Hall v. Brookshire Brothers Ltd.

• Citation: 831 So.2d 1010
• Decision Date: 21 August 2002
• Docket Number: No. 01-1506.,01-1506.
• Parties: Barbara HALL, et ux. v. BROOKSHIRE BROTHERS, LTD., Louisiana Patient's Compensation Fund.
• Court: Court of Appeal of Louisiana (US)

831 So.2d 1010

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

No. 01-1506.

Court of Appeal of Louisiana, Third Circuit.

August 21, 2002.

Writ Granted Nov. 27, 2002.

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M. Keith Prudhomme, Woodley, Williams, Boudreau, Norman, Brown & Doyle, L.L.C., Lake Charles, LA, for Defendant/Appellant The Louisiana Patient's Compensation Fund.

Luke Edwards, Lafayette, LA, for Plaintiffs/Appellees Barbara Hall and Dennis Hall.

Court composed of NED E. DOUCET, JR., Chief Judge, ULYSSES GENE THIBODEAUX and MICHAEL G.

SULLIVAN, Judges.

ILSUL LIVAN, Judge.

After developing an infection that produced several boils on her body, Barbara Hall was treated by Drs. A. Kent Seale and Walter Ledet at the Sulphur Surgical Clinic (hereinafter "Clinic"). Dr. Seale issued Mrs. Hall a prescription for Gentamicin, which was overfilled by a pharmacist, Alan L. Vines, at Brookshire Brothers, Ltd. After Mrs. Hall developed vestibular dysfunction as a result of Gentamicin ototoxicity, she and her husband instituted this medical malpractice suit. The Halls settled with Dr. Seale for $100,000.00. The Halls dismissed Dr. Ledet and the Clinic and reached a settlement with Mr. Vines and Brookshire. At trial against the Patient's Compensation Fund (hereinafter "Fund"), the jury awarded total damages of $5,744,920.43 and found Dr. Seale 85% at fault, Mr. Vines 10% at fault, and Mrs. Hall 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 Mrs. Hall as a patient in need of future medical care and related benefits in accordance with La.R.S. 40:1299.43. Both parties appeal.

ISSUES

Raised by The Fund

(1) whether a jury venire of only 120 persons who were present and competent to serve was sufficient for a trial by a fair cross-section of the community;

(2) whether the trial court's failure to strike a potential juror for cause was an abuse of discretion;

(3) whether the testimony of ENT specialist Dr. Hillary Brodie was cumulative and/or irrelevant;

"4) whether the 10% apportionment of fault to Mr. Vines and the 5% apportionment of fault to Mrs. Hall was clearly wrong;

(5) whether the Halls met their burden of proving damages in excess of $100,000.00 and whether the amount of damages awarded was excessive;

(6) whether the allocation of fault should have been applied to the amounts recoverable from the Fund rather than to the full amount awarded by the jury;

(7) whether the testimony of defense expert Dr. William Fann was properly excluded;

(8) whether Mrs. Hall's testimony regarding Dr. Seale's fault was irrelevant and unduly prejudicial to the defense; and

(9) whether the Halls are entitled to damages for frivolous appeal.

Raised by the Halls

(1) whether the jury should have been permitted to allocate fault to Mrs. Hall and Mr. Vines, given that Dr. Seale, a qualified health care provider, had previously tendered $100,000.00 in settlement pursuant to La.R.S. 40:1299.44(C)(5) and, if so, whether the evidence supports the percentages of fault allocated to Mrs. Hall and Mr. Vines;

(2) whether Mrs. Hall's recovery for past medical expenses was erroneously reduced;

(3) whether the judgment erroneously failed to award judicial interest on the entire quantum amount;

The issues of both parties shall be considered in conjunction with one another.

FACTS AND PROCEDURAL HISTORY

In March 1994, Mrs. Hall developed an infection that manifested itself through the development of boils about her body. Over the course of fifteen months, at various emergency rooms and from various doctors, Mrs. Hall sought treatment for both the boils and the medical concerns associated with them. Each time she sought reatment for a boil, the treating physician would typically lance it, drain it, and administer a course of antibiotics.

On June 26, 1995, Mrs. Hall visited Dr. Seale at the Clinic with an active abscess on her right arm. Dr. Seale recommended incising and draining the abscess with an accompanying course of oral antibiotics. Because Mrs. Hall had enjoyed only limited success with such treatment in the past, she indicated that she did not wish to be treated again in that manner. Dr. Seale explained that W antibiotics would be an effective alternative therapy.

