On April 20, 2011, Thomas Tornatore, then 51 years old, was wrestling with his nephew when he sustained an injury to the base of his neck. Five days later, Mr. Tornatore sought treatment from a chiropractor. After his fourth and final treatment, which included chiropractic manipulations, he had severe pain in his neck that radiated down his arm. Within a week, he was diagnosed by an orthopedic surgeon and told he had a herniated disc and needed spinal surgery.
In his ensuing medical malpractice lawsuit against the chiropractor, Mr. Tornatore claimed that the manipulations were inappropriate because plaintiff suffered from pre-existing conditions, including a degenerative cervical spine with spinal stenosis. The defense argued that (a) plaintiff was properly treated and (b) the treatment did not injure plaintiff or worsen his pre-existing condition in view of the testimony of the defendant’s medical expert contending that spinal MRI scans from before and after the treatment did not show any significant change.
The Onondoga County jury agreed with plaintiff finding the defendant negligent and awarding pain and suffering damages in the sum of $500,000 ($200,000 past – four and a half years, $300,000 future – 20 years) and future medical and life care expenses in the sum of $903,407 (20 years).
Defendant appealed, arguing mainly that the future medical and life care expenses award was excessive and, in any event, it should be vacated because the testimony of plaintiff’s life care expert was wrongfully admitted.
In Tornatore v. Cohen (4th Dept. 2018), defendant’s arguments were rejected and the judgment was affirmed in all respects.
The appellate court’s opinion does not discuss plaintiff’s injuries. Here are the injury details:
- herniated disc at C5-6 with large sequestered fragment compressing nerve, caused by defendant’s aggravation of plaintiff’s pre-existing degenerative cervical spine
- decompressive surgery with fusion of cervical spine at C4-5, C5-6 and C6-7
- surgical revision of hypertonic scars from first surgery
- permanent residual neck pain and stiffness with limitation of range of motion
- difficulty sleeping and driving, unable to lift grandchildren
The award for future medical and life care expenses was based upon the testimony of plaintiff’s vocational rehabilitation specialist and life care planner. It included $474,000 for 20 years of medications (including Gabapentin, Tramadol and Hydrocodone) and $268,000 for pain management (including epidural injections 3-4 times a year at a cost of more than $3,000 each). The jury rejected parts of plaintiff’s claims for future expenses and awarded nothing at all for a spinal cord stimulator and surgery to implant it.
- Plaintiff’s witnesses included her orthopedic surgeon and internists in addition to her expert chiropractor and life care planner. The defense called only an expert neuroradiologist.
- Plaintiff’s criminal history that defendant was precluded from using related to two matters. One was a 1979 youthful offender adjudication on sodomy charges following a consensual relationship with another then under-18 year old boy. The other was a 1997 charge of soliciting a minor for sex in which plaintiff was found guilty by a jury but adjudication of guilt was withheld by the judge and he was given probation.
- The prior MRI scan reviewed by the defendant’s medical expert was from 2002 after plaintiff sustained a work-related injury. He was asymptomatic and did not undergo any treatment between 2002 and the current incident.