Scarber v. Issa
| Decision Date | 10 March 2022 |
| Docket Number | 356216 |
| Parties | NAHSUANTE S. SCARBER, Plaintiff-Appellant, v. DELVESTER D. ISSA, Defendant, and MAXIM MRI, LLC, Plaintiff, and PHILIP EVAN ACCETTURA, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Oakland Circuit Court LC No. 2019-176543-NF
Before: Boonstra, P.J., and Ronayne Krause and Cameron, JJ.
Plaintiff Nahsuante S. Scarber, appeals by right the trial court's grant of summary disposition in favor of defendant Philip Evan Accettura.[1] This matter arises out of injuries plaintiff allegedly sustained as a passenger in a motor vehicle accident, and scarring that resulted from efforts to surgically remedy those injuries. Because the trial court reached the correct outcome, we affirm.
This case arises from a motor vehicle accident that occurred on May 21, 2017. Plaintiff, who was pregnant at the time, was a passenger in a vehicle driven by Issa and struck by another vehicle driven by Accettura. Officer Patrick McWilliams, who responded to the collision, testified that there was "minor" damage to both vehicles, and an ambulance was not called. Plaintiff initially indicated to the police that she was not injured. However, later that day, she complained of pain that, at the time, she attributed to her pregnancy. The next day, plaintiff attended a previously-scheduled obstetrician/gynecologist appointment. The doctor opined that the baby and plaintiff appeared normal, but advised plaintiff not to seek further medical examination because doing so might put the baby at risk. Following the birth of her baby in June 2017, plaintiff sought medical treatment for pain she was experiencing to her back, neck, and shoulder.
At the time of the accident, plaintiff had been working full-time as a waitress for a staffing agency, but she had been on maternity leave since September 2016.[2] At some point before the accident, plaintiff had applied for Social Security disability benefits because her feet were swelling, and she had carpal tunnel syndrome from braiding hair "way before" the accident. She also suffered from cellulitis on her feet at one point. Plaintiff testified that, otherwise, she never suffered any other injuries or accidents prior to the May 21, 2017, accident. However, she acknowledged that before the accident, she had reported back pain, but not shoulder pain, to her doctor.
The parties provided a wide variety of medical records. According to those records, plaintiff was seen by Star Pain Management LLC in June of 2017. The patient record states, She was prescribed Norco, and she was given a disability certificate "for housework and driving." At a follow up appointment in July of 2017, the Star Pain Management doctor assessed plaintiff with some tenderness in her spine and some reduced range of motion. She was prescribed physical therapy and pain medications, and the report also indicates that "disability has been approved." Plaintiff attended physical therapy at Core Physical Therapy Corp for several months before discharging herself in October of 2017 because her "medical benefits [were] suspended by insurance." According to the records from Core Physical Therapy, plaintiff's pain, strength, and stiffness had improved by then, but only modestly.
Meanwhile, in July of 2017, plaintiff began receiving treatment at Mercyland Health Services.[3] On July 26, 2017, she was seen by Dr. Allan Schwartz, who prescribed pain medications; plaintiff was given a disability certificate restricting her from employment, housework, and driving. On August 30, 2017, plaintiff was seen by Dr. Mustafa Shukr, who again prescribed pain medications; he also advised plaintiff to continue physical therapy, but he cleared her to return to work and restricted her from lifting more than 10 pounds. According to the patient record from that date, and according to Dr. Shukr's deposition testimony, he cleared plaintiff to return to work because "[t]here was some pain, but it wasn't debilitating." Plaintiff continued treating with Mercyland through February of 2019, being seen by a variety of different health professionals. She continued to receive disability certificates from Mercyland through November of 2018. Those certificates consistently restricted her from lifting more than 10 pounds, mostly specified that she should take breaks as needed every 2-3 hours, and intermittently imposed driving restrictions.
