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McGLOTHLIN v. CHRISTUS ST. PATRICK HSP., 10-0278 (La.App. 3 Cir. 11/17/10)
DAVID M. GLOVER, Judge.
Cindy Gilbow, as administratrix of the estate of Dub Sacrider, filed a wrongful-death action against Dr. Fraser Richards, Dr. Jack Havdala, and St. Bernard's Hospital, Inc., d/b/a St. Bernard's Regional Medical Center a.k.a. St. Bernard's Medical Center (St. Bernard's). The complaint alleged that the doctors breached the standards of care for cardiologists and cardiovascular surgeons by proceeding with a coronary-bypass surgery on the decedent without first repairing his mitral valve, resulting in embolic stroke injuries, death, and other damages, which would not have otherwise occurred, as well as mental anguish to his surviving spouse and daughters. The complaint further alleged that the hospital breached its duty of care by allowing methicillin-resistant staphylococcus bacterial infection to exist in the hospital so as to constitute a contaminated field, which resulted in a massive infection, injury, death, and damages to the decedent, as well as extreme mental anguish for the surviving spouse and daughters.
Appellant appeals from the order granting a directed verdict to Dr. Fraser Richards. On appeal, Gilbow argues that the trial court committed reversible error by permitting Dr. Richards to interrupt the testimony of Gilbow's expert witness and file in open court a written motion in limine and brief to exclude the expert's testimony, having failed to raise such motion during the pretrial hearing; that the trial court abused its discretion and committed reversible error by refusing to permit her expert witness to testify; and that the "same or similar locality rule" violates her right to fundamental fairness, due process of law, equal protection, and the right to a jury trial under state and federal constitutions. We affirm.
Arkansas Code Annotated section 16-114-206(a) provides:
(a) In any action for medical injury, when the asserted negligence does not lie within the jury's comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:
(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;
(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and
(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.
In Gambill v. Stroud, 258 Ark. 767, 770, 531 S.W.2d 945, 948-49 (1975) (citations omitted), our supreme court stated:
The rule we have established is not a strict locality rule. It incorporates the similar community into the picture. The standard is not limited to that of a particular locality. Rather, it is that of persons engaged in a similar practice in similar localities, giving consideration to geographical location, size and character of the community. The similarity of communities should depend not on population or area in a medical malpractice case, but rather upon their similarity from the standpoint of medical facilities, practices and advantages. The extent of the locality and the similarity of localities are certainly matters subject to proof. Modern means of transportation and communication have extended boundaries but they have not eliminated them. The opportunities available to practitioners in a community are certainly matters of fact and not law and may be shown by evidence under our own locality rule.
"[A]n expert witness need not be one who has practiced in the particular locality or who is intimately familiar with the practice in it in order to be competent to testify if the appropriate foundation has been laid to show that he is familiar with the standards of practice in a similar locality, either by his testimony or by other evidence showing the similarity of localities." Id. at 770B, 531 S.W.2d at 950.
Gilbow's expert, Dr. Jorge Cheirif, is a cardiologist in Dallas. He testified that there is a national standard of care. He admitted that he had never practiced at any hospital in Arkansas; had never consulted with any Jonesboro cardiologists; had never practiced in a town the size of Jonesboro; had never observed physicians practicing in Jonesboro or a similar community; had never observed the standard of care to which doctors in Jonesboro adhere; that he relied upon a national standard of care; and that he had never observed any standard of care in Jonesboro or a community of its size to determine whether it exceeds, is less than, or is the same as the "national standard of care." He admitted that he did not know whether the standard of care in Jonesboro, Arkansas, or a community of its size exceeds, is less than, or is the same as the national standard of care. When asked if he was familiar with Jonesboro or the medical facilities available in Jonesboro, Dr. Cheirif responded that he really could not say that he knew "the way it is practiced over here."
In Shaffer v. Yang, 2010 Ark. App. 97, this court held that the trial court did not err in ruling that testimony that all obstetrician/gynecological physicians in the United States were held to the same standard of care did not sufficiently establish the local standard of care for Hot Springs, Arkansas. In that case, the expert-witness physician was unfamiliar with Hot Springs and the physicians and the medical services available there. In affirming the circuit court's directed verdict in favor of the physician because of the plaintiff's failure to establish the local standard of care, this court noted that our supreme court held in Wolford v. St. Paul Fire Marine Ins. Co., 331 Ark. 426, 961 S.W.2d 743 (1998), that testimony regarding a national standard of care is insufficient where the expert fails to demonstrate a familiarity with the locality where the alleged malpractice occurred.
Here, as in Shaffer, the expert demonstrated a total lack of knowledge concerning Jonesboro's medical community, medical facilities, and local standard of care. For this reason, the circuit court did not err in directing a verdict for Dr. Richards.
Gilbow further complains that the trial court erred in allowing Dr. Richards to interrupt the testimony of Dr. Cheirif and to have Cheirif's testimony excluded. We disagree.
