Hayes v. Commercial Union Assur. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: Before GROVER L. COVINGTON; JOHN S. COVINGTON
• Citation: Hayes v. Commercial Union Assur. Co., 459 So.2d 1245 (La. App. 1984)
• Decision Date: 20 November 1984
• Docket Number: No. 83,83
• Parties: Dorothy N. HAYES and Judson W. Hayes v. COMMERCIAL UNION ASSURANCE COMPANY, J.E. Fowler Petroleum Products, Inc., and Dudley L. Barron. CA 1196.

Page 1245

459 So.2d 1245

Dorothy N. HAYES and Judson W. Hayes v. COMMERCIAL UNION ASSURANCE COMPANY, J.E. Fowler Petroleum Products, Inc., and Dudley L. Barron.

No. 83 CA 1196.

Court of Appeal of Louisiana First Circuit.

Nov. 20, 1984.

Phil E. Miley, Baton Rouge, for plaintiff.

Paul M. Marks, Jr., Baton Rouge, for defendant.

Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON ^*, JJ.

JOHN S. COVINGTON, Judge Pro Tem.

This is a suit for personal injuries. The trial judge rendered judgment in favor of plaintiffs, awarding Dorothy N. Hayes $20,000.00 for general damages, $6,618.42 to her husband, Judson W. Hayes for special damages, denied recovery for future medical expenses and cast defendants for all court costs. Plaintiffs devolutively appealed, seeking increases in both general and special damages. Defendants answered the appeal seeking decreases of both general and special damages, and an affirmation of the judgment insofar as it did not award future medical expenses.

LIABILITY STIPULATED

Defendants and plaintiffs stipulated to liability and the ceiling of that liability, namely policy limits, but did not stipulate that the accident was the cause of the injuries alleged in the suit or that the vast majority of medical expenses were either for treatment of problems related to the accident or were reasonable.

Sometime before trial date all parties stipulated that they had no objection to the Trial Judge's reviewing medical depositions, reports, and records prior to the trial.

All medical testimony was by deposition. Other medical evidence consisted of physicians' reports and bills for services, and Mrs. Hayes' hospital record of the April 15 to April 19, 1980 confinement. Live testimony was given by Mr. and Mrs. Hayes, their daughter, Mr. Hayes' aunt, a minister of the church the Hayes attend and a neighbor.

FACTS

Mrs. Hayes' automobile was struck by a tractor-trailer rig owned by J.E. Fowler Petroleum Products, Inc. (Fowler Petroleum) and driven by Dudley L. Barron (Barron). The automobile was virtually demolished and Mrs. Hayes was trapped in the wreckage for a while.

About one and one fourth hours after the accident Mrs. Hayes arrived at the Emergency Room of Our Lady of the Lake Regional Medical Center (OLOL) by ambulance. She was treated initially by Dr. Morris, an Emergency Room physician, who informed Dr. James Lutschg, Mrs. Hayes' physician, that she had been involved in an accident. Mrs. Hayes was admitted to OLOL on orders from Dr. Lutschg.

Two days after the accident Dr. Richard Bolton, an orthopedist, examined Mrs. Hayes as requested by Dr. Lutschg. Also, at Dr. Lutschg's request, Dr. William Dimattia, an ENT specialist, examined Mrs. Hayes to determine whether glass particles remained in her left ear canal.

Between the date of the accident, April 15, 1980, and the trial of this case, on June 29, 1983, Mrs. Hayes was examined, treated, and/or evaluated by several physicians and an "acupuncturist's assistant".

Mrs. Hayes was seen by Dr. Lutschg, an internal medicine specialist, only once between April 19 and April 25, 1980. Dr. Dimattia examined her only in the hospital and never at his office. Dr. Flynn evaluated her on August 5, 1980 on a referral from Dr. Jere Melilli. Dr. Synder, a cardiologist, did a cardiac evaluation of Mrs. Hayes on August 17, 1981; he did not see her before or after August 17, on which date she was also examined by unspecified physicians in other departments at Ochsner Clinic.

Dr. Melilli, family medicine practitioner, examined and treated Mrs. Hayes in his office on sixty-two separate visits during the period May 6, 1980 through September 27, 1982, one week before Dr. Melilli's deposition was taken. Dr. Bolton saw Mrs. Hayes in his office six times between April 25 and August 26, 1980, on June 12, 1981, and on July 12, 1982; on December 13, 1982 his deposition was taken.

"Dr." Li Chang Wang, licensed as an "acupuncturist's assistant" in Louisiana, administered acupuncture "treatment" on forty-five visits to his office, between September 15, 1980 and May 5, 1981; his deposition was taken on May 13, 1981.