On November 11, 2017, plaintiff went to the emergency department of Ascension Providence Hospital, complaining of "several days of left lower extremity pain and edema" and reporting "that she had suffered a fall roughly two weeks ago and suffered an abrasion to her left knee." Treating physicians noted "marked erythema over her left lower extremity from below the knee extending to her foot." She was diagnosed as "most likely" having cellulitis," and she was discharged with an antibiotic. The discharge documentation from Ascension Providence does not mention plaintiff reporting any other complaints.
On January 4, 2018, plaintiff underwent several MRI studies conducted by Maxim MRI. According to the imaging report, her thoracic spine was normal, her cervical spine was normal other than "reversal of the mid lordotic curve," her lumbar spine was unremarkable but the imaging suggested "possible fibroid changes of the uterus," her brain was normal, and her right hip was only partially imaged but was otherwise unremarkable. However, the imaging of her right shoulder found a "partial thickness tear with intrasubstance and peritendon edema distal supraspinatus tendon at its attachment" and "mild AC joint degenerative damage without impingement of supraspinatus."
On December 5, 2018, plaintiff was referred by Mercyland to neurologist Dr. Stefan Pribil, who ordered further MRIs of plaintiff's cervical and lumbar regions performed. On December 12, 2018, plaintiff underwent more MRI studies conducted by M1 MRI. These studies revealed a number of bulging discs and some neural foraminal narrowing. At a follow-up appointment on January 9, 2019, Dr. Pribil described the neuro foraminal narrowing as "severe," noted that plaintiff's right arm appeared to have less muscle tone than her left arm, and noted that her right arm had decreased sensitivity to touch. He concluded, "[c]learly she has a cervical radiculopathy to the right side." He recommended artificial disc replacement at "the C4-5 level where the neural foraminal herniation is the worst," with possible further intervention if necessary. Dr. Pribil performed the disc replacement surgery on February 21, 2019.
On July 12, 2019, plaintiff underwent an MRI of her right shoulder, performed by Gravity Imaging, which found no "evidence for rotator cuff or glenoid labral tear" or any other abnormal findings. On July 24, 2019, plaintiff returned to Dr. Pribil, reporting that she "ha[d] been doing great after the artificial disc replacement at the C4-5 level," but she was encountering further "severe pain in the neck and right arm." Dr. Pribil ordered further MRIs, which were performed on July 30, 2019, by Gravity Imaging. The prior artificial disc replacement limited the imaging of plaintiff's cervical spine, but otherwise her cervical spine appeared unremarkable. Imaging of plaintiff's lumbar spine revealed "mild degenerative spondylosis" at L4-L5 and L5-S1, and a small left foraminal disc herniation at L3-L4. On October 23, 2019, Dr. Pribil performed further surgery on plaintiff's spine. Following the two procedures, plaintiff was left with a visible scar on her neck and on her back.
In the meantime, plaintiff returned to working part-time as a waitress in September 2017. In October 2017, she obtained another part-time job as a food distributor handing out samples at a Sam's Club. Plaintiff quit her waitress job in April 2018, and she obtained a different waitressing job at approximately the same time, but she quit after a couple of months because her "injuries [were] getting too bad." Plaintiff also left her job at Sam's Club; her testimony is unclear, but seemingly she left that job in December 2018 or January 2019. She obtained a full-time job as a valet in November 2019, and she explained that she does not need to run at that job, and she is not either constantly sitting or standing.[4] Plaintiff testified that, as of the date of her deposition, she was unable to remain sitting or standing for very long, move her shoulder without pain, cook as much as she could before the accident, clean, exercise as much as she wants to, or start a business. She conceded that she had not run a business before the accident.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(10). The trial court found "a factual dispute concerning the nature and extent of the Plaintiff's injuries," but held that plaintiff was unable to establish that her general ability to lead her normal life had been affected. In particular, the trial court found that all of plaintiff's restrictions were self-imposed, and "a comparison of Plaintiff's life before and after the May 2017 accident yields a pattern that has not changed." The trial court also concluded that plaintiff's scars did not constitute permanent serious disfigurement, because plaintiff had The trial court did not directly address defendants' arguments that plaintiff had failed to establish a causal nexus between the injury and plaintiff's injuries. The trial court granted summary...
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