McPherson v. Lake Area Medical Center

• Decision Date: 24 May 2000
• Docket Number: No. 99-1876.,99-1876.
• Citation: 767 So.2d 102
• Parties: Kirk and Dianna McPHERSON, et al. v. LAKE AREA MEDICAL CENTER, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 102

767 So.2d 102

Kirk and Dianna McPHERSON, et al. v. LAKE AREA MEDICAL CENTER, et al.

No. 99-1876.

Court of Appeal of Louisiana, Third Circuit.

May 24, 2000.

Writ Denied September 29, 2000.

Court composed of NED E. DOUCET, Jr., Chief Judge, SYLVIA R. COOKS and MARC T. AMY, Judges.

DOUCET, Chief Judge.

Defendant, the Louisiana Patients' Compensation Fund (LPCF), appeals a judgment of the trial court, pursuant to a jury verdict, awarding Plaintiffs $322,979.00 (subject to a credit of $100,000.00) in damages in connection with Plaintiffs' medical malpractice action. We affirm the judgment of the trial court.

FACTS

We extract the basic facts of the case from a prior opinion of this court, McPherson v. Lake Area Medical Center, 99-977, p. 1 (La.App. 3 Cir. 12/29/99); 755 So.2d 972, 973 (footnotes omitted), wherein we recounted the following:

On February 7, 1995, Kirk McPherson underwent a lumbar laminectomy with discectomy at the Lake Area Medical Center in Lake Charles, Louisiana. During the surgery, Mr. McPherson sustained a left retinal arterial occlusion resulting in the permanent loss of vision in his left eye. Thereafter, Mr. McPherson and his wife, Dianna, filed this medical malpractice action individually and on behalf of their two minor children to recover damages suffered as a result of Mr. McPherson's loss of vision. The McPhersons named several defendants in their original petition, including Dr. Ronald M. Lewis, the anesthesiologist for the surgery, and Galen-Med, Inc. The McPhersons alleged that upon awakening from the anesthesia, Mr. McPherson noticed problems with pain and loss of vision in his left eye. They alleged, among other things, negligence in the failure to properly pack and cover Mr. McPherson's eyes during the surgery, to appropriately monitor him while he was under anesthesia, to adequately adjust him during the surgery, and to render proper assistance and care in the postoperative room.

During the pending litigation, the McPhersons and Dr. Lewis entered into a compromise settlement pursuant to La.R.S. 40:1299.44 wherein Dr. Lewis admitted liability and paid the McPhersons $100,000.00. Pursuant to that statute, the trial court approved the settlement and dismissed the McPhersons' claims against Dr. Lewis and Galen-Med, Inc. The PCF was added as a defendant for excess damages.

In case number 99-977, we reversed the trial court's granting of a motion for summary judgment and remanded the case for further proceedings.

Prior to a jury trial on the matter of excess damages, Plaintiffs filed Motions in Limine seeking to have the following testimony excluded: (1) that of the members of the medical review panel, (2) that of Dr. Elmer Kline, an anesthesiologist, (3) that of Drs. Craig Smith and Jonathan Caulkwood, both neuro-ophthalmologists. Plaintiffs also sought to have the opinion of the Medical Review Panel excluded. The trial court granted Plaintiffs' motions finding that the opinion of the Medical Review Panel and the testimony sought to be excluded would go to liability, an issue which was admitted by Dr. Lewis' settlement. LPCF sought writs to this court on the trial court's ruling. In an unpublished opinion, this court found as follows:

This Court finds that the trial court properly denied the introduction of the Medical Review Panel Opinion and the testimony of the panelists themselves. This evidence would speak only to liability, which has been admitted through the earlier settlement agreement and may not be reargued.

The trial court erred, however, in excluding the expert neuro-ophthalmologists sought to be introduced by the defendant-applicant. The trial court's ruling is reversed concerning the use of these experts. They shall be allowed to testify as long as their testimony is limited to the question of whether or not the health care provider's admitted malpractice resulted in damages in excess of $100,000.00.

The summary judgment granted by the trial court was designated as a final judgment. An immediate appeal is available. As such, this Court declines to exercise its supervisory jurisdiction.

McPherson v. Lake Area Medical Center, 99-585 (La.App. 3 Cir. 5/24/99), writ denied, 99-1619 (La.6/11/99), 745 So.2d 14 (emphasis added).

The case proceeded to trial by a jury, which found that the breach of the applicable standard of care by Dr. Lewis resulted in damages in excess of $100,000.00. The jury awarded Plaintiffs the following damages:

                1) To Kirk McPherson
                Physical Pain and Suffering
                  (past, present and future)   $100,000.00
                Mental Pain and Suffering
                  (past, present and future)   $100,000.00
                Loss of Enjoyment of Life      $ 25,000.00
                Medical Expenses (past)        $  2,479.00
                Medical Expenses (future)      $ 25,000.00
                Permanent Disability           $ 50,000.00
                

2) To Dianna McPherson: a total of $15,000.00 for mental anguish and loss of consortium.

