Pendleton v. Barrett

• Decision Date: 31 May 1996
• Citation: 675 So.2d 720
• Parties: 95-2066 La
• Court: Louisiana Supreme Court

Page 720

675 So.2d 720

95-2066 La. 5/31/96

Marcia Thomas PENDLETON v. Robert L. BARRETT, et al.

No. 95-CC-2066.

Supreme Court of Louisiana.

May 31, 1996.

Rehearing Denied June 28, 1996.

Troy E. Bain, for Applicant.

Milo Addison Nickel, Woodley, Williams, Fenet, Boudreau, Norman & Brown; Jack O. Brittain, Michele S. Caballero, for Respondent.

John Layne Hammons, for John L. Hammons amicus curiae.

Lawrence S. Killman, John Layne Hammons, for Louisiana Trial Lawyers Association amicus curiae.

Anthony Christopher Robinson, for Office of Risk Management amicus curiae.

Michelle Anne Bourque, for Tulane University Medical Center and Administrators of Tulane Education Fund amicus curiae.

Cristina Romig Wheat, for Ochsner Foundation Hospital amicus curiae.

[95-2066 La. 1] CALOGERO, Chief Justice. ^*

This case requires interpretation and application of La.R.S. 40:1299.44(C)(5), the provision of the Louisiana Medical Malpractice Act having to do with the Patient's Compensation Fund's excess exposure. In the event a medical malpractice plaintiff is paid $100,000 by a self-insured qualified health care provider, or the $100,000 policy limits by the insurer of a qualified health care provider, and then seeks additional compensation from the Patient's Compensation Fund, this statutory provision gives the district court the authority to decide the amount of damages to be paid to the medical malpractice plaintiff out of the Patient's Compensation Fund. In particular, La.R.S. 40:1299.44(C)(5) states in pertinent part, emphasis added:

The court shall determine the amount for which the fund is liable and render a finding and judgment accordingly. In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the liability of the health care provider as admitted [95-2066 La. 2] and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.

The particular question before us today, in light of the statute's provision that the district court shall, upon payment of the $100,000, consider the liability of the health care provider as admitted and established, is whether this statute requires a district court to determine medical causation in assessing the amount of damages to be paid from the Patient's Compensation Fund.

Our conclusion is that in these circumstances, the liability of the health care provider is admitted and established as to the original harm emanating from the alleged malpractice. No further proof of causation is required to establish liability for this original harm. The district court's sole function is to calculate and assess damages. However, with regard to alleged secondary harm, that is, all other alleged damages which are not primary, the plaintiff bears the burden of proving that they were caused by the medical malpractice. Thus, the district court must engage in a duty-risk analysis (with the burden of proof on plaintiff) to determine whether the alleged malpractice was the cause of the secondary harm.

FACTS ¹

According to the Petition, upon noticing a lump in her right breast in March, 1979, Marcia Thomas Pendleton consulted Dr. James Vernon Kaufman, a surgeon in Natchitoches, Louisiana. Pendleton had a family history of breast cancer. Dr. Kaufman did a mammogram and told Pendleton that it was negative. However, the lump continued to grow, and on April 16, 1979, Dr. Kaufman recommended a biopsy of the lump for testing by a pathologist. The biopsy was performed on April 17, 1979 at Natchitoches Parish Hospital. Pendleton was informed that the biopsy was negative for malignancy.

The lump still continued to grow, and on May 29, 1979, Dr. [95-2066 La. 3] Kaufman recommended surgical removal. The lump was a tumor which was removed by Dr. Kaufman on June 1, 1979, and pathology tests showed the tumor to be malignant. On June 2, 1979, Pendleton was transferred to Schumpert Hospital in Shreveport to be treated by Dr. Robert L. Barrett who performed a modified radical mastectomy on June 7, 1979. The tissue was found to be malignant, and Pendleton was discharged from the hospital.

Several days later, Pendleton began experiencing pain in her right thigh which eventually spread to her right hip, groin and back. She told Dr. Barrett about the growing pain, and she also consulted Dr. Kaufman throughout September, 1979. In an attempt to alleviate the pain, Pendleton also consulted an orthopedic surgeon and a neurosurgeon. In November, 1979, she was referred to Ochsner Clinic in New Orleans. Diagnostic tests at that time revealed tumors of the right thigh, right hip, a vertebra, the skull and possibly the liver. Chemotherapy was immediately begun at M.D. Anderson Hospital in Houston, Texas and continued for several months.

