Sebroski v. U.S.
| Decision Date | 05 November 1999 |
| Docket Number | No. Civ. MJG-98-1565.,Civ. MJG-98-1565. |
| Citation | 111 F.Supp.2d 681 |
| Parties | Theodora SEBROSKI v. UNITED STATES |
| Court | U.S. District Court — District of Maryland |
Deborah E. Dwyer, Columbia, MD, for plaintiff.
Lynne A. Battaglia, United States Attorney, Nadira Clarke, Assistant United States Attorney, Baltimore, MD, for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff filed this cause of action under the Federal Tort Claims Act, 28 U.S.C § 2671, et seq., (1994), alleging that an employee of the federal government, Ms. Gina Davis, caused an auto accident resulting in her personal injuries.
This Court has jurisdiction under 28 U.S.C. § 1346(b) (1993), as this is a claim resulting from personal injury allegedly caused by the negligent conduct of a federal employee acting within the scope of her employment. See U.S. v. DeCamp, 478 F.2d 1188, 1191-92 (9th Cir.1973), cert. denied, 414 U.S. 924, 94 S.Ct. 232, 38 L.Ed.2d 158 (1973); Hess v. U.S., 666 F.Supp. 666, 669 (D.Del.1987).
This Court must apply the law of Maryland to issues of this case because the alleged tortious conduct took place in Maryland. See Richards v. U.S., 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Toole v. U.S., 588 F.2d 403, 406 (3rd Cir. 1978); In re Sabin Oral Polio Vaccine Products Liability Litigation, 774 F.Supp. 952, 953 (D.Md.1991).
The Court held a hearing on September 15 and September 21, 1999. At the hearing, testifying for the plaintiff were plaintiff, plaintiff's husband, Dr. Dexheimer, her treating chiropractor, and Dr. Helschein, an expert witness in chiropractic and physical therapy. Testifying for the defense was Gina Davis, the driver and federal employee, and Dr. Donald I. Saltzman, an orthopedist who had performed an independent medical evaluation of plaintiff.
The government does not contest its liability under the Act. Accordingly, the only question is the amount of damages to be awarded under Maryland law. Plaintiff requests damages in the following amounts: past medical expenses of $9,400.93, lost wages of $1,016.92, future medical expenses of $104,364.00, and a pain and suffering award of $135,218.15, thereby totaling $250,000.
The amount of damages are limited to the amount sought in the administrative claim, 28 U.S.C. § 2675(b) unless plaintiff can show that the exact amount of damages could not have been ascertained at the time of the filing of the administrative claim. See Kielwien v. U.S., 540 F.2d 676, 681 (4th Cir.1976), cert. denied, 429 U.S. 979, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); Nichols v. U.S., 147 F.Supp. 6, 9 (E.D.Va. 1957). In her administrative claim filed on March 15, 1995, plaintiff stated that the amount of her claim was $100,000. See Exhibit C to Paper No. 10.1
The Court will discuss each element of requested damage in turn.
The parties agreed that Ms. Sebroski's lost wages totaled $1,016.92.
Plaintiff submitted past medical bills in the amount of $9,400.93.
