Baker v. Hutson

• Decision Date: 20 August 2002
• Docket Number: No. 5-01-0761.,5-01-0761.
• Citation: 333 Ill. App.3d 486,775 N.E.2d 631,266 Ill.Dec. 791
• Parties: Mary E. BAKER, Plaintiff-Appellee, v. Bradley R. HUTSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

775 N.E.2d 631

333 Ill. App.3d 486

266 Ill.Dec. 791

Mary E. BAKER, Plaintiff-Appellee, v. Bradley R. HUTSON, Defendant-Appellant.

No. 5-01-0761.

Appellate Court of Illinois, Fifth District.

August 20, 2002.

Brad K. Bleyer, Marion, for Appellant.

John Womick, Womick Law Firm, Chtd., Carbondale, for Appellee. Presiding Justice MAAG delivered the opinion of the court:

Mary E. Baker (plaintiff) filed an action against Bradley R. Hutson (defendant) alleging that she suffered personal injuries arising from an automobile accident caused by defendant's negligent operation of his motor vehicle. Defendant admitted negligence and the case proceeded to a trial on damages. At the close of the evidence, the circuit court of Jackson County directed a verdict in favor of plaintiff on the issues of causation and past medical expenses, and it assessed $8,632.90 as the reasonable expenses for necessary medical care. The remaining elements of damage were submitted to the jury, which assessed an additional $42,000 in damages for future medical care, lost earnings, pain and suffering, and disability. On appeal, defendant claims that the trial court erred in granting a directed verdict on the issues of causation and past medical expenses and in giving a jury instruction and a verdict form that combined "disability" and "loss of a normal life" as an element of damages.

The cause arises from a motor vehicle accident that occurred on January 23, 1996. Defendant's negligence was not disputed. During the trial, defendant testified that he failed to stop at a red light at an intersection in Carbondale, Illinois. Defendant stated that his vehicle struck the passenger side of plaintiff's vehicle.

Plaintiff was transported by ambulance to Carbondale Memorial Hospital. She was examined by Dr. Sharon Pelton, an emergency room physician. Following an extensive evaluation, plaintiff was released. Plaintiff, then a student at Southern Illinois University at Carbondale, was instructed to return to the emergency room immediately if her symptoms worsened. She was also instructed to return to the emergency room or to go to the Southern Illinois University (SIU) clinic in a few days for a precautionary follow-up evaluation. Plaintiff testified that she did not remember the accident and had a limited recollection of being treated in the emergency room. She testified that she did not recall receiving any instructions to return for a follow-up evaluation.

Within a few days of the accident, plaintiff hired the Womick law firm to represent her. A member of the firm referred plaintiff to a chiropractor, Dr. Brian Woodard. Plaintiff saw Dr. Woodard on a regular basis for four or five months. She was released in June 1996 without restrictions. Plaintiff had no treatment from mid-June 1996 through the spring of 1997. Plaintiff testified that her symptoms began to increase in May 1997. She complained of headaches and stiffness and soreness in the neck and upper back region. Because of the worsening of symptoms, she began to treat three times per week with Dr. Stephen Zasadny, a chiropractor who had treated her parents. At the time of the trial, plaintiff was treating with Dr. Zasadny about once every six weeks for maintenance and to quell her symptoms. Plaintiff testified that the treatment temporarily alleviates the headache and the neck stiffness. She stated that the discomfort returns within four to six weeks after a treatment. Plaintiff also stated that the soreness in her neck and the headaches worsen when she is more active. Plaintiff testified that she was evaluated in March 2001 by Dr. David Birnbaum, a family practitioner in Chicago, Illinois, at her lawyer's direction. After the evaluation, Dr. Birnbaum prescribed a muscle relaxer. Plaintiff testified that the medication seemed to reduce the severity of the symptoms.

At the time of the trial, plaintiff was receiving periodic chiropractic treatment and taking the medication to control her symptoms. Plaintiff testified that she continues to work and to carry on her usual activities, but she noted that she does not have the flexibility and movement that she had before the accident. She stated that she limits her lifting and other strenuous activities to avoid aggravating her symptoms.

During cross-examination, plaintiff admitted that she did not return to the emergency room or visit the SIU clinic. Plaintiff stated that she retained a lawyer before she obtained follow-up medical care and that she was referred to Dr. Woodard by her attorneys. She also admitted that during the first visit to Dr. Woodard she filled out a patient questionnaire. In response to a question about the purpose of her visit, she wrote, "to find any injuries due to the automobile accident".

