Maintaining a Pain and Suffering Journal – July 2017

Keeping Track of Your Pain and Suffering

How Much Are Your Injuries Worth?  Suppose you have been physically injured by another person.  And suppose you can assert a claim for money damages from that person to compensate you for that suffering.  How much are your injuries worth?  It depends on the nature and extent of your injuries, and how much they affect your daily life.

If you or a member of your family has been hurt in an accident due to the negligence of another person or firm, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help.  
Call us now at (914) 771 7711 and let us apply our expertise to your case.

Recently, one of our clients decided to keep a written log, or journal, of her pain and suffering, and how much it affected her daily life.

This client had a lower calf / left ankle injury.

Her story:  she was working at a restaurant on North Avenue in New Rochelle, New York.  On her break, she walked down North Avenue around midday.  Wanting to check her phone, she stopped walking and stepped inside a storefront vestibule.  The store had gone out of business and all front windows were covered in an opaque brown paper.  As she checked her phone, someone suddenly and unexpectedly stepped out from within the closed storefront, swung open the door, and jammed the bottom edge of the door into our client’s left lower calf, causing a deep laceration to her leg.

Her task:  our client very wisely kept a log, or a journal, of her pain and suffering.  This log helped her understand the full extent of the ways in which her injury changed her life.  It would also help her testify, at her deposition or trial, about the many ways in which the accident changed her life.

Here is a sample taken directly from her pain & suffering journal.  We hope you find it helpful.

Excerpt From a Client’s Pain + Suffering Log / Journal

5/7/15

Numbness:

Foot

Achilles tendon

Pain:
Left lower back
Left buttock
Left hip
Left heel

Weakness:
Left Foot
Left Leg
Left Hip
Left lower Back

Treatment:
2 Naprosyn (little effect)
Soaked foot in hot water w salt
Heated pack or pad for left lower back
Tens unit applied to left lower back, left buttock, left back of leg all the way down to left Achilles tendon and heel.

5/9/15

Numbness and pain:
Left foot, left leg, left lower back, left hip

Treatment:

Tried stretching
Naprosyn (a non-steroidal, anti-inflammatory drug)

6/14/15

Numbness & achy pain of left lower back
left hip
left leg
left foot

going to physical therapy
sonogram of left foot and right foot and Achilles tendon of both done

6/15/15

Feeling better after physical therapy
Went to the park and library so my foot was tired and was stiff when I got home.

6/16/15

Physical therapy

Mild numbness and pain of left foot left leg left lower back left hip

Medication: Naprosyn (NSAID)

6/17/15

Numbness and pain:

Left lower back and left glute

Left hip left waistline (seems to be spreading)

Left foot left leg

Treatment:

Applied Bengay on all these areas (i.e., an analgesic heat rub)

Stretched morning afternoon an evening and still feel symptoms

Decided to skip a day of Naprosyn as my stomach has been delicate

Planned to work out before bed but I can’t due to the pain

6/18/15

Mild numbness & pain:

Left foot

Left leg

Left glute

Left lower back

Left hip

Treatment:

Stretched

Took Naprosyn

Dug my left foot in sand (which made the symptoms decrease)

6/19/15

Numbness, pain, and soreness in: left foot left leg left hip left lower back

I stretched and took Naprosyn

6/20/15

Numbness and pain

6/25/15

Mild numbness and pain in left lower back, left hip, left foot, and left calf

I took Naprosyn and analgesic heat ointment at Bedtime

6/26/15

Numbness and pain:

Left lower back

Left hip

Left leg

Left glute

Left ankle

Left foot

Treatment:

Bengay in the morning & Naprosyn after breakfast

7/15/15

Numbness and pain in left foot, left leg, left hip, and left lower back

Took 2 Naprosyn

Feel tired, out of breath, irritated, and depressed

7/16/15

Numbness & pain from 1-10:  (10)

Was ready to go do laundry but I couldn’t bear being on my feet so I took two Naprosyn and laid down

Couldn’t do my laundry because of the pain

7/18/15

Numbness and aching pain in:

Left lower back

Left hip

Left buttock

Left leg

Left foot

Left thigh

Treatment:

I took Naprosyn

7/23/15

Today, I took 2 Naprosyn after breakfast as I wanted to take daughter out to the library and to the park.

