Zurba v. U.S.

• Decision Date: 28 September 2001
• Docket Number: No. 99 C 3586.,99 C 3586.
• Citation: 247 F.Supp.2d 951
• Parties: Ludmilla ZURBA, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Illinois

247 F.Supp.2d 951

Ludmilla ZURBA, Plaintiff, v. UNITED STATES of America, Defendant.

No. 99 C 3586.

United States District Court, N.D. Illinois, Eastern Division.

September 28, 2001.

Paul B. Episcope, Chicago, IL, for Plaintiff.

Maria Simon, Asst. U.S. Atty., United States Attorney's Office, Chicago, IL, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

KENNELLY, District Judge.

In this case under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2674, the Court previously found the United States 3314% liable after a trial limited to the issue of liability.¹ The Court has just concluded a trial concerning the issue of damages. This constitutes the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

On the morning January 11, 1995, plaintiff Ludmilla (Lucy) Zurba was standing on the corner of Michigan Avenue and Ohio Street in Chicago, waiting to cross the street to catch a bus. Without warning, she was struck by an automobile that was propelled into her after a collision with two other automobiles. The car that struck Zurba was driven by a law enforcement officer assigned to a Federal Bureau of Investigation task force.

Zurba was knocked to the ground and suffered lacerations and contusions, and she experienced severe pain. She was taken to Northwestern Memorial Hospital, where just before her release it was discovered that she had internal bleeding. Exploratory surgery revealed a laceration to her right kidney, and surgery was performed to repair the laceration. No part of her kidney was removed. Zurba was given a blood transfusion in conjunction with her surgery. She remained in the hospital for about ten days.

Prior to the accident, Zurba had been living with her long-time boyfriend in downtown Chicago. After her release from the hospital, she was bedridden for six weeks, suffered considerable pain, and was unable to get around or take care of herself during most of that time. She spent her convalescence at the suburban home of her older sister. Once she was able to do so, she returned to the downtown Chicago apartment where she and her boyfriend lived.

At the time of her injury, Zurba was employed as an assistant in the human resources department of a local law firm. In late March or early April 1995, she was advised that her medical leave had been used up and she would be terminated if she did not return to work. She was still suffering from pain and discomfort from her injuries and surgery, but she needed the income from her job and thus returned to work against her doctors' advice. She was allowed to work half days for four weeks but then was pressured to return to full time duty.

After returning to work, Zurba continued to experience severe abdominal and chest pain. These episodes became longer and more severe. She sought medical care and was prescribed Vicodin, a pain medication. Often the normal dosage of the pain medication did not suffice because of the severity of the pain, and when this happened Zurba would take extra pills. She felt that her entire existence was focused on seeing doctors and trying to deal with her pain.

Because of her continuing pain, Zurba underwent further diagnostic testing. Eventually, in December 1995, she was advised that a test had revealed an obstruction in her bile duct. She underwent surgery, again at Northwestern Hospital, to resolve the obstruction and remove her gall bladder. She remained in the hospital for one week following the surgery and then spent approximately six weeks at home convalescing.

Zurba was required by her employer to return to work after being off for about six weeks. Following her return to work, her job in the human resources department was taken away, and she was made supervisor of the word processing department. There is no evidence, however, that her salary was reduced.

Following her recovery from the gall bladder surgery, Zurba's pain decreased somewhat, but after a relatively short period she began to experience upper abdominal pain and frequent bowel movements. As many as twenty times per day, she would experience an immediate need to have a bowel movement; this would happen as a result of physical activity or even wearing tight clothing. Zurba frequently found herself having to quickly find a bathroom. As a result of this, she restricted her activities and movements, and she began to wear looser clothing.

Zurba sought medical care for her abdominal pain and bowel problems. In April 1996, Dr. Alfred Torrence made a tentative diagnosis of probable irritable bowel syndrome, a common disorder of the colon that causes cramping and loose stools. He prescribed an over-the-counter medication. He also advised Zurba that she likely would suffer from the effects of irritable bowel syndrome on and off for the rest of her life and that stress management, including psychotherapy, could help her manage the disorder. Zurba did not pursue psychotherapy at the time, believing that the over-the-counter medication that Dr. Torrence had prescribed would suffice.

