Morgan v. Willis-Knighton Medical Center

• Decision Date: 22 August 1984
• Docket Number: WILLIS-KNIGHTON,No. 16387-CA,16387-CA
• Citation: 456 So.2d 650
• Parties: Arvin Douglas MORGAN, Plaintiff-Appellee, v.MEDICAL CENTER, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 650

456 So.2d 650

Arvin Douglas MORGAN, Plaintiff-Appellee, v. WILLIS-KNIGHTON MEDICAL CENTER, Defendant-Appellant.

No. 16387-CA.

Court of Appeal of Louisiana Second Circuit.

Aug. 22, 1984.

Rehearing Denied Sept. 21, 1984.

Watson, Blanche, Wilson & Posner by Todd A. Rossi, Baton Rouge, for defendant-appellant.

Edmund M. Thomas, Shreveport, for plaintiff-appellee.

Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.

SEXTON, Judge.

Plaintiff filed suit for injuries to his right ulnar nerve which were allegedly sustained when he was anesthetized for surgery. The trial court granted judgment in plaintiff's favor in the amount of $95,472.93. We affirm.

Plaintiff in this cause is Arvin Douglas Morgan, a 56 year old Shreveport resident. Mr. Morgan is employed by Ford Motor Company as a territorial field manager who oversees the sale of parts and service. Defendant is Willis-Knighton Medical Center, a Louisiana corporation which owns and operates a Shreveport hospital.

Subsequent to the onset of bleeding in the urinary tract in the fall of 1980, the plaintiff was hospitalized in the defendant institution on October 8, 1980. The following day a cystoscopic examination under a general anesthetic revealed a tumor on the bladder. The tumor was surgically removed by Dr. Tommy Mook, a local urologist, under a general anesthetic on October 10, 1980.

Plaintiff's anesthetic was administered by registered nurse-anesthetist Robert Kelly. At trial Dr. Mook and Robert Kelly possessed little recollection of this specific procedure but did testify as to the standard procedures generally utilized in the surgical procedure employed on the plaintiff. This testimony established that the type operating table which was used is that which is normally utilized in natal deliveries to allow the surgeon to operate while standing between plaintiff's legs.

Plaintiff's left arm was placed on and supported by a narrow leaf or platform which extended outward from the operating table in an angle perpendicular to plaintiff's body during surgery. Plaintiff's left arm was placed on this extended platform to facilitate the placement of the IV in that arm. Plaintiff's right arm was allowed to rest, unpadded, on the operating table, parallel and adjacent to his body. The surface of the operating table upon which plaintiff's surgery was performed was equipped with approximately one and a half inch of padding. However, there was no protective padding on the vertical, metal edge or side of the operating table which descended from the table's upper surface.

Plaintiff testified upon regaining consciousness subsequent to surgery that

I woke up with a stinging sensation in my arm and hand and my mouth and it felt like I had gone to sleep with my hand underneath my head and it was asleep and I was trying to shake it loose and of course, it wouldn't go.

Plaintiff's daughter, Patricia Morgan Price, verified that, shortly after regaining consciousness and in the presence of his family and friends, Mr. Morgan complained to a nurse of pain in his right arm. Ms. Price further testified that the plaintiff directly informed members of his family of his difficulty with his right arm, relating that his right hand "was tingling ... like it was ... asleep[,] ... [that] it was hurting," and that "[h]is arm felt real heavy." Plaintiff's friend Jeffrey Clement testified that the plaintiff complained of pain in his arm, when Mr. Clement briefly visited him shortly after his operation. Plaintiff's close acquaintance James Silvio testified that plaintiff complained to him of pain in his right hand and arm on the day of the operation, shortly after surgery, while Mr. Morgan was still groggy from the effects of the anesthetic. Mr. Silvio further confirmed that the plaintiff "complained about his [right] arm continuously after the operation."

Another acquaintance of plaintiff, Mary Skaggs, visited plaintiff at the hospital shortly after surgery. Ms. Skaggs testified that plaintiff "said the only complaint that he had was that he had numbness in his arm. He was flexing his hand and said his hand was numb."

On October 28, 1980, two weeks after discharge from Willis-Knighton, plaintiff was examined by his surgeon, Dr. Tommy Mook. Plaintiff at that time was suffering from a painful tingling sensation in his right arm and hand that had begun at the completion of his surgery. Dr. Mook told plaintiff that he (Dr. Mook) thought that the plaintiff had suffered damage to the ulnar nerve of his right arm, and referred plaintiff to a Dr. Waddell. The ulnar nerve runs the length of the arm, along the "ulnar groove" in the elbow, to the hand, supplying the hand with motor and sensory functions. Dr. Waddell agreed with Dr. Mook's diagnosis of a damaged ulnar nerve, and referred plaintiff to Dr. Wallace Brown for further testing. Dr. Brown conducted electromyograph (EMG) tests on plaintiff's elbow. These tests confirmed that plaintiff had a damaged ulnar nerve in his right arm, and that the burning, stinging sensation in plaintiff's right arm was a direct result of the ulnar nerve damage. Plaintiff subsequently consulted with Drs. Dienst and Boykin about his arm, and submitted to further EMG testing by Dr. Brown. Dr. Boykin, a neurosurgeon, told plaintiff, after the second battery of EMG tests, that surgery would be required to remedy plaintiff's condition.

