Bridgers v. Southwest La. Hosp. Ass'n.

• Decision Date: 03 November 1999
• Docket Number: No. 99-520.,99-520.
• Citation: 746 So.2d 731
• Parties: Fay L. BRIDGERS and James H. Bridgers, Plaintiffs-Appellees, v. SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION d/b/a Lake Charles Memorial Hospital, et al., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

746 So.2d 731

Fay L. BRIDGERS and James H. Bridgers, Plaintiffs-Appellees, v. SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION d/b/a Lake Charles Memorial Hospital, et al., Defendant-Appellant.

No. 99-520.

Court of Appeal of Louisiana, Third Circuit.

November 3, 1999.

Writ Denied February 18, 2000.

Aaron W. Guidry, Thomas Fitzgerald Porter, IV, Lafayette, for Fay L. Bridgers, et al.

Michael Keith Prudhomme, Milo Addison Nickel Jr., Michele S. Caballero, Lake Charles, for Southwest Louisiana Hosp. Ass'n.

Before THIBODEAUX, COOKS, and SULLIVAN, Judges.

SULLIVAN, Judge.

This is a medical malpractice case. Ms. Fay L. Bridgers filed suit against Dr. Fayez Shamieh, Dr. Fayez Shamieh, A Professional Medical Corporation (FSPMC), Dr. Donald H. Vines, Dr. Jeffery Lavoy, Dr. Earl R. Stagg, and the Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital (Memorial Hospital) for failing to timely diagnose Guillain-Barré Syndrome (GBS) depriving her of a chance of recovering from the disease. Her husband, Mr. James H. Bridgers, filed a claim for a loss of consortium. Dr. Vines and his insurer, St. Paul Fire & Marine Insurance Company (St. Paul), paid $100,000.00 and settled with the Bridgers. The Bridgers dismissed the remaining defendants, then proceeded against the Louisiana Patient's Compensation Fund (LPCF) for damages in excess of $100,000.00. The jury awarded total damages of 84,240,539.55.¹ The LPCF appeals. We affirm.

FACTS

Ms. Bridgers checked into Lake Charles Memorial Hospital on January 8, 1991, complaining of abdominal pain, generalized weakness, a lightheaded feeling, failing ability to ambulate, and persistent numbness in her right hand and lower extremities. Dr. Lavoy initially treated her. When tests suggested chronic gall bladder disease requiring surgery, Dr. Lavoy consulted with Dr. Vines. Dr. Vines performed a cholecystectomy on January 11, 1991, without complications. However, on January 12, 1991, while in recovery, Ms. Bridgers went into ventricular tachycardia and ventricular fibrillation, progressing to cardiac arrest. She responded to life support measures and was transferred to the intensive care unit where she experienced a similar episode. Dr. Lavoy subsequently requested a neurological consult. Dr. Shamieh examined Ms. Bridgers on January 14, 1991, and made a provisional diagnosis of GBS, a rare neurological disease. That diagnosis was confirmed the following day, and Dr. Shamieh commenced steroid treatment.

Ms. Bridgers did not respond well to treatment. Currently, she has lost the use of her arms and legs and is confined to a wheelchair for the remainder of her life. Also, she suffers from depression and has trouble communicating.

Prior to filing suit against the defendants, Mr. and Ms. Bridgers presented their claim to a medical review panel as required by La.R.S. 40:1299.47. The panel convened and rendered an opinion that none of the defendants were negligent in their treatment of Ms. Bridgers. On August 17, 1994, the Bridgers filed this suit to recover damages resulting from the untimely diagnosis and institution of treatment of GBS. The central contention is that Dr. Vines' failure to timely request a neurological consult deprived Ms. Bridgers of an early diagnosis of GBS and an eighty-five percent chance of recovery from the disease. Ms. Bridgers also claimed that the surgery performed by Dr. Vines was unnecessary and harmful. She claimed that it aggravated her condition and made her so unstable that one treatment option, which would have given her a higher chance of recovery, became unviable. Mr. Bridgers claimed a loss of consortium.

On November 26, 1997, the trial court approved a settlement between the Bridgers and Dr. Vines and St. Paul, his insurer. St. Paul tendered $100,000.00 on behalf of Dr. Vines. Mr. and Ms. Bridgers then dismissed with prejudice their claims against the other defendants and reserved their right to pursue an action against the LPCF for any damages in excess of the settlement amount.