As Dr. Richards notes, whether a medical malpractice plaintiff meets her burden of proof on the elements of her cause of action is a question of law, and a defendant is not required to challenge the failure of the plaintiff to meet her burden of proof until the directed-verdict stage of the trial. Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002). The Williamson court further held, "To require a party to object that the opposing party did not meet its burden of proof during a witness's testimony would allow the opposing party to then resume questioning to meet that burden." Id. at 312, 72 S.W.3d at 492-93. That is precisely what appellee did in this case. Even though Dr. Richards could have waited until Gilbow had presented her case and then moved for a directed verdict, he raised the issue during Dr. Cheirif's testimony, thereby giving Gilbow an opportunity to supply proof of the local standard of care (which she was unable to do); the trial court then correctly granted a directed verdict in favor of Dr. Richards.
Finally, Gilbow argues that the same-locality rule violates her right to fundamental fairness, due process of law, equal protection, and the right to a jury trial under the state and federal constitutions. Her attorney, at the close of the trial, stated that "just for the record," he thought that not allowing Gilbow's expert witness to testify was a violation of the Fifth and Fourteenth Amendments to the U.S. Constitution, of fundamental fairness, that it treated litigants of equal stature differently, that it gave people who were citizens greater rights than non-citizens, and that it violated his client's constitutional rights and those of the deceased. Gilbow failed to obtain a ruling on any of these contentions; therefore, the arguments were not preserved for our review, and we cannot address them.
Affirmed.
PITTMAN and GRUBER, JJ., agree.
May 20, 1999 Incident
The factual record establishes that Connie George, a certified nurse assistant, moved Mrs. McGlothlin by wheelchair from the postoperative floor of the hospital to its rehabilitation section on May 20, 1999. Mrs. McGlothlin and three other family member witnesses testified that Ms. George's hands slipped as she attempted to lift Mrs. McGlothlin from the wheelchair to the bed and that Mrs. McGlothlin almost fell to the floor. Not only did Ms. George dispute the particulars of the transfer, but she testified that none of the family members were even present during the transfer. According to Ms. George, she asked Mrs. McGlothlin if she wanted to be transferred to the bed upon their arrival at the rehabilitation section's room, but Mrs. McGlothlin informed her that she would like to sit up for a while. Ms. George testified that she left Mrs. McGlothlin sitting in the wheelchair and that she had no further contact with the patient.
Ms. George has married since the events in 1999; her full name is now Connie George Eaglin. However, for consistency with the other witnesses' testimony, we will refer to her as Ms. George throughout the opinion.
The individuals whom the witnesses claim to have been present at the transfer from the wheelchair to the bed include Mr. McGlothlin; two daughters, Genevieve Marks and Margie Marie Beckworth; and one granddaughter, Flavia Marie McGlothlin. Ms. Beckworth did not testify at the trial.
Ms. George testified that it would have been a breach of the standard of care applicable to nurses and nurse assistants had she attempted to lift Mrs. McGlothlin by herself.
We need not resolve the factual dispute with regard to this particular incident because, even assuming that the McGlothlins carried their burden of proof on the breach issue, the record does not support a finding of causation. The medical records of the following day reflect that at 7:30 a.m. Mrs. McGlothlin was "awake, alert, and oriented," with no complaints of discomfort or distress noted, and Mrs. McGlothlin acknowledged in her testimony that between May 21 and May 27, 1999, she made positive progress in her recovery. According to Mrs. McGlothlin, after two or three days her left knee started feeling better and, although she continued to use pain medication, she also continued to progress through her rehabilitation. Her rehabilitation records reflect that she seemed to make daily progress.
Finding that the McGlothlins failed to prove the element of causation, we hold they failed to prove their claim for damages arising from the May 20, 1999 incident by a preponderance of the evidence.
May 28, 1999 Incident
The McGlothlins claim that on May 28, 1999, certified nursing assistant Peggy White took Mrs. McGlothlin to a bathroom in the rehabilitation facility and, while transferring Mrs. McGlothlin from her wheelchair to a toilet with a seat riser, allowed Mrs. McGlothlin to fall from her wheelchair. According to Mrs. McGlothlin, the seat riser, which was not properly fastened, gave way, causing her to fall. She claims she suffered immediate and intense pain in her left knee. Dislocation of Mrs. McGlothlin's left kneecap was confirmed that same day by an x-ray taken at Dr. Foret's instruction.
Mrs. McGlothlin testified that Ms. White took her in her wheelchair to use the rehabilitation bathroom, placed the wheelchair on the side of the commode, and placed the plastic seat riser onto the commode without latching the riser to the commode. According to Mrs. McGlothlin, Ms. White then stood on one side of her and lifted her up under her left arm, while she (Mrs. McGlothlin) held onto the wheelchair with her other arm. After Ms. White had lifted Mrs. McGlothlin partially up, and Mrs. McGlothlin was beginning to sit on the riser, the riser moved and Mrs. McGlothlin fell. According to Mrs. McGlothlin, her left knee bent as she went to the floor. Mrs. McGlothlin testified that Ms. White assisted her back into the wheelchair, but that her left knee was already swelling and painful. She asked Ms