Pressley v. Sanders
| Decision Date | 24 March 2021 |
| Docket Number | Appellate Case 2017-000163,2021-UP-156 |
| Parties | Henry Pressley, Respondent, v. Eric Sanders, Appellant. Formerly Opinion No. 5811 |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Submitted March 2, 2020
Withdrawn, Substituted and Refiled May 5, 2021
Appeal From Richland County L. Casey Manning, Circuit Court Judge.
R Hawthorne Barrett, of Turner Padget Graham & Laney, PA and Richard Abner Jones, III, of McGowan Hood & Felder, LLC, both of Columbia, for Appellant.
Page McAulay Kalish, of PMK Law, LLC, and Hammond A. Beale, Jr., both of Columbia, for Respondent.
In this personal injury case, Eric Sanders appeals the trial court's order granting Henry Pressley's motion for a new trial nisi additur, arguing the trial court erred by granting the motion when Sanders challenged the nature and extent of Pressley's injuries and substantial evidence supported the jury's verdict. We affirm.
Pressley and Sanders were involved in a car accident on February 16 2015, when Sanders rear-ended Pressley's stopped vehicle after both cars exited Interstate-77 to turn onto Garners Ferry Road. Pressley was able to drive away from the accident scene, and Sanders admitted fault for causing the accident. Pressley subsequently brought this action against Sanders seeking damages for the injuries he suffered in the accident, and the case proceeded to a jury trial. Sanders testified at trial and admitted he rear-ended Pressley but stated he "rolled" into the vehicle.
Pressley testified the impact from the accident caused his body to jerk forward, he felt pain in his neck and back, and he went to the emergency room (ER). X-rays were performed, and he was prescribed pain medication. Pressley testified he incurred $1, 652 in medical expenses from that visit. He stated his pain worsened after the ER visit and he began treating with a chiropractor on February 17, 2015. The chiropractor ordered an MRI and performed manipulations and massages. Pressley continued this treatment for three weeks until March 11, 2015. He stated the cost of the treatments was $2, 059 and the cost of the MRI was $989.[1] Pressley testified the treatments did not provide lasting relief and the pain returned- sometimes worse than before-and occasionally radiated to his legs and arms. Pressley recalled he visited his family doctor about a month later because he was still in pain. His family doctor recommended exercises and prescribed pain medication. Pressley explained the medication helped "for a time" but the pain eventually returned. He stated he still suffered with "bad" pain, the muscles in his back and neck hurt, and he continued to experience pain radiating to his arms and legs. About three weeks after his visit with the family doctor, Pressley consulted with his attorney, who suggested Pressley see Dr. Zgleszewski for pain treatment. Pressley explained Dr. Zgleszewski's diagnostic procedures involved the use of needles and he chose to discontinue treatment because the needles were painful and he was unable to tolerate them along with his existing pain. Although Pressley's family doctor continued to prescribe him pain medication as needed, Pressley sought no further treatment after his visits with Dr. Zgleszewski.
Pressley was sixty-nine years old when the accident occurred and had worked as a bricklayer since high school. He denied having any problems with his neck or back prior to the accident. Pressley stated he was unable to continue working after the accident; however, he did not present a claim for lost wages. He testified his physical activities had been limited since the accident due to the ongoing pain.
On cross-examination, Pressley stated he was still in pain when Dr. Zgleszewski released him on June 9, 2015. He acknowledged he might have stated his pain was gone when he declined further treatment but he believed Dr. Zgleszewski knew he did not want any more injections. He stated he was still in pain at the time of trial.
Dr. Zgleszewski's video deposition was played for the jury, and Pressley offered him as an expert in medicine, physical medicine and rehabilitation, and pain. Sanders did not perform any additional voir dire or object to his testimony or qualifications.