The Bridgers filed a number of pretrial motions, including motions to exclude the testimony of various expert witnesses, as well as the opinion of the medical review panel, and a motion to strike the defendant's affirmative defense of third party fault. Following an evidentiary hearing, the motions were granted, in part, and denied, in part. The trial court held that all evidence regarding liability vel non and third party fault was inadmissible and irrelevant because liability was established by the settlement. The trial court further held that the only remaining issue to be decided was whether there was a causal relationship between the admitted malpractice of Dr. Vines and Ms. Bridgers' condition and, assuming there was, whether she was entitled to recover damages in excess of $100,000.00. Lastly, the trial court held that to the extent that any of the evidence sought to be admitted by the LPCF related to causation and damages, it would be subject to a hearing on admissibility to be heard out of the jury's presence.

The case was tried before a jury November 2-5, 1998. The jury returned a unanimous verdict in favor of Mr. and Ms. Bridgers and against the LPCF. It found that, as a result of Dr. Vines' malpractice, Ms. Bridgers had been deprived of a seventy-five percent chance of recovery from GBS, and awarded her $767,500.00 in general damages, $666,704.55 in past medical expenses, and $2,693,835.00 in future medical expenses and related benefits. The jury awarded Mr. Bridgers $112,000.00 for loss of consortium. The LPCF appeals, assigning seven errors. The assigned errors can be grouped into two categories: 1) the exclusion of evidence by the trial court; and 2) causation and damages.

LAW AND DISCUSSION

Excluded Evidence

All of the LPCF's assignments of error regarding the exclusion of evidence arise from the pre-trial evidentiary rulings made by the trial court. The LPCF argues that the rulings were erroneous. Specifically, it argues that the medical review panel opinion, the testimony of the medical review panel members, Drs. Gerald Mouton, Joseph O'Donnell and Stephen Snatic, and the testimony of Drs. Charles Knight, Richard Matis, David Morrill, Charles White, Fayez Shamieh, Yadolla Harati, and Randolph Evans were wrongfully excluded from evidence.

The only evidence presented by the LPCF at trial was the testimony of Drs. Shamieh and Evans. At the conclusion of the trial, the LPCF offered a written proffer which included the medical review panel opinion, the deposition testimony of the medical review panel members, and the deposition testimony of Drs. Harati, Knight, Evans, and Dr. Stephen Zuckerman, the Bridgers' expert. It argues that the proffered evidence was admissible because it was relevant to third party fault and/or causation and/or was admissible pursuant to La.R.S. 40:1299.47(H). La. R.S. 40:1299.47(H) provides that the medical review panel opinion "shall be admissible" at trial and that either party has the right to call the members of the medical review panel to testify at trial.

The LPCF also argues that the testimony of Drs. Shamieh, Snatic, Harati, and Evans, all neurologists, was relevant to causation and third party fault. It claims that the trial court struck Drs. Snatic and Harati as witnesses, determining that their testimony would be cumulative. This is not correct. The trial court ruled that a determination as to whether the testimony of the four neurologists was cumulative would be made at the time the LPCF sought to introduce their testimony. Drs. Shamieh and Evans testified at the trial. Their testimony was limited to the issue of causation as per the ruling of the trial court. The LPCF did not call either Dr. Snatic or Dr. Harati as a witness during the trial. Therefore, the issue of whether their testimony was cumulative was never addressed by the court. Accordingly, the assignment of error as to the testimony of these doctors on the issue of cumulation is without merit. The issue of third party fault is addressed below.

In making the rulings on the admissibility of evidence on the issues of liability, the trial court considered the overall scheme of the Medical Malpractice Act, including La.R.S. 40:1299.44(C)(5), and the recent line of jurisprudence on this issue ending with Graham v. Willis-Knighton Medical Center, 97-188 (La. 9/9/97); 699 So.2d 365.

La.R.S. 40:1299.44(C)(5) provides, in part:

In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.

In Straka v. Fleming, 561 So.2d 1371(La.), cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990), the LPCF contested its liability to the plaintiff who had compromised his malpractice claim against one health care provider for $100,000.00, then dismissed the other defendants and sued the fund to recover damages in excess of the $100,000.00 settlement. The court concluded that the only issue to be litigated against the LPCF was the amount of damages sustained by the plaintiff as a result of the admitted malpractice. In reaching this conclusion, the court recognized the impact of its conclusion on the LPCF, stating:

We recognize that this literal interpretation of the statute affords less rights to the Fund when claims against multiple health care providers are settled than when such claims are tried. In the case of a trial the Fund has the opportunity for reduced exposure when more than one health care provider is determined to be liable. But in the case of a settlement with one health care provider for $100,000 the Fund does not have this opportunity in the subsequent litigation with the victim. However, the Legislature chose in cases of...