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SALAS v. UNITED STATES

July 21, 1997

HILEEN P. SALAS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: HECKMAN

 In this action brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et. seq., the plaintiff seeks to recover damages for injuries she sustained on November 30, 1991, when the vehicle she was driving was struck on the passenger side by an automobile operated by FBI Special Agent John Culhane. The plaintiff sustained relatively minor physical injuries consisting of whiplash and cervical and lower back strain for which she was treated with muscle relaxants and physical therapy but was not hospitalized. Subsequently, however, the plaintiff developed a far more serious psychiatric breakdown diagnosed as somatoform disorder, and this forms the primary basis for the damage claim.

 The evidence, including substantial psychiatric testimony, was received at trial on November 12 through 15, 18 through 20, and 22, 1996. Following trial, the court directed the parties to submit proposed findings of fact and conclusions of law focusing on three areas: (1) mitigation of damages, and specifically, whether plaintiff's refusal to take the medicine prescribed by Dr. Dickinson should preclude her recovery, (2) appropriate measures or prior awards for pain and suffering, and (3) whether plaintiff would have become psychologically disabled in the absence of an accident. The parties were directed to file these submissions by January 15, 1997, with further oral argument scheduled for Tuesday, January 21, 1997. At the request of counsel, the above dates were extended, and oral argument was heard on March 13, 1997.

 FACTS

 The testimony at trial established the following facts. On November 30, 1991, the plaintiff was 49 years old and had been employed since 1981 as a high school Spanish teacher at Grover Cleveland High School in the City of Buffalo. The plaintiff had received excellent evaluations from her years as a teacher and testified that she liked her job. Although her exact wage was not made a part of the record, the parties have stipulated as to her lost wages in this case, taking into account appropriate deductions for collateral sources.

 The plaintiff was born in Buffalo in 1942 and graduated from Bennett High School. Following high school, she received an Associates degree from Michigan State University, and a Bachelors degree and Masters degree from the State University of New York at Buffalo. She also completed all work toward a doctorate except the dissertation itself. At an early age, she showed a proficiency in foreign languages, and has studied Hebrew, French, Portuguese and Spanish. As to her Spanish proficiency, she described herself as completely bilingual. She lived for some period of time with her first husband in Venezuela in the early 1960s and later pursued graduate work at the University of Madrid in Spain.

 The plaintiff married Francisco Salas in 1962 and had two sons of that marriage. Shortly after their second son was born, she was divorced and returned to Buffalo where she lived with her parents while attending graduate school. She raised the two children basically on her own. At the time of the trial, her oldest son David was thirty-three years of age and her second son Darryl was thirty-two. David had been diagnosed a schizophrenic in 1984. In 1988, David was hit by a car and sustained a serious brain injury requiring surgery. He now lives independently in Buffalo. Darryl holds a law degree and is currently at New York University studying for a doctorate in Business Administration. The plaintiff also has a third son, Alex, who was sixteen years old and attending high school at the time of trial. Alex's father is Jose Morales, who lived with the plaintiff for four to five years beginning in the late 70s.

 Despite these challenging circumstances, the plaintiff maintained a productive work record. Prior to her employment with the Buffalo City Schools, she worked full-time for the Educational Opportunity Center, for a CETA program, and then as a paralegal for Neighborhood Legal Services. In addition, she was active in several Hispanic organizations and some political campaigns. She was engaged in volunteer work at the time of the accident.

 On the date of the accident, the plaintiff had been volunteering at a refugee center in Buffalo, where she had been asked to drive a refugee to the hospital. She and her friend, Maxine Insera, dropped the refugee off at the Buffalo General Hospital and then proceeded north on Ellicott Street. When the plaintiff got to the intersection of Ellicott and North Streets, she stopped at the stop sign, looked in both directions and proceeded slowly through the intersection. At the stop sign, she could see approximately two car lengths to her right and could not see any cars approaching. At some point as she was pulling into the intersection, the plaintiff observed the defendant's vehicle approaching her from the right, traveling west on North Street at what she described as a rapid rate of speed. When she did see the vehicle driven by Special Agent Culhane, she described him as looking nasty, like the look on the face of someone on bumper cars.

 The plaintiff stopped her car, but the vehicles collided in any event. The only damage to the plaintiff's car was a small dent on the front passenger side of the vehicle. Both the plaintiff and her passenger were wearing seat belts. At the time of the impact, the plaintiff testified that her head snapped back. Following the accident, the driver of the other vehicle, FBI Agent John Culhane, got out of his car, came up to hers and started accusing the plaintiff of failing to stop at the stop sign. It is conceded by the government that Special Agent Culhane is the one who did not stop at the stop sign and that he was negligent in the operation of his automobile.

