This is a review of a spinal cord injury lawsuit in which a man was struck by an out of control SUV while he was waiting for his car at a restaurant. The man had suffered definite but not particularly severe injuries as a result of the accident, and he had filed suit against the restaurant, claiming its negligence caused the incident.
The restaurant in turn filed a Motion for Summary Judgment, asking the Court to dismiss the spinal cord injury lawsuit since the man’s injuries did not meet the state’s definition of Serious Bodily Harm.
Statement of Facts…
Danny Bauh and his wife had just finished eating dinner at a restaurant called The Embers. They walked outside the restaurant and gave the claim check they had been given earlier to the Valet so he could bring up Bauh’s car. The Valets had been parking the customers’ vehicles in the restaurant’s parking lot which was located up a slight embankment.
Apparently one of the other Valets had neglected to put the emergency brake on an SUV given to him by a customer who had just arrived at the restaurant. While waiting for his car to be brought down, Bauh was struck by the SUV after it rolled slowly down the embankment.
The SUV was parked only a few feet up the embankment, and when it rolled down, it rolled what turned out to be 8.5 feet. As such the SUV wasn’t travelling much more than 3 to 4 miles an hour.
Bauh’s wife asked the Valet to call 911. When the ambulance arrived they took Bauh to the local hospital where he underwent an MRI examination.
The examination showed Bauh had suffered a stress fracture to his fibula in his left leg. The doctors determined the fracture was not serious enough to merit casting the leg. Instead they bandaged the leg with orders for Bauh to stay off his feet as much as possible for about a week, and then to come back to the hospital to check the progress.
An MRI also indicated Bauh’s spinal cord showed bruising to the C/7 level of his spine. The doctor told Bauh the bruising to his spine would not likely require surgery unless that area became herniated. The doctor told Bauh the probability of such herniation was slight at best.
Bauh returned to the hospital a week later. Upon examination the doctor determined the fracture sufficiently healed for Bauh to resume walking and his other normal daily activities. The doctors did caution Bauh not to involve himself in any activities which would put undue stress on his leg or back for another 2 weeks.
Bauh eventually filed a spinal cord injury lawsuit against the restaurant, seeking an award of $250,000.
The Lawsuit & Hearing…
In his spinal cord injury lawsuit the Plaintiff Bauh alleged he suffered injuries including “aggravation of spinal cord at level C/7 and degenerative changes in the left leg.”
The Embers contested Bauh’s accusations, and filed a Motion for Summary Judgment. In the Motion Embers alleged Bauh’s injuries did not rise to the level of the state’s definition of Serious Bodily Injury.
Many states have rules regarding how a plaintiff must go about getting compensation for their injuries and exactly what compensation a person with a particular level of injury can receive. Often states will require a person to demonstrate Serious Bodily Injury before they can file a lawsuit over a vehicular accident. Other states require the plaintiffs to show Serious Bodily Injury if they want to ask for an award more than a certain set amount.
Defendants in states with these types of rules can get the court to dismiss a case without trial if they can show the plaintiff has somehow violated a rule and filed an invalid lawsuit.
This is done by filing a Motion for Summary Judgment. Losing a hearing for a Motion for Summary Judgment can be particularly damaging to the plaintiff because the court can not only dismiss their case without trial, they can also dismiss a case “with prejudice.”
If a case is dismissed with prejudice then it cannot be filed again for a lower amount. In the eyes of the court, the case is completely closed.
If they wanted to continue with their spinal cord injury lawsuit, Bauh’s counsel had to make sure his case survived Ember’s Motion for Summary Judgment.
In the hearing on the Motion for Summary Judgment, Bauh’s attorneys introduced medical evidence of his injuries by entering Medical Affidavits from the emergency room physician and his orthopedic surgeon.
The Affidavit from the emergency room physician repeated the same diagnosis she had made at the time Bauh was admitted.
The Affidavit from the orthopedic surgeon was more specific, referring to the injuries Bauh suffered to the C/6 level of his spine. The Affidavit indicated Bauh suffered mild herniation of his spine at the C/6 level. The Affidavit went on to say there was a “possibility” if Bauh’s herniation didn’t heal within a 6 month period Bauh would be a good candidate for surgery.
Embers’ attorneys previously petitioned the Court under the State Rules of Evidence to have Bauh examined by doctors chosen by Embers, the Court agreed.
At the hearing Ember’s attorneys submitted the medical affidavits of two board certified orthopedic surgeons. Each had examined Bauh.
The first physician’s Affidavit stated after reviewing a second MRI of Bauh administered at her request, she found Bauh to have sustained bruising to his spinal cord at the C/6 level. She went on to state, although the bruising was severe, there was no herniation of the disk at that level. The physician stated the chance of needing surgery was minor and placed the probability at 15%. The Affidavit failed to address Bauh’s stress fracture.
The second physician’s Affidavit indicated he examined Bauh approximately 8 weeks after the accident. He concurred with Embers’ first orthopedic surgeon’s diagnosis and prognosis of Bauh’s spinal bruising at the C/6 level. He went further and commented on the stress fracture Bauh had suffered. He found Bauh’s stress fracture to be fully healed.
After hearing arguments from the personal injury attorneys for both sides and reviewing all the evidence, the Court concluded Bauh’s injuries did not rise to the minimum requirements of the state’s law defining Serious Bodily Injury.
The Court ruled against Bauh and granted Embers’ Motion for Summary Judgment. In so doing the Court dismissed Bauh’s spinal cord injury lawsuit with prejudice.
When living in a No Fault insurance state and an injury occurs as a result of a vehicular or other type of accident and causes personal injuries, it is important to consider the state laws related to compensation before filing suit.
After being injured in a vehicular collision do not rely solely on the diagnosis of an emergency room physician and one other doctor.
The Defendant normally has the right to have you examined by a physician of his choice. With that understanding, and because of the tremendous amount of time and energy which go into any personal injury lawsuit, having more than two medical opinions is vital.
*This case example is for educational purposes only. It is based on actual events although names have been changed to protect those involved. Any resemblance to real persons or entities is purely coincidental.
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