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Henry v. Parsons11/29/2005
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1) History of MVA 12/21/00-still being treated by me with residual of cervical and lumbar pains-now with acute exacerbation of increased intensity and increased frequency of both pains.
2) Right tricep strain (new).
3) History of hypertension.
4) History of osteoporosis.
5) Post traumatic cephalalgias.
Guidry continued to be treated by Dr. Dyess with therapy and medication for her cervical and lumbar pain, as well as the shoulder pain, until March 18, 2002, when she was discharged.
We find the trial judge was clearly wrong in finding that Guidry's injuries were related only to the December 2000 accident. Dr. Dyess' medical records, which were not challenged, state that Guidry's injuries from the 2000 accident were acutely exacerbated following the 2001 accident. Accordingly, we reverse the dismissal of Rodriguez' claim for Guidry's injuries and expenses.
If the fact finder does not reach an issue because of an earlier finding which disposes of the case, the appellate court, in reversing the earlier finding, must make a de novo determination of undecided issues from the facts presented in the record. Generally, if the appellate court makes a finding that the trial court was manifestly erroneous or that there is a legal error and the record is, otherwise, complete, the appellate court should render judgment on the record. In such cases, the appellate court is not subject to the manifest error rule, but decides the case de novo. [Citations omitted.]
LeBlanc v. Allstate Ins. Co., 00-1128 (La.App. 5 Cir. 11/28/00), 772 So.2d 400, 403.
A person injured through the fault of another is entitled to full indemnification for damages caused thereby; a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Wainwright v. Fontenot, 00-0492, p. 5 (La. 10/17/00), 774 So.2d 70, 74, citing State Farm Mut. Auto. Ins. Co. v. Berthelot, 98-1011 (La. 4/13/99), 732 So.2d 1230, and American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429 (La. 1991).
"It is well settled in our jurisprudence that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Where defendant's negligent action aggravates a pre-existing injury or condition, he must compensate the victim for the full extent of his aggravation." (Citations omitted.) Touchard v. Slemco Elec. Foundation, 99-3577, pp. 5-6 (La. 10/17/00), 769 So.2d 1200, 1204.
The reviewing court may fix the quantum in a suit for damages where the demands based on liability were rejected but the reviewing court has reversed its liability finding on appeal. When making an initial award of damages, the appellate court is not limited to either the highest or lowest amount of the reasonable range of awards that would have been affirmed on appeal, but is to award an amount that is fair and just for the damages supported by the record. The primary considerations in the assessment of damages in a personal injury action are the severity and duration of the injured party's pain and suffering. [Citations omitted.]
Duckett v. K-Mart Corp., 92-385, pp. 4-5 (La.App. 5 Cir. 2/15/95), 650 So.2d 414, 416.
Dr. Dyess' records of his treatment establish that Guidry made 15 visits to his office between June 13, 2001 and March 18, 2002. On 14 of those occasions she underwent physiotherapy consisting of moist heat and ultrasound to the afflicted regions, and was given pain medication for daily use. In his discharge report dated March 18, 2002, Dr. Dyess stated in his opinion that Guidry's
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