95-271 La.App. 3 Cir. 10/4/95, Cobb v. Kleinpeter

• Decision Date: 04 October 1995
• Citation: 663 So.2d 236
• Parties: 95-271 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 236

663 So.2d 236

95-271 La.App. 3 Cir. 10/4/95

Beverly Schulte COBB, Plaintiff-Appellant, v. Dr. Hubert KLEINPETER, et al., Defendant-Appellee.

No. 95-271.

Court of Appeal of Louisiana, Third Circuit.

Oct. 4, 1995.

Writ Denied Jan. 12, 1996.

Christopher J. Roy Sr., Jay Anthony Pucheu, Alexandria, for Beverly Schulte Cobb.

John E. Bergstedt, Lake Charles, for Dr. Hubert Kleinpeter et al.

Before SAUNDERS and SULLIVAN, JJ., and KNIGHT, ¹ J. Pro Tem.

[95-271 La.App. 3 Cir. 1] SAUNDERS, Judge.

In this medical malpractice action, plaintiff appeals the trial court's judgment absolving defendant of negligence and assigns as additional unrelated errors the trial court's refusal to dismiss certain jurors. We affirm.

FACTS

This medical malpractice case arises from the performance of a total abdominal hysterectomy and incidental appendectomy received by plaintiff at Beauregard Memorial Hospital in 1985.

[95-271 La.App. 3 Cir. 2] On February 9, 1988, following an adverse ruling of the Medical Review Panel, plaintiff filed suit against Dr. Hubert Kleinpeter and Beauregard Memorial Hospital alleging failure to properly diagnose and treat her post-surgical infection. On September 26, 1989, plaintiff filed a First Supplemental and Amending Petition alleging that Dr. Kleinpeter breached the requisite standard of care by not adequately prescribing and/or taking into account laboratory studies and temperature values and in discharging plaintiff without finding the source of her fever.

Both Beauregard Memorial Hospital and Dr. Kleinpeter generally denied plaintiff's claims, and Dr. Kleinpeter further alleged comparative fault by the plaintiff in failing to follow his recommended course of treatment. Later, Beauregard Memorial Hospital filed a Motion for Summary Judgment. This motion was granted by judgment signed June 6, 1990, and has not been appealed.

On January 10, 1994, plaintiff filed a Second Supplemental and Amending Petition additionally alleging that Dr. Kleinpeter failed to inform plaintiff of the increased risk of infection arising from an incidental appendectomy and failed to order lab tests that would have enabled him to diagnose her post-surgical infection before her discharge. Finally, plaintiff alleged that Dr. Kleinpeter failed to prescribe proper antibiotics to combat plaintiff's infection.

Shortly before trial, on August 31, 1994, plaintiff filed another supplemental and amending petition. This one alleged damages due for a second surgery performed in 1991 and for possible future surgeries resulting from Dr. Kleinpeter's alleged malpractice of 1985. These allegations too were denied.

Appeal

The matter was tried to a jury. Plaintiff's appeal follows the trial court's judgment, in accordance with the jury's findings absolving defendant of liability.

[95-271 La.App. 3 Cir. 3] As plaintiff tells it, by the time trial by jury was held on October 10 and 14, 1994, the issues were basically narrowed down to whether there was an increased risk of infection in removing plaintiff's appendix, whether plaintiff was properly informed of any increased risk and whether Dr. Kleinpeter breached the applicable standard of care in failing to determine the source and type of infection during plaintiff's post-surgical hospitalization.

The many errors assigned by plaintiff may be divided neatly into four categories:

First, plaintiff complains that the trial court erred in refusing to dismiss for cause jurors who had a doctor/patient relationship with Dr. Kleinpeter and/or his partners, or whose family members maintained similar relationships.

Second, plaintiff contends that the trial court erred in refusing to grant plaintiff's motion for directed verdict as to Dr. Kleinpeter's allegations against her with regard to comparative fault.

Third, notwithstanding the jury's eventual favorable response, plaintiff complains that the trial court erred in failing to instruct the jury to affirmatively answer an interrogatory questioning whether plaintiff successfully demonstrated the requisite standard of care.

Fourth, plaintiff's last three assigned errors go to the merits of the jury's findings.

I. DISMISSAL OF JURORS

While plaintiff has no complaints with the trial judge's actions with respect to potential jurors who still considered Dr. Kleinpeter to be her/his doctor, plaintiff's first three assignments of error allege that the trial judge erred in denying plaintiff's motion to exclude several members of the jury venire for cause due to former or ongoing relationships with Dr. Kleinpeter or with his partners, Dr. Rudd and Dr. Jones.

Because the trial court failed to issue a blanket exclusion for such jurors, according to plaintiff, her case was prejudiced by the court's requiring in-depth [95-271 La.App. 3 Cir. 4] questioning of each member of the jury venire. According to plaintiff, these questions predictably elicited statements by the prospective jurors "regarding what wonderful doctors the physicians of that clinic were, all in the presence of the entire jury venire." According to plaintiff, each such member of the venire should have been automatically dismissed without further questioning.

