Hall v. Brookshire Bros., Ltd.

• Decision Date: 27 June 2003
• Docket Number: No. 2002-C-2421., No. 2002-C-2404
• Parties: Barbara HALL, et ux. v. BROOKSHIRE BROTHERS, LTD., Louisiana Patient's Compensation Fund.
• Court: Louisiana Supreme Court

848 So.2d 559

Barbara HALL, et ux. v. BROOKSHIRE BROTHERS, LTD., Louisiana Patient's Compensation Fund.

Nos. 2002-C-2404, 2002-C-2421.

Supreme Court of Louisiana.

June 27, 2003.

Christopher L. Edwards, Patrick R. Jackson, Counsel for Applicant (No. 2002-C-2404).

Van Clifton Seneca, Michele S. Caballero, Lake Charles, Thomas P. LeBlanc, Michael K. Prudhomme, Counsel for Respondent (No. 2002-C-2404).

Van Clifton Seneca, Michele S. Caballero, Lake Charles, Thomas P. LeBlanc, Michael K. Prudhomme, Counsel for Applicant (No. 2002-C-2421).

Christopher L. Edwards, Patrick R. Jackson, Counsel for Respondent (No. 2002-C-2421).

WEIMER, Justice.

In this medical malpractice action in which the plaintiff sued for damages resulting from ototoxicity caused by the prescription drug Gentamicin, a settlement was reached with the health care provider who prescribed the drug and with the pharmacist who overfilled the prescription. At trial against the Patient's Compensation Fund, the jury awarded total damages of $5,744,920.43 and found the health care provider 85% at fault, the pharmacist 10% at fault, and the plaintiff 5% at fault. The judgment, after being reduced to comply with recovery limits under the Medical Malpractice Act, was for the full sum of $429,963.72, together with legal interest. The judgment also recognized the plaintiff as a patient in need of future medical care and related benefits in accordance with LSA-R.S. 40:1299.43.

We granted certiorari primarily to resolve three issues: (1) the propriety of quantifying victim and third-party fault in suits against the Fund when the health care provider has admitted liability by tendering the payment of $100,000.00; (2) the proper method for calculating the percentage reduction for comparative fault when the award of damages in a malpractice action exceeds the statutory cap; and (3) the accrual of legal interest on the amounts awarded by the jury. Finding no error in the court of appeal's resolution of these issues, we affirm the judgment below in its entirety.

FACTS AND PROCEDURAL HISTORY

For fifteen months, beginning in March 1994, plaintiff Barbara Hall suffered from an infection that manifested itself through the developments of boils over differing parts of her body. She sought treatment at various emergency rooms and from various doctors, not only for the boils, but also for the medical concerns associated with them. Each time she sought treatment, the treating physician would lance and drain the boil, and administer a course of antibiotics. This treatment proved to be unsuccessful in that the boils continued to recur.

On June 26, 1995, Mrs. Hall consulted Dr. Kent Seale at the Sulphur Surgical Clinic. Mrs. Hall had an active abscess on her right arm. When Dr. Seale recommended the usual course of treatment— incising and draining the abscess and administering oral antibiotics—Mrs. Hall explained that because of her limited success with this method of treatment in the past, she did not wish to pursue this treatment again. Dr. Seale suggested that IV antibiotics would be an effective alternative therapy.

The next day, on June 27, 1995, Mrs. Hall reported to West Calcasieu Cameron Hospital, where the Clinic's Dr. Walter Ledet drained the boil. He gathered a specimen and ordered routine cultures and susceptibility studies. The pathology report revealed a staphylococcus aureus infection, which could be successfully treated with the use of any one of twenty antibiotics, including Gentamicin. Mrs. Hall signed a surgical consent form, after which Dr. Ledet inserted a subclavian catheter into her chest. A dose of 240 mg of Gentamicin was administered at that time.

On June 28, 1995, Mrs. Hall returned to the Sulphur Surgical Clinic to receive a second dose of Gentamicin. At that time, Dr. Seale issued a prescription for 240 mg of Gentamicin to be self-administered by Mrs. Hall once daily for three weeks. Weekly BUN (blood urea nitrogen) and creatinine tests were ordered and Mrs. Hall was instructed to return for a follow-up.

That same day, Mrs. Hall took the prescription to Brookshire Brothers to have it filled. Because Mr. Allen Vines, the pharmacist, had no Gentamicin in stock, he asked Mrs. Hall to return the following day. When she returned, Mr. Vines overfilled her prescription, giving her 8,000 mg of Gentamicin, when the prescription called for 5,040 mg (individual doses of 240 mg to be administered over a period of 21 days). In addition, Mr. Vines allegedly failed to provide Mrs. Hall with drug information sheets or oral instructions relative to Gentamicin.