 The plaintiff refused medical treatment at the scene of the accident, but did go to the emergency room the next day, complaining of confusion, dizziness, headaches, pain in her knees and pain in her neck and back. Her emergency room records show a diagnosis of cervical and lumbar muscular spasms and left knee contusion. She was discharged with prescriptions for Motrin and Flexeril, a muscle relaxant. She then attempted to see her regular internist, Dr. Norman, but was late for her appointment. The doctor would not see her personally, but did give her a prescription for Toradol for headaches, Zantac for her esophagus and Pamelor for depression. She saw him one week later and he referred her to a chiropractor.

 The plaintiff decided to switch doctors at this point because she had been unable to see Dr. Norman for her first appointment. She then started seeing another internist, Dr. Sielski. She continued to treat with Dr. Sielski for her neck and back pain up until the time of trial. Dr. Sielski advised the plaintiff not to return to work and treated her with muscle relaxants, tranquilizers and antidepressants. The plaintiff saw a number of other health care providers in the ensuing years including neuropsychologists, neurologists, an orthopedist, an ophthalmologist, psychiatrists and social workers. The plaintiff was instructed to engage in physical therapy, which she did, and she also received chiropractic treatment. The plaintiff has complained of back pain, muscle spasms, soreness in her neck, migraine headaches, visual problems (for which she received visual therapy), numbness in her fingers, loss of sense of smell, loss of sensation, cognitive deficits including problems sequencing numbers, recognizing faces, getting confused and lost, and problems with her memory. She was at times suicidal and very often depressed.

 The plaintiff testified that prior to the accident, she loved teaching and intended to work until age 65 in order to enhance her benefits in the retirement system. At present, plaintiff tutors students in Spanish two hours a week and also drives herself to various doctor and physical therapy appointments as well as to "revaluation counseling," a type of peer group counseling. She now sees Dr. Mostert for psychiatric treatment, Dr. Berzon for physical therapy, Dr. Carroll for chiropractic treatments, Dr. Gordon for her vision and Dr. Pretula, a homeopathic doctor. She is currently taking Tegretol, an anticonvulsant and a mood stabilizer prescribed by her psychiatrist. She reports experiencing three or so minor seizures. In addition to the Tegretol, she takes Toradol for headaches, Zantac for stomach and esophagus problems and Zoloft for depression.

 The plaintiff's taking of antidepressants was the subject of extensive testimony. She has been on and off antidepressants in the past, but chose not to take them on a long-term basis, apparently because of side effects. For instance, the record disclosed that the plaintiff took Pamelor, a tricyclic antidepressant, for more than one year following the accident, and it did make her feel less depressed. However, she claims that it made her allergic to the sun and she stopped taking it. Approximately three weeks prior to trial, she began taking Zoloft, one of the new generation of antidepressants known as selective serotoningic reuptake inhibitors.

 After the accident, the plaintiff reports being especially anxious about having suffered a brain injury. Indeed, a great many of the medical examinations in this case were designed to determine whether the plaintiff suffered from organic brain injury. However, all the doctors who examined the plaintiff now agree that she did not sustain a brain injury in the accident but rather that her physical complaints, with the possible exception of the back and knee pain, were unconsciously exaggerated as part of her psychiatric condition. Other than the brief trial work periods described above, the plaintiff has been unable to work since the accident.

 All of the doctors in this case also agree that the plaintiff is not "malingering" as that term is used in the medical profession. As explained, this term means the intentional exaggeration of physical symptoms. Rather, the doctors feel that the plaintiff is unintentionally exaggerating physical symptoms which are disproportionate to the actual impact of the accident.

 The plaintiff's symptoms have improved in certain areas but have not in many others, as a result of which she currently suffers episodes of extreme anxiety, confusion, pain in virtually every part of her body and limited affect. Two lay witnesses testified as to the dramatic change in the plaintiff's personality since the accident. Plaintiff's brother, Hyman Polakoff, is a CPA with a practice in Amherst, New York. He testified that the plaintiff gave very good care to her children prior to the accident, was a very outgoing personality and was active in various organizations including a women's Latin group. Although the plaintiff used to ask him for help on occasion with her son David, she lived independently. Since the accident, he has noticed an extreme change in her personality. He says she is now weak, has trouble walking, her conversations are rambling, she speaks in a very quiet low voice and is irritable and takes things personally.

 The passenger in plaintiff's vehicle at the time of the accident, Maxine Insera, also testified as to the plaintiff's current condition. They have been close friends for many years, living in the same part of town and both raising children as single parents. She described Hileen as less energetic, much quieter, less assertive, with many fewer organizational skills and less able to cope with the stresses of life. As far as her own injuries in the accident, she was also jolted. She bumped her knee and head, felt extremely achy, but recovered without medical treatment.