The irritable bowel syndrome has decreased somewhat in severity since Zurba began to be treated by Dr. Torrence and others. It is likely to persist in causing Zurba pain and difficulty with her bowels, at least in the near term, but the symptoms can be managed effectively with treatment.

Zurba's surgeries have left her with a disfiguring scar that runs the length of her abdomen. Due to her surgeries, she also has "adhesions," internal scar tissue that forms as a normal result of abdominal surgery. Adhesions, like Zurba's external scar, are permanent. They can cause pain and likely are doing so in Zurba's case, and this pain is likely to increase somewhat as time goes on. Zurba has been aware of this since around the time of her gall bladder surgery. It is possible, though highly unlikely, that she will require further abdominal surgery if pain from the adhesions does not respond to other forms of treatment.

In the year 2000, Zurba began suffering from pain in her right side, radiating to her back and shoulder. This was different from the pain she had experienced before. As of the date of the trial, there was no definitive diagnosis of the cause of this pain, though there is reason to believe that it may result from fibromyalgia, a disorder characterized by chronic and generalized aching, joint pain, fatigue, headaches, anxiety, and sometimes irritable bowel syndrome. See Cecil Essentials of Medicine at 658-59 (2d ed.1990). Though the cause of this disorder is unknown, there was credible testimony that it can be associated with high stress levels. There is, however, no diagnostic test that can definitively confirm a diagnosis of fibromyalgia.

In sum, Zurba continues and will continue to experience physical pain stemming from the accident, though certainly not at the same level as she experienced through the time of her gall bladder surgery. She has, however, no appreciable risk of future impairment to any internal organs, nor does she have any appreciable risk of viral infections resulting from her blood transfusion.

Zurba has also suffered considerable emotional distress as a result of the accident. While in the hospital in January 1995, in addition to physical pain she experienced emotional trauma, including fear of the dark, fear of being left alone, and nightmares. She was offered a psychological consultation but declined it, saying that she wanted to concentrate on her physical injuries and that she had her own psychiatrist. (In fact she had never been treated by a psychiatrist; what she was referring to was some "couples" counseling sessions that she had attended in the past.)

Following her return to work, Zurba was both physically unable and, understandably, unwilling to walk to her regular bus stop along the busy streets of downtown Chicago, where the accident had occurred. Her boyfriend took her to and from work in taxis as long as they remained living in downtown Chicago. After they moved to a western suburb about five years ago, Zurba began to take the train to work. However, out of fear of again becoming an accident victim, she still has her boyfriend accompany her for a significant part of her walk from the train station to her workplace.

Before the accident, Zurba was an energetic, outgoing, motivated, and independent person. She and her boyfriend lived a very active life—as he put it, they "were never home" because they spent so much time bicycling, walking, and going out with each other and with friends. Zurba also played tennis from time to time. She traveled a lot, took pride in her appearance, and had many friends. She was ambitious and motivated about her work.

All of this has changed since the accident. As described by her boyfriend and older sister, Zurba is a "completely different person" now. She spends virtually all of her non-working hours at home. Zurba no longer feels or acts like an independent person; she feels a constant need to have someone with her. She no longer goes out with friends and rarely goes out with her boyfriend. She has completely stopped bicycling, playing tennis, and taking walks. She is essentially homebound except when at work and commuting.

Zurba is frequently moody and tearful, experiences nightmares, and is constantly on edge about her health. Whenever she becomes ill, no matter how mild the illness, she becomes concerned that she is experiencing continued and ongoing after-effects from the accident and her surgery. She also has a decreased interest in sexual activity. To put it in a nutshell, she no longer enjoys life.

The Court had the opportunity to observe Zurba when she testified and during the course of the trial. Her demeanor and affect completely confirmed the testimony of those closest to her about the changes in her life since the accident.

One important aspect of Zurba's emotional injury is that she is victimized by constant and recurring fears which, though...