The next day, Mrs. Hall went to West Calcasieu Cameron Hospital, where the Clinic's Dr. 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 cured by the use of any one of twenty antibiotics, including Gentamicin. Mrs. Hall signed a surgical consent form for the insertion of a subclavian catheter before Dr. Ledet inserted it into her chest. A dose of 240mg Gentamicin was then administered.

On June 28, 1995, Mrs. Hall received a second dose of Gentamicin at the Clinic. Dr. Seale issued a prescription to her for Gentamicin 240mg to be self-administered once daily for three weeks, with weekly BUN (blood urea nitrogen) and creatinine tests ordered and with instructions to return for a follow-up. Mrs. Hall then took the prescription to Brookshire Brothers to have it filled. Because Mr. Vines, the pharmacist, had no Gentamicin in stock at that time, he asked Mrs. Hall to return the following day.

When Mrs. Hall returned, Mr. Vines overfilled her prescription, giving her 8,000mg of Gentamicin, when the prescription was for 5,040mg (to be administered over 21 days). Additionally, Mr. Vines allegedly failed to provide her with drug information sheets or oral instructions relative to Gentamicin.

Beginning June 29 through July 6, Mrs. Hall administered Gentamicin to herself through the subclavian catheter. On July 7, both the BUN and creatinine analyses were normal, and the eleventh dose of Gentamicin was administered. From July 8 to July 18, Mrs. Hall continued to self-administered the daily doses. The BUN and creatinine analyses of July 18 were both normal once again. Though the treatment should have ended here, Mrs. Hall administered approximately seven additional doses of Gentamicin from July 19 to July 25.

On July 25, Mrs. Hall contacted the Clinic to ask whether her medication was somehow linked to the dizziness she had been experiencing for three or four days. The next day, Dr. Ledet discontinued the Gentamicin, but continued Bactroban and Duricef. He also 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 was absolutely no better and that something had to be done. Three days later, on referral from Dr. Ledet, she 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 suspected that her vertigo could be due to Gentamicin ototoxicity. He recommended further evaluation with an ENG (electronystagmogram), Phenergan for nausea, and a referral to a neurologist. Mrs. Hall later called Dr. Williams, expressing a desire to cease further testing in hopes that her physical symptoms would remedy themselves.

On August 11, Mrs. Hall failed to keep an appointment at the Clinic. Five days later, Mrs. Hall told Clinic personnel that she was feeling better and was continuing to take Phenergan for nausea. She was not taking the Antivert, and explained that if she needed anything, she would see Dr. Bob Gordon. On August 23, Mrs. Hall again failed to keep an appointment at the Clinic.

On October 10, Mrs. Hall indicated that she was to see Dr. Newton Coker. She said she would call back with results from that visit, but when the Clinic attempted to contact Mrs. Hall on October 31, her phone had been disconnected.

In late November, Mrs. Hall saw Dr. Melton Horowitz, an ENT specialist in Houston. Dr. Horowitz testified that Mrs. Hall suffered from vestibular dysfunction sustained through Gentamicin ototoxicity. He noted that her condition was a permanent disability. Dr. Hillary Brodie, Department of Otolaryngology Chair at the University of California Davis, saw Mrs. Hall and determined that she suffered from severe bilateral vestibular injuries secondary to Gentamicin ototoxicity. Dr. Brodie indicated that there is no medical treatment for Mrs. Hall's condition.

On July 29, 1996, Mr. and Mrs. Hall sued Brookshire, Mr. Vines, and the Sulphur Surgical Clinic. The petition was eventually amended to include Drs. Ledet and Seale. The medical review panel, consisting of three general surgeons, found that Brookshire and Mr. Vines were not fund-qualified and made no determination regarding the overfilling of Mrs. Hall's prescription. The panel unanimously found that Dr. Seale deviated from the applicable standard of care, although it concluded that Dr. Ledet did not. The panel was unsure of whether Dr. Seale's actions caused any vestibular damage after September 1996.

On June 2, 2000, the trial court signed a judgment, approving a settlement between the Halls and Dr. Seale for $100,000.00, with reservation of rights against the Oversight Board, in accord with La.R.S. 40:1299.44(C). The judgment was also signed "recognizing and establishing the liability of defendant, Dr. A. Kent Seale, as admitted, as provided by LSA-R.S. 40:1299.44(C)(5)." At this time, the Halls agreed to dismiss Dr. Ledet and the Clinic without prejudice. The Fund filed a cross-claim against Mr. Vines, Brookshire, 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.

Plaintiffs and Defendants filed reciprocal Motions for Partial Summary...