 As to the plaintiff's lumbar and cervical strain, the experts at trial differed in their assessment of this condition. Dr. Sielski, the plaintiff's treating internist from 1992 through the present, testified at trial that the plaintiff continues to suffer to this day from chronic muscular cervical and lumbar syndrome caused by the motor vehicle accident. He gave the opinion that this was a permanent injury and would preclude the plaintiff from returning to work. In contrast, the government's neurologist, Dr. Margaret Paroski, testified that the plaintiff did sustain lumbar and cervical whiplash injury as a result of the accident but that she had recovered as of June 19, 1992 (the date of Dr. Paroski's examination) without permanent injury. Although the plaintiff has continued to seek physical therapy and chiropractic care to the current date, Dr. Paroski indicates that this was not necessary or medically indicated.

 As to the plaintiff's psychiatric state, various labels have been applied, but all of the doctors do agree that the motor vehicle accident triggered a psychiatric condition. For instance, Dr. Marcelle Mostert, plaintiff's treating psychiatrist, diagnosed the plaintiff as suffering from somatoform disorder. Dr. Mostert has treated the plaintiff at the ECMC outpatient clinic of psychiatry from 1992, about one year after the accident, to the present date. She explained that this disorder involves the unconscious exaggeration of physical complaints which are disproportionate compared to the actual physical injury suffered. This is a recognized psychiatric condition. Dr. Mostert also diagnosed the plaintiff as suffering from major depression and depersonalization disorder, both of which she determined to be pre-existing conditions. She concluded that the motor vehicle accident triggered a recurrence of depressive symptoms, but that it had no impact on plaintiff's depersonalization disorder. In Dr. Mostert's opinion, it is the somatoform disorder and plaintiff's deeply held belief that she suffered a serious brain injury in the accident, which makes her unable to work. Although Dr. Mostert recognized that an argument could be made to diagnose the plaintiff as suffering from borderline personality, she was more cautious in her assessment than other psychiatrists and did not make that diagnosis in this case. She notes that plaintiff, despite her pre-existing psychiatric conditions and various setbacks in her life, had been coping well prior to the accident in the sense of maintaining work and family relationships, but since the accident has been unable to do so.

 The plaintiff also called clinical psychologist Rafael Javier, who spent sixteen hours with her in 1993 and administered a series of psychological tests. He concluded that the plaintiff suffers from borderline personality and is undergoing post traumatic stress syndrome as a result of the accident. He also found that she suffered cognitive deficits in Spanish as a result of the accident but that she was not suffering from organic brain syndrome. He views her prospects as guarded and opined that she could not return to work as a Spanish teacher.

 Finally, plaintiff called Dr. Homer Reed, who holds a Ph.D. in neuropsychology. He evaluated the plaintiff by reviewing her records and later by visiting with her. He felt that she had a dramatic decrease in coping skills as a result of the accident and could not return to work. He stated that her prognosis was extremely bleak. However, Dr. Reed's testimony was not credible because it was disclosed during cross-examination that the state in which he practices (Massachusetts) ordered a revocation of his license for violation of ethical standards regarding social relationships with patients. Although this order was stayed while on appeal, nonetheless this significantly discredits his testimony and I do not give it any weight in my decision.

 The government called Dr. Margaret Paroski, who as I indicated above, testified as to plaintiff's lumbar and cervical whiplash injury. She also ruled out organic brain syndrome. She felt that the plaintiff was unconsciously magnifying her symptoms and that treatment of her depression would probably alleviate many of them, although she would need more information to know for sure. She specifically stated that the plaintiff was not malingering and she agrees with Dr. Mostert's diagnosis of somatoform disorder.

 The government also called Dr. Ellen Dickinson, a psychiatrist who examined the plaintiff three times in 1993. The plaintiff was sent to Dr. Dickinson for treatment, but Dr. Dickinson dropped her as a patient because the plaintiff was unwilling to follow Dr. Dickinson's recommendations as to medication. Dr. Dickinson placed plaintiff in a somewhat more serious psychiatric category than Dr. Mostert, finding that she was suffering from schizo-affective disorder, depressive type and borderline personality. She recommended that plaintiff take three medications for her condition: (1) a mood stabilizer such as Lithium, Tegretol or Valproic acid, (2) an antidepressant such as Prozac, Zoloft, Paxil, or perhaps Elavil or Pamelor, and (3) an antipsychotic such as Trilafon or Stelazine. Dr. Dickinson testified that the motor vehicle accident caused an aggravation of plaintiff's pre-existing psychiatric condition. However, she opined that the plaintiff could return to work if she took the three medications which Dr. Dickinson felt were indicated in this case.

 In sum, the medical testimony demonstrated that the plaintiff incurred lumbar and cervical strain at the time of the accident and that, in addition, the minor trauma of the automobile accident triggered a major ...


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