The depositions of Dr. Woodard and Dr. Birnbaum were read to the jury as a part of plaintiff's case. Dr. Woodard testified that he took X rays and examined plaintiff. Based upon the evaluation, Dr. Woodard concluded that plaintiff had suffered soft tissue injury to her neck and upper back. He treated her with chiropractic manipulation and electrical stimulation therapy. A few months later, he instituted a rehabilitative program in addition to the ongoing chiropractic treatments. The rehabilitation was designed to strengthen the injured muscles. Dr. Woodard released plaintiff in June 1996 with a favorable prognosis. Dr. Woodard testified that plaintiff was "95% improved", but he expected that she would have periodic exacerbations of her symptoms. During cross-examination, defendant questioned Dr. Woodard about the necessity of obtaining additional X rays, given that plaintiff had been X-rayed days earlier in the emergency room. Defendant also questioned the number and the nature of the treatments provided to plaintiff. Defendant established that plaintiff was referred to Dr. Woodard by her lawyer and that plaintiff had completed a new-patient questionnaire in which she wrote that the purpose of her first visit was "to find any injuries due to the automobile accident".

Dr. David Birnbaum, a physician specializing in family practice in Chicago, testified that he first saw plaintiff on March 6, 2001. At that time, plaintiff complained of neck and upper back pain. Dr. Birnbaum stated that when he examined plaintiff, he noted muscle spasm in her neck and shoulders. He diagnosed fibrositis and recommended that plaintiff use ice packs and take a prescription muscle relaxer. He advised her to refrain from activities that seemed to cause a flare-up in her symptoms. Dr. Birnbaum opined that plaintiff's condition was caused by the 1996 auto accident. He based his opinion on the history given by plaintiff. Dr. Birnbaum testified that he expected that plaintiff's symptoms would "wax and wane" and that she would require treatment for the condition throughout her life. He also stated that as a result of the injury she was at risk to develop arthritis at an earlier age. Dr. Birnbaum testified that in terms of future treatment, the symptoms could be minimized and the periodic flare-ups controlled with medication and chiropractic treatments as needed. During cross-examination, Dr. Birnbaum testified that he first examined plaintiff more than five years after the accident. He stated that his opinion that plaintiff's symptoms resulted from the accident was based on the history given by plaintiff. Dr. Birnbaum also testified that he did not restrict plaintiff from performing any of her normal activities. During cross-examination, defendant established that plaintiff's lawyer referred plaintiff to Dr. Birnbaum and that Dr. Birnbaum had reviewed cases for plaintiff's lawyer in the past. The defense presented the deposition of Dr. Sharon Pelton, a board-certified, emergency room physician. Dr. Pelton testified that she evaluated plaintiff on January 23, 1996. At that time, plaintiff gave a history indicating that she had been in a car accident that day and that her car had been hit on the passenger side. Plaintiff denied hitting her head and denied a loss of consciousness. Dr. Pelton stated that the paramedics who had responded to the accident reported that plaintiff was a little disoriented at the scene, that she did not remember the accident, and that she complained of a headache and pain in her right knee. The emergency room nurse also reported that plaintiff complained of a headache and had trouble remembering the accident. Dr. Pelton examined plaintiff and noted mild tenderness on the right side of the neck. She ordered X rays to rule out damage to the cervical spine. The initial X ray showed a "little lack of normal curvature" in the cervical spine. Subsequent flexion and extension X rays ruled out damage to the spine and ligaments. The neurological examination was normal. Dr. Pelton attributed the abnormal curvature found on the initial X ray to muscle spasm. Dr. Pelton discharged plaintiff with instructions to take off from work or school for two days. Dr. Pelton directed plaintiff to stay with a responsible adult who could check on her during the evening and throughout the night. Dr. Pelton explained that she gave this precautionary instruction because of the reports that plaintiff could not remember the accident. Dr. Pelton also instructed plaintiff to follow up in the emergency room or in the SIU clinic in a few days as a precautionary measure and to return to the emergency room immediately if her headache worsened or other symptoms developed. Plaintiff did not return to the emergency room. Dr. Pelton testified that the prognosis upon plaintiff's discharge was very good. Based upon the results of the examination, Dr. Pelton did not think that plaintiff had sustained any permanent injuries. On cross-examination, Dr. Pelton stated that based upon the X rays she ruled out damage to the bones and ligament structures in the neck. She testified that based upon X ray results she could not rule out injury to muscle tissue.

At the close of the...