Walter v. Children's Hosp.

• Decision Date: 17 December 2010
• Docket Number: No. 2010–CA–0213.,2010–CA–0213.
• Parties: Walter and Carolyn DOUGLAS, Individually and on behalf of their Minor Daughter, Shametha Douglasv.CHILDREN'S HOSPITAL, Michelle M. Zembo, M.D., and Charles B. Hill, M.D.
• Court: Court of Appeal of Louisiana — District of US

69 So.3d 434

Walter and Carolyn DOUGLAS, Individually and on behalf of their Minor Daughter, Shametha Douglas

v.CHILDREN'S HOSPITAL, Michelle M. Zembo, M.D., and Charles B. Hill, M.D.

No. 2010–CA–0213.

Court of Appeal of Louisiana, Fourth Circuit.

Aug. 19, 2010.Writ Denied Dec. 17, 2010.

Sean D. Fagan, Locke Meredith, Sean Fagan & Associates, APLC, Baton Rouge, LA, for Plaintiffs/Appellants, Shametha Douglas, Carolyn Douglas and Walter Douglas.Stephanie B. Laborde, Angela W. Adolph, Christina M. Soileau, Baton Rouge, LA, for Appellee, The Louisiana Patient's Compensation Fund Oversight Board.James D. “Buddy” Caldwell, Attorney General, Matthew P. Chenevert, Special Assistant Attorney General, Berrigan Litchfield Schonekas Mann & Traina, LLC, New Orleans, LA, J. Elliott Baker, Special Assistant Attorney General, Covington, LA, for The State of Louisiana as Appellee.(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, and Judge MAX N. TOBIAS, JR.).JOAN BERNARD ARMSTRONG, Chief Judge.

[4 Cir. 1] These appeals arise from a judgment of the trial court in a medical malpractice case. Plaintiffs, Walter and Carolyn Douglas, filed suit individually and on behalf of their minor daughter against three medical doctors: Michelle M. Zembo, John Noble, and Charles B. Hill. Doctors Zembo and Noble were employed by the State of Louisiana ¹, and Dr. Hill ² was a private physician.

The plaintiffs originally filed suit in 1995 against Children's Hospital (CH), Dr. Zembo, and Dr. Hill, alleging that their negligence in connection with the patient's distal femoral osteotomy of the right leg with internal fixation and fasciotomy, to correct a bilateral valgus deformity, resulted in the below-knee amputation of the patient's leg. Dr. Zembo and Dr. Hill filed exceptions of prematurity pursuant to La. R.S. 40:1299.39.1 and La. R.S. 40:1299.41 et seq., and Dr. Hill moved for sanctions under La.Code Civ. Proc. art. 863. By consent judgment of August 25, 1995, Dr. Zembo's exception was granted and the petition [4 Cir. 2] as against her was dismissed without prejudice. The trial court on September 12, 1995, granted the plaintiffs' motion to dismiss the petition as against Dr. Hill pending resolution of Medical Review Panel (MRP) proceedings, without prejudice to their proceeding against the defendants at the conclusion of the MRP proceedings. On October 24, 1995, the plaintiffs dismissed their suit against CH with prejudice. On Dr. Hill's motion, the MRP was extended for two additional six-month periods for further discovery and submission of evidence ³. The trial court granted subsequent requests for extension through February 1, 1998.

Dr. Hill filed an exception of prematurity to the amending and supplemental petition and a motion for Article 863 sanctions. The trial court granted plaintiffs' motion to dismiss the suit, without prejudice, on October 24, 1996. On December 11, 1997, the panel, consisting of Doctors Kenneth Falterman, Faith Hansbrough, and Rodney Steiner, rendered opinions in favor of the defendant doctors.

In June of 1996, the plaintiffs filed an amending and supplemental petition, naming the original defendants, including CH, John W. Noble, M.D., and the State of Louisiana, alleging inter alia, that the doctors were employees, agents, and/or associates of CH, and that they were in the course and scope of their employment “in conjunction with” the Louisiana State University Medical Center. Plaintiffs alleged that the State, through its Office of Risk Management, is vicariously liable in solido for their damages.

[4 Cir. 3] The matter was set for trial, and upon the plaintiffs' motion, was continued to be reset by Order of January 26, 2000. The trial court granted subsequent unopposed continuances pending the taking of additional discovery. Ultimately, the trial was held in May of 2006. During the course of the trial, the plaintiffs settled their lawsuit against Dr. Hill ⁴, reserving their rights against the Patient's Compensation Fund (PCF) as well as Doctors Zembo and Noble, and the case proceeded against the remaining defendants.

The jury found the defendant physicians at fault, allocated at 40% to Dr. Zembo; 20% to Dr. Noble; and 40% to the settling physician, Dr. Hill. It found that the patient had sustained damages, including past medical expenses ($275,000); future medical expenses ($300,000); past economic loss ($75,000); past and future pain and suffering ($1,500,000); loss of enjoyment of life and disfigurement ($1,000,000); and loss of future earning capacity ($500,000), for a total of $3,650,000. The jury awarded Mrs. Douglas $75,000 for loss of consortium and $150,000 for emotional distress, and awarded Mr. Douglas $10,000 for loss of consortium.

