Decatur, GA—An amateur football coach injured in a chain reaction rear end collision was awarded $7,000 in damages by a DeKalb County state court jury. Evan Terrell v. Alexandria Hamilton (14A51260)
The accident occurred on June 28, 2013, on Panola Road in DeKalb County. Terrell was taking his two children home from day care and was stopped in a line of traffic. Hamilton’s car then collided with a pickup truck that in turn struck Terrell’s vehicle. Hamilton admitted liability for the accident but contested the extent of the injuries Terrell actually suffered in the accident and the amount of damages.
At the trial, Terrell testified that, when he was hit, his neck was snapped back and forth and that his foot hit the dashboard. He added that his vehicle then hit another car in front of him. According to Terrell, the driver of the vehicle in front drove off before the police arrived.
Terrell said that, after the accident, he experienced back and neck pain, and his foot became swollen. He was unable to wear regular shoes and walked around in flip flops instead. After treating the foot with ice, he visited a chiropractor a few days later. The chiropractor treated Terrell’s foot by placing it in a boot and applying cold water. After a few weeks of treatment by the chiropractor, Terrell said his back and neck pain diminished, but his big toe remained swollen and in pain.
Terrell stated that when he continued to experience pain, he visited Dr. Robert Karsch, an orthopedist. Dr. Karsch prescribed an orthotic insert that Terrell continues to use. Terrell added that he visited Dr. Karsch three times in total.
Terrell also testified that his toe remains bent in and does not move normally. He added that he continues to experience pain and discomfort, which makes doing his job working for AAA more difficult. Terrell also stated he works as an amateur football coach and his activities in that regard had also been limited since the accident. He added that he did not have any toe pain or problems before the accident. He then submitted approximately $6,000 in bills from Dr. Karsch and the chiropractor into evidence.
Under cross examination, Terrell admitted that he drove his car home after the accident and did not seek medical treatment for three days. In addition, defense attorney Hemanth Digumarthi was able to establish that Terrell waited two months before seeing Dr. Karsch that his two follow-up visits were three and six months after the initial visit. Terrell also acknowledged that he had felt an orthopedist could not help a broken toe, which was a reason for the delay in seeking treatment initially.
Dr. Karsch testified by video deposition. He took x-rays of Terrell when he first examined the patient, and the x-rays revealed that Terrell’s big toe was broken in two places. He added that Terrell was walking with a limp when Dr. Karsch first saw him. Although Terrell’s condition improved during the course of treatment, it was still tender. Based on his examination of Terrell and the patient’s history, Dr. Karsch said it was his opinion that Terrell suffered the injury in the automobile accident.
Dr. Karsch continued that, because the big toe bears the most weight and considering Terrell’s size (Terrell weighs over 300 pounds), it was likely he could develop arthritis in the future and might require a fusion operation to relieve pain. The defense did not ask Dr. Karsch any questions on cross examination.
Dr. Bennett Axelrod, an orthopedic surgeon, testified by video deposition as an expert witness for the defense. In his view, the x-rays taken by the chiropractor could not be used for diagnostic purposes because they showed only one view of the toe. There was a suggestion of a fracture in the x-rays, but Dr. Axelrod felt he could not make a definite diagnosis without more information.
On the other hand, Dr. Axelrod believed that the x-rays taken by Dr. Karsch did reveal a fractured toe, and he agreed with Dr. Karsch’s prescribing an orthotic insert, which he said would help the toe heal more quickly. Dr. Axelrod criticized Terrell for not seeking orthopedic treatment sooner. Dr. Axelrod felt that by delaying treatment and continuing to walk around in flip flops, Terrell prolonged his symptoms. Dr. Axelrod also criticized Terrell for waiting over a month to get the orthotic prescribed by Dr. Karsch.
Dr. Axelrod also disagreed with Dr. Karsch’s prognosis that a toe fusion might be necessary because of the accident. Further, Dr. Axelrod also believed that some of Dr. Karsch’s charges were too high for the services provided.
When asked about the cause of Terrell’s broken toe, Dr. Axelrod said he could give an opinion to a reasonable degree of medical certainty. In his opinion, rear end collisions rarely resulted in that type of injury, and he also noted that Terrell did not walk with a limp when he saw the chiropractor, which Dr. Axelrod would have expected had he broken the toe a few days earlier. Dr. Axelrod also found it unusual that Terrell had never received any pain prescriptions.
On cross examination by plaintiff’s attorney Sutton Slover, Dr. Axelrod admitted that Terrell could have suffered the broken toe in the accident and that the chiropractor’s x-rays were consistent with a broken toe. He acknowledged that a patient’s medical history was important in making a diagnosis and that Terrell said he reported no pain or swelling in the foot until after the accident. Dr. Axelrod also acknowledged having been paid approximately $3400 for his services.
In his closing statement, Hemanth Digumarthi urged the jury to examine all the evidence and remember that Terrell had the burden of proof in the case. “What they have to prove is that the accident on June 28, 2013, caused his broken toe… I submit to you that based on the expert witness testimony of this particular case and what Dr. Axelrod told you about linking the broken toe to the accident, that’s why we’re disputing causation in this case.“
Further, Digumarthi felt Terrell should have tried to mitigate his damages “This is not about nickel and diming Mr. Terrell. … If the chiropractor is incompetent, he’s incompetent… That’s not something necessarily …that Ms. Hamilton would be responsible for. It’s the plaintiff that decided to wait for a month to go to see Dr. Karsch, until actually almost two months because he thought there was nothing he could do.”
Digumarthi also noted discrepancies between Terrell’s statement at trial that he hit the toe on the dashboard and a prior deposition in which he said the toe caught on the brake pedal. Also, the defense attorney noted that Terrell testified that there was a fourth car in the accident, but the police report did not indicate one. Digumarthi also asked the jury to consider the way Terrell moved around in the courtroom in determining the amount of damages.
In his closing statement, Sutton Slover was highly critical of Dr. Axelrod’s opinion, which, Slover believed supported plaintiff’s contentions: “This is a bought opinion. What did you learn from it? He said you’ve got to look at the medical records. They don’t lie. Well, three days after the wreck when he goes to the chiropractor—toe injury. Says his toe hurts …No contradiction of that. They didn’t ask Dr. Karsch any questions… This is the funniest thing. [Dr. Axelrod] throws up the x-ray from the chiropractor who he says wasn’t any good, and he can possibly see a fracture which happens to be the area where the toe’s broke … I don’t know about you all but I don’t know of a toe that’s not broke that has a possible fracture in it.”
Slover also said the defense wanted to “Monday quarterback well you shoulda woulda coulda gone and done somewhere else.” He noted that Terrell testified that he did in fact ice and elevate his foot and that his chiropractor had treated the foot as well. Slover continued: “I’m sorry this wasn’t a simple break that didn’t heal perfectly to where he’d be everything he was before. If it was, we wouldn’t be here. It left him with a disfigurement… His toe doesn’t bend… It’s something on his mind for the rest of his life.”
CVN will have gavel-to-gavel coverage of the trial as soon as it is available. Steve Silver can be reached at [email protected].
Attorneys involved in the case include Sutton Slover of Atlanta for Evan Terrell and Hemanth Digumarthi of Atlanta's Sharon Ware and Associates for Alexandria Hamilton
Watch on-demand video of the trial as soon as it becomes available.