Howard County General Hospital $ 190.92
Cedar Emergency $ 173.00
Primary Care Specialist $ 325.00
Dr. Michael Bershak
(physical therapy) $2,852.51
Dr. Zell $ 367.50
Crossroads Imaging $ 460.00
Prescriptions $ 164.00
Dr. Peter Dexheimer
(through 8/99; $90 per session
$40 manipulation; $25 ultrasound
$25 electrical stimulation) $3,862.40
Advanced Radiology (MRI) $1,006.00
__________
$9,400.93
As to the past medical expenses, the government does not challenge the necessity and reasonableness of $3,178.42, which includes the emergency treatment at Howard County General Hospital, $190.92, emergency treatment at Cedar Emergency, $173.00, the primary care specialist treatment, $325.00, the first series of physical therapy treatments (6/6/96-8/21/96), $1,498.00, Dr. Zell's treatment, $367.50, the bone scan, $460.00, and the prescriptions, $164.00. The government does challenge the necessity and reasonableness of the second series of physical therapy treatments with Mr. Bershak (1/17/97-3/31/97) in the amount of $1,354.51, the entire course of chiropractic care at Hickory Ridge Chiropractor (Dr. Dexheimer) in the amount of $3,862.00 and cost of the MRI in the amount of $1,006.00. Dr. Helschein, a licensed chiropractor and physical therapist, testified as to the necessity and reasonableness of all of Ms. Sebroski's treatment, including all the contested items above. Dr. Saltzman, an orthopedist, testified that the physical therapy treatment was overlong and all of the chiropractic care was not necessary care. He gave no opinion on the necessity or reasonableness of the MRI.2
The plaintiff, of course, has the burden of proving the necessity and reasonableness of medical care and charges. It is well established that a properly qualified chiropractor is competent to testify as an expert witness. See, e.g., Vitale v. Tisch, 662 F.Supp. 975, 975 (S.D.N.Y.1987) (); McKissick v. Frye, 255 Kan. 566, 876 P.2d 1371, 1389-1390 (1994) (); Iorio v. Grossie, 663 So.2d 366, 371 (La.Ct.App.1995); O'Dell v. Barrett, 163 Md. 342, 163 A. 191, 192 (1932); Vallejos v. KNC, Inc., 105 N.M. 613, 735 P.2d 530, 532 (1987); Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674, 698 (1982). Indeed, the Court qualified him as an expert in chiropractic and physical therapy and allowed him to testify on Ms. Sebroski's injury, causation and appropriate treatment. See Elliott v. Patterson, 12 Md.App. 341, 278 A.2d 431, 433 (1971); O'Dell, 163 A. at 192 (). However, in Maryland a chiropractor is not a physician, Beverungen v. Briele, 25 Md.App. 233, 333 A.2d 664, 668-669 (1975), and Dr. Helschein readily admitted that he was not authorized to order an MRI. Thus, as to the MRI, the Court finds that Dr. Helschein was not qualified to testify as to the necessity of an MRI and the reasonableness of the charges, as the necessity of such a test would appear to lie beyond his area of training and expertise. Accordingly, $1,006.00 of the damages will be disallowed.
Dr. Saltzman testified that the courses of physical therapy may have been reasonable, but were of too long a duration. Dr. Helschein disagreed testifying that both courses of physical therapy were necessary and reasonable. As to the necessity and reasonableness of the chiropractic care, the difference in the testimony of Dr. Saltzman and Dr. Helschein revolves around the purpose of the treatment. The Court is convinced that the physical therapy and chiropractic care are not curative at least after an initial relatively short period of treatment, and shortly after the injury. The Court found Dr. Saltzman's testimony and various defense exhibits, persuasive on this point. He testified that a course of physical therapy beyond 2-3 weeks would not be necessary or reasonable. Maximum medical benefit would have been achieved. Similarly, Dr. Saltzman testified that manipulation may be effective for a limited period (one month) after injury, but there is no similar support for the other chiropractic therapies of electrical stimulation and ultrasound. However, the Court is also convinced that reasonable medical expenses need not be limited to only curative treatment. The fact that care is only palliative cannot mean that such medical care is never recoverable. This Court can find no reasoned distinction between long term prescription of pain medications and long term prescription of chiropractic treatments.
Moreover, the Court can find no authority that chiropractic care is only recoverable as a medical expense if prescribed by a physician. Indeed, as will be discussed below, case law elsewhere and Maryland statutory law suggests the contrary.
The government contends in an attempt to defeat an award for future chiropractic care that "a plaintiff might argue that attending yoga classes or monthly Caribbean vacations alleviates her pain and thus should be paid for by her tortfeasor." (Paper No. 23, 14). However, chiropractic treatment is now fully established as a legitimate treatment for disease and injuries. The State of Maryland recognizes the discipline of chiropractic and licenses chiropractors to engage in the art of chiropractic. Md. Ann.Code, Health Occupations Art., § 3-301, et seq. Moreover, insurance companies are required to reimburse for chiropractic care within the chiropractor's expertise. Md.Ann.Code, Insurance Art., § 15-705; Cf. 81 Op. Att'y Gen. 24, 1996 WL 508420 (Md.A.G.1996) ( )
The Court is satisfied that based on the testimony of Dr. Helschein that the physical therapy treatment was necessary and the charges reasonable for palliative, if not curative purposes beyond the initial 2-3...
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