We are unable to agree with plaintiff, who cites no authority in support of her position. To the contrary, we do find convincing the authority cited by defendant.

It is a well settled principle of law that the trial judge is vested with broad discretion when ruling on challenges for cause. See, Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3rd Cir.1975), writ denied, 321 So.2d 363 (La.1975). Only when the record demonstrates a clear abuse of discretion should the appellate court intervene. The trial judge is obviously in the best position to assess the juror's demeanor, sincerity, fairness and credibility. Thus, his decision is not subject to disturbance by appellate action without a showing that there was a clear abuse of discretion. Broussard v. Missouri Pacific Railroad Company, 376 So.2d 532 (La.App. 3rd Cir.1979). There is no showing of abuse. Under the circumstances, there is no merit in the appellants' complaint of the jury selection.

Seals v. Pittman, 499 So.2d 114, 118 (La.App. 1 Cir.1986), writ denied, 503 So.2d 15 (La.1987).

After listening to potential jurors firsthand and observing their demeanor, the trial judge determined that the potential jurors could be fair and impartial, and nothing in the record demonstrates a clear abuse of the trial judge's discretion. To the contrary, our review of the transcript from the voir dire demonstrates that the trial judge exercised not only discretion, but sound judgment in determining which jurors would be impartial and which could be partial. ²

We find no merit to plaintiff's first three assigned errors.

[95-271 La.App. 3 Cir. 5] II. DIRECTED VERDICT

Plaintiff also contends that the trial court erred in refusing to grant her motion for directed verdict on the question of comparative fault. She maintains that she was without fault for her injuries. Apparently, the trial court denied plaintiff's motion because there was some evidence to suggest that plaintiff might have permitted some time to expire between the time she began having difficulties and the time she scheduled a medical appointment.

The standard of review for directed verdicts is whether, after viewing the evidence submitted, the appellate court can conclude that reasonable persons could not reach a contrary verdict. Bergeron v. Blake Drilling & Workover Co., Inc., 599 So.2d 827 (La.App. 1st Cir.), writ denied, 605 So.2d 1117, 1119 (La.1992). Also, Tilley v. Mount Vernon Ins. Co., 411 So.2d 72 (La.App. 3d Cir.1982).

Graham v. Southern Pacific Transp. Co., 619 So.2d 894, 897 (La.App. 3 Cir.), writ denied, 625 So.2d 1044 (La.1993).

Applying this standard, we cannot agree with plaintiff's contention, for even those aggrieved by the actions of others have a duty to mitigate or ameliorate damages. Soileau v. LaFosse, 558 So.2d 294 (La.App. 3 Cir.1990). ³

Our law seeks to fully repair injuries which arise from a legal wrong. However an accident victim has a duty to exercise reasonable diligence and ordinary care to minimize his damages after the injury has been inflicted. Pisciotta v. Allstate Ins. Co., 385 So.2d 1176 (La.1979) (amended on rehearing); Unverzagt v. Young Builders, Inc., 215 So.2d 823, 252 La. 1091 (1968); Donovan v. New Orleans Ry. & Light Co., 61 So. 216, 132 La. 239 (1913); Reeves v. Louisiana & Arkansas Ry. Co., 304 So.2d 370 (La.App. 1st Cir.1974); Riley v. Frantz, 253 So.2d 237 (La.App. 4th Cir.1971); Welch v. Ratts, 235 So.2d 422 (La.App. 2d [95-271 La.App. 3 Cir. 6] Cir.1970); McCormick, Damages, Sec. 33 (1935). He need not make extraordinary or impractical efforts, but he must undertake those which would be pursued by a man of ordinary prudence under the circumstances. Id. Thus, his recovery will not be limited because of a refusal to undergo medical treatment that holds little promise for successful recovery. Merrell v. State, Through Dept. of Transp., 415 So.2d 660 (La.App. 3d Cir.1982). The expense and inconvenience of treatment are also proper considerations in determining the reasonableness of a person's refusal to submit to treatment. Andrus v. Security Ins. Co., 161 So.2d 113 (La.App. 3d Cir.1964), writ denied, 163 So.2d 358, 246 La. 81 (1964). Moreover, an unreasonable refusal of medical treatment which does not aggravate his injury will not restrict a victim's recovery. Joiner v. Texas & Pac. Ry. Co., 55 So. 670, 128 La. 1050 (1911); Merrell v. State, Through Dept. of Transp., supra. The tortfeasor has the burden of showing both the unreasonableness of the victim's refusal of treatment and the consequent aggravation of the injury. Glazer v. Glazer, 278 F.Supp. 476 (D.C.La.1968); Reeves v. Travelers Ins. Co., 329 So.2d 876 (La.App. 2d Cir.1976); Desselle v. Wilson, 200 So.2d 693 (La.App. 3rd Cir.1967); Roy v. Robin, 173 So.2d 222 (La.App. 3rd Cir.1965), writ denied 175...