The pills helped relieve left lower neck and left buttock pain a little but all the other symptoms stayed so I had to stay home and lay down.

While cooking lunch, I was still in pain and feeling depressed, irritated, and alone because my mood changed and I feel tired. It’s as if the pain is draining all the energy out of me.  I just want to lay down.

My daughter is my motivation to keep going and I gave her blocks and toys to occupy her while cooking.

I’m not sure how I am able to make it through the day as this pain is still in my body and I have been laying down since 9 pm.

I applied Bengay on all the areas where I feel pain (my left foot, my left leg, my left lower back, and my left thigh).

I haven’t been able to exercise at home for months. Every night I’m in pain before going to sleep due to standing in the kitchen while making dinner and any standing or walking throughout the day

Numbness and pain in:

left lower back

Left buttock

Left hip

Left thigh

Left calf

Left ankle

Left foot

 

7/24/15

Numbness and pain:

Left foot

Left leg

Left lower back

Left buttock

Scale of pain 1-10:  6 (better than yesterday)

The pain increases while I’m standing in the kitchen to make dinner

I feel sad to face another day of pain & discomfort. I just wish one day this can all go away

I feel a lot of anxiety, like butterflies in my stomach and pressure on my chest. I can feel my heart beating fast.

7/27/15

The pain isn’t achy to the point where I must be in bed laying down so it goes away.  It is more like a soreness type so I decided I can still take my daughter to the library and park.  She asked me to go out; she enjoys being outside.

After coming back from the library and park, my foot is stiff, I’m tired overall, and ready to lay down. I took a break and started cooking dinner.  My daughter bathed quickly and we ate dinner together.  I cleaned the floor and at this point, I’m exhausted as I’m now feeling aching pain on the left side of my body and foot.  I’m using my right side to balance my body and carry my left side because I feel a lot of numbness at this point.  My main goal is to lay down with my daughter and apply Bengay on my left lower back, left hip, left foot, left thigh, and left buttock.

Scale of pain:1-10:  (8)

It’s very hard to fall asleep while I’m in such pain so I stretch for a while to help my circulation and relieve the areas in pain.

Numbness and pain:

Left leg

Left foot

Left lower back

Left hip

Left buttock

Scale of pain 1-10:  (6)

Treatment:

I took 2 Naprosyn and they surprisingly didn’t take away all the pain

7/28/15

Today I woke up feeling better. I do feel soreness on my left side of my body but no pain this morning as I slept a lot of hours last night so my body could feel well rested.

I will be going to physical therapy as I still feel knots on my left buttock and soreness around my lower back and left lower hip

After eating lunch, my foot is very numb from standing to cook in the kitchen.  I can feel the numbness slowly spreading up towards my left hip and left buttock.

I treat the numbness with hot water. I fill a bucket of water and then take out my TENS unit so I can apply it to my foot after I soaked it in the hot water.

When I soak my left foot and part of calf in the hot water I feel immediate relief.  I start breathing slower, my heart stops racing, I feel less anxiety, there’s pressure off my chest, and I feel calmer and less stressed overall.

After soaking my foot and calf for 10 minutes, I apply the TENS unit on the area that’s discolored (where I was cut by the door).  I also apply the TENS unit on the bottom area of foot as it’s completely numb and very uncomfortable to walk on.

I will be going to physical therapy for my left lower back, left buttock, and left hip area.

Physical therapy reduced the pain on the left side but I felt weakness in the area.

7/29/15

I woke up with weakness in same area.  After standing in the kitchen to cook breakfast, the symptoms increased.

