Coleman v. Deno

• Decision Date: 06 November 2002
• Docket Number: No. 99-CA-2998.,99-CA-2998.
• Citation: 832 So.2d 1016
• Parties: Louis COLEMAN, Individually and as Father of Louis Frank Coleman v. Dr. Richard DENO, Dr. Ivan Sherman and JoEllen Smith Hospital.
• Court: Court of Appeal of Louisiana — District of US

832 So.2d 1016

Louis COLEMAN, Individually and as Father of Louis Frank Coleman v. Dr. Richard DENO, Dr. Ivan Sherman and JoEllen Smith Hospital.

No. 99-CA-2998.

Court of Appeal of Louisiana, Fourth Circuit.

November 6, 2002.

Rehearing Denied as Amended Dec. 17, 2002.

COPYRIGHT MATERIAL OMITTED

Michelle A. Bourque, Jones, Walker, Waechter, Poitevent, Carrere and Denegre, L.L.P., New Orleans, LA, for Statutory Intervenor/Appellant, The Louisiana Patients' Compensation Fund.

Gerald E. Meunier, Gainsburgh, Benjamin, David, Meunier & Warshauer, and Frank J. D'Amico, Jr., Judith A. Gic, New Orleans, LA, for Plaintiff/Appellant, Louis Coleman.

Stewart E. Niles, Jr., Karen M. Fontana, Jones, Walker, Waechter, Poitevent, Carrere and Denegre, L.L.P., New Orleans LA, for Defendant-Appellant, Dr. Richard Dino.

(Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, Judge DENNIS R. BAGNERIS, Sr., and Judge MICHAEL E. KIRBY).

WILLIAM H. BYRNES, III, Chief Judge.

In this medical malpractice claim, with respect to damages, the Louisiana Supreme Court remanded this case to this Court "both for a meaningful quantum review and a recasting of the ultimate judgment in accordance with the limitations of the LMMA [Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq]." Coleman v. Deno, 2001-1517 (La.1/25/02), 813 So.2d 303.

The plaintiff Louis Coleman was seen twice at the JoEllen Smith Hospital emergency room on June 7 and 8, 1998. He was transferred to Charity Hospital in New Orleans ("Charity") shortly after midnight on June 9, 1988, and later his left arm was amputated on June 11, 1988, resulting from the development of a compartment syndrome. The plaintiff filed requests with the medical review board for review of his claims against the private health providers, JoEllen Smith Hospital, Dr. Ivan Sherman and Dr. Richard Deno under La. R.S. 40:1299.41 et seq. At the same time, Coleman filed a request for review of Charity under the Medical Liability for State Services Act, La. R.S. 40:1299.39 et seq. After the medical review panel found no breach of the standard of care by the private providers, Coleman filed suit in civil district court.

Prior to trial, Coleman settled his claims against JoEllen Smith Hospital for $10,000, and against Charity Hospital for $25,000. After the trial, the jury awarded $4,400,000 in general damages to the plaintiff, plus $500,000 for loss of wages, as well as diminished earning capacity. The trial court noted the amount of $500,000 found by the jury for future medical expenses.¹ For the loss of consortium of the plaintiff's minor son, Louis Frank Coleman, the jury awarded $1 million, which the trial court reduced to $10,000. The jury found that Dr. Ivan Sherman was 20 percent at fault and Dr. Richard Deno was 80 percent at fault. The Patient's Compensation Fund ("the Fund") intervened.

The trial court granted a judgment notwithstanding the verdict ("JNOV") as to Dr. Sherman and dismissed the claims against him. The trial court found that interest was to be apportioned as provided in La. R.S. 40:1299.41 et seq. The trial court noted Coleman's need of future medical care and related benefits in the amount of $500,000 but did not enter judgment on this amount. The trial court found that Dr. Deno was solely at fault, but applied the LMMA to limit the damage award against Dr. Deno to $100,000. The trial court allocated that amount proportionately between Coleman and his son, who was entitled to $10,000 for loss of consortium. The trial court found that the parties had stipulated that Coleman settled with Charity for $25,000 and JoEllen Smith Hospital for $10,000; however, the trial court did not find that the Patient's Compensation Fund was entitled to a credit of $110,000 for the two pre-trial settlements. The trial court entered judgment against the Fund for $400,000 plus interest under the LMMA.

