Larock v. Smith, No. 08-07-00346-CV (Tex. App. 2/24/2010)
| Decision Date | 24 February 2010 |
| Docket Number | No. 08-07-00346-CV.,08-07-00346-CV. |
| Parties | W.C. LAROCK, D.C., P.C. D/B/A AUTO & WORK INJURY CLINIC AND MARIA DEL CARMEN GALLARDO/ROSEMARY SMITH, Appellants/Cross Appellees, v. ROSEMARY SMITH/W.C. LAROCK, D.C., P.C. D/B/A AUTO & WORK INJURY CLINIC AND MARIA DEL CARMEN GALLARDO, Appellee/Cross-Appellant. |
| Court | Texas Court of Appeals |
Appeal from the 327th District Court of El Paso County, Texas, (TC# 2004-1648).
Before McCLURE, J., RIVERA, J., and GUADERRAMA, Judge.
GUADERRAMA, Judge, sitting by assignment.
Rosemary Smith, sued W.C. LaRock, D.C., P.C., d/b/a Auto & Work Injury Clinic (the "clinic"), and Maria Gallardo, alleging that the clinic failed to train and supervise their workers and that Gallardo, an employee of the clinic, negligently caused Smith's injuries. The City of El Paso, which paid worker's compensation benefits to Smith, later entered the suit as a plaintiff in its capacity as Smith's subrogee. The jury found Gallardo's negligence caused Smith's injury and awarded her $488,000 in damages for past and future conscious pain and mental anguish, physical impairment, medical expenses, and loss of earning capacity. The defendants moved for a judgment notwithstanding the verdict, which the trial court granted solely to reduce the medical-care award. The trial court then rendered judgment that Smith and the City recover $339,983.58 from the defendants, jointly and severally. Both parties now appeal.
On October 5, 2001, El Paso Police Officer Rosemary Smith injured her back while entering her patrol car. Smith sought treatment from the hospital and then her family physician, who referred her to Dr. Terry Bagley, a board certified physical medicine and rehabilitation physician. Shortly thereafter, Smith sought chiropractic care from Dr. Anuradha Prasad at the clinic.
At Smith's first visit on November 6, 2001, Dr. Prasad prescribed a course of physical therapy. However, after an MRI was performed on Smith's spine, she was referred to Dr. Luis Vasquez, a board certified neurosurgeon.
On December 21, 2001, Dr. Vasquez diagnosed Smith as suffering from a herniated disc between the L4-L5 vertebral bodies of the lumbar spine. Because a disc functions as a cushion between the vertebrae in the spine, any nucleus that herniates when an external part of the disc is cracked, causes pain or parasthesia when the nucleus contacts a nerve. Her treatment options included a surgical discectomy or physical therapy with epidural injections for pain management. Smith elected to have the surgery.
After the surgery was performed on January 29, 2002, Smith experienced relief. She left the hospital the following day and seemingly had no more pain in her back or down her leg. However, Smith did experience pain from the incision. Although she stayed with her mother following the surgery, Smith was able to do just about everything by herself.
On February 13, 2002, Smith saw Dr. Vasquez for a follow-up examination. She told the doctor that she felt good and wanted to go back to work. However, because there was still some radicular pain in her left leg, Dr. Vasquez did not release Smith for work. Dr. Vasquez told Smith to pace herself, and he prescribed physical therapy at the clinic. The doctor did not place any limitations on the specific therapies or activities Smith could perform, but rather left these matters to the therapists' discretion.
On February 20, 2002, Smith returned to the clinic for physical therapy. She did not speak with any chiropractors before the therapy commenced, nor was an evaluation and physical examination performed. Sarah Chavez performed the physical therapy, but because the incision hurt and she felt pain when asked to lie on her back, Smith was unable to complete her therapy and was told to see Dr. Superville. Smith then spoke with Dr. Superville, who asked how she was doing, but did not examine or evaluate her. Rather, when Smith told him that she recently underwent surgery, Dr. Superville replied, "Well, then, we don't need to do anything right now."
Smith went back to the clinic for physical therapy on February 22, 2002. Feeling well enough, Smith drove herself to the clinic. At the clinic, Chavez started Smith's therapy by gently lifting her right leg about an inch to an inch-and-a-half off the ground. Soon, the session was interrupted by a phone call for Chavez. As Chavez took the call, Maria Gallardo took her place. Gallardo looked at Smith's chart and then took Smith's right leg, placed one hand under her knee and the other at her ankle, and performed a knee-to-chest stretching exercise. Smith, not expecting her leg to be raised so far, felt pain in the area near her surgical incision and down her legs. Because the exercise was performed so quickly, Smith did not have the opportunity to tell Gallardo about the pain, and Gallardo only stopped because Smith jerked back and her leg went forward. Smith began to cry from the pain, which was worse than she felt after her injury on October 5, 2001.