Numbness & pain:

Left foot

Left leg

Left lower back

Left glute

Left hip

Treatment:

I will take Naprosyn and stretch

Depending on the effect of Naprosyn, I will try soaking my foot

I played with my daughter for 30 minutes after breakfast.  We sang Wheels on the Bus and Old McDonald Had a Farm, acting out the song with toys and animals.  It tired me out so I’m lying on my right side now.  I put on nursery songs and she is still playing with her farm toys and tractor.

I am upset because I want to play with her more and be more involved but I’m in pain and the more I stand or sit, the more the symptoms increase.
I’d rather conserve my energy for lunch time and I must cook very soon because she naps at 2:00 p.m.  It’s only 11 a.m.

7/30/15

I am feeling better

I only felt numbness and stiffness throughout day, rarely any pain.

I felt pain while lying face down for bedtime

Treatment: I applied Bengay to my left lower back, left glute, left hip, left leg, and left foot.

7/31/15

I am feeling better today. There is some stiffness in my left foot, left leg, left glute, and left lower back.

Before bed, I applied Bengay around my left lower back because I felt some pain.

8/1/15

I woke up feeling tired

Numbness & pain in: left foot, left leg, and left lower back

Scale of pain 1-10:  (5)

I took 2 Naprosyn after breakfast because I planned to do laundry and go food shopping and need to be able to push laundry a couple blocks.

I am still in pain after the pills, but I must do laundry as my daughter and I have run out of clean clothes.

After I got back from doing laundry, my daughter was asleep in her stroller so I took a break because I was exhausted.

My left lower neck is hurting and I feel like my left glute is ripping from the inside and nerves are tingling.

I have to go to the grocery store because there is very little food in the fridge and the food market across the street is very expensive.  I’m very tired so I’ll wait a couple hours to rest before getting back on my feet.

After getting back from the grocery store, I am in a lot of pain. There is stiffness and numbness in my left foot, left leg, left lower back, and left glute from all of the pushing, lifting, carrying, sitting, standing, and walking I had to do.  These are all essential to our wellbeing and unfortunately, I must do all these tasks in pain which makes me overly exhausted, anxious and depressed by the end of the day.  I feel like I’ve run a marathon.

8/2/15

I woke up very tired.

Numbness & pain in: left foot, left leg, left hip, left glute, and left lower back

Scale of pain 1-10:  (8)

Left rib is sore.  Pain scale:  (5)

The numbness and pain is spreading

Treatment:

I took Naprosyn after breakfast

Stretched my left leg

Applied Bengay on areas

Applied heat on left lower back, left glute, left hip, and left rib.

Applied tens unit to these areas as well

I have a few loads of clothes to fold but I am in too much pain to sit or stand to fold and put them away.

8/7/15

Numbness with very little pain

There is a soreness & weakness in my left lower back, left hip, left glute, and left foot.

I stretched before exercising. I then ran around the track 3 times with breaks in between because my leg felt numb, stiff, and tired

After my workout, I stretched

At bedtime, I was in a lot of pain from the workout

I can’t sleep on my left side because it hurts too much

I currently feel numbness and pain in my left foot, left leg, left hip, left lower back, and left rib area.

The numbness has spread to my rib and upper back

I must set a doctor’s appt again with a new physician because this problem is getting worse.

I’m frustrated because I can’t enjoy my life.  I try to achieve personal goals like a certain weight, but I can’t because I can’t work out regularly without being in a lot of pain.  I am also unable to care for my daughter the way I want which is very sad and depressing as I feel limited.

8/13/15

Severe numbness and pain in my left foot, left lower back, left leg, left hip, and left glute.

Woke up feeling tired and in pain.  I have a headache and feel stressed.

I made breakfast and played with my daughter for 15 minutes and I swept the floor. I couldn’t mop because I was in a lot of pain and couldn’t stand on my feet any longer.

I must go to the supermarket 3 miles away to buy groceries, but I can’t as of now because I’m in a lot of pain. If I walk in this condition the pain is only going to get worse.

