Hillebrandt v. Holsum Bakeries, Inc.
| Decision Date | 04 April 1972 |
| Docket Number | No. 4974,4974 |
| Citation | 267 So.2d 608 |
| Parties | Richard C. HILLEBRANDT v. HOLSUM BAKERIES, INC. and Travelers Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
Harold J. Lamy, New Orleans, for plaintiff-appellee.
R. Henry Sarpy, Jr., New Orleans, for defendants-appellants.
Before REDMANN, LEMMON and BAILES, JJ.
Defendant appeals as to quantum only in this automobile damage and personal injury action.
The trial court awarded $2,700 for three months' lost wages, $1,088 doctor's bill, and $2,500 general damages. The trial court awarded the entire doctor's bill despite its expressed opinion (supported by another physician's emphatic opinion) that the treatment and charges were excessive.
Following the April 7, 1969 accident, plaintiff consulted a general practitioner, Dr. Harry Philibert, for treatment of cervical and lumbar sprain. Over the next three months he was given some 58 'diapulse' thermal treatments and over 40 injections of lidocaine and hydrocortisone at spinal sites. On his doctor's advice and because of the strenuous nature of his duties as a stevedoring foreman he did not return to work until July 7, 1969, three months after the accident.
Following his return to work, he was examined monthly in July, August and September, and given 12 additional injections. He returned for a final visit the following January because of a flare-up and received four more injections.
Defendant's whole position is that the treating physician's excessive treatment of a minor shake-up (of which defendant's expert, Dr. George Battalora, Jr., found no objective symptoms six weeks after the accident) has caused inflation of general damages and lost wages as well as medical cost.
Obviously the trial judge accepted Dr. Battalora's testimony that Dr. Philibert's diapulse treatments charged at $590 and injections charged at $270 were 'gross overtreatment's of plaintiff's mild cervical and lumbar sprain.
However, a tortfeasor can hardly be allowed to select the tort victim's doctor, and in the absence of proof of fraud on the treating doctor's part such as would assure the victim's not having to pay the bill, he would have to pay it, and it was caused by the tort. We conclude it is a proper element of damage.
As to the loss of wages and general damages, there is no showing that plaintiff was malingering. His doctor and defendant's doctor disagreed on his condition, and plaintiff personally did not feel well enough to be anxious to return to work. His doctor's view was that he should not be obliged to return to work during three months, and the trial judge found as a fact a three month period of disability.
The $2,500 general damages is in our opinion within the trial judge's 'much discretion,' C.C. art. 1934, subd. 3, for mild cervical and lumbar sprain, with severe headache and cervical and lumbar muscle spasm, with some momentary discomfort in certain neck positions six weeks after the accident, a total period of disability of three months, a period of some discomfort after returning to work, and a flare-up as late as nine months after the accident.
The judgment is affirmed.
Affirmed.
ON APPLICATION FOR REHEARING
Defendants' application for rehearing strongly urges that they should not have to pay for medical expenses which the trial court found excessive because an overtreatment of the tort injury.
We do not disagree with that proposition, but we conclude that it should not become an issue between tortfeasor and victim in the absence of unreasonable behavior by the tort victim in accepting the overtreatment. Our opinion erred in identifying the question whether the tortfeasor was liable to the victim with the question whether the victim was liable to the doctor for the overcharge (and we further erred in suggesting fraud by the doctor as the only circumstance under which the victim would not be liable).
This case does not present (as did Loomis v. Travelers Ins. Co., La.App., 1964, 169 So.2d 544, cited by defendants) the opportunity to deny to the...
To continue reading
Request your trial
-
96-1261 La.App. 3 Cir. 4/9/97, Dauzat v. Canal Ins. Co.
...not to a litigant's fraud are assessed to the tortfeasor for the reasons explained by Judge Redmann in Hillebrandt v. Holsum Bakeries, Inc., 267 So.2d 608, 610 (La.App. 4 Cir.1972)(on In the absence of fault on the part of the patient in accepting the treatment, the fault which causes the p......
-
Lasha v. Olin Corp.
...475 So.2d 1047 (La.1985); Berger v. Fireman's Fund Insurance Co., 305 So.2d 724 (La.App. 4th Cir.1974); Hillebrandt v. Holsum Bakeries, Inc., 267 So.2d 608 (La.App. 4th Cir 1972); Hudgens v. Mayeaux, 143 So.2d 606 (La.App. 3rd Cir.1962); Restatement (Second) of Torts Sec. 457 (1965). In det......
-
Tyler v. Richardson
...the excessive expense of treatment is attributable to the party whose fault caused the injury rather than the victim. Hillebrandt v. Holsum Bakeries, Inc., 267 So.2d 608 La.App. 4th Cir.1972); Acosta v. Doe, 342 So.2d 1241 (La.App. 4th Cir.1977), cert. denied, 345 So.2d 48 (La.1977); Andrew......
-
Younger v. Marshall Industries, Inc.
...caused by the tortfeasor. Berger v. Fireman's Fund Insurance Co., 305 So.2d 724 (La.App. 4th Cir.1974); Hillebrandt v. Holsum Bakeries, Inc., 267 So.2d 608 (La.App.4th Cir.1972); Hudgens v. Mayeaux, 143 So.2d 606 (La.App.3rd Cir.1962); Restatement (Second) of Torts Sec. 457 (1965). The orig......