Houghton v. Santa Barbara Transportation

Topic: Personal Injury (Non-Vehicular)
Sub topic: Negligence
Sub-sub topic: Negligent Care

Settlement: $8 million

Attorneys:
Plaintiff- Eric F. Yuhl, Yuhl, Rhames, Yuhl & Atkinson, La Jolla
Plaintiff- Michael R. Rhames and Richard P. Atkinson, Yuhl, Rhames, Yuhl & Atkinson, Santa Monica
Defendant- Gary R. Gibeaut, Gibeaut, Mahan & Briscoe, Los Angeles
Defendant- Sally G. Kushner, Gibeaut, Mahan & Briscoe, Los Angeles

Medical Experts:
Plaintiff- Roy Ashford M.D., orthopedic surgeon, Los Angeles
Plaintiff- Richard B. Delamarter M.D., psychiatrist, Los Angeles
Plaintiff- Erica Hassan M.D.,. physical medicine, Santa Clarita
Plaintiff- Brian P. Jacks M.D., psychiatrist, Beverly Hills
Plaintiff- Gene Palowski M.D., ophthalmologist, Los Angeles
Plaintiff- Joel S. Rosen M.D., spinal injury/rehabilitation, Northridge
Plaintiff- Havinder Sandhu M.D., neurosurgeon, New York
Defendant- Edward Carden M.D., pain management, Inglewood
Defendant- Frederic Edelman M.D., neurosurgeon, Van Nuys

Technical Experts:
Plaintiff- Gene Bruno vocational rehabilitation, Santa Monica
Plaintiff- Theodore Vavoulis economist, Pasadena

Facts: On April 22, 1994, the plaintiff, a 27-year-old disabled man afflicted with cerebral palsy, was being transported in his wheelchair by the defendant bus company from a day program sponsored by the local school district. Unfortunately, the defendant driver did not properly strap the plaintiff's wheelchair into the transport vehicle. As a result, when the driver went around a turn, the wheelchair tipped over, causing the plaintiff to struck his head, face and neck on a steel toolbox located inside the specialized van. The plaintiff brought this action against the defendants based on negligence.

Contentions: The plaintiff contended that the negligence of the driver in failing to properly restrain the wheelchair, was the direct cause of the accident. The plaintiff also contended that before the accident, he was able to be cared for in his home, solely by his family with no outside help and no need for medications; that because of the accident, the resulting instability in the cervical spine the plaintiffs significant ongoing pain syndrome and other complications, he now required a second attendant to help care for him in the home and because of specialized medical needs, an LVN would be necessary. The defendants denied there was any negligence and contended that even their state of the art restraint system was not always effective in preventing a wheelchair from shifting or tipping over; this was beyond the reasonable scope of technology in specialized shuttle transports and while an unfortunate accident, it was not due to a deviation from the standard of care imposed on transporters of the disabled. While the defendants essentially conceded that the initial cervical surgery was primarily due to the accident, they contended that any future surgeries were not caused by the accident; the plaintiffs pre-existing cerebral palsy and resulting kyphosis in his mid-back would have required surgery in any event and it was questionable whether 100 percent of the first surgery was due to the accident because of plaintiffs inability to speak and the admitted difficulty the treating surgeons had in identifying the problem and its cause. The defendants also contended that the plaintiff did not require 24-hour LVN care as a result of changes in his posture, need for medications, and increased risks of choking, as a result of the accident.

Injuries: As a result of the wheelchair tipping and plaintiff striking the toolbox inside the van, the plaintiff suffered trauma to his cervical spine, which, because of his limited ability to communicate, and the fact that he suffers from quadriparesis (limited use of his extremities) as a result of the cerebral palsy, it was very difficult for the plaintiff's doctors to initially identify the fact that he had suffered a spinal injury to the neck. Ultimately, however, surgeons determined that the plaintiff had suffered a neck injury, which required roughly 2'/ years post accident three level fusion of the cervical spine. The surgery was not successful and the plaintiff's condition worsened post-operatively, resulting in deterioration physically and emotionally across a broad spectrum of areas of function. A more complicated and risky surgery is now needed to further fuse the cervical spine into the mid-back (or thoracic) region. Furthermore, it became likely that rods would have to be inserted into his spine in order to prevent him from continuing to develop a super curvature in his mid-back, called hyper-kyphosis. Due to cerebral palsy, the plaintiff already had an exacerbated amount of this kyphosis. With the unsuccessful cervical operation, and that fact that the plaintiffs head was now literally pinned to his chest and only can be lifted with extreme pain and difficulty, the pre-existing kyphosis was aggravated. There is concern that the plaintiff may be hunched over with his chin frozen on his chest for life unless further extensive and riskier surgery is performed.

Settlement Discussions: No demands were exchanged in this case until approximately two months prior to the trial date of March 1, 1999. At that time, the plaintiff demanded $14,128,000. The defendants made no offers of settlement until two formal mediation sessions, when the defendants indicated that their first policy of coverage of $1 million was available. The parties were at a complete stalemate, and trial commenced in April 1999. While the prospective jury panel was being impaneled, and after two days of non-stop negotiations during the trial proceedings, the defendants increased their offer at $2.5 million and finally accepted a non-negotiable $8 million offer to settle the case.