Ellerbe v. Aria Health System

Defense Verdict

Date of Verdict: March 11.

Court and Case No.: C.P. Philadelphia No. 180501208.

Judge: Susan I. Schulman.

Type of Action: Personal injury, workplace negligence.

Injuries: Back, neck, head injuries.

Plaintiffs Counsel: Steven E. Wolfe, Law Offices of Steven E. Wolfe.

Plaintiffs Expert: Nirav K. Shah, neurosurgery; Princeton, New Jersey.

Defense Counsel: Joseph W. Petka, Goldberg Miller & Rubin, Philadelphia.

Comment:

On June 8, 2016, plaintiff Dorothy Ellerbe, 48, visited her mother in the emergency room at Aria Bucks Hospital, in Langhorne. She claimed that a portable X-ray machine struck her in the back of the neck, causing an injury.

Ellerbe sued the hospital and its owner, Aria Health System. Ellerbe faulted the hospital for the negligent conduct of its employee.

According to Ellerbe, she was sitting behind a curtain in the emergency room with her mother when an X-ray technician struck her in the back of her neck with a portable X-ray machine. Ellerbe claimed that the X-ray technician, after striking her, pulled back the curtain and said, "I'm sorry, my fault." Ellerbe's mother testified that the machine struck Ellerbe in the back of the neck. Ellerbe's counsel faulted the hospital employee for failing to exercise proper care and safety.

The X-ray technician who was operating the machine denied striking Ellerbe. The defense questioned the legitimacy of Ellerbe's allegations. Ellerbe initially claimed that she was struck once by the machine, but at her deposition, she claimed, for the first time, that she was struck twice by the machine.

Ellerbe's mother, who was a patient in the bed next to Ellerbe at the time of the incident, was the only witness to corroborate Ellerbe's version of the accident. Although Ellerbe's mother testified that she saw the machine strike her daughter, she stated, in another testimony, that she was asleep at the time of the incident.

Ellerbe's counsel argued that Ellerbe never specified the number of times that she was struck by the machine. Additionally, her mother did not testify that she had been asleep; Ellerbe testified that her mother had been asleep at the time of the incident, Ellerbe's counsel asserted.

Following the alleged June 8, 2016, incident, Ellerbe sought medical attention at the emergency room. She was examined and given pain medication.

Ellerbe was ultimately diagnosed with an aggravation of a pre-existing injury of her cervical spine, post-concussion syndrome and a lumbar strain and sprain. Within days of the alleged incident, she presented to a medical provider and was put on a course of physical therapy. For several months, she treated with exercise and massage. She further treated with a pain management doctor, who administered a series of epidural injections.

Despite extensive conservative treatment, Ellerbe's condition did not improve. Surgery was recommended. In March 2019, she underwent an anterior cervical discectomy and fusion at cervical intervertebral discs C4-5, C5-6 and C6-7. Following the surgery, she treated with additional physical therapy.

Ellerbe's neurosurgeon causally related the plaintiff's injuries and treatment to the accident. He opined that Ellerbe requires future treatment, including imaging studies, pain management, physical therapy and adjacent segment surgery at C3-4 and/or C7-T1.

Ellerbe testified that she is limited in her physical activity and is no longer able to go on cruises. She has difficulty performing household duties and is unable to exercise. Ellerbe sought to recover $60,180.73 in past medical costs and $100,000 in future medical costs, plus damages for past and future pain and suffering. Ellerbe's husband sought damages for his claim for loss of consortium.

The defense attributed Ellerbe's complaints and treatment to her pre-existing neck condition. According to the defense, in 2011, Ellerbe was told that she needed a similar surgery on her cervical spine, but she never underwent the surgery.

The jury rendered a defense verdict.

This report is based on information that was provided by plaintiffs and defense counsel.

—This report first appeared in VerdictSearch, an ALM publication