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Zukosky v. Grounds





APPEAL from the Circuit Court of Williamson County; the Hon. BILL F. GREEN, Judge, presiding.


The plaintiff in this personal injury action had sought damages of $35,000. A jury awarded her $896.53. From denial of her post-trial motion for resubmission of the cause to a jury on the issue of damages or, in the alternative, a new trial, plaintiff appeals. She contends: (1) an alleged communication between defendant and a juror prejudiced her right to a fair trial as shown by the verdict for inadequate damages; (2) the verdict was so grossly inadequate that it was contrary to the manifest weight of the evidence; (3) a letter written by one of plaintiff's treating physicians was improperly excluded from evidence; (4) the verdict of the jury was the result of bias and prejudice.

While outdoors at her home in the middle of June 1975, plaintiff turned her ankle and fell backward. As she fell she extended her right arm behind her and landed with her full weight on the arm, severely fracturing her right wrist. Once sufficient healing of the fracture had taken place to permit physical therapy treatments, they were begun. On November 5, 1975, about 2 months after the treatments were instituted and about 6 months after the fracture was sustained, plaintiff was returning from a therapy session. Her automobile, equipped with a knob on the steering wheel to enable her to drive with one hand, was struck from the rear by that of defendant, 17 years old at the time. Plaintiff's automobile, in turn, struck another stopped ahead of her at a street intersection. Plaintiff sustained several injuries, among them a fractured sternum, the result of striking the knob attached to the steering wheel. In addition to apparently minor injuries to a knee and shoulder, she suffered injury to her right wrist, the extent of which would become the crux of the instant lawsuit.

Plaintiff was immediately hospitalized, complaining of pain in her chest, shoulder and right wrist. Two days later she was discharged from the hospital. After January 5, 1976, she required no further treatment for and apparently had no further complaints with regard to the fracture of the sternum or the minor injuries. Her right wrist, however, still required treatment. She continued to receive physical therapy treatments for it until June 1976, where her family physician referred her to an orthopedic surgeon. The surgeon first examined her in September 1976, and directed the resumption of physical therapy treatments. In January 1977, plaintiff was hospitalized for one week for surgery undertaken to increase wrist motion and decrease pain. After surgery physical therapy was resumed and was continued until April 6, 1977. Plaintiff received a release to full activity and work on June 7, 1977, and on July 5, 1977, returned to work for the first time since her fall 2 years earlier. The nature of her work prior to injury had required her to lift as much as approximately 80 pounds at a time. Upon her return to work she was reassigned to a secretarial position.

On February 9, 1976, plaintiff filed her complaint seeking damages of $35,000. A 3-day trial was had from October 30 to November 1, 1978. Defendant did not seriously dispute liability for plaintiff's fractured sternum or for any other injury claimed to have resulted from the automobile accident except the aggravation of the prior wrist injury. Three physicians who had treated plaintiff for her wrist condition testified as to whether the automobile accident aggravated the prior injury.

Plaintiff called the orthopedic surgeon who had performed the surgery of January 1977. He testified on direct examination that X rays of plaintiff's wrist showed "a healed fracture of the wrist and some shortening of the radius, which is the larger of the two bones at the wrist, as though it had been impacted, and some post-tramatic [sic] or degenerative changes in the region of the wrist joint that we might expect to follow trauma." As to aggravation of the prior injury, he stated, "My opinion would be then, based upon the history, that there was a contribution to the necessity of the surgery deriving from the second accident." But of the extent of the contribution he was uncertain:

"I feel that the initial injury of 15 of June in which she fell backwards and injured her wrist was responsible for most, if not all of the things that we found at the time of my inital [sic] examination. I feel that the contribution made by the second accident could have been an exacerbation of her discomfort and possible [sic] a contribution to limitation of motion in the region of the wrist, but I was unable to determine the degree of contribution to [sic] the second accident to the picture that I saw at the time of the first examination."