Before the accident Mrs. Hayes performed many physical tasks around the family home, including all of the yard work, trimming tree limbs, and housekeeping duties of every kind. She was active in church functions, not only attending church services three times a week but also working as a volunteer in the church office. She drove her car everywhere she needed to go before the accident. She has done no yard work, driving, church volunteer work, or heavy housekeeping duties since the accident and she attends church about once a month. Following the accident Mrs. Hayes, who was almost 47 years old on the date of the accident, has experienced severe headaches, muscle spasms, blood pressure elevation, cardiac problems, back pain, and depression. She attributes all of her medical problems to the injuries she sustained in the automobile accident.

ISSUES

The issues are: (1) Did the Trial Judge properly evaluate the medical testimony and give proper weight to the medical opinions of the various physicians? (2) Did the Trial Judge abuse his judicial discretion by awarding either excessive or inadequate general damages? (3) Did the Trial Judge abuse his judicial discretion by awarding either excessive or inadequate medical expenses as special damages? (4) Did the Court give proper weight to the testimony of plaintiffs and their lay witnesses to bolster the medical evidence as to Mrs. Hayes' disabilities and the reasons for them? (5) Did the Trial Judge err in failing to make an award for future medical expenses? (6) Did plaintiffs' failure to call as witnesses several physicians who examined Mrs. Hayes before and after the accident sued upon give rise to the inference that their testimony would have been adverse to plaintiffs' contentions?

EVALUATION OF EXPERT AND LAY TESTIMONY

Plaintiffs assert in their brief that the Trial Judge gave too little weight to the testimony of Dr. Jere Melilli while defendants' brief asserts that the Trial Judge based his "high award apparently strictly on the basis of Dr. Melilli's testimony". Defendants state in their brief that it was acceptable for the Trial Court to place "some emphasis on the testimony of Dr. Melilli who was stipulated to be an expert in the field of family practice " but assert that too much weight was given to it "in the face of testimony of multiple orthopedists, neurosurgeons and others" who could not find objective data to support Mrs. Hayes' complaints. Defendants concede that Dr. Melilli "was apparently the primary treating physician", state that he "was the only general practitioner to testify in this case", and rely on the "well settled general rule that the testimony of specialists in an appropriate field of medicine is more persuasive than that of a general practitioner", citing Allen v. Early Company, 300 So.2d 518, 519 La.App. 2nd Cir.1974), as the basis for their contention that "the expertise and observations" of "multiple orthopedists, neurosurgeons and others" which "overwhelmingly favored the defense" was "generally ignored" by the Trial Judge. (Emphasis supplied).

Defendants' reliance on Allen v. Early Company, supra, is misplaced; the principle stated therein was quoted out of context, and Allen is factually distinguishable from this case.

Defendant's brief inconsistently labels Dr. Melilli as "an expert in the field of family practice " and "the only general practitioner to testify", while conceding that Dr. Melilli "was apparently the primary treating physician".

"Family practice is a comprehensive specialty ..."

"Residencies in family practice ... [are] three years in duration after graduation from medical school ..."

Intensive structured experience in orthopedics is an integral part of the family practice residency. Directory of Residency Training Programs, Accreditation Council for Graduate Medical Education (AMA, Chicago, 1984), p. 26.

Dr. Jere D. Melilli is listed as a Board certified Family Practice specialist in the 1984 Diplomate Directory of the American Board of Family Practice at page 213. Defendants counsel stipulated at the very beginning of Dr. Melilli's deposition that "Dr. Melilli is an expert in family practice." Thereafter plaintiffs' counsel did not ask the usual questions concerning the medical school he attended and the year he graduated, the number of years in practice, residencies completed, if any, and Board certifications, if any. The stipulation made by defendants' counsel cures any error, if indeed it was error, by plaintiffs' counsel's failure to establish Dr. Melilli as an expert in the field of family practice. Conceding defendants' argument that "the expertise and observations of the other physicians was generally ignored" by the Trial Judge in finding Mrs. Hayes' neck and back problems were caused by the accident sued upon, we do not believe the Trial Judge committed error in doing so. Defendants concede that Dr. Melilli was "the primary treating physician".

Thibodeaux v. Southeastern Fire Insurance Co., 399 So.2d 704, 706 (La.App. 1st Cir.1981), cited by defendants as authority for the proposition that "the weight to be accorded expert testimony is largely dependent upon the expert's qualifications and the facts upon which his opinion is based ", is factually inapposite.

This Court, in Johnson v. R.P. Farnsworth and Company, 186 So.2d 405 (La.App. 1st Cir.1966), affirmed the District Court, reasoning as follows:

"It is now settled jurisprudence that in evaluating the testimony of medical experts of equal or nearly equal qualifications, considerable weight and importance must be attached to the relative opportunities for observation of the patient and familiarity with the patient and his history. The testimony of a treating physician who has had the benefit of repeated examinations and sustained observation of a patient under...