Plaintiff was admitted to Schumpert Medical Center in Shreveport on August 17, 1981, operated on by Dr. Boykin on August 18, and discharged from hospitalization on August 21, 1981. The purpose of the operation, as Dr. Boykin succinctly stated it, was to "put the [ulnar] nerve in a different position so that he would not continue to traumatize it everytime that he flexed his arm at the elbow." Plaintiff's sutures were removed, following this surgical procedure, on August 26, 1981.

Plaintiff filed suit on October 8, 1982, alleging that the ulnar nerve of his right arm had been damaged during the surgical removal of his bladder tumor in October of 1980, while plaintiff was sedated under general anesthesia. In a judgment rendered October 26, 1983, the trial court awarded judgment in plaintiff's favor and against the defendant in the amount of $95,472.93. In its well-written reasons for judgment, the trial court found that the doctrine of res ipsa loquitur applied to defendant's acts and omissions. The trial court thus concluded that defendant was negligent and civilly liable for the injury to the ulnar nerve in plaintiff's right arm. The trial court's award included a $50,000 sum for general damages, $40,000 for lost future income, $2,653.63 for lost past income, and $2,819.30 in special damages for the expenses incurred by plaintiff in obtaining medical treatment for the injury to his right ulnar nerve.

The defendant presents two basic contentions on appeal. In its first assignment the defendant contends that the trial court erred in finding it negligent and liable for plaintiff's injuries. In its second assignment, defendant contends that the trial court erred in awarding excessive damages.

I. LIABILITY

Because plaintiff was anesthetized and unconscious at the time of his injuries, he was therefore compelled, in asserting his claims, to rely on the tort doctrine of res ipsa loquitur.

Res ipsa loquitur is not a substantive legal tenet, but rather an evidentiary doctrine under which a tort claim may be proved by circumstantial evidence. Smith v. International Paper Co., 299 So.2d 437 (La.App. 2d Cir.1974), writ denied, 302 So.2d 310 (La.1974). This evidentiary doctrine is applicable where defendant has actual control of the agency, instrumentality or conditions which caused plaintiff's injuries; the evidence as to the true cause of plaintiff's loss is more readily accessible to defendant than plaintiff; and the accident is of a kind that does not occur in the absence of negligence and/or the circumstances attending the accident create an inference of negligence on the part of defendant. Langlinais v. Geophysical Service, Inc., 111 So.2d 781 (La.1959); Northwestern Mutual Fire Ass'n v. Allain, 226 La. 788, 77 So.2d 395 (1954); Dorman v. T. Smith & Son, 223 La. 29, 64 So.2d 833 (1953); Ray v. Ameri-Care Hospital, 400 So.2d 1127 (La.App. 1st Cir.1981), writ denied, 404 So.2d 277 (La.1981). Under the principle of res ipsa loquitur, the defendant's negligence is inferred because, under the facts shown, the inference that defendant's negligence caused plaintiff's harm is probable and more plausible than any other explanation propounded. See Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972). It is crucial to note that, where the doctrine of res ipsa loquitur is properly applicable, the plaintiff need not establish the exact manner in which he was injured, or the precise act or event which precipitated his injury. Boudreaux, supra.

It should be noted, however, that the principle of res ipsa loquitur does not dispense with the requirement that the plaintiff prove negligence by a preponderance. This principle merely modifies the process of proof. A plaintiff relying on the res ipsa loquitur doctrine must accordingly prove circumstances which create an inference of negligence on the part of defendants. Parr v. D.H. Holmes Co., Ltd., 311 So.2d 463 (La.App. 4th Cir.1975). This places upon the defendant the burden of going forward with proof to nullify that inference. However, this inference must be weighed with all other proof in determining whether the plaintiff has satisfied the required evidentiary burden of a preponderance of the evidence. Boudreaux, supra; Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (1957); Alexander v. St. Paul Fire & Marine Ins. Co., 312 So.2d 139 (La.App. 1st Cir.1975), writ denied, 313 So.2d 846 (La.1975).

The medical testimony leaves no doubt as to the actual existence of the injury to plaintiff's right ulnar nerve. It is therefore necessary to...