On cross-examination he admitted that a patient's history, unaccompanied by confirmatory objective findings, does not constitute a reasonable degree of medical certainty upon which an opinion may be based and that his own opinion as to aggravation of plaintiff's prior injury, relying as it did only upon the history furnished by plaintiff, could not, therefore, have been based upon a reasonable degree of medical certainty. On cross-examination the surgeon also indicated that any aggravation of plaintiff's prior injury would have occurred in the form of soft tissue injury not revealed by X ray. He further indicated that, given the nature of soft tissue injury, the physician treating the patient immediately after it occurred was in a better position to assess it as an aggravation of a prior injury than he himself was who saw her almost a year afterward.

Defendant called the physician who had treated plaintiff in the emergency room and during her hospitalization immediately after the automobile accident occurred. He seemed not to have treated plaintiff before this time. He testified that "upon examining her I could not detect that the patient received enough injury to her wrist to warrant further X-rays." His initial impression upon plaintiff's admission to the hospital appears to have been an aggravation of a right wrist fracture. But he said, "[O]n examining the patient I could not determine that she had reinjured her wrist to any extent." He further stated, "After having seen her for a couple of days, I didn't feel that she had reinjured her wrist." His impression after observing her for 2 days was that she had not suffered an aggravation of her wrist condition. His discharge diagnosis was as follows:

"The final diagnosis upon her discharge from the hospital was that she had a fracture to the sternum with partial dislocation of the xiphoid from an automobile accident. Second, she had a contusion to her left knee, again from an automobile accident. She had stiffness and swelling of her right wrist, and pain in her right shoulder from fracture not connected with automobile accident."

Defendant also called plaintiff's family physician of about 10 years who had treated her after both the fall in June and the automobile accident in November. He testified, "I believe that the deformity and the lack of motion from the original injury of June of 1975 was the primary cause of her continuing disability." He stated, "The original injury in June of 1975 was sufficient to cause the trauma." He appeared to refer there to post-traumatic permanent changes in plaintiff's wrist. He further testified, "The patient stated that she had more pain and that she had much [sic] more symptoms when she came to me after the accident. I believe that she had more pain and more symptoms at that time from some injury, but as far as the total improvement or lack of improvement following the accident, I could see no relationship."

Plaintiff's family physician testified that he had last examined her before the accident of November 5, 1975, about 2 weeks earlier on October 20, 1975. He said he examined her again 5 days after the accident and found that the wrist appeared at that time to be in about the same condition in which it had been when he had last seen it in October. During the October examination he found: "After seven weeks of physical therapy there was improvement to the point that there was increased activity in the hand, but she was still unable to close her fist or to even touch the fingers to the palm." He said that during the October visit plaintiff complained of "stiffness in the wrist, constant and continuing pain, and inability to use the hand and wrist for any type of work." He said also that "there was still swelling in the wrist."

The physical therapist who gave the majority of plaintiff's approximately 30 physical therapy treatments prior to the auto accident, including the one from which plaintiff was returning when the accident occurred, testified for her that by the time of the accident plaintiff had made surprisingly good progress. The therapist said that the pain had "subsided considerably," that the "edema had subsided," that plaintiff could grasp, though unevenly, and that she could lift about 5 pounds, but that she could not yet touch her fingers to her palm without assistance.

Plaintiff testified that her pain had diminished during the course of physical therapy and that the swelling had been completely gone for about a month prior to the automobile accident, but that she was not completely able to make a fist. She testified that after the accident there was a great deal of both pain and swelling in her wrist. She said as well that after her fall and before the automobile accident, though not afterward, she had been able to hold money in her hand, to peel potatoes and to prepare garden vegetables for canning. Of the period after the automobile accident she said, "Anything that may have pressure or a grip that I would have to have my hand, I could not do it whatsoever."

In a letter to plaintiff's employer dated October 30, 1975, 6 days before the automobile accident, her family physician had written, "Mrs. Zukosky needs another 30 day leave of absence from her work." Plaintiff testified that because of the physician's remarks to her at the time he executed the leave of absence statement as to when she might return to work and because of the way she felt at the time, she had expected to return to work in 30 days from the date of the written statement. Later her physician testified as to the significance of his letter:

"This is a standard statement regarding disability; that Mrs. Zukosky would need another thirty day leave of absence from her work. These are given in thirty day increments and are continued as long as the disability continues."

The statement had not, he said, meant that he was going to send her back to work in 30 days. He said further that there was "no record of any improvement to the point of working" by the time of the accident in November. He stated that the fracture of the sternum would have ...

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