IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY

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1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY CYNTHIA SMITH and MICHAEL R. : SMITH, individually and as guardians : ad litem of CIARA SMITH, a minor, : : Plaintiffs, : : v. : : SHAMAEL L. HARRIS and UNITED : SERVICES AUTOMOBILE : ASSOCIATION, : : Defendants. : Submitted: September 17, 2003 Decided: ORDER Award of Damages After Inquisition Hearing. Kevin G. Healy, Esquire of Morris James Hitchens & Williams, LLP, Newark, Delaware, attorneys for the Plaintiffs. Robert B. Young, Esquire of Young & Young, Dover, Delaware, attorneys for Defendant USAA. WITHAM, J.

2 Introduction The issue before this Court is the award of damages to the Plaintiff following an automobile accident. Background This case stems from a motor vehicle accident which occurred on October 12, Cynthia Smith ( Plaintiff or Mrs. Smith ) was traveling on McKee Road in Dover, Delaware, when a car owned by Shamael Harris ( Harris ) traveling on Saulisbury Road turned left into the front driver s side of Mrs. Smith s vehicle. The Harris vehicle did not stop at the accident scene, but continued traveling to Harris home. Mrs. Smith and her daughter, Ciara Smith ( Ciara ), sought medical treatment immediately following the accident at Kent General Hospital Emergency Room. In this case, Mrs. Smith alleges that as a result of the accident she has sustained long term back pain for which she received treatment for 3 years following the accident. In addition, Michael Smith ( Mr. Smith ), Mrs. Smith s husband, made a claim for loss of consortium. A claim was also filed on behalf of Ciara for the injuries she sustained in the accident. The suit brought by Mrs. Smith named Harris as a defendant as well as USAA, the Smiths uninsured motorist insurance carrier. Liability is not an issue before the Court. The inquisition hearing was held on May 16, 2003 to determine the measure of damages to be awarded the Plaintiffs. Cynthia Smith 2

3 The evidence presented by Mrs. Smith indicates that she has undergone extensive treatment for the injuries allegedly sustained as a result of the automobile accident. Immediately following the accident, Mrs. Smith and Ciara were treated at Kent General Hospital Emergency Room. Mrs. Smith complained of pain in her left lower back and buttock area. On October 14, 1999, Mrs. Smith sought treatment with her family physician, Lucy Evangelista, M.D. Again, Mrs. Smith indicated pain in her left lower back and buttock area. The pain was attributed to the automobile accident based on Mrs. Smith s statements. Beginning on October 22, 1999, Mrs. Smith began treatment with Edward F. Quinn, M.D., of Delaware Bone and Joint Specialists, for the back pain she began to experience after the automobile accident. The notes from the doctors do not question that Mrs. Smith s pain was caused by the automobile accident. Over the next three years Mrs. Smith regularly sought treatment for her back pain with Dr. Quinn and other doctors in the practice. In addition, she underwent physical therapy, massage therapy, and chiropractic treatments. Medical Expenses It appears to this Court, with the exception of some of the massage therapy visits, that the treatment sought by Mrs. Smith was reasonable and necessary. Throughout her treatment, Mrs. Smith complained of back pain which was apparently related to the accident. The Defendants have not established any other cause of Mrs. Smith s back pain, and it is clear from the medical records that the doctors believed that the accident was the cause of the pain she was suffering. The 3

4 report prepared by Richard P. DuShuttle, M.D., the doctor hired by USAA to evaluate Mrs. Smith, also concludes that Mrs. Smith s complaints were related to the automobile accident. He concluded that the treatment rendered up to June 13, 2000, had been reasonable and necessary, but that no further treatment would be necessary. However, Mrs. Smith did begin to experience additional back pain for which she sought additional treatment after Dr. DuShuttle prepared his report. Again, her doctors attributed the back pain to the auto accident based upon information from Mrs. Smith. There has been no evidence presented which indicates that the back pain Mrs. Smith experienced was caused by anything other than the automobile accident in October Mrs. Smith has not requested payment of medical expense incurred after a later auto accident on November 22, Therefore, this Court concludes that the medical expenses incurred from October 12, 1999 until November 22, 2002, excluding the massage therapy discussed below, were related to the October 1999 accident and were reasonable and necessary. However, the sessions of massage therapy which were received prior to receiving a referral or those that extended beyond the referrals were not reasonable and necessary. The referral Mrs. Smith received in February 2000 from Dr. Quinn was for 4 weeks of physical therapy and massage therapy with treatments 3 to 5 times a week. She attended her first session of massage therapy on February 25, 2000, and continued to receive massages approximately weekly until June After attending several sessions of physical therapy for the 4 week period, Mrs. 4

5 Smith did receive an additional referral for physical therapy in March 2000, but the new referral was not for massage therapy. Without the report of Dr. DuShuttle, this Court would conclude that any massage therapy treatments which occurred more than four weeks after the first visit would not be reasonable and necessary. However, in June 2000, Dr. DuShuttle concluded that all medical treatment received up to that point was reasonable and necessary. Therefore, USAA is responsible for paying all of the massage therapy charges from February 25, 2000, through June 13, 2000, totaling $600. The next referral Mrs. Smith received for massage therapy was on October 19, The actual referral was not admitted into evidence however there was a statement in the medical records that Dr. Quinn referred her to additional massage therapy. Prior to receiving this referral, Mrs. Smith attended 5 sessions of physical therapy with Christopher Asay in September and early October. Because these were without a doctor s referral, the first 5 visits to Christopher Asay are not reasonable and necessary expenses and USAA is not responsible for paying for those visits. Mrs. Smith then attended 2 sessions of massage therapy in October 2000 after receiving the referral. USAA is responsible for the charges for these visits totaling $100. However, without receiving an additional referral, Mrs. Smith continued to attend massage therapy with Christopher Asay beginning in January 2001 through May The referrals Mrs. Smith received in the past for physical therapy were for approximately 4 to 6 weeks of treatment each. Therefore, this Court concludes that any massage therapy Mrs. Smith received more than 6 weeks after the referral 5

