Moody v. United Nat. Ins. Co.

• Decision Date: 29 September 1998
• Docket Number: No. 98-CA-287.,98-CA-287.
• Citation: 743 So.2d 680
• Parties: Jeanette and Max MOODY, individually and on Behalf of Jeffery Moody, et al. v. UNITED NATIONAL INSURANCE COMPANY, Dr. Lucius Clay Andrews, et al.
• Court: Court of Appeal of Louisiana — District of US

743 So.2d 680

Jeanette and Max MOODY, individually and on Behalf of Jeffery Moody, et al. v. UNITED NATIONAL INSURANCE COMPANY, Dr. Lucius Clay Andrews, et al.

No. 98-CA-287.

Court of Appeal of Louisiana, Fifth Circuit.

September 29, 1998.

Writ Denied December 18, 1998.

Corinne Ann Morrison, Appeal Counsel, John F. Olinde, Douglas L. Grundmeyer, Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., New Orleans, for defendants-appellants.

George P. Hebbler, Jr., Turner, Young, Hebbler & Babin, New Orleans, and Kurt P. Forshag, Metairie, for plaintiffs-appellees.

Before THOMAS F. DALEY, J., and SOL GOTHARD, J., and NESTOR L. CARRAULT, Jr., J. Pro Tem.

NESTOR L. CURRALT, Jr., Judge Pro Tem.

The Louisiana Patient's Compensation Fund and The Louisiana Patient's Compensation Fund Oversight Board, appearing herein through and nominal defendant, Dr. Lucius Clay Andrews (hereinafter "PCF"), appeal a summary judgment in favor of plaintiffs Jeanette and Max Moody, individually and on behalf of Jeffery, Alison, Joshua and Lianne Moody (hereinafter the "Moodys"), finding PCF liable for damages.

The protracted procedural history of this tragic case began on October 14, 1989, when then 14-year-old Jeffery Moody was viciously assaulted by gang members outside the General Cinema Theater behind the Esplanade Mall in Kenner, Louisiana. Theater personnel called an ambulance as well as Mrs. Moody to the scene; Jeffery was taken to the emergency room at St. Jude Hospital by his mother and arrived at approximately 11:00 p.m., one hour after the attack. There he was treated by Dr. Andrews. According to the admission records at St. Jude, Jeffery was initially conscious and able to communicate, and remained so for a period of time. Skull x-rays appeared normal. However, at about 12:30 a.m. he suddenly developed a dilation of his left pupil, rapidly became unconscious and then began posturing. A CT scan was ordered, and Dr. Carlos Pisarello, a neurosurgeon, was called. The scan showed a huge acute extradural hematoma on the left temporal fossa; surgery was immediately ordered, during which surgery Dr. Pisarello removed the hematoma.

The Moodys filed the present matter against Dr. Andrews, Dr. Pisarello, Lifemark Hospitals d/b/a St. Jude Hospital, and their insurers.¹ It was alleged among other things that Dr. Andrews failed to timely diagnose and treat Jeffery; that he failed to timely recognize the presence of intracranial pressure, and failed to timely order appropriate diagnostic studies; that he did not timely request neurological consultation, and failed to intubate and hyperventilate Jeffery. A separate suit against the attackers (who were minors), their families, the theater, and other defendants with ownership interests in the shopping center, was also filed in the district court.

The present matter has proceeded through the district and appellate courts on numerous issues. Among them, a panel of this court held in Moody v. United Nat. Ins. Co., 95-1 (La.App. 5 Cir. 5/10/95), 657 So.2d 236, that the damage limitations of the medical malpractice act were constitutional; that the claims of Mr. and Mrs. Moody were derived from the malpractice injury to their son; that the statutory liability limitation applied to Dr. Andrew's insurer; that the declaratory judgment was appealable; and that Dr. Andrews and his insurer were improperly dismissed from suit after tendering the $100,000.00 individual liability limit, which sum had not been withdrawn from registry of court.