My daughter is asking me to play.  Although I’m still in pain, I am going to play but I am not enjoying it which depresses me.

Treatment:

Naprosyn

Stretches

Ice pack

Laying down on my right side with pillows on my left side.

This ends the excerpt from a recent client’s Pain and Suffering Journal.

If you or a member of your family has been hurt in an accident due to the negligence of another person or firm, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help.  
Call us now at (914) 771 7711 and let us apply our expertise to your case.

Motion for Ruling that Our Driver Not Responsible for Car Accident – April 2017

Recently, we represented a driver who was injured when a new driver traveling in the opposite direction failed to yield, and instead made a left turn directly in front of our client’s vehicle, causing the two-car collision.

However, if someone traveling in the opposite direction makes a left turn directly in front of your vehicle, that other driver is responsible for the accident.  Your vehicle has the right of way.  That other driver should not have driven across your lane of traffic until after your vehicle has passed.

Here is an example of the motion we filed for a ruling, prior to the start of trial, that the driver of the other vehicle was solely responsible for the accident, and that our driver was entirely free of fault.

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
——————————————————————-x
EMILIO FERNANDEZ,
Plaintiff,                                                                                   NOTICE OF MOTION
                                                                                                FOR SUMMARY JUDGMENT
–against–

MARTA TAVAREZ,                                                                  Index No.: 043850/2017
Defendant.
——————————————————————-x

C O U N S E L O R S:

PLEASE TAKE NOTICE, that upon the annexed affidavit of EMILIO FERNANDEZ, sworn to on the 5th day of October, 2017, the affirmation of KATHERINE ORTIZ dated October 5, 2017, the exhibits attached thereto, and upon all the pleadings and proceedings heretofore had herein, the undersigned will move before this Court at a Central Compliance Part at the Courthouse located at 111 Dr. Martin Luther King Jr. Blvd., White Plains, New York 10601 on the 30th day of October, 2017 at 9:30 a.m. in the forenoon of that day or as soon thereafter as counsel can be heard:

For an order pursuant to CPLR Rule 3212 granting partial summary judgment in favor of Plaintiff and against Defendant, as to liability, for an award of costs, disbursements and reasonable attorney’s fees to abide this motion, and for such other and further relief as to this Court may seem just and proper.

The above-entitled action is for personal injuries.  This action is on the trial calendar.

PLEASE TAKE FURTHER NOTICE that, pursuant to Section 2214(b) of the Civil Practice Law and Rules, all answering papers, if any, shall be served at least seven (7) days before the return date of this motion.

Dated:  White Plains, New York
October 5, 2017

Yours, etc.,

MARTIN + COLIN, P.C.
Attorneys for Plaintiff, Emilio Fernandez

_________________________
By: KATHERINE ORTIZ
Office + Post Office Address:
44 Church Street
White Plains, NY 10601
(914) 771-7711       phone
(914) 206-3619       fax
[email protected]

 

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
——————————————————————-x
EMILIO FERNANDEZ,
Plaintiff,                                                                                  AFFIRMATION IN SUPPORT

–against–

MARTA TAVAREZ,                                                                  Index No.: 043850/2017
Defendant.
——————————————————————-x

KATHERINE ORTIZ, an attorney admitted to practice in the State of New York, affirms the following under the penalties of perjury:

  1. The law firm of MARTIN + COLIN, P.C. is the attorney of record for the plaintiff.  As the deponent, I am thoroughly familiar with the facts and circumstances herein based upon my review of the contents of the plaintiff’s file maintained by this office.
  2. I make this affirmation in support of plaintiff’s motion for partial summary judgment as to liability. The following exhibits are attached:
  • Exhibit “A”- Summons, Complaint, Answer, Bill of Particulars;
  • Exhibit “B”- Accident Report;
  • Exhibit “C”- Defendant MARTA TAVAREZ deposition transcript;
  • Exhibit “D”- Yuknek v Scavo, Supreme Court of the State of New York, County of Nassau (September 2003).

