Miller v. Lammico

Decision Date16 January 2008
Docket NumberNo. 2007-C-1352.,2007-C-1352.
Citation973 So.2d 693
PartiesNora MILLER, et vir v. LAMMICO, et al.
CourtLouisiana Supreme Court

Perret Doise, Nadia Marie de la Houssaye, Lafayette; The Nickel Law Firm, Milo Addison Nickel, Jr., Shreveport, for applicant.

Bergstedt Law Firm, John Gregory Bergstedt, Lake Charles; The Townsley Law Firm, Todd A. Townsley, Lake Charles; Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Lake Charles; Edmond Mazyck Thomas, for respondent.


We granted certiorari in this matter to consider whether this Court's decision in Hall v. Brookshire Brothers, Ltd., 02-2404 (La.6/27/03), 848 So.2d 559, which held that the percentages of comparative fault are allocated prior to imposing the Medical Malpractice Act damage cap set forth in La. R.S. 40:1299.42(B)(1), is limited to those circumstances in which the plaintiff is comparatively at fault. For the following reasons, we find the Court of Appeal, Third Circuit's ruling, that Hall v. Brookshire Brothers, Ltd. is inapplicable when there is no comparative fault on behalf of plaintiff, to be erroneous. We further find that the Court of Appeal correctly affirmed the damages awarded by the jury. Accordingly, the Court of Appeal's decision is reversed in part, affirmed in part, and the trial court's judgment is reinstated.


Plaintiff, Nora Miller, became pregnant in 1997 at the age of 39 after several years of trying unsuccessfully, which included the assistance of various medical procedures. On December 31, 1997, Mrs. Miller delivered a healthy baby boy by caesarian section at Columbia Women and Children's Hospital in Lake Charles, Louisiana. The caesarian section was performed by her obstetrician/gynecologist ("OB-GYN"), Dr. Johnny Biddle. On the fourth day following the surgery, January 4, 1998, Mrs. Miller began to suffer abdominal pain and developed a moderate fever. Dr. Biddle placed Mrs. Miller on antibiotics and she was instructed to stop breast feeding her baby. Between January 4 and January 14, 1998, Mrs. Miller continued to suffer abdominal pain. The trial testimony of both Mr. and Mrs. Miller indicated that during this time Mrs. Miller was unable to tolerate the intensity of her pain, which she rated as a nine out of ten. Despite her fever and pain, as well as a pelvic CT scan that indicated a possible infection, Dr. Biddle did not conduct a pelvic exam. Dr. Biddle discharged Mrs. Miller from Columbia Women and Children's Hospital on January 14, 1998. According to the Millers' testimony adduced at trial, Mrs. Miller's fever and pain remained unexplained and unresolved.

Following her discharge from the hospital, Mrs. Miller's condition continued to worsen, the fever and pain persisted, and she had difficulty walking. As a result, Mr. Miller transported Mrs. Miller to St. Patrick Hospital in Lake Charles, Louisiana, where she was admitted for treatment on January 17, 1998. Dr. Biddle was again her treating physician during this hospital stay and ordered another CT scan of Mrs. Miller's abdomen and pelvis, as well as a gallium scan.1 Pursuant to Dr. Biddle's order, Dr. Robert Neal Brown performed the CT scan on January 18, 1997. In his report, Dr. Brown described some abnormalities, but made no conclusions or recommendations to Dr. Biddle.

Dr. Charles J. Brdlik performed the gallium scan between January 20, 1997, and January 23, 1997. He reported the findings of the scan to be normal and showing no signs of infection, but later admitted at trial that this report was incorrect. On January 21, 1998, Dr. Biddle again discharged Mrs. Miller from the hospital, despite her continued pain and fever.

Following Mrs. Miller's second discharge from the hospital (this discharge being from St. Patrick Hospital), her condition continued to deteriorate as she remained at home in bed with pain and fever. Mr. Miller, concerned about his wife's health, brought her to see Dr Randall Wagman at the Westlake Medical Clinic in Westlake, Louisiana, in order to obtain a second opinion. After a cursory physical examination, Dr. Wagman concluded that Mrs. Miller likely had a pelvic abscess. During that visit, Dr. Wagman ordered radiological scans which revealed a massively infected pelvis.

Mrs. Miller was subsequently admitted to West Calcasieu-Cameron Hospital in Sulphur, Louisiana under the care of Dr. Ben Darby. An emergency Dilatation and Curettage ("D & C")2 was performed on January 31, 1998, by Dr. McAlpine. Due to the damaged and necrotic nature of her tissue, Mrs. Miller bled severely during the procedure. To assist in controlling Mrs. Miller's bleeding, a laparotomy was performed wherein Mrs. Miller's uterus was removed. After over thirty days of infection, according to the plaintiff's expert, Mrs. Miller's uterus was distorted and necrotic to the point that it broke apart as it was removed from her body. Moreover, the abscess surrounding the uterus had adhered to the walls of Mrs. Miller's bowels, which required careful separation to prevent further damage to the bowels. Following Mrs. Miller's surgery, Dr. Darby informed the Millers that, without treatment, Mrs. Miller was three to seven days from death.

