Wainwright v. Fontenot

• Decision Date: 08 December 1999
• Docket Number: No. 99-582.,99-582.
• Parties: Bert J. WAINWRIGHT, et al., Plaintiffs-Appellants, v. Romona FONTENOT, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

750 So.2d 1077

Bert J. WAINWRIGHT, et al., Plaintiffs-Appellants, v. Romona FONTENOT, et al., Defendants-Appellees.

No. 99-582.

Court of Appeal of Louisiana, Third Circuit.

December 8, 1999.

Rehearing Denied January 13, 2000.

COPYRIGHT MATERIAL OMITTED

James J. Cox, Lake Charles, LA, for Bert Wainwright, et al.

Jack Etherton Truitt, Metairie, LA, for

BEFORE: YELVERTON, THIBODEAUX and SULLIVAN, Judges.

THIBODEAUX, Judge.

Bert J. Wainwright, individually and as administrator of the estate of his minor son, John Scott, appeals the trial court's judgment, issued pursuant to a jury verdict, alleging the court erred in awarding inadequate medical expenses and no awards for general damages, future counseling expenses, future tutorial services, and loss of consortium. Mr. Wainwright also asserts that the jury erred in assessing him with one percent of the fault.

We amend the award of $1,500 for medical expenses incurred by the Wainwrights and, instead, award the sum of $7,372.00. We also amend the jury's denial of general damages and award an amount of 340,000. We affirm in all other respects.

I. ISSUES

We shall consider:

1. whether John Scott Wainwright and his parents, Bert and Jenna Cay Wainwright, are entitled to general damages;

2. whether $1,500.00 was an adequate award for medical expenses incurred by John Scott Wainwright;

3. whether Bert J. Wainwright was appropriately apportioned one percent of fault;

4. whether the jury erred by not awarding an amount for future counseling expenses for John Scott;

5. whether the jury erred by not awarding expenses for future tutorial services; and,

6. whether the jury erred by not awarding Bert and Jenna Cay Wainwright an amount for loss of consortium.

II. FACTS

Pharmacist Romona Fontenot and her employer, Walgreen Louisiana Company, Inc., admit that on March 7, 1996, Ms. Fontenot erroneously filled a prescription for five milligrams of liquid Prozac, an anti-depressant, for eight-year-old John Scott Wainwright with twenty milligrams of the medicine. However, the defendants deny that the mistake resulted in John Scott's spasmodic behavior and his subsequent hospitalization at Lake Charles Memorial Hospital from March 12 to March 13, 1996. Hence, the dominant issue in this case is the extent of John Scott's damages caused by the erroneously filled prescription.

John Scott had previously been treated for post-traumatic stress disorder arising out of a kitchen fire that occurred in the Wainwright home in July, 1995. After the fire, Bert and Jenna Cay Wainwright observed that John Scott was depressed and anxious and developed compulsive behaviors. John Scott would quarrel with his parents after the kitchen fire; however, the fire apparently did not affect his schoolwork. According to his parents, he remained a stellar student. After the Prozac overdose, however, John Scott's school performance plummeted. According to his teachers, John Scott became unable to follow and to complete instructions and his achievement test scores plunged.

Dr. John Bambenek, a psychiatrist, prescribed an anti-depressant medication, Imipramine, for John Scott's previous disorder. In March 1996, Dr. Bambenek modified John Scott's medication and prescribed Prozac. On March 7, 1996, Bert Wainwright went to Walgreen's Drug Store to have the Prozac prescription of five milligrams filled. Mr. Wainwright waited for the prescription to be filled and spoke to Romona Fontenot, the pharmacist, at the counseling window and observed that Prozac "was a very powerful medicine."

On Saturday, March 9, 1996, after reading the dosage instructions on the bottle label, Bert Wainwright began administering the Prozac to John Scott once daily, during breakfast. Within an hour of receiving his medication, John Scott became irritable and agitated. He became belligerent with his parents, and he experienced uncontrollable crying episodes. This conduct continued for several hours until he became exhausted. The series of rage and weariness continued throughout the night.

On Sunday morning, Bert Wainwright gave John Scott another twenty milligram dose of the Prozac in accordance with the labeled instructions. The irritability and the agitation arose again. The Wainwrights were unable to get John Scott dressed for 10:30 mass. Mrs. Wainwright and one of John Scott's sisters had to remain at home with him while his father and his other sisters attended mass. While his father and his sisters were at church, John Scott became aggressive toward his mother. Mrs. Wainwright testified that he attempted to attack her with a fireplace poker and, when she and his sister attempted to hold him, he catapulted his mother over his head. John Scott slammed his head backwards and he scratched his mother and his sister as they restrained him. This tumultuous conduct continued until the others returned from mass.