For all the reasons that follow, Plaintiff asks that this motion be granted in all respects.

  1. The parties were involved in a two-car accident which caused Mr. Fernandez to suffer serious personal injuries.  Plaintiff in this case, i.e., Mr. Fernandez, seeks reasonable and fair compensation for his serious personal injuries sustained as a result of the defendant’s negligent ownership and operation of a motor vehicle. In summary, defendant made a left turn into plaintiff’s vehicle while attempting to enter the Saw Mill River Parkway from Yonkers Avenue.  See Accident Report attached hereto as Exhibit “B”.  As a result of the accident, Plaintiff sustained serious injuries to his left shoulder, requiring surgery, as well as neck, back, head and knee pain.
  2. The other driver in this two-car accident, MARTA TAVAREZ, testified that on October 12, 2014 she was driving her mother and aunt to their place of work (Ex. “C” p.9), and that she had only started driving approximately one month before the accident. (Ex. “C” p. 11).  Defendant testified that she was traveling on Yonkers Avenue in the direction toward the Saw Mill River Parkway and was in the turn only lane with one vehicle ahead of her.  (Ex. “C” p. 15).  The driver of the offending vehicle testified that as she approached the intersection the light in her direction was green, that she saw the car in front of her turn, and that she followed the car ahead of her and turned right after them.  (Ex. “C” p. 16).  She offending driver testified that she did not see any vehicles in the opposite direction on the other side of the intersection.  (Ex. “C” p. 16).  The driver of the other vehicle testified that it was not dark outside, and that the sun was starting to come out.  (Ex. “C” p. 16).  She testified that at the intersection where the accident occurred the roadway was flat.  (Ex. “C” p. 18).  Defendant testified that as she approached the intersection she did not stop at all before she made the left turn towards the Saw Mill Parkway.  (Ex. “C” p. 19).  The other driver testified that when she observed the damage to the vehicles at the scene of the accident she observed the front of her vehicle was “crashed” and the driver’s side of the plaintiff’s vehicle was damaged.  (Ex. “C” p. 23).  She testified that she called 911 and told them that “I was making a left turn to go into the Saw Mill and that I collided with the other vehicle.”  (Ex. “C” p. 24).
  3. Proof that defendant’s vehicle came over to the wrong side of the road and caused damage makes out a prima facie case and puts upon the party responsible for the actions of that vehicle the burden of coming forward with an explanation. Lyons v. DeVore, 48 A.D.2d 943, 368 N.Y.S.2d 887 (3d Dept., 1975), affd 39 N.Y.2d 971, 387 N.Y.S.2d 108 (1976); Pfaffenbach v White Plains Exp. Corp., 17 N.Y.2d 132, 269 N.Y.S.2d 115 (1966); Fox v Lyte, 143 A.D.2d 390, 520 N.Y.S.2d 432 (2d Dept. 1988); Fagle v. Bell, 65 A.D.2d 887, 410 N.Y.S.2d 422 (3d Dept. 1978); Novis v Sheinkin, 60 A.D.2d 623, 400 N.Y.S.2d 161 (2d Dept. 1977); Bergeron v Hyer, 55 A.D.2d 417, 353 N.Y.S.2d 767 (4th 1977); Simmons v. Stiles, 43 A.D.2d 417, 353 N.Y.S.257 (3d Dept. 1974); Manzi v Grand Ave Cab Co., 42 A.D.2d 607, 345 N.Y.S.2d 120 (2d Dept. 1973); Lewis v. Rivers, 41 A.D.2d 667, 340 N.Y.S.2d 671 (2d Dept. 1973); Stafford v. Mussers Potato Chips, 39 A.D.2d 831, 333 N.Y.S.2d 139 (4th Dept. 1972).
  4. Plaintiff is not required to anticipate that a vehicle, or that a portion of a vehicle, traveling on the opposite side of the road will cross over into oncoming traffic.