The plaintiff Louis Coleman, Dr. Deno, and the Louisiana Patients' Compensation Fund appealed to this Court. Three members of a five judge panel affirmed the trial court's judgment but found that the damage award was not subject to the medical cap of $500,000 under the LMMA, R.S. La. R.S. 40:1299.41 et seq., because of the intentional tort of improper transfer to another hospital or "patient-dumping" claim against Dr. Deno. This Court allocated $500,000 to the medical malpractice claim and $4,400,000 to the intentional tort claim. This Court affirmed the trial court's notation of Coleman's need for future medical care and related benefits in the amount of $500,000 but did not enter judgment on this amount. This Court affirmed the dismissal of the claims against Dr. Sherman, and the $500,000 award to the plaintiff for loss of wages, as well as diminished earning capacity. This Court found that the $10,000 award to the plaintiffs son was not included in the $500,000 cap and the awards to father and son should not be prorated within the cap. This Court held that the Fund was entitled to a credit of $100,000 for the larger settlement of $25,000 with Charity and a dollar for dollar credit for the smaller settlement of $10,000 with JoEllen Smith Hospital. The award of interest was affirmed. Coleman v. Deno, 99-2998 (La.App. 4 Cir. 4/25/01), 787 So.2d 446.

In granting writs, the Louisiana Supreme Court: (1) affirmed the JNOV of the dismissal in favor of Dr. Ivan Sherman; (2) found that the "patient-dumping" claim against Dr. Deno fell within the definition of medical malpractice under the Louisiana Medical Malpractice Act, making the plaintiff's recovery subject to the $500,000 limitation set forth in the Act; (3) held that Charity Hospital was 75 percent at fault, while reducing the percentage of Dr. Deno's fault to 25 percent; and (4) remanded the case to this Court for further review of damages.

ASSESSMENT OF DAMAGES

On remand, the plaintiff Coleman contends that this Court should: (1) uphold the jury verdict of damages, (2) reject the argument that the statutory cap on damages should be applied twice in the formulation of the plaintiffs recovery; and (3) reject the extension of any settlement credit to the Fund based upon the plaintiffs pretrial settlement with JoEllen Smith Hospital ("JESH").

Dr. Deno submits that: (1) the general damage award is excessive; (2) evidence of quantification of future medical care was improperly admitted; (3) the $500,000 for lost wages or diminished earning capacity should be reversed; (4) the plaintiff's son's loss of consortium award is not supported by the evidence; and (5) Dr. Deno's liability is limited to 25 percent of the lesser of the reduced award or $100,000.

The Fund maintains that: (1) Dr. Deno's liability is limited to $100,000 plus interest accruing after April 1, 1991, and the plaintiffs total recoverable damages is limited to $500,000, exclusive of medical care and related benefits; (2) the general damage award is excessive; (3) the $500,00 special damage award for lost wages or diminished earning capacity should be reversed; (4) the $10,000 loss of consortium awarded to the plaintiffs son should be reversed; (5) the $500,000 award for future medical and related expenses should be reversed; (6) any future medical expenses must be made to the Fund's oversight board only as expenses are incurred; (7) fault must be apportioned as 25 percent to Dr. Deno and 75 percent to Charity Hospital so that the plaintiff's recovery against Dr. Deno and the Fund must be reduced by 75 percent, representing Charity Hospital's percentage of fault; and (9) the Fund is entitled to a credit of $110,000 for the plaintiff's pretrial settlements with JESH and Charity Hospital.

As stated in this Court's original opinion, Coleman v. Deno, supra, consideration of the jury's determination of damages is limited to a review for abuse of discretion on appeal. The discretion vested in the trier of fact is "great," and even vast, in determining the amount of damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), certiorari denied, sub nom. Maritime Overseas Corp. v. Youn, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). When damages are insusceptible of precise measurement, much discretion is left to the court for its reasonable assessment. La. C.C. art.1999; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The reviewing court must evaluate the particular injuries and their effects on the particular injured persons. Reck v. Stevens, 373 So.2d 498, 501 (La.1979); Merritt v. Karcioglu, 96-0431 (La.2/25/97), 687 So.2d 1002, 1004-07, amended on rehearing in part by 96-0431 (La.5/9/97), 693 So.2d 153. Only after a determination of an abuse of discretion is a resort to prior awards appropriate, and then only for the purpose of determining the highest or lowest point that is reasonably within that discretion. Youn, supra.

Dr. Deno and the Fund argue that the jury award is grossly excessive and is not supported by the record. The Fund requests that this Court grant a new trial on the issue of damages or reduce plaintiff's general damages of $4,400,000, plus $500,000 for loss of wages and diminished earning capacity, as well as the noted amount of $500,000 for future medical expenses.

Counsel for Dr. Dino points out that Coleman did not require subsequent hospitalizations or surgeries related to the loss of his arm. He is capable of performing self-care activities and is capable of and does drive. Dr. Dino claims that Coleman has not suffered from any debilitating depression related to his injury. Dr. Dino asserts that Coleman's psychiatric witness, Dr. Richard Richoux, agreed that the plaintiff has not had any unusual reaction to the loss of his arm and is capable of functioning in society. Dr. Dino avers that Dr. Richoux agreed that there is no reason from a psychiatric standpoint why the plaintiff would not be able to work. Dr. Dino contends that the general damage award must be reduced to a sum...