Dr. Zgleszewski reviewed Pressley's records, including his ER visit and chiropractic treatment. He testified the ER physician's findings-that Pressley's back was tender to palpation and tender across the lower lumbar area-were typical after a motor vehicle accident. He stated the X-ray showed no fracture but demonstrated degenerative changes typical for Pressley's age. Dr. Zgleszewski opined chiropractic treatment helped accelerate healing and minimize dysfunction. He stated Pressley's chiropractic examination revealed abnormal findings of moderate degenerative joint disease and his MRI showed degeneration and bulging discs but there was no impingement or entrapment of the nerve roots. He testified the facet joints showed mild arthritis or degeneration, and although he could not determine if the arthritis was symptomatic, he stated that in the absence of nerve root impingement, a patient was less likely to experience nerve root irritation due to the arthritis or any other degenerative changes of the spine. The notes of Pressley's April 20, 2015 visit to his family doctor indicated Pressley complained of neck pain and weakness in his right hand. The family doctor's notes indicated Pressley's "cervical range of motion [wa]s limited to about fifteen-degrees of lateral rotation toward the left and he ha[d] some limitation of side bending." Dr. Zgleszewski confirmed the family doctor prescribed pain medication and muscle relaxers and recommended local heat and stretching.
Dr. Zgleszewski testified he began treating Pressley on May 14, 2015, and that he billed Pressley $4, 935 for these treatments. He opined to a reasonable degree of medical certainty these expenses were fair and reasonable for the services rendered. He explained Pressley reported "low back and neck pain" as well as pain radiating through his right arm. Dr. Zgleszewski stated he initially diagnosed Pressley with low back and cervical pain based on Pressley's history and a physical exam. On May 21, 2015, he performed a diagnostic sacroiliac (SI) joint injection, which involved injecting a numbing agent into the left and right joints. He acknowledged this procedure was painful for patients. Dr. Zgleszewski stated the purpose of the procedure was diagnostic but some patients experienced long-term relief from the numbing agent used in the procedure. He stated this particular procedure cost $3, 855. Dr. Zgleszewski explained Pressley had "a positive block," meaning he was able to determine the source of the pain. He recommended radiofrequency ablation and platelet-rich plasma injections-both of which involved needles-to each joint as well as diagnostic injections for the neck. However, he recalled Pressley declined further procedures because he had expressed fear of injections. Dr. Zgleszewski stated Pressley reported pain averaging between three and four on a scale of ten during their visits, and he testified Pressley stated his pain was gone during his June 9, 2015 follow-up visit. At that visit, he gave Pressley a 0% impairment rating and found he reached maximum medical improvement (MMI).
Dr. Zgleszewski opined, to a reasonable degree of medical certainty, that based upon his review of the records, his interview with Pressley, and "other information [he] had," it was more likely than not the automobile accident "caused a medical problem that [he] treated." He agreed it was possible Pressley's occupation caused the degenerative joint disease, but Dr. Zgleszewski opined the accident was "the actual and proximate cause of . . . [the] medical problems that [he] treated him for," and the evidence of degeneration was either "an exacerbation of a preexisting condition or it was a new problem that was caused by the car wreck."
In his closing argument, Sanders asked the jury to consider whether all of Pressley's medical treatment was "reasonable and necessary" and stressed that no physician had referred Pressley to Dr. Zgleszewski. Sanders argued Pressley's occupation "may have caused deterioration of [his] body through the years" and emphasized that Pressley told Dr. Zgleszewski on June 9, 2015, that he did not want any further treatment and he received a 0% impairment rating.
The jury returned a verdict for Pressley and awarded him $4 888.30 in actual damages and $5, 000 for pain and suffering. Pressley moved for a new trial absolute, or in the alternative, for a new trial nisi additur. The trial court found the verdict was inadequate based on the evidence and granted a new trial nisi additur. It ordered Sanders to pay an additional $10, 000 in actual damages to bring the total verdict to $19, 888.30. The court provided the following as compelling reasons to grant a new trial nisi additur. First, the court reasoned no evidence was presented to dispute that the medical treatment and bills resulted from the accident and Pressley submitted "undisputed, uncontroverted evidence of loss in the amount of his total medical bills that were $9, 658."[2] The court noted Dr. Zgleszewski "gave an undisputed opinion that the injuries, pain, and subsequent treatment were related to the collision." Additionally, the court stated Dr. Zgleszewski testified the treatment and the bills incurred were reasonable and necessary and no evidence rebutted the treating physician's testimony or opinions. The court explained Pressley testified he suffered injuries to his neck and...
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