After suspecting the Prozac was the source of John Scott's erratic and uncontrollable behavior, Mrs. Wainwright called the Walgreen's pharmacy and spoke to Sharon Courrege, the pharmacy manager. Mrs. Wainwright explained John Scott's behavior to Ms. Courrege, and she requested that Ms. Courrege locate the original prescription from Dr. Bambenek to compare it with the label on the bottle. Ms. Courrege verified that Dr. Bambenek prescribed twenty milligrams of liquid Prozac. During trial, however, Ms. Courrege admitted she did not compare the prescription with the label. She also testified Mrs. Wainwright's explanation of John Scott's behavior was not extensive and she did not perceive a sense of urgency.

After receiving verification from Ms. Courrege on Sunday, Bert Wainwright administered one teaspoonful, or twenty milligrams, of Prozac to John Scott on Monday morning. Because John Scott did not have school that day, Mr. Wainwright took him to his office that morning. In the midst of a conference, Mr. Wainwright had to call his wife to leave work and come to his office because John Scott had gone into a rage. John Scott was extremely irritable and combative with his father. When his mother arrived, John Scott escaped from her and proceeded to hack a row of bushes outside his father's office. After narrowly avoiding being struck with a stick by his young son, Bert Wainwright eventually was able to restrain John Scott to the ground.

John Scott already had been scheduled to see Dr. Charles Monlezun, his therapist, that Monday afternoon. The Wainwrights informed the therapist of their son's rages throughout the weekend and on that day. Dr. Monlezun then contacted Dr. Bambenek, who then notified him that he had prescribed only five milligrams, not twenty milligrams, of liquid Prozac. Dr. Bambenek advised the Wainwrights to immediately transport John Scott to the emergency room. Because the emergency room staff of Lake Charles Memorial Hospital responded too slowly, John Scott was taken to the Children's Clinic. Upon arrival, Dr. David Wallace immediately admitted John Scott into the hospital.

John Scott remained in Lake Charles Memorial Hospital overnight for observation. His vital signs were monitored and his blood was analyzed. John Scott was released when results of tests taken returned negative.

According to his teachers, after these traumatic events, John Scott's performance in school and on standardized tests plunged. He had difficulty following instructions and he had to relearn simple skills.

III.

LAW AND DISCUSSION

Standard of Review

Before an appellate court can disturb a trial court award, the record must clearly reveal an abuse of discretion. Only after finding such abuse can the appellate court modify the award, and then only to the extent of lowering it to the highest point or raising it to the lowest point which is reasonably within the trial court's discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976). However, when the trier of fact fails to award damages, the abuse of discretion standard of review does not apply. Rather, an appellate court reviews the quantum issue de novo. Mart v. Hill, 505 So.2d 1120 (La. 1987); Phelps v. White, 94-267 (La.App. 3 Cir. 10/5/94); 645 So.2d 698, writ denied, 95-151 (La.3/17/95); 651 So.2d 272.

It is clearly an error of law to award special damages and refuse to award general damages for injuries that present objective symptoms. Bowers v. Viator, 625 So.2d 355 (La.App. 3 Cir.1993), writ denied, 93-3023 (La.2/4/94); 633 So.2d 171. The failure to award any general damages when special damages for medical expenses are awarded is erroneous as a matter of law. Schlette v. Washington, 99-0234 (La.App. 4 Cir. 9/22/99); 752 So.2d 197. In awarding general damages where a trial court has awarded none, appellate courts are not constrained to the guidelines set forth under Coco to award either the lowest or the highest amount that would have been within the discretion of the trial court. Instead, we are empowered to award an amount which represents appropriate compensation for the damages revealed in the record. Thompson v. Louisiana Dep't of Transp. and Dev., 93-1294 (La.App. 3 Cir. 6/29/94), 639 So.2d 864, writ denied, 94-2047 (La.11/4/94), 644 So.2d 1052; Maranto v. Goodyear Tire & Rubber Co., 25,114 (La.App. 2 Cir. 5/10/95); 661 So.2d 503.

General Damages

"`General damages' are those which cannot be fixed with pecuniary exactitude; they involve mental or physical pain or suffering, inconvenience, loss of intellectual gratification, or other losses of life or lifestyle which cannot be definitely measured in monetary terms." Craven v. Universal Life Ins. Co., 95-1168, p. 17 (La.App. 3 Cir. 3/6/96); 670 So.2d 1358, 1368, writ denied, 96-1332 (La.9/27/96); 679 So.2d 1355; Boswell v. Roy 0. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978). We must evaluate each case according to its own particular circumstances. Berthelot v. Leday, 606 So.2d 1 (La.App. 3 Cir. 1992).

In this case, the jury awarded $1,500.00 for medical expenses but did not award any general...