PERSONAL INJURY: Superior Court holds auto accident victim not entitled to damages for future surgery not proven necessary

The plaintiff was injured following an accident in which she came to a complete stop in the left hand lane of a highway because of heavy traffic and was struck from behind by a vehicle driven by defendant, who had failed to stop in time.

The plaintiff was treated in the emergency room on the day of the accident for minimal neck pain, discharged without any diagnostic studies, and then sought the treatment with an orthopedic surgeon approximately one month post-accident.  X-rays of the cervical spine were negative for acute injury but positive for degenerative changes.  The plaintiff treated with a chiropractor and a second orthopedic surgeon who ordered an MRI revealing central disk protrusion and referred the plaintiff to a neurosurgeon.  The neurosurgeon determined that the plaintiff was a candidate for a disc excision and fusion, but the plaintiff never had the recommended surgery.

The plaintiff sued the defendant for common law and statutory recklessness and was awarded economic and noneconomic damages based on the facts of the case.  The only issue in dispute was the amount of damages.  The court awarded damages for her expenses and one day of missed work (totaling approximately $96,000.00), but not for costs of the surgery, holding that the plaintiff failed to prove she would have the surgery. 

Cruz v. Stern, CV15-6054177 (11/1/2017)