Mastrantuono v. U.S., 99 Civ 11105 WCC.

163 F.Supp.2d 244

Donna MASTRANTUONO and Juan Mastrantuono, Plaintiffs, v. UNITED STATES of America, Defendant.

Samantha Bellantoni, Plaintiff, v. United States of America, Defendant.

No. 99 Civ 11105 WCC.

No. 99 Civ 11353 WCC.

United States District Court, S.D. New York.

September 17, 2001.

COPYRIGHT MATERIAL OMITTED

Richard J. Coffey of counsel, Feldman, Kleidman & Coffey, LLP, Fishkill, New York, for plaintiffs Donna Mastrantuono and Juan Mastrantuono.

Robert P. Ianelli of counsel, Robert P. Ianelli, Fishkill, New York, for plaintiff Samantha Bellantoni.

Elizabeth Wolstein, Eric B. Fisher, Asst. United States Attorneys of counsel, Mary Jo White, United States Attorney for The Southern District of New York, New York City, for defendant.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge.

Plaintiffs Samantha Bellantoni ("Bellantoni") and Donna Mastrantuono ("Mastrantuono") bring this action against defendant United States of America pursuant to the Federal Torts Claim Act, 28 U.S.C. §§ 1346(b)(1), 2671-80 ("FTCA"), seeking both economic and non-economic damages for personal injuries sustained in an automobile accident on November 8, 1997. Plaintiff Juan Mastrantuono, Mastrantuono's husband, seeks compensation for loss of services.

On July 23 and July 25, 2001, this Court conducted a bench trial. Because defendant conceded liability prior to trial, the only issues before us concern whether Bellantoni and Mastrantuono incurred a "serious injury" as defined under N.Y.INS.LAW §§ 5101-08 ("No-Fault Law"), and, if so, the extent of such injury and the appropriate damages therefor. For the reasons stated hereinafter, we enter judgment in favor of Bellantoni in the amount of $100,000, in favor of Mastrantuono in the amount of $150,000 and in favor of Juan Mastrantuono in the amount of $50,000. Pursuant to FED.R.CIV.P. 52(a), we set forth below our findings of fact and conclusions of law.

FINDINGS OF FACT

At approximately 2:30 p.m., on November 8, 1997, Bellantoni's car was stopped at a red light at the intersection of Route 9D and Verplank Avenue in Beacon, New York. Her mother, Mastrantuono, was the front-seat passenger. (Tr. at 4-5.) Bellantoni's car was struck in the rear by a tow truck driven by United States Postal Service employee Harold Holmes, who was acting within the scope of his employment. Bellantoni's car was knocked forward and struck the automobile in front of hers. (Stmt. Agreed Facts ¶¶ 5-8; Tr. at 4-7.)

Although they were wearing their seat belts at the time of the collision (Tr. at 7, 66, 106), both women were jerked backward, forward and backward again by the impact. (Tr. at 8, 68.) Bellantoni's chest hit the steering wheel and Mastrantuono's head hit and cracked the dashboard. (Tr. at 8, 68, 107.) The rear window of the car was shattered, the headlights and taillights were broken and the bumper was damaged. (Tr. at 34, 69.) There was no substantial damage to the third car and its occupants, a woman and children, who appeared uninjured and unconcerned. (Tr. at 45, 108.) Although there were no post-accident photographs of her automobile, Bellantoni testified that the repairs to it cost approximately $2,300. (Tr. at 34-35, 46, 107.)

A. Bellantoni

At the scene of the accident, Bellantoni complained of lumbar and cervical pain. (Tr. at 10.) For her protection, she was transported to the emergency room on a stretcher and with a neck collar. (Id.) She remained at the hospital for approximately 4 to 5 hours, during which time she underwent cervical and lumbar x-rays and a cervical CT-scan. (Tr. at 11.) The results indicated that she did not suffer any fracture, but rather a sprain. (Tr. at 11-12.) She was given an unspecified pain medication plus aspirin and advised to follow up with her primary care physician. (Tr. at 12.)

Heeding this advice, Bellantoni sought medical assistance from two primary care physicians, Drs. Robert Kaplan and John Supple, and a neurologist, Dr. Chan Soo Park, to whom she complained of neck, back and lower extremity pain. (Tr. at 12-15, 54.) Each of the doctors described Bellantoni's injuries as either a strain or a sprain. Drs. Kaplan and Supple prescribed some muscle relaxers; Dr. Park provided no medical treatment. (Tr. at 13-15, 54; Def.Ex. N.)

On December 1, 1997, Bellantoni visited Dr. Richard Peress, an orthopedic surgeon, and has continued under his care until the present day. (Tr. at 15-16, 198, 200.) At the initial visit, Dr. Peress did not review any of Bellantoni's prior medical records. (Tr. at 246-47.) Bellantoni also failed to tell him that for approximately 10 years prior to the accident she had made similar complaints of neck, back, buttock, leg and feet pain, and had been treated for migraine headaches. (Id.; see Tr. at 50; Def.Ex. I-2.) Nor did Bellantoni tell Dr. Peress that in 1996 she had been placed on antidepressant medication. (Tr. at 248; see Tr. at 51; Def.Ex. I-2.)

