Court rejects defense claims that back injury pain
Court Rejects DefenseClaims that Back InjuryPain and Suffering AwardsExcessive
By John Hochfelder on December 21, 2011Posted in BackInjuriesLuis Ramos was sitting in a parked car in the parking lane, onClaremont Parkway in the Bronx on September 24, 2001. Hehad been waiting for his son when he decided to exit the car.After opening the driver side door about six inches, his car wasstruck by a passing city bus.Ramos was sitting in a 1987 Ford Thunderbird:Ramos was thrown to the other side of the car and claimed hehurt his back.Ultimately, Ramos sued the transit authority and on May21, 2009, a jury found the bus driver 100% at fault for theaccident and awarded plaintiff pain and suffering damages inthe sum of $595,000 ($270,000 past – 8 1/2 years, $325,000future – 9 years). Both the liability finding and the damagesaward were upheld on appeal last week in Ramos v. New YorkCity Transit Authority (1st Dept. 2011).
As indicated in the decision, plaintiff was 59 years old at thetime and he sustained multiple herniated discs in his lumbarspine that required a combined discectomy, laminectomyand spinal fusion four years later.In a laminectomy, the surgeon removes the bony back wall ofthe affected spine, called the lamina and then in a discectomy,the surgeon removes the disc itself:
And here’s what the spine looks like after the lumbar fusionsurgery with the insertion of a metal plate and screws:In the appeal, the defense argued, unsuccessfully, that (a)the liability verdict should be reversed because plaintiffshould have seen the bus before he opened his car doorinto traffic and (b) in the alternative, the jury should haveapportioned some of the fault to plaintiff because theyfound he was negligent (but that his negligence was not aproximate cause of the accident).
As to damages, the defense argued that the jury award was excessive in view of plaintiff’s preexisting conditions:• degenerative disc disease (when aging discs become stiff and dry out)• scoliosis (a sideways curvature of the spine)• syrinx (a cavity in the spinal cord formed by cerebrospinal fluid) Plaintiff successfully countered each of the defense arguments as to damages through the testimony of his expert neurologist who stated that:• both the scoliosis and the syrinx were in plaintiff’s cervical spine and the likelihood that either of these conditions affected plaintiff’s lumbar spine was extremely remote• plaintiff showed no symptoms of preexisting low back pain problems and the fact that he had been diagnosed with degenerative disc disease two years before the accident was of no consequence because there was no evidence (such as an MRI) that Ramos had a herniated disc before the accident
Inside Information:• Ramos refused medical treatment at the scene, reported to work that night as a doorman in an apartment building, continued to work for a few more days and did not seek any medical attention at all until three days later when he presented to a neighborhood clinic complaining of significant lower back pain.• There were only three witnesses at trial – plaintiff, a police officer and plaintiff’s medical expert, neurologist Ringa Krishna, M.D. The defense produced neither its bus driver nor any medical expert to rebut plaintiff’s claims and proof as to causation, pain, disability and permanency.• Unfortunately, the surgery failed and plaintiff’s condition got worse. He was diagnosed with chronic nerve damage and arthritis in his spine causing permanent low back pain and making it difficult to walk. Ramos never returned to work.• Plaintiff was granted a missing witness charge as to the defense physician who was engaged before trial but did not testify at the trial – the jury was told that it may infer that the defense doctor would not have supported the defendant’s position with respect to the medical issues and would not contradict the plaintiff’s medical evidence.
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