“A driver is not obligated to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic.  Such an event constitutes a classic emergency situation, thus implicating the “emergency doctrine” (see Lyons v. Rumpler, 254 A.D.2d 261, 262, 678 N.Y.S.2d 142; Williams v. Econ, 221 A.D.2d 429, 430, 633 N.Y.S.2d 392; Greifer v. Schneider, 215 A.D.2d 354, 356, 626 N.Y.S.2d 218; Gaeta v. Morgan, 178 A.D.2d 732, 734, 576 N.Y.S.2d 962; Moller v Lieber, 156 A.D.2d 434, 435, 548 N.Y.S.2d 552). “

Gajjar v. Shah, 31 A.D.3d 377, 817, N.Y.S.2d 653 (Second Dept. 2006).

  1. The other driver violated Vehicle and Traffic Law §§ 1141 and 1163(a) when she made a left turn directly into the path of Plaintiff’s vehicle. The defendant was negligent in failing to see that which, under the circumstances, she should have seen and in crossing into the plaintiff’s lane of traffic when it was hazardous to do so.  Yuknek v. Scavo, Supreme Court Nassau County (2003), attached hereto as Exhibit “D”, citing Russo v. Scibetti, 298 A.D.2d 514 (2d Dept 2002); Agin v Rehfeldt, 284 A.D.2d 352 (2d Dept. 2001); Stiles v. County of Dutchess, 278 A.D.2d 304 (2d Dept. 2000).  Plaintiff, who had the right of way, was entitled to anticipate that the defendant would obey the traffic laws which required her to yield and to turn only when able to do so with reasonable safety, see Yuknek v. Scavo, supra citing Cenovski v. Lee, 266 A.D.2d 424 (2d Dept. 1999).
  2. The other driver had a duty to see what was to be seen, namely, the plaintiff’s vehicle. Yuknek v Scavo, supra, citing Stiles v. County of Dutchess, supra, Zambrano v. Seok, 277 A.D.2d 312 (2d Dept. 2000).  See also Hudson v. Goodwin, 272 A.D.2d 296 (2d Dept. 2000) and a driver is negligent where an accident occurs because he or she has failed to see that which through proper use of his or her senses he or she should have seen.  Breslin v. Rudden, 291 A.D.2d 471 (2d Dept. 2002).  In this case, defendant failed to see plaintiff’s approaching vehicle and failed to yield the right of way.  Yuknek v. Scavo citing Szcotka v. Adler, 291 A.D.2d 444 (2d Dept. 2002).
  3. Based on the above, partial summary judgment as to liability should be granted against defendant and in favor of plaintiff. Defendant’s first affirmative defendant, sounding in comparative fault and culpable conduct of the plaintiff must also be dismissed for the same reasons.
  4. There has been no prior application made for the relief herein sought.

WHEREFORE, it is respectfully requested that this motion be granted in its entirety, and that such other and further relief be granted as to this Court seems just and proper, including the costs of this motion.

Dated: White Plains, New York
October 5, 2017

_______________________________________
KATHERINE ORTIZ

That’s it!  It was a car accident caused by the other driver making a left hand turn across traffic immediately in front of our driver.   As a result of the dangerous turn, a collision occurred and our driver suffered personal injuries.  What happened after the motion was filed?  The insurance company for the other driver settled the case!

The experienced accident lawyers at Martin + Colin, P.C. applied their combined expertise handling similar car crash cases and, at our client’s request, successfully convinced the other driver’s insurance company that a settlement was better than a ruling that the other driver was liable as a matter of law.

Our experienced personal injury and auto accident lawyers can be contacted by phone at (914) 771 7711 or online at martincolin.com  If you have been hurt in an accident due to the negligence of another person or firm, Martin + Colin, P.C. may be able to help.  Please call (914) 771 7711 or email using the ‘Contact Us’ form on this webpage.

in limine motionCall us now at (914) 771 7711 and let us apply our expertise to your case.