On July 13, 2007, the trial court granted the State's unopposed Motion for Summary Judgment on the plaintiffs' challenge to the constitutionality of La. R.S. 40:1299.42(B), dismissing that challenge with prejudice. The trial court entered judgment that same day granting the State's unopposed motion to exclude the testimony of Professor Paul W. Baier ⁵. On July 23, 2007, following a [4 Cir. 4] contradictory hearing, the trial court granted the State's Motion for Summary Judgment on the plaintiffs' challenge to the constitutionality of La. R.S. 40:1299.39, dismissing that challenge with prejudice. The plaintiffs appealed the latter judgment in proceedings bearing Nos.2008–CA–0383 c/w 2008–CA–0384 on the docket of this Court. Because the summary judgment was not designated by the trial court to be a final, appealable judgment pursuant to La.Code Civ. Proc. art. 1915, this Court dismissed the consolidated appeal by order dated May 16, 2008, remanding the action to the trial court for further proceedings.

On remand, the trial court modified the jury's verdict to conform to the provisions of the MLSSA, La. R.S. 40:1299.39, et seq. The trial court entered judgment against the State of Louisiana on November 10, 2009 ⁶, awarding the minor child $500,000 in general damages and $275,000 in past medical expenses, together with all future medical expenses as they accrue, with legal interest from the date of judicial demand and for all costs of these proceedings.

On December 22, 2009, the plaintiffs filed a Motion for Devolutive Appeal from the trial court's judgment. The trial court signed the appeal order on January 4, 2010 ⁷. On December 28, 2009, the State filed a Motion for Devolutive Appeal from the trial court's judgment. The trial court signed the appeal order on December 29, 2009, and it was entered on the court minutes on December 30, 2009. The PCF filed a brief in support of the trial court's judgment.

[4 Cir. 5] For the reasons that follow, we amend and affirm the judgment of the trial court.

The plaintiff, Carolyn Douglas, testified that she is married and has one child, the plaintiff, Shametha Douglas (Shametha). At the time of the surgery in question, Shametha was social, active, outgoing and had many friends. She rode her bike, and played dodgeball and kickball despite a knock-knee condition. She attended Hammond Westside School, was thirteen years old and was in the 6th grade at the time of her surgery. Shametha was also diabetic, and was under treatment for that disease. Because of her knock-knee condition, she suffered a great deal of pain and fell down frequently because her legs would give out when she walked. Her physician referred her to Dr. Zembo at CH, who was highly recommended. Dr. Zembo examined Shametha and recommended surgery that the doctor described as simple surgery that would straighten her legs and ultimately stop her pain. She was advised that Shametha could expect to return home three days after the surgery. Mrs. Douglas did not recall any discussion that one of the risks of the surgery would be the possibility that Shametha's artery or vein might be cut.

Mrs. Douglas obtained a second opinion from Dr. J.L. Fambrough in Hammond, and after having spoken to him, decided to authorize the surgery in the belief it would help alleviate Shametha's pain. The surgery was scheduled for May 10, 1994, at CH. Dr. Zembo told her that Shametha would be able to go home in a body cast three days after the surgery. Shametha went into the surgery as [4 Cir. 6] scheduled, and, as the morning passed, Mrs. Douglas did not receive any updates from the CH staff, although parents of other surgical patients did receive updates. Mrs. Douglas was told the staff did not have any information on the progress of her daughter's surgery. Ultimately, Mrs. Douglas spoke with Dr. Zembo, who told her there had been an accident in surgery, but did not give her details. Mrs. Douglas went to pray in the CH chapel and then returned to the surgery waiting area, where she was alone. She was later joined by members of her family and a friend, Lynn Wittie, who had provided medical transportation for Shametha over the prior three years. At midnight, a nurse told her that Shametha was in the CH intensive care unit (ICU). Mrs. Douglas asked to meet with Dr. Zembo and with Dr. Noble, who was working with Dr. Zembo, to no avail. She saw Shametha in the ICU, but the patient was heavily sedated and could not respond to her.

Shametha remained in ICU for two weeks, but her leg did not appear to be getting better. Her toes were black and appeared to be shriveling up, and had an odor. Mrs. Douglas' experience as a nurse's aide caused her to conclude from these conditions that the patient might lose her leg. Mrs. Douglas asked several times to speak with Dr. Zembo, but was able to speak only to Dr. Noble, who told her that Dr. Zembo would be in and only Dr. Zembo could advise her concerning her patient's condition. Dr. Hill also told Mrs. Douglas that Dr. Zembo was the doctor in charge and she would have to speak with her.

During this period, Dr. Zembo performed five or six additional surgeries on the patient. Mrs. Douglas testified that no one...