From June 29 until July 6, 1995, Mrs. Hall administered Gentamicin to herself through the subclavian catheter. On July 7, a specimen was collected for BUN and creatinine analysis. Both were normal, and the eleventh dose of Gentamicin was administered on that date. Thereafter, from July 8 to July 18, 1995, Mrs. Hall continued to self-administer the daily doses. The BUN and creatinine analyses of July 18 were normal once again. Though the treatment should have ended on the 18th, Mrs. Hall administered approximately seven additional doses of Gentamicin to herself from July 19 to July 25, 1995.

On July 25, Mrs. Hall contacted the Sulphur Surgical Clinic to report that she had been experiencing dizziness for three or four days and to ask whether her medication was somehow linked to that dizziness. Dr. Ledet advised Mrs. Hall to discontinue the Gentamicin and to come in for an exam. Mrs. Hall saw Dr. Ledet the next day. He discontinued the Gentamicin, but continued Bactroban and Duricef. Dr. Ledet removed the subclavian catheter and advised Mrs. Hall to return in one month.

On August 4, Mrs. Hall called the Clinic to report that she felt no better. Three days later, on a referral from Dr. Ledet, Mrs. Hall saw Dr. R. Mark Williams, an ear, nose and throat (ENT) specialist. Mrs. Hall complained of dizziness, nausea, and feeling intoxicated, although she reported no complaints of hearing loss and no ringing in the ears. Dr. Williams diagnosed Mrs. Hall with vertigo, caused by Gentamicin treatment. He recommended further evaluation with an ENG (electronystagmogram), Phenergan for nausea, and a referral to a neurologist.

On August 11, 1995, Mrs. Hall failed to keep an appointment at the Clinic. On August 23, she again failed to keep a Clinic appointment. When contacted by the Clinic on October 10, Mrs. Hall indicated that she was no better, but that she was to see Dr. Newton Coker and that she would call back with the results from that visit. When the Clinic attempted to contact Mrs. Hall on October 31, 1995, her phone had been disconnected.

In late November 1995, Mrs. Hall saw Dr. Melton Horowitz, an ENT specialist in Houston. Dr. Horowitz determined that Mrs. Hall suffers from vestibular dysfunction sustained through Gentamicin ototoxicity. Her condition is permanently disabling. Dr. Hillary Brodie, the Department of Otolaryngology Chair at the University of California Davis, also saw Mrs. Hall. He likewise determined that Mrs. Hall suffers from severe bilateral vestibular injuries secondary to Gentamicin ototoxicity. Dr. Brodie indicated that there is no medical treatment for Mrs. Hall's condition, which is permanent and irreversible and which significantly compromises her mobility and stability. As Dr. Horowitz explained, Mrs. Hall presents a danger to herself daily if left alone. She has a propensity to fall when performing simple tasks, such as bending over to retrieve an object or taking a shower. She has chronic problems with dizziness, vertigo, and nausea. A formerly independent person, Mrs. Hall must now rely on assistance from family members to get through the day.

On July 29, 1996, Mr. and Mrs. Hall filed suit against Brookshire Brothers, Mr. Vines, and the Sulphur Surgical Clinic. The petition was later amended to include Drs. Ledet and Seale. Also on July 29, a medical review panel was instituted. That panel, consisting of three general surgeons, eventually determined that Brookshire Brothers and Mr. Vines were not fund-qualified and, therefore, declined to make a finding regarding the overfilling of Mrs. Hall's prescription. The panel unanimously concluded that Dr. Seale deviated from the applicable standard of care, although it found that Dr. Ledet did not. The panel expressed uncertainty as to whether Dr. Seale's actions caused any vestibular damage after September 1996.

In early 2000, the Halls reached a settlement agreement with Dr. Seale and his insurer. On June 2, 2000, the district court signed a judgment approving the settlement between the Halls and Dr. Seale for $100,000.00 with a reservation of rights against the Patient's Compensation Fund Oversight Board in accordance with the provisions of LSA-R.S. 40:1299.44(C). The judgment also expressly "recogniz[ed] and establish[ed] the liability of defendant, Dr. A. Kent Seale, as admitted, as provided by LSA-R.S. 40:1299.44(C)(5)."

On the same date, the Halls filed a motion for partial dismissal, dismissing their suit against Dr. Ledet and the Sulphur Surgical Center without prejudice. The Patient's Compensation Fund (hereinafter the "Fund") responded to the Hall's petition and asserted a cross-claim against Mr. Vines, Brookshire Brothers, and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, claiming entitlement to indemnity and/or contribution from these parties in the event that the Halls proved entitlement to judgment against the Fund.

The Halls subsequently filed a Motion for Partial Summary Judgment seeking to establish the liability of Mr. Vines and Brookshire Brothers. Before that motion could be heard, however, the Halls settled their claims against these defendants and withdrew their motion. Following the settlement, the Fund filed its own summary judgment motion, which the district court granted in part. The court found that Mr. Vines was employed by Brookshire Brothers and that he breached the...