Raines v. Columbia Lakeland Medical CenterRaines v. Columbia Lakeland Medical Center
George E. Cain, Ann Marie LeBlanc, James Waldron, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Appellant, Louisiana Patient‘s Cоmpensation Fund.
(Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
ROLAND L. BELSOME, Judge.
The appellant, the Louisiana Patient‘s Compensation Fund (“PCF“), appeals the trial court judgment awarding appellees, Lawanda Thomas and John Raines, Jr., $500,000.001 in general damages. The appellees subsequently answered the appeal with respect to the trial court‘s denial of their motion to amend the pleading in
STATEMENT OF FACTS
On Saturdаy, February 15, 1997, Lawanda Thomas and John Raines, Jr. brought their approximately eight-month-old son, John Raines III, (“Baby Raines“), to the Lakeland Medical Center emergency room. His chief complaints were high fever for two days and chickenpox for three to four days.
Dr. Mary Zelenak, an emergency room physician, examined Baby Raines and noted that he had a moderate crop of lesions in all stages. He was discharged with the instructions to provide rest, increase fluids, administer Tylenol every four hours and administer Dimetapp if needed. Baby Raines’ parents were also told to return to the emergency room if necessary and to follow up with his pediatrician.
On Tuesday morning, February 18, 1997, Baby Raines’ mother returned him to the Lakeland Medical Center emergency room. At 8:45 a.m., the triage nurse who saw him noted that his chief complaint was edema at the pox site and that his temperature was 102.6. At 9:56 a.m., the emergency room physician, Dr. Gregory Collins, examined him and made a diagnosis of chickenpox and left otitis media (ear infection). Dr. Collins prescribed Cefzil, an oral antibiotic, for the ear infection, as well as, Tylenol every four hours and instructed Baby Raines’ mother to see his pediatrician in two days. Baby Raines was discharged shortly thereafter at approximately 10:30 a.m.
Later that same dаy, around 3:40 p.m., Baby Raines’ mother took him to the emergency room at the Medical Center of Louisiana at New Orleans/ University Hospital. Upon arrival, she reported that he had increased sleep, irritability, high fever, loose watery diarrhea, and vomiting. Emergency room physician, Dr. Gina Lagarde, felt that he had sepsis sеcondary to chicken pox and otitis media. Dr. Lagarde took him back to the crisis area of the emergency room where over the next approximately two hours, five physicians and several nurses tried to save Baby Raines’ life. At 6:05 p.m., Baby Raines was pronounced dead. His death certificate listed the cаuse of death as sepsis due to or caused as a consequence of varicella infection (chickenpox infection).
PROCEDURAL HISTORY
On April 29, 1997, appellees filed a medical malpractice complaint against Dr. Collins and Lakeland Medical Center pursuant to the Louisiana Medical Malpractice Act (“LMMA“),
Upon the сlose of the proceedings and when the jury had retired to deliberate, an oral motion to expand the pleadings to determine whether the pleadings could be enlarged to allow judicial interest to run from the date of filing with the PCF pursuant
The jury returned with a verdict in favor of appellees. Specifically, the jury found it was more probable than not that Baby Raines had a chance of survival at the time of Dr. Collins’ breach of the standard of care and Dr. Collins’ breach of the standard of care more probably than not deprived Baby Raines of all or part of his chance of survival. Based on this finding, the jury awarded the appellees’ $550,000 in general damages for the value of Baby Raines’ lost chance of survival. The trial court subsequently reduced thе award to the statutory limits set forth in the LMMA and rendered a “judgment on jury verdict” in favor of the appellees, against Dr. Collins, and his insurance company, in the amount of $100,000.00 together with interest from the date of judicial demand and against the PCF in the amount of $400,000.00 together with interest from the date of judicial demand.
Subsequent to the Court‘s signing of the judgment, thе PCF intervened pursuant to the LMMA, and filed a motion for suspensive appeal raising only the issue of whether the trial court abused its discretion in awarding general damages. Appellees answered the appeal asserting that the trial court erred as a matter of law by denying their motion to amend the pleading in order to allow judicial interest to run from the date of filing with the PCF, rather than the filing of the lawsuit as prayed for in appellees’ petition.
DISCUSSION
The first issue this Court will address is the PCF‘s contention that the trial court abused its discretion in awarding appellees, Lawanda Thomas and John Raines, Jr., $500,000.00 in general damages considering the fact that such an award is based solely on a lost chance of survival claim.
The standard of appellate review of a damage award is clear abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). The Supreme Court addressed the standards governing appellate review of general damage awards in Andrus v. State Farm Mutual Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206. Specifically, the Supreme Court stated:
In appellate review of general damagе awards, the court must accord much discretion to the trial court judge or jury. Reck v. Stevens, 373 So.2d 498 (La.1979). The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Id. Only if the reviewing cоurt determines that the trial court has abused its “much discretion” may it refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).
Because discretion vested in the trial court is “great,” and even vast, an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Id.
