DeAnn Hawkins and Jeffrey Hawkins v. Ronald Volpato, D.C.
Published: Dec. 6, 1997 | Result Date: Nov. 13, 1997 | Filing Date: Jan. 1, 1900 |Case number: 120068 – $0
Judge
Court
Butte Superior
Attorneys
Plaintiff
Defendant
Barry Vogel
(La Follette Johson De Haas Fesler & Ames)
Experts
Plaintiff
Susan E. Bromley
(medical)
Defendant
Stephen M. Foreman
(medical)
Facts
Plaintiff, DeAnn Hawkins, a 30-year-old office manager, had a history of back problems dating back to her teenage years in the early 1980s. Per the defendant, X-rays taken at that time revealed mild left scoliosis in the lumbar area, and various pain medications were prescribed for her low back pain. Plaintiff reported that the scoliosis was questionable. On Jan. 5, 1994, plaintiff began treating with Michael McLogan, a chiropractor, to treat pain and stiffness which she was experiencing following an automobile accident. At that time, McLogan took x-rays of the lumbosacral spine, which showed rotational disfunction at L4-5 and disc narrowing at L5-S1. In early 1995, plaintiff was again treated for low back pain on several separate occasions. The plaintiff then discontinued care until Oct. 11, 1995, when she was seen by McLogan for complaints of low back pain. At that time, plaintiff rated her pain at an 8 on a scale of 0 through 10. No x-rays were taken at that visit, and McLogan diagnosed lumbosacral strain. According to plaintiff, she felt an improvement after this treatment with McLogan. Two days later, on Oct. 13, 1995, in McLogan's absence, defendant Dr. Ronald Volpato, a chiropractor, performed a side posture adjustment which allegedly caused plaintiff a herniated disc. Plaintiff alleged that following the adjustment, she experienced severe pain which increased over the next 12 to 18 hours. She was seen in the emergency room on Oct. 14, 1995, where x-rays were negative for fracture. On Oct. 16, 1995, plaintiff reported to her family physician who ordered a CT scan. A CT scan on October 20 and an MRI on November 2, showed an L5-S1 disc herniation compressing the left S1 nerve root. The plaintiffs, husband and wife, brought this action against the defendant based on negligence and loss of consortium theories of recovery.
Settlement Discussions
The plaintiff made a C.C.P. º998 settlement demand for $79,995.00 for plaintiff wife and $5,000 for plaintiff husband. (According to defendant, plaintiffs made a C.C.P. º998 settlement demand of $225,000 for plaintiff wife and $25,000 for plaintiff husband.) The defendant made a C.C.P. º998 offer of compromise for $15,000.
Specials in Evidence
$2,000 $36,000
Damages
The plaintiff's husband claimed loss of consortium.
Injuries
The plaintiff claimed she suffered a disc herniation at L5-S1, requiring hemilaminectomy and microdiscectomy with residual failed back surgery syndrome. The plaintiff's husband claimed loss of consortium.
Other Information
Plaintiffs' attorney reported that prior to trial, he obtained a 20-year, statewide verdict survey on chiropractic malpractice cases and could not find a single reported plaintiff's verdict in California in a case in which it was alleged that a defendant chiropractor caused a disc herniation secondary to chiropractic manipulation. According to plaintiffs' attorney, there have been numerous published articles in the peer review medical literature in the past 50 years reporting confirmed instances of disc herniation secondary to chiropractic manipulation. Per plaintiffs, eight of the jurors reported that they had received chiropractic treatment at some point during their life. EXPERT TESTIMONY: Defendant's expert, Stephen M. Foreman, D.C., was called as an expert by plaintiffs' attorney during plaintiffs' case pursuant to Evidence Code º776 and the case of Powell v. Superior Court. According to plaintiff, Dr. Foreman testified on cross-examination that in the past ten years he has testified at trial in over twenty cases in twelve different counties throughout the state. He testified on behalf of the defendant in 90 percent of those cases. Foreman has authored numerous treatises and articles regarding chiropractic care. In one text, Foreman wrote, "doctors should consider all the clinical facts in a case before final opinions are rendered." Foreman testified that he concluded plaintiff's injury was due to a pre-existing degenerative disc disease without looking at an x-ray, CT or MRI of plaintiff. He also testified that he has written numerous articles regarding radiographic evidence of degenerative spinal conditions in which he describes numerous radiographic criteria for degeneration. He testified that not a single one of the radiological criteria that he enumerated in his articles for degenerative disc disease was reported by any radiologist for any x-ray, CT or MRI of plaintiff. He testified that he based his opinion on the post-operative pathology report, even though he conceded he did not mention this during his pretrial deposition.
Deliberation
two to three hours
Poll
11-1
Length
five days
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