PROCEDURAL HISTORY

In May, 1980, Pendleton filed suit in the Tenth Judicial District against Dr. James Kaufman and Dr. Robert L. Barrett, alleging the following negligent acts on the part of Dr. Kaufman:

(a) Failure to diagnose the malignant tumor prior to the surgery of June 1, 1979;

(b) Failure to use more diagnostic tests to aid in diagnosing the malignant tumor prior to June 1, 1979;

(c) Failure to refer petitioner to a major cancer treatment center prior to June 1, 1979;

(d) Failure to perform a biopsy prior to April 17, 1979;

(e) Failure to take an adequate specimen when the biopsy was performed on April 17, 1979;

(f) Failure to remove the tumor on April 17, 1979;

(g) Failure to run estrogen receptor tests on the tumor specimen on June 1, 1979;

(h) Failure to diagnose that the tumor had metastasized during the treatment period from September 4, 1979 to October 22, 1979;

(i) Failure to run more diagnostic tests after September 4, 1979 to see if the tumor had metastasized; and

[95-2066 La. 4] j) Failure to refer petitioner to a major cancer treatment center after he knew or should have known that the malignancy had metastasized.

The following negligent acts were alleged against defendant Dr. Barrett:

(a) Failure to perform an estrogen receptor test on the tumor specimen removed on June 7, 1979;

(b) Failure on June 2 or June 3, 1979 to request that an estrogen receptor test be run on the tumor specimen removed on June 1, 1979;

(c) Failure to refer petitioner to a major cancer treatment center after the surgery of June 7, 1979 (d) Failure to diagnose that the tumor had metastasized during the treatment period after June 18, 1979;

(e) Failure to run more diagnostic tests after June 18, 1979 to see if the tumor had metastasized; and

(f) Failure to refer petitioner to a major cancer treatment center after he knew or should have known that the malignancy had metastasized.

Pendleton also alleged that but for the negligence of defendants, she would have suffered much less pain and would have been disabled for a shorter period of time. Further, defendants' negligence lessened her life expectancy.

Pendleton died on June 18, 1981, approximately a year after filing the original petition. A First Supplemental and Amended Petition was filed substituting as plaintiff Pendleton's husband, D. William Pendleton, individually and as tutor for their minor child Lindsay Renee Pendleton. Named as defendants were Dr. Barrett, his insurer Hartford Accident and Indemnity Company, Dr. Kaufman, and his insurer St. Paul Fire & Marine Insurance Company. The Supplemental Petition alleged that Pendleton continued to suffer with increasing pain, and in February, 1981, additional malignancies were found in her lung and in her brain. During the last months of her life, she suffered increasing pain and mental anguish caused by the increasing certainty of death. She allegedly died as a direct result of the malignancies that originated from the original breast cancer.

Trial began in March, 1993. After several days of trial, the parties informed the district court that they had reached a settlement. A "Joint Petition for Court Approval of the Settlement [95-2066 La. 5] of a Medical Malpractice Claim and the Demand for Payment of Damages from the PCF" was filed in compliance with the Louisiana Medical Malpractice Act. In this pleading, the parties asked the district court to approve plaintiff's settlement with Dr. Robert L. Barrett, M.D. and his insurer Hartford as Dr. Barrett was a qualified health care provider within the terms of the Act. Plaintiff also reserved his rights to proceed against the PCF and sought damages in excess of the $100,000. Plaintiff also settled his claims against Dr. Kaufman, who was not covered by the Medical Malpractice Act, and his insurer. The district court approved the settlement.

The PCF rejected plaintiff's claim for excess damages, and after numerous pre-trial motions, trial was scheduled to begin July 17, 1995. Prior to trial, the PCF raised several issues which it sought to have resolved prior to trial. In particular, the PCF asked the district court to answer prior to trial the following questions on the parties' burdens regarding causation:

Do damages include causation, so plaintiff will be required to prove what damages were caused by the fault of Dr. Barrett that was statutorily admitted?

Does liability include causation, so plaintiff is not required to prove what damages were caused by the statutorily admitted fault of Dr. Barrett? ²

Defendant PCF took the position that plaintiff had the burden at trial to prove what damages were caused by the physician's fault and the degree and seriousness of those damages. To this end, PCF sought to take further depositions and additional discovery. In response, plaintiff contended that under La.R.S. 40:1299.44(C)(5), liability, including causation, was admitted and established by the $100,000 payment and hence, the only remaining issue to be tried was the amount of damages. Additional discovery was unnecessary.

The district court agreed with plainti...