Ultimately, plaintiff did accept the tender made by Dr. Andrews and his insurer for the statutory limits of $100,000.00, plus accrued interest, and this settlement was approved by the court. Plaintiffs then proceeded against the PCF to recover damages in excess of that statutory limit. The PCF sought to file third party demands against the battery defendants, and to consolidate the battery action with the malpractice suit for trial. In separate writ applications, we denied writs on the refusal of the trial court to consolidate the malpractice action with the battery action, or to third party the battery defendants (95-C-283). In 96-C-422² we granted writs and ordered the trial court to grant plaintiffs' motion in limine.

Dr. Pisarello and St. Jude filed motions for summary judgment, arguing that because Dr. Andrews had statutorily admitted liability, they should be dismissed. The trial court granted these motions and dismissed those defendants. Subsequently, plaintiffs filed another motion in limine, (along much the same lines as the first), and a motion for summary judgment against the PCF. The summary judgment sought the statutory limit of $500,000.00 in general damages, plus costs of all of Jeffery's medical care and related benefits from the date of malpractice through the date of the trial, future medical care and related benefits from the date of trial onward, plus costs. The parties submitted memoranda and supporting documents, and the matter was orally argued. On August 20, 1998, the district court granted the summary judgment in favor of plaintiffs, holding Dr. Andrews liable for Jeffery's permanent brain damage and resulting quadriparetic condition. The PCF was found liable for the statutory limits of $500,000.00, plus legal interest, subject to a credit for the $100,000.00 previously paid by Dr. Andrew's. The court further held the PCF liable for the costs of all medical care and related benefits from the date of the injury to the date of judgment, in the amount of $1,928,710.70, over and above the statutory cap; and finding that Jeffery is in need of future medical care, found the PCF liable for the cost of all such future medical care and related benefits, with interest, to be paid in accordance with the Louisiana Medical Malpractice Act. The motion for costs was denied, and the motion in limine was held to be moot.

The PCF has appealed this judgment, and plaintiffs have answered the appeal.

ASSIGNMENTS OF ERROR

Defendants urge that the plaintiffs must prove causation, "loss of chance," and the amount of the damages recoverable from the PCF at trial on the merits—that is, that these issues constitute issues of material fact sufficient to preclude summary judgment.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180; McVay v. Delchamps, Inc., 97-860 (La.App. 5 Cir. 1/14/98), 707 So.2d 90. The Fourth Circuit recently summarized the revised law on summary judgment in Davis v. Board of Sup'rs of Louisiana State University, 97-0382 (La.App. 4 Cir. 3/18/98), 709 So.2d 1030:

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The burden of proof remains with the movant.

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97); 702 So.2d 323, 326.

The amended article 966 substantially changes the law of summary judgment... The jurisprudential presumption against granting the summary judgment was legislatively overruled by La. C.C.P. art. 966 as amended. The supporting documentation submitted by the parties is to be scrutinized equally and the overriding presumption in favor of trial has been deleted. Once the motion for summary judgment has been properly supported by mover, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

A genuine issue of fact is an issue on which reasonable minds could disagree. If reasonable persons could reach only one conclusion based on the state of the evidence, a genuine issue does not remain. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751; McVay, supra.

A fact is "material" when its existence, or nonexistence, may be essential to plaintiffs cause of action under the applicable theory of recovery. Smith, supra; McVay, supra.

ANALYSIS

We have carefully reviewed the record in the above case, and conclude that summary judgment is not appropriate in the present case for the following reasons.

This court has recently considered the very issues raised by PCF in the present case. In Bramlet v. Louisiana Patients' Compensation Fund, 97-1047 (La.App. 5 Cir. 5/27/98), 712 So.2d 300, a panel of this court considered a summary judgment in favor of plaintiffs which awarded damages for $400,000.00. There, the plaintiff alleged that he suffered catastrophic, preventable damage to his heart because of "wasted hours" at Lakeside Hospital. The health care provider admitted liability and paid the $100,000.00 maximum. After plaintiffs death, his survivors continued the action against the PCF; the trial judge conducted a hearing in accord with Pendleton v. Barrett, 95-2066 (La.5/31/96), 675 So.2d 720. She granted summary judgment, finding the death was contemplated by the original injury, and that the damages easily exceeded $400,000.00.

The PCF averred there, as here, (1) that the trial court erred in granting summary judgment as there existed material issues of fact; (2) that the Pendleton hearing procedure had been overruled by Graham v....