6 in October 2000 are not reasonable and necessary expenses related to the accident. Therefore USAA is not responsible for payment for the 17 visits beginning in January USAA is required to pay $100 for the Christopher Asay massage therapy visits on October 19, 2000, and October 25, Thus, USAA is responsible for a total of $700 for the massage therapy visits. Mrs. Smith is responsible for the remaining $1,400. Plaintiff was requesting an award of $13, for her medical expenses remaining after the PIP coverage. Based on the above discussion, this Court will award Mrs. Smith $12, for the medical expenses she incurred as a result of the October 1999 accident. General Damages Based on the testimony presented at the inquisition hearing and the medical records admitted into evidence, it appears to this Court that Mrs. Smith has sustained a soft tissue injury to her back which resulted in medical treatment and ongoing pain for approximately three years. Mrs. Smith testified that for the first 3 months following the accident she was bedridden. The Defendant has argued that Mrs. Smith was not bedridden for 3 full months, pointing to the fact that she attended doctors appointments and physical therapy sessions. It seems that while Mrs. Smith was not literally in bed for 3 months, she was forced to lie in bed much more often than she did prior to the accident. As a result of this, she was not able to care for her children the way she had before the accident. The medical records indicate that the constant back pain had subsided by March 2000, but she was still 6

7 experiencing intermittent episodes of moderate to severe back pain through at least June Throughout this time she was seeing doctors regularly and undergoing physical therapy for her back pain. Based on the pain she has experienced and the way the pain as impacted her lifestyle, this Court concludes that an award of general damages totaling $29,000 is reasonable. Therefore, this Court awards total damages of $41, to Mrs. Smith. Michael Smith Included in Plaintiffs claims is Mr. Smith s loss of consortium claim. The cause of action for loss of consortium rests upon the following elements: (1) the party asserting the consortium claim was married to the person who suffered the physical injury at the time the injury occurred, (2) the spouse suffered an injury which deprived the other spouse of some benefit which previously existed in the marriage, and (3) the injured spouse has a valid cause of action for recovery against the tortfeasor. 1 It is undisputed that Mr. Smith is married to Mrs. Smith. In addition, it is clear that Mrs. Smith has a valid cause of action against Harris. The only question then is whether Mr. Smith was deprived of some benefit which existed prior to the accident. Generally, damages for loss of consortium include loss of society, companionship, affection, and sexual relations. 2 Damages are not limited to only these claims, but could also include aid, assistance, services, and 1 Lacy v. G.D. Searle & Co., 484 A.2d 527,532 (Del. Super. Ct. 1984). 2 Id. at

8 physical and emotional support. 3 Mr. Smith testified that after the accident he was forced to do the laundry, cooking, cleaning and caring for the children, activities usually performed by Mrs. Smith prior to the accident. Eventually, the Smiths hired someone to work around the house until Mrs. Smith was able to do the tasks again. However, the Smiths PIP coverage paid for the housecleaning and child care services performed by others. No evidence was presented establishing Mr. Smith s loss of society, companionship, affection or sexual relations. Based on the testimony presented at the inquisition hearing, it is clear that Mr. Smith lost services and physical support usually carried out by Mrs. Smith for a period of approximately six months. Based on this, the Court concludes that an award of $1,500 for Mr. Smith s loss of consortium is reasonable. Ciara Smith Ciara was nine years old at the time of the accident. The medical records indicate that she bumped her head on the car seat when the accident occurred. She was treated at Kent General Hospital Emergency Room on the day of the accident and two days later by her family physician for a bruise on her head. The doctor at Kent General recommended that Ciara not attend school the day after the accident. According to Mr. Smith s testimony, Ciara had a bump on her head for a week or two, which was treated with ice and Tylenol. The Plaintiffs did not make a claim for Ciara s medical bills, only for general damages. Based on the medical records 3 Id. 8

9 and the testimony presented, it appears to the Court that Ciara suffered a minor bump to the head from which she has suffered no long term or permanent injury. Defendant contends that Ciara should not be awarded any damages because she did not actually testify at the inquisition hearing. The Court finds that due to Ciara s age at the time of the accident and the fact that the accident occurred more than 3 years prior to the inquisition hearing, it was reasonable for Mr. Smith to testify regarding Ciara s injuries. In addition, the medical records provided sufficient evidence to support his testimony regarding the injury sustained by Ciara. Based on the injury Ciara suffered an award of $500 is appropriate to compensate her for her pain and suffering and the one missed day of school. 9

10 Conclusion In summary, this Court awards Cynthia Smith a total award of $41,106.70, Michael Smith a total award of $1,500, and Ciara Smith a total award of $500. IT IS SO ORDERED. WLW/dmh oc: Prothonotary xc: Order Distribution /s/ William L. Witham, Jr. J. 10

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