The only information Bellantoni disclosed to Dr. Peress about her medical history concerned the November 8, 1997 accident and a prior back injury she sustained in 1996. (Tr. at 199-200, 246; Def. Ex. B-1.) Bellantoni, employed as a housekeeper at the Residence Inn, twisted her back while lifting a vacuum cleaner. (Tr. at 52-53.) Although she did not consider this to be a serious injury, she missed approximately 1 to 2 weeks of work thereafter. (Id.; Def.Ex. B-1.)

At the initial visit, Dr. Peress determined that Bellantoni had a focal area of tenderness in the mid-cervical spine region that became aggravated by extension maneuvers, bilateral flexion and rotation. (Tr. at 201; Def.Ex. B-1.) No pain radiated from the thoracic spine region and she had a positive straight leg raise on the right side. (Id.) Although his initial impression, based exclusively on his physical examination and without x-rays or MRIs, was a possible derangement of the cervical and lumbar regions (Tr. at 234),¹ Dr. Peress recommended one month of physical therapy for what he described as "cervical whiplash and lumbosacral sprain." (Tr. at 257-58; Def.Ex. C-1.) Bellantoni attended five physical therapy sessions from which she found no relief. (Tr. at 47-48; Def. Ex. C-2.) Dr. Peress did not recommend any further therapy. (Tr. at 202.)

On December 10, 1997, Bellantoni underwent cervical x-rays that showed loss of lordosis or straightening of the cervical curvature. (Tr. at 201, 282; Def.Ex. JJJ-1.) Dr. Daveed D. Frazier, defendant's expert witness, explained that the normal curvature of the neck is within a range of 20 to 45 degrees. (Tr. at 282.) The December 10, 1997 x-rays reportedly showed curvature of approximately 6 degrees, placing Bellantoni's deficiency of lordosis at some 14 degrees. (Tr. at 282-84.) On January 21, 1998, Bellantoni underwent an MRI of the cervical spine which showed no disc herniation or any other significant abnormality. (Tr. at 203; Def.Ex. B-1.) Although the radiologist's report on the January 21, 1998 cervical MRI stated that there was some straightening of the cervical spine and associated mild degenerative disc disease (id.), Dr. Frazier testified that the radiologist's report is unreliable. (Tr. at 317-18.) He based his conclusion on the fact that the radiologist made a generalized statement apparently without any actual measurement of lordosis. (Tr. at 318.) In any event, Dr. Frazier concluded that the January 21, 1998 cervical MRI showed that Bellantoni's neck curvature was then 23 degrees, placing it within the normal range. (Tr. at 282-84; Def.Ex. III-3.)

In March 1998, Dr. Peress began the first of four cervical and three lumbar epidural steroid facet injections, i.e., injections of steroids into the vertebral joints. (Tr. at 206-07.) Because neither the x-rays nor the MRIs detected any significant abnormalities in the cervical region, the initial cervical injections had to be administered in an arbitrary region (Tr. at 203, 236), the first in the C-3/C-4 area, and all subsequent injections in the C-4/C-5 region. (Tr. at 222.)

In 1998, Dr. Peress diagnosed Bellantoni with cervicocranial syndrome, cervical and lumbar instability syndromes and cervical and lumbar radiculitis. (Tr. at 203, 205, 235; Def.Ex. B-1.) Dr. Peress admitted that these are subjective diagnoses that do not reflect any objective abnormalities, but rather is clinical evaluations and the patient's complaints. (Tr. at 216, 235-39.) The diagnosed instabilities are not apparent on any x-rays, MRIs or CT-scans. (Tr. at 232, 235-39.) However, on April 13, 1998, Dr. Peress's office notes indicate "restricted movement on forward bending to 60 degrees" and on October 19, 1998, they indicate flexion only to 70 to 80 degrees without pain. (Def.Ex.B-1.) His July 6, 1998 medical report indicates positive straight leg raises. (Id.)

On July 29, 1998 and October 21, 1999, Dr. Peress gave Bellantoni lumbar epidural injections at the L-5/S-1 region, located in the lower back above the pelvis. (Tr. at 240; Def.Ex. GGG-1.) Nevertheless, her chronic leg and back pain persisted. Therefore, on March 14, 2000, Dr. Peress recommended that Bellantoni undergo Intradiscal Electrothermal Therapy ("IDET"). (Tr. at 207; Def.Ex. B-2.) The IDET stabilizes unhealthy discs by modifying the molecules of protein fibers. It is an invasive out-patient procedure in which a needle is inserted into the disc and heated to 90 Celsius. (Tr. at 214-15, 298.) Essentially, when the stretched or torn disc fibers are heated, they contract and provide more restraint, thereby alleviating any pain in that area. (Id.) Generally, the patient is awake to inform the doctor whether the generated heat is too intense. (Tr. at 215.)

However, before an IDET procedure is performed the pain source must be located. (Tr. at 208.) On April 12, 2000, Dr. Peress administered a discogram. (Id.) This is a two-stage process in which the patient is awake, but slightly sedated. As Dr. Peress testified, the "more critical and important part of the dis[...