This Court similarly held that “[a] general damage award assigned by a jury, although high or low, that does not shock the conscience should not be touched by an appellate court in light of the vast discretion that a finder of fact is granted in matters оf general damages; the same applies to a general damage award of a trial judge.” Andrews v. Dufour, 2003-0736 (La. 4 Cir. 6/2/04), 882 So.2d 15. This Court has further stated that “[i]n determining damages for a lost chance of survival, the factfinder may consider an abundance of evidence and factors, including evidence of percentages of chance of survivаl along with evidence such as loss of support and loss of love and affection, and any other evidence bearing on the value of the lost chance.” Thoulion v. Jeanfreau, 2000-1045 (La.App. 4 Cir. 6/20/01), 794 So.2d 936, citing, Smith v. State Dept. of Health and Hosp., 95-0038 (La.6/25/96), 676 So.2d 543, 549. Moreover, “[d]amages awarded by a jury are to be reviewed in the light most favorable to the prevailing party.” O‘Riley v. City of Shreveport, 30,107 (La.App. 2 Cir. 01/23/98), 706 So.2d 213.
In this case, the fact finder considered all of the evidence, which illustrated the pain and suffering Baby Raines endured prior to his death, as well as the damages suffered by his mother and father. Applying standards recognized above in the present case, after reviewing the award of damages in light most favorable to the appellees, we find no abuse of discretion in the jury‘s $550,000.00 award of general damages, nor the reduced award of $500,000.00 by the trial court under the particular facts of this case. Accordingly, the trial court did not abuse its discretion in ultimately awarding $500,000.00 in damages to the appellees. Because we find there is no abuse of discretion, it is not this Court‘s place to look to prior аwards in similar cases.
The second issue this Court will address is the appellees’ contention that the trial court committed an error of law by denying plaintiffs’ motion to amend their petition in order to allow judicial interest to run from the date of filing with the PCF, rather than the filing of the lawsuit as prayed for in appellees’ petition.
To begin,
In order to obtain interest on an award, a litigant must pray for interest unless interest is allowed by law. Louisiana Code of Civil Procedure article 1921 provides: “Interest in the judgment shall be awarded as prayed for or as allowed by law.” The “as allowed by law” language has been frequently interpreted to refer to judicial interest in tort cases. See
LSA-R.S. 13:4203 .
In the footnotes accompаnying the above, the Supreme Court further articulated:
“Official Revision Comments-1960” following Article 1921 provides, in part:
The phrase “as provided by law” will cover the exception in the case of tort
claims, since in these cases interest attaches automatically, without being prayed for.
Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, “ex delicto“, which may be rendered by any of the courts.
It is well settled that interest provided by
LSA-R.S. 13:4203 is due whether prayed for or provided in the judgment. Caldwell v. City of Shreveport, 150 La. 465, 90 So. 763 (1922); see also LeBlanc v. New Amsterdam Casualty Company, 202 La. 857, 13 So.2d 245 (1943), citing Layne v. Louisiana Power & Light Co., 164 So. 672 (La.App. 2 Cir.1935).
In addition,
The Supreme Court has also recognized this issue in a footnote in Alexander v. Burroughs Corp., 359 So.2d 607, 614 n. 6 (La.1978), in which they stated:
It might be argued that, since plaintiffs only prayed for interest from date of judicial demand, they should be so limited. See B. Segall Company, Inc. v. Trahan, 276 So.2d 340 ([La.App.] 2d Cir. 1973), rev‘d on other grounds, 290 So.2d 854 (1974). The appropriate response is the same as found in dеfendant‘s argument in brief on the issue of whether a credit for the buyer‘s use should be allowed absent a prayer for it. C.C.P. 862 provides that a final judgment shall grant the relief a party is entitled to, even if he has not demanded such relief in his pleadings.
Given the above law and jurisprudence, this Court finds that the appellees are entitled to interest from the date of filing of the complaint seeking a Medical Review Panel as stated in
CONCLUSION
For the foregoing reasons, we affirm the trial court‘s judgment regarding damages, reverse the trial court‘s judgment regarding interest, and render on the issue of interest.
AFFIRMED IN PART; REVERSED IN PART; RENDERED IN PART.
MURRAY, J., Concurs with Reasons.
MURRAY, J., Concurring with Reasons.
The sole issue presented on this appeal is whether the record supports the jury‘s lump sum award to the Raines of $550,000 in general damages. Finding no abuse of discretiоn, the majority affirms that award. Although I agree with the result, I write separately to explain my reasons.
A trial court‘s award of general damages is reviewed on appeal under an abuse of discretion standard. See
First, a general damage award is proper in the survival action for the infant‘s suffering during the interval, albeit only a few hours, between when he was seen by Dr. Collins and when he died later that day. Although the infant would have endured much of the suffering during this interval regardless of Dr. Collins’ malpractice, some of the suffering can be attributed to Dr. Collins’ malpractice. For that suffering, a lump sum award of $100,000 would be just and fair.
Second, the remaining sum of $450,000 can be attributable to the infant‘s lost chance of survival. The Louisiana Supreme Court in Smith v. State, Dep‘t of Health and Hospitals, 95-0038 (La.6/25/96), 676 So.2d 543, outlined the requirements for valuing a lost chance of survival. Rejecting a rigid mathematical calculation for such loss, the Court opted to permit the fact finder to value the particular item of damages—the lost chance— as “a distinct compensable injury ... bаsed on all the evidence in the record.” Smith, 95-0038 at p. 6, 676 So.2d at 547. The Court in Smith further instructed that “[t]he jury‘s verdict of a lump sum amount of damages can be tested on appeal for support in the record by reviewing the percentage chances and the losses incurred by the tort victim and his or her heirs, and any other relevant evidence, thus providing assurаnce against speculative verdicts.” Smith, 95-0038 at p. 11, 676 So.2d at 549.
In this case, the record reflects that none of the experts attempted to quantify
For these reasons, I respectfully concur.