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Acosta v. United States


March 31, 2009


The opinion of the court was delivered by: Jeffrey W. Johnson United States Magistrate Judge



1. Plaintiff Beatriz Acosta brings this action against defendant United States of America pursuant to the provisions of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671-80, seeking damages for personal injuries.

2. Prior to filing this action, plaintiff timely submitted an administrative claim in the amount of $750,000, which was denied.

3. On March 23, 2007, this Court ruled that plaintiff is limited to the $750,000.00 amount requested in her administrative claim.

4. Plaintiff alleges that she sustained severe injuries to her low back in a car accident when a vehicle driven by an employee of the United States Army hit a motorcycle and the motorcycle then slid into the front of a Volvo station wagon in which plaintiff was a passenger.

5. A man gave plaintiff a business card from the Law Offices of Anthony Lopez (hereinafter "Mr. Lopez's office").

6. From the scene of the accident, plaintiff was taken to Olive View Hospital where she was x-rayed and released later that evening.

7. At Olive View, x-rays revealed that plaintiff had no fractures; she was told to take Tylenol for her pain.

8. Mr. Lopez's office referred plaintiff to all of her treating physicians, except for the emergency room treatment she received at Olive View on the day of the accident.

9. Mr. Lopez's office told plaintiff that she had to receive treatment only from the doctors they referred and could not seek treatment anywhere else.

10. Mr. Lopez's office first sent plaintiff to the Fields Health Center for chiropractic care.

11. Dr. A.M. Elbitash, the medical doctor at the Fields Health Center, testified that when he examined plaintiff, she had none of the indications for any surgical intervention for her low back.

12. Dr. Elbitash further testified that he was surprised to learn that plaintiff had later undergone multiple surgeries on her back because "the CAT scan didn't show that she needs all that."

13. After being discharged from the Fields Health Center, plaintiff was sent by Mr. Lopez's office to Dr. Robere Missirian, an orthopedist.

14. Dr. Missirian testified that he released plaintiff from his care on August 14, 2003; at that time, her condition had improved.

15. Dr. Missirian's final report states: "Ms Acosta no longer requires orthopaedic intervention; however she may continue with Dr. Fields [the chiropractor] until such time that her symptoms are stable for discharge."

16. Plaintiff did not seek any treatment for her low back for approximately five (5) months.

17. Mr. Lopez's office next referred plaintiff to Dr. James Thomas, an orthopedic surgeon at Pacific Hospital, who began treating plaintiff in January 2004.

18. From January 2004 to June 2006, Dr. Thomas performed multiple steroid injections, a lumbar discogram, a laser discectomy, two (2) two-level lumbar fusion surgeries, and a hardware removal surgery on plaintiff.

19. Dr. Thomas is no longer plaintiff's treating physician or expert witness.

20. Dr. Thomas suffered a stroke and reported that he has very little recall memory.

21. Dr. Lytton Williams took over a part Dr. Thomas' practice and was plaintiff's expert witness at trial.

22. Plaintiff also has had multiple CT scans, MRIs (static and dynamic), x-rays (both static and flexion), and other diagnostic tests at Pacific Hospital.

23. In addition to the treatment listed above, neurologist Dr. Russell Shah, also of Pacific Hospital, performed a lumbar myelogram.

24. Dr. Gary Baker, an anesthesiologist, performed a blood patch on plaintiff (for a spinal leak due to the first lumbar fusion), at Pacific Hospital during this same time period.

25. Dr. Lytton Williams testified that plaintiff has psychological problems and she needs to see a psychologist before any further medical intervention.

26. On June 26, 2006, Dr. Thomas referred plaintiff to Dr. Mark Ezekiel, an anesthesiologist and pain management specialist, who recommended that plaintiff undergo a trial for a spinal cord stimulator.

27. As part of Dr. Ezekiel's assessment, a Minnesota Multiphasic Personality Inventory-2 ("MMPI") was administered.

28. The results from this test revealed the following: plaintiff is severely depressed and the prognosis for either psychological or medical intervention is guarded; conservative medical treatment is usually recommended under these circumstances; and plaintiff is highly skilled at frustrating and sabotaging the help of others and will often "shop" for physicians and/or therapists."

29. On April 20, 2006, Defendant's expert orthopedic surgeon, Dr. S. Andrew Schwartz, performed an independent medical exam ("IME") on plaintiff and reviewed her medical records and diagnostic films.

30. Dr. Schwartz testified that plaintiff's multiple back surgeries and treatment to her low back were unnecessary.

31. Dr. Schwartz testified that she could not have suffered any significant trauma to her lumbar region based on her description of the accident because there was no twisting component involved in the accident.

32. Dr. Schwartz opined that plaintiff had a degenerative disc and was not an appropriate candidate for a surgical fusion because "you would be fusing everybody over the age of 55."

33. Dr. Schwartz testified that plaintiff suffered a neck sprain as a result of the accident and that any back problems plaintiff has were not a result of the accident but were pre-existing conditions that were neither caused nor aggravated by the accident.

34. Before the accident, plaintiff sought treatment for various back complaints, shoulder complaints, body aches; she even participated in physical therapy for her shoulder prior to the accident.

35. Prospectively, Dr. Williams has recommended pool therapy, rehabilitation, and home exercises.

36. Dr. Ezekiel has recommended a trial for a spinal cord stimulator, which Dr. Williams does not recommend.

37. Plaintiff went for treatment at Olive View on December 10, 2007 and underwent another MRI.

38. The entry by the Olive View physician states: "I cannot account for the patient's pain based on the MRI findings."


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