On July 6, 1998, the Millers timely filed a claim with the Medical Review Panel. The Medical Review Panel met on July 2, 2001, and rendered its opinion on July 5, 2001, unanimously concluding that the evidence did not support a finding that Dr. Johnny Biddle and Dr. Robert Neal Brown failed to comply with the appropriate standards of care. The panel further found that, although Dr. Charles Brdlik failed to comply with the appropriate standard of care, his conduct was not a contributing factor of the plaintiffs damages. The Medical Review Panel's Notice of Opinion was mailed to the parties on July 9, 2001.

On October 4, 2001, the Millers filed a Petition for Damages against Dr. Biddle, Dr. Brdlik, Dr. Brown, and their respective insurers in the Fourteenth Judicial District Court, Parish of Calcascieu. Dr. Biddle and Louisiana Medical Mutual Insurance Company filed a Motion for Summary Judgment on November 4, 2002, asserting that no genuine issue of fact existed as to any basis of liability with respect to Dr. Biddle. On March 19, 2003, the trial court ordered a Rule to Show Cause and set the hearing on the Rule for May 9, 2003. This hearing was continued on May 9, 2003.3

Dr. Biddle subsequently admitted liability and executed a settlement with the Millers in the amount of $100,000, which is the maximum amount of liability exposure pursuant to. La. R.S. 40:1299.42(B)(2).4 Following Dr. Biddle's admission of liability and settlement with the Millers, a "Judgment Approving Settlement of Medical Malpractice Claim" was signed, pursuant to La. R.S. 40:1299.44(C), on March 15 2005.5 The order dismissing Dr. Biddle was signed by the trial court on May 10, 2005. As a result, under La. R.S. 40:1299.44, et seq., the Patients' Compensation Fund (PCF) became liable for any judgment against Dr. Biddle irk excess of $100,000 (up to the $500,000 Medical Malpractice Act cap provided for in La. R.S. 40:1299.42(B)(1)6).

Trial was held in this matter from March 28, 2005 to March 31, 2005.7 During the course of the trial, Dr. Brdlik admitted to committing negligence in the reading of the gallium scan and a directed verdict was entered against him, in favor of the plaintiffs, on that issue on March 31, 2005. Consequently, the sole issue for the jury to decide pertaining to Dr. Brdlik's liability was whether his breach of the standard of care caused damage to the plaintiff. After hearing the facts of this case and the testimony of experts from both sides, the jury returned a verdict in favor of the Millers on March 31, 2005, apportioning eighty percent fault to Dr. Biddle, ten percent fault to Dr. Brdlik, and ten percent fault to Dr. Brown. Monetary damages in excess of $866,000 were awarded, then reduced to $566,400.05 (including past and future medical expenses) by the trial court in compliance with the damages cap imposed by the Louisiana Medical Malpractice Act.8

Following the return of the jury's verdict, but prior to entry of judgment, a dispute arose as to the proper method of applying the comparative fault percentages to the jury awards. The district court conducted a hearing on the issue on July 20, 2005, and, applying this Court's reasoning in Hall v. Brookshire Brothers, Ltd, 02-2404 (La.6/27/03), 848 So.2d 559, ordered the judgment to be constructed in such a manner that Dr. Brdlik and Dr. Brown were each liable for ten percent of the judgment prior to reduction to the statutory damages cap. Judgment was rendered on July 20, 2005, against Dr. Brdlik and Dr. Brown, each in the amount of $86,640. The PCF, after a $100,000 credit for the amount paid in settlement by Dr. Biddle, was, therefore, liable for $271,840.04. Although the PCF subsequently filed a Motion for JNOV, Motion for New Trial, and Motion for Additur on July 26, 2005, the trial court denied all of the PCF's motions on July 13, 2006,

Dr. Brdlik, Dr. Brown (hereinafter sometimes referred to as "the doctors"), their insurer (St. Paul Fire & Marine Insurance Company), and the PCF appealed the trial court's judgment to the Court of Appeal, Third Circuit. On appeal, both the PCF and the doctors asserted that the jury abused its discretion in the amount of damages awarded.9 Additionally, Dr. Brdlik and Dr. Brown asserted, on appeal, that: (1) the jury erred in finding Dr. BrdIlk's admitted breach of the standard of care caused harm to the plaintiffs; (2) the jury erred in finding that Dr. Brown breached the standard of care and that his breach caused harm to the plaintiffs; (3) the jury erred in the percentage of fault apportioned to each defendant; and (4) the trial court erred in approving a form of judgment resulting in monetary awards against Dr. Brdlik and Dr. Brown disproportionate (in relation to the amount of the post-cap judgment) to the ten...

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