The opinion of the court was delivered by: LEVET
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW.
This is an action by plaintiff, Grace Yarrow, against the United States of America for damages allegedly sustained by her on February 25, 1965, when an automobile in which she was a passenger was involved in a collision with a vehicle owned and operated by an agency of defendant at the intersection of Canal and West Streets, Borough of Manhattan, City and State of New York.
The defendant conceded liability and negligence with respect to its ownership and operation of its automobile (3).
The question of damages was tried to the court without a jury.
After hearing the testimony of the parties, examining the exhibits, the pleadings and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT HOSPITALIZATION AND INJURIES
1. On February 25, 1965, while a passenger in a vehicle driven by her father, plaintiff was injured when this vehicle and another vehicle, owned and operated by a federal governmental agency, were involved in a collision at the intersection of Canal and West Streets, Borough of Manhattan, City and State of New York (5-6).
2. At the time of impact of the vehicles, plaintiff was thrown about in the front seat, striking her head and face on a hard, solid surface (7-9). Plaintiff, in a dazed condition with certain pains and numbness in her body, was taken by ambulance to the emergency room of the Beekman-Downtown Hospital and examined by several physicians (10, 12, 15, 16). She had pains in her foot, head, face, chest and body (17, 18, 19). The injuries to her eye and nose were sutured in the emergency room by Dr. Suitor; her head, face, neck, legs and feet were X-rayed; and she was taken to a hospital bed (20-23).
3. On the date of the accident, the diagnosis of the Chief Resident at Beekman-Downtown Hospital was:
(a) Le Fort nasal maxillary fracture of zygoma.
(c) Lacerations of the left eyebrow and nose.
(d) Fracture of the left second metatarsal base.
(e) Abrasions of the legs.
The Resident's notes also indicated that plaintiff's upper right incisor had been knocked out (Ex. 2, p. 7).
4. At least three examiners - the Chief Resident and two other medical staff members - checked plaintiff's condition on the date of the accident, February 25, 1965 (185; Ex. 2, pp. 4-7). One of the medical staff members reported "no definite history of loss of conscious [sic]," "slightly to moderately distress," "cooperative," "alert and oriented" (Ex. 2, pp. 4, 5). A second staff member indicated that plaintiff "was dazed but apparently not unconscious" (Ex. 2, p. 6).
Although the Chief Resident noted that plaintiff "was not unconscious," he diagnosed "cerebral concussion." Neither of the other two examiners reported a diagnosis of any concussion. The diagnoses of the Chief Resident and the two medical staff members are substantially similar in other respects.
It should be noted that the final hospital diagnosis prepared on March 24, 1965 omitted any reference to concussion and stated specifically that there was "no history of loss of consciousness" (see Finding of Fact 7).
5. The hospital record of X-rays taken February 25, 1965 failed to demonstrate any fracture involving the tables of the cranial vault. The X-ray record also revealed that the sella turcica appeared normal; the pineal gland was calcified; and the facial bones showed fractures of both maxillary bones, a fracture of the left zygomatic arch, and evidence of a diastasis fracture of the left zygomaticofrontal suture (Ex. 2, p. 21; 309-313). The accident was a competent producing cause of the above injuries (319) and could have caused pain (318).
6. On February 26, 1965, physicians placed a pillow splint on plaintiff's left foot and leg and treated her cuts (24-25; Ex. 2, p. 26). The following day a nose specialist, Dr. Broones, set the fractures of plaintiff's nose (26-28; Ex. 2, p. 28). Dr. Anthony E. Bedrick, a specialist in oral and dental surgery, examined her on March 1, 1965 and made a diagnosis that plaintiff had a bilateral fracture of the maxilla or upper jaw running through the sinuses on each side, and a fracture of the left zygomatic arch (a combination of two bones that gives contour to the cheekbone) (289-290). Dr. Bedrick's treatment consisted of constructing and applying a headcap to reduce and fix the jaw fracture and hold it in place by means of elastic traction (289-290; Ex. 2, p. 11). The cap was tightened on March 2, 1965, at which time there was a "tremendous amount of edema or swelling" (292-293). The cap was again tightened on March 3 and March 4, and was adjusted on March 6 (293-295; Ex. 2, p. 11). The plaintiff was examined but no adjustments were made on March 5, 7 and 8 (295-296). On March 9, Dr. Bedrick removed the headcap and replaced it; there was some movement of the upper jaw (296-298).
