can be asked about the degree of injury in the future, or about anything else that was necessary as part of the patient's treatment. He cannot, however, be asked to answer questions about medical issues not involved in his diagnosis and treatment.
In the matter before the Court, it was necessary as part of the patient's treatment for Dr. Misra to diagnose the cause of Plaintiff's back injuries. His diagnosis that the car accident caused Plaintiff's injuries was highly relevant to how Dr. Misra treated Plaintiff and is admissible testimony. As an orthopedic surgeon, Dr. Misra specializes in treating injuries to joints and the spine. Dr. Misra is highly qualified to assert an opinion concerning the cause of a medical condition within his specialty, especially given that he treated Plaintiff for a number of years.
See Turnbull v. McIntosh, 2001 WL 493169, *5 (Tex.App. — Houston [1st Dist.] 2001) (not designated for publication).
In his Oral and Video Deposition dated January 18, 2005, Dr. Misra testified that it was his medical opinion that the motor vehicle accident caused the symptoms for which he was treating Mr. Herrera. Dr. Misra stated that he was aware Plaintiff suffered from past back problems including degenerative disk disease. He testified, however, that "[before] the accident, I think what happened is he was able to live with base line. He was lifting boxes, he told me, and stuff. But after the accident, the herniated disk caused his increase — increase in symptoms, radicular pain. That's what led to his surgery part of it after the accident." While Dr. Misra was ably cross examined by Defendant's counsel, the Court finds that his testimony was, in the end, credible and persuasive. After due consideration of Dr. Misra's entire testimony, the other medical records, and the arguments made by both parties, the Court finds that the car accident with Defendant on March 16, 1998 was the tipping point that caused Plaintiff's herniated disc and related injuries.
Misra Transcript, p. 14-15.
Id. at 16.
B. Mitigation of Damages
Under Texas common law, "the mitigation of damages doctrine requires an injured party to exercise reasonable care to minimize its damages, if the damages can be avoided with only slight expense and reasonable effort." Defendant in this matter caused the loss and thus bears the burden of proving lack of diligence on the part of the Plaintiff and the amount by which the damages were increased by Plaintiff's failure to mitigate. Defendant claims that Plaintiff failed to mitigate his damages by continuing to smoke and drink in violation of Dr. Misra's orders. Defendant further claims that Plaintiff's condition is due to his poor compliance with physical therapy.
Harris County v. Smoker, 934 S.W.2d 714, 721 (Tex.App. — Houston 1996).
Id.
The Court agrees that Plaintiff has failed to mitigate damages. Plaintiff testified during the bench trial that he continues to drink beer regularly and has been unable to quit smoking. In addition, Dr. Misra's testified that Plaintiff "tried his best" to control his smoking and drinking and went to some rehabilitation session, but he observed that Plaintiff was "not very compliant with his physical therapy" and continued to drink and smoke. Dr. Misra also stated that each of these actions could delay Plaintiff's recovery and prevent the appropriate fusion in his spine. The Court finds that while Plaintiff tried to comply with the doctor's prescriptions, he failed to mitigate some of his damages due to his actions discussed above, as required by law. The Court has taken the mitigation of damages doctrine into consideration in assessing the appropriate amount of recovery to award Plaintiff Herrera.
Misra Transcript at p. 78-9.
Id. at p. 78-9.
Id. at p. 79.
C. Damage Award
Based on the analysis above and after due consideration of the parties' arguments, the evidence in the record, and the supporting authorities cited by counsel, the Court Orders that Plaintiff be awarded $120,000, in damages for physical pain and suffering for injuries caused by Defendant. No damages are awarded for lost income.
In this action, the Court was informed at trial that the worker's compensation carrier which insured Plaintiff's employer, Liberty Mutual, has not only covered Plaintiff's disability expenses but also his medical expenses. Plaintiff recognizes that said carrier has a valid lien in the sum of $92,640.88. Therefore, of the $120,000 awarded to Plaintiff, the Court Orders that Liberty Mutual receive payment of its lien in the sum of $92,640.88. From this amount must be deducted the attorneys' fees due counsel for Plaintiff, which the Court sets at 25% pursuant to 28 U.S.C. § 2678 or $23,160.22, giving Liberty Mutual a net payment of $69,480.66.
The Court Orders that Plaintiff Herrera then receive the remaining balance after the lien is paid, or the sum of $27,359.12. In light of the diminution of the recovery to Plaintiff, the Court exercises its discretion and Orders that there be no payment of attorneys' fees from the amount awarded to Plaintiff. Attorneys' fees will come solely from the recovery awarded herein to Liberty Mutual.
A court may award less than the maximum attorney fee allowed by statute. See 35A Am. Jur. 2d Federal Tort Claims Act § 227.
Costs of Court are taxed to Defendant.
It is SO ORDERED.
JUDGMENT
This action came on for bench trial before the Court, and the issues having been duly tried and a decision having been duly rendered,It is Ordered and Adjudged that Plaintiff recover of Defendant the sum of $120,000, with interest thereon at the rate of 6 percent as provided by law.
It is Ordered and Adjudged that from the sum of $120,000 awarded to Plaintiff, Liberty Mutual recover the sum of $69,480.66. This sum represents the lien amount owed to Plaintiff's worker's compensation carrier, Liberty Mutual, less 25% for the attorneys' fees due to Plaintiff's counsel.
It is Ordered and Adjudged that from the sum of $120,000 awarded to Plaintiff, Plaintiff's counsel recover the sum of $23,160.22 in attorneys' fees. This sum represents 25% of $92,640.88 lien amount due to Liberty Mutual.
Adjusting for payments of the lien and attorneys' fees, the remaining balance Plaintiff shall recover is $27,359.12.
It is SO ORDERED.