Smith could barely walk, and Gallardo, with help from another therapist, assisted Smith to another room for massage therapy. Although the massage helped a little bit, Smith was told to wait for Dr. Superville. As she waited, Smith was in so much pain that she felt very nauseous and vomited in the bathroom, and after fifteen minutes, she called for a ride and left before seeing the doctor. When Smith returned to her mother's house that afternoon, the pain to her back and leg worsened.
On February 25, 2002, Smith saw Dr. Prasad. Dr. Prasad was surprised to see Smith limping because nothing in her chart indicated anything had happened. Smith told the doctor what occurred three days before and that she did not want Gallardo touching her. Believing the pain would go away with more therapy, Smith stayed at the clinic. However, the stretching was too painful and so was Dr. Prasad's adjustments on Smith's back. Because Smith could no longer do the stretches or the adjustments, she started aquatic therapy.
On March 13, 2002, Smith, having significant muscle spasms in the lower back and sharp shooting, stabbing pain down her leg, returned to Dr. Vasquez. When Dr. Vasquez saw Smith on April 5, 2002, she was limping. Because Smith's condition persisted, Dr. Vasquez ordered another MRI, and on April 11, 2002, the MRI revealed a recurrent herniated disc at L4-L5, the same place Smith was operated on before.
On April 16, 2002, Smith underwent a second surgical procedure to repair the herniation. That procedure revealed the presence of a large fragment of the disc in the same area as her previous surgery, which the doctor removed. Although she received some relief following the surgery, Smith continued to experience pain that radiated to her legs. Smith did not experience significant relief as she had with the first surgery.
Following the second surgery, Smith underwent physical therapy again, but this time, she sought therapy at El Paso Physical Therapy. There, the same knee-to-chest stretch that Gallardo performed was conducted; however, this time, an explanation of the exercise was explained to Smith first and the same was performed very slowly with minimal pressure. The physical therapy alleviated some of Smith's pain, but she continued to experience pain and loss of flexibility.
Smith returned to light duty work in January 2003, as a court liaison. While working as a court liaison for approximately one year, Smith felt better since she was not required to wear all of her equipment, but she was sill having back pain and numbness in her leg. Light duty was soon eliminated by the police department, and Smith was required to dress in full uniform and don a revolver, handcuffs, and other equipment that weighed approximately 25 pounds. Wearing so much equipment was painful and Smith's condition fluctuated among the days.
Smith continued to see Dr. Vasquez, telling him that she still felt pain and that she believed something was wrong. On June 4, 2003, Smith developed a burning and pulling sensation in her back while running on a treadmill. A third MRI conducted in October 2003, revealed another herniation at L4-L5. Dr. Vasquez told Smith that she needed another surgery to fuse her back.
On March 22, 2004, a third surgery was performed. That surgery went better than the second surgery, and although Smith no longer had much pain, she still did not feel well, and the third surgery did not relieve as much pain as the first surgery did. Shortly, thereafter, Smith returned to work at a desk job.
Following her return to work, Smith was involved in several incidents noted by her worker's compensation, which the City included as subsequent injuries under Smith's original injuries sustained on October 5, 2001. The first occurred on January 19, 2005, when she tripped over a large rock. Smith received medical treatment following the incident. The second incident occurred on March 15, 2005, when Smith caught a suspect after a brief pursuit on foot. Smith did not feel that she injured herself during the event, nor did she go to the doctor. However, on July 15, 2005, Smith was reinjured when she was thrown to the ground by a drunken prisoner. Smith saw an orthopedist for her knee, but she also experienced a back spasm. Finally, Smith experienced back pain when she changed a tire in July 2007.
Smith later sued the clinic and Gallardo, alleging negligence in failure to train and supervise their workers and that Gallardo was the cause of her injuries and medical expenses. The contested issue at trial, as now on appeal, was causation.
At trial, Dr. Prasad testified that she and Drs. Superville and LaRock were responsible for supervising the therapists, including Gallardo, and that Gallardo began working at the clinic in January 2000. Gallardo testified that she had no experience as a therapist before she worked at the clinic, that she was...
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