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McKISSICK v. FRYE6/3/1994
The opinion of the court was delivered by
Plaintiff filed an action for injuries suffered in an automobile collision. The jury apportioned the fault at 20% to plaintiff and 80% to defendant and awarded $125,388.12 after adjustment for comparative fault. Defendant appealed to the Court of Appeals. In an unpublished opinion it affirmed the trial court, except the award to plaintiff of $30,000 for future medical expenses. The Court of Appeals found that there was not sufficient evidence to support the jury's award for future medical expenses.
This court granted plaintiff's petition and defendant's cross-petition for review of the Court of Appeals decision. Defendant claims that the district court erred in: (1) allowing plaintiff to testify as to her lack of funds to seek medical treatment; (2) admitting prejudicial testimony; (3) admitting medical testimony without a foundation; and (4) allowing plaintiff's attorney to refer to insurance; defendant further claims the verdict was excessive. Plaintiff claims that the Court of Appeals improperly set aside the jury's award of future medical expenses.
Nadine McKissick was driving north on U.S. Highway 75 near Lyndon when Andrea Frye, who was southbound, drove her vehicle left of center and struck McKissick's automobile head-on. McKissick suffered injuries for which she subsequently filed this action. She claimed damages for past medical expenses of $9,624.15, unknown future medical expenses, past physical pain and suffering of $150,000, future pain and suffering of $200,000, and lost income of $28,805. Frye challenged McKissick's claimed damages and denied any negligence; in the alternative, she claimed McKissick was comparatively negligent.
McKissick had just entered onto Highway 75. The road was slick. She maintained a slow speed due to the weather conditions. She saw two cars approaching. McKissick did not see Frye's car pull into her lane or remember the collision. McKissick suffered a mild concussion, multiple contusions, abrasions, and broken skin on the left side of her forehead and scalp. She had severe neck pain that radiated down through her upper back. Her ankle was swollen and discolored.
Dr. Hornbaker, who specialized in internal medicine, was McKissick's physician. Dr. Hornbaker treated her for injuries resulting from the accident. All x-rays were negative. Dr. Hornbaker diagnosed that McKissick had suffered a "necklature sprain" and a strained ankle. McKissick continued to have problems with her ankle. A bone scan was completed approximately two months after the accident. The bone scan showed there was an abnormal uptake in one of her ankle bones which appeared to be a "reflex sympathetic dystrophy," an injury to the sympathetic nerve system that causes pain. Dr. Hornbaker described several methods of
treatment. One of the treatments was a sympathetic block, where a local anesthetic is injected into the nerves to offer temporary relief.
Dr. Hornbaker first referred McKissick to Dr. Patel, a neurologist. The results of Dr. Patel's x-rays of the skull, the brain scan, and other tests were normal. Dr. Hornbaker then referred McKissick to Dr. Knappenberger, an orthopedic specialist, for pain in her right leg and ankle. Dr. Knappenberger noted that McKissick's ankle was swollen and she had a marked hypersensitivity to touching around the inner aspect of her ankle. He reviewed her x-rays and felt she had a "very minimal nondisplaced evulsion fracture on the lateral aspect of her foot," sometimes referred to as a chip fracture, which normally heals without incident. The chip fracture was on the outer side of her ankle, while the tenderness was on the inner side. The
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