3) To the McPherson children: a total of $5,500.00 for loss of consortium.

The LPCF appeals assigning the following as errors:

1. The trial court erred in excluding the opinion of the medical review panel from evidence.

2. The trial court erred in excluding the testimony of the medical review panelists.

3. The trial court erred in excluding the testimony of the defendant's neuro-ophthalmologist, Dr. Craig Smith.

4. The jury erred in finding causation of damages in excess of $100,000.00.

5. Alternatively, the amount of damages awarded was excessive.

LAW AND DISCUSSION

In its first three assignments of error, LPCF asks us to re-visit issues we previously considered in our ruling of May 24, 1999, in Appellant's writ application. In Burkett v. UDS Management Corp., 99-82, pp. 4-5 (La.App. 3 Cir. 6/2/99); 741 So.2d 838, 841, writ denied, 99-1970 (La.10/15/99); 748 So.2d 1150, this court reviewed the law applicable to the law of the case doctrine stating the following:

The supreme court has defined the doctrine of the law of the case as follows:

The law of the case principle relates to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case.

Petition of Sewerage & Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973). This court has further explained the law of the case doctrine as follows:

The law of the case doctrine "recognizes the binding force of trial court rulings during later stages of the trial..." Pitre v. Louisiana Tech University, 26,388, p. 1 (La.App. 2 Cir. 5/10/95); 655 So.2d 659, 664, writs granted, 95-1466, 95-1487 (La.10/6/95), 661 So.2d 454, reversed on merits, 95-1466, 95-1487 (La.5/10/96), 673 So.2d 585; see also Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). The reasons for this doctrine are: (1) avoidance of indefinite litigations; (2) consistency of results in same litigation; (3) essential fairness between the parties; and, (4) judicial efficiency.

Johnson v. Acadiana Ry. Co., 96-263 (La.App. 3 Cir. 4/16/97), 693 So.2d 226, 228-29. See also Louisiana

Land and Exploration Co. v. Verdin, 95-2579 (La.App. 1 Cir, 9/27/96), 681 So.2d 63, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997).... "[T]he doctrine is discretionary and should not be applied where it would effectuate an obvious injustice or where the former appellate decision was clearly erroneous." Trans Louisiana Gas Co. v. Louisiana Ins. Guar. Ass'n, 96-1477 (La.App. 1 Cir. 5/9/97), 693 So.2d 893, 896.

Ducote v. City of Alexandria, 97-947, p. 3 (La.App. 3 Cir. 2/4/98), 706 So.2d 673, 674-675, writ not considered, 98-1048 (La.5/29/98), 719 So.2d 1275. Moreover, the doctrine applies with equal force to writ decisions as it does to judgments rendered at the conclusion of the appellate process. See First Federal Savings & Loan of Warner Robins, Georgia v. Disiere, 542 So.2d 11 (La.App. 4 Cir.), writ denied, 548 So.2d 311 (La.1989).

Schultz v. Doyle, 98-1113, p. 5-6 (La. App. 3 Cir. 2/3/99), 727 So.2d 691, 693-94.

For the following reasons, we now hold that our decision on the writ application is the law of the case. These very same issues were litigated by LPCF before this court last year in Bridgers v. Southwest Louisiana Hosp. Ass'n., 99-520 (La.App. 3 Cir 11/3/99); 746 So.2d 731, writ denied, 99-3402 (La.2/18/2000); 754 So.2d 965. That case also involved the admission of liability via a settlement, evidentiary rulings and the award of damages in excess of the $100,000.00 settlement.

The Bridgers filed a number of pretrial motions, including motions to exclude the testimony of various expert witnesses, as well as the opinion of the medical review panel ....

....

The case was tried before a jury November 2-5, 1998. The jury returned a unanimous verdict in favor of Mr. and Ms. Bridgers and against the LPCF. It found that, as a result of Dr. Vines' malpractice, Ms. Bridgers had been deprived of a seventy-five percent chance of recovery from GBS, and awarded her $767,500.00 in general damages, $666,704.55 in past medical expenses, and $2,693,835.00 in future medical expenses and related benefits. The jury awarded Mr. Bridgers $112,000.00 for loss of consortium. The LPCF appeals, assigning seven errors. The assigned errors can be grouped into two categories: 1) the exclusion of evidence by the trial court; and 2) causation and damages.

LAW AND DISCUSSION

Excluded Evidence

All of the LPCF's assignments of error regarding the exclusion of evidence arise from the pre-trial evidentiary rulings made by the trial court. The LPCF argues that the rulings were erroneous. Specifically, it argues that the medical review panel opinion, the testimony of the medical review panel members, Drs. Gerald Mouton, Joseph O'Donnell and Stephen Snatic, and the testimony of Drs. Charles Knight, ...