By March 10, the edema and ecchymosis had subsided but plaintiff complained of some pain in her left ear (298-299); by March 11, the jaw fracture had been maintained in a good position and the edema had subsided, but plaintiff was still complaining of intermittent ear pains (299). Dr. Bedrick stated that he removed the headcap on March 15 (Ex. 2, p. 16; 300-301). At that time, March 15, plaintiff was fed by liquid and soft diet taken with a spoon (301, 302). On March 16, Dr. Bedrick found no complaints of any pain and said plaintiff had freedom of movement in the lower jaw but not in the upper jaw and there were signs that the fracture had healed (302). On March 19, when he examined plaintiff's teeth, he found that a portion of a molar tooth on the left side was fractured. The fractures of the maxilla and the zygoma showed satisfactory healing without functional disabilities and there was good occlusion (Ex. 2, pp. 2, 3, 31). The healing of these fractures did, however, result in a minimal flattening of the left cheek, which flattening has no functional effect and is not sufficiently marked to warrant plastic or other surgery (Ex. 2, p. 31; 314, 336-337).
7. The final hospital diagnosis, prepared March 24, 1965, reported the following injuries:
"1. Type II Le Fort fracture of the facial bones
"2. Fracture of the nasal bones, comminuted
"3. Fracture, second metatarsal bone, left
"4. Laceration of the left eyebrow and nose" (Ex. 2, pp. 2, 3).
This final diagnostic summary differed from the initial diagnosis of the Chief Resident on February 25, 1965 in that the later diagnosis omitted any reference to concussion. The final report also noted "no history of loss of consciousness" (Ex. 2, pp. 2, 3; 205-206).
8. Plaintiff was discharged from the Beekman-Downtown Hospital on March 22, 1965 and referred to the outpatient clinic (Ex. 2, p. 2; 47). After she left the hospital, Dr. Bedrick saw plaintiff on March 29, 1965 and noted that she complained of pain in her left ear, but had no difficulty in talking. When he saw her April 12, 1965, she made no complaints of pain (304-305). On March 13, 1966, Dr. Bedrick found plaintiff's jaw in good condition with good healing (309).
9. There are three basic methods for diagnosing concussion: (1) direct observation; (2) reports of reliable witnesses; (3) close interview of the patient to uncover memory gaps at the time of the accident (Dr. Derby, 372). Upon the basis of the hospital records, Dr. Bennett M. Derby, a practitioner in neurology and neuro-pathology, concluded, and I find, that plaintiff did not suffer a concussion for the following reasons: (1) The records reflect no positive statements of loss of consciousness and some indicate the contrary (373-377) (see Findings of Fact 3, 4, 7); (2) The records indicate that plaintiff was alert, oriented and cooperative (373-377; Ex. 2, p. 2); (3) The prescription of demerol, which plaintiff refused (Ex. 2, p. 34; nurse's notes 2/25/65), would not have been given if the doctors seriously suspected concussion (374-375). Furthermore, plaintiff's vivid and detailed testimony at trial and on her deposition ruled out concussion (378-383).
In order to permit a diagnosis of concussion, it is necessary to have a loss of consciousness (Derby, 404, 407). A basic symptom in concussion is loss of consciousness (plaintiff's witness, Dr. Henry Wigderson, 194). A clear memory of all of the events surrounding an accident rules out concussion (Wigderson, 196, 202). Both Dr. Wigderson, for plaintiff, and Dr. Derby, for defendant, agreed that without a concussion there can be no post-concussion syndrome (193, 204, 387-388). Dr. Wigderson acknowledged that the chief complaints of plaintiff were all subjective and that there was no way to objectively measure "these things;" that the diagnosis of "post-concussion syndrome" was based upon the acceptance of these complaints and a history of the concussion; that his opinion was based upon the assumption of a concussion (203-204).
10. Plaintiff has failed to establish by a fair preponderance of the credible evidence that she sustained a concussion or post-concussion syndrome as a result of the accident.
11. Dr. Harvey B. Taterka, an ophthalmologist, who conducted an eye examination at the hospital on March 16, 1965, indicated "no diplopia" (double vision) and stated that myopia was the reason for any "blurred vision." (Ex. 2, p. 32; 219, 283) Although no diplopia was revealed at the hospital, Dr. Taterka subsequently found a late complication of plaintiff's facial injuries - a small field of horizontal diplopia in her extreme left lateral gaze (233, 262-263), resulting from fat atrophy which caused the left eye to sink inward and downward (244-245, 259-260, 262). The diplopia, however, affects plaintiff "only occasionally" (92) and may be corrected by lenses without surgery (264-265). It is doubtful that diplopia causes plaintiff to have headaches (Dr. Taterka, 265, 266). Although the diplopia may cause inconvenience, plaintiff is bound to correct it in order to mitigate her damages. Plaintiff wore glasses for reading prior to the accident (74) and now wears the same glasses for reading, television and movies (91).
12. Plaintiff's left eye has receded 4 millimeters and dropped 2-1/2 millimeters within the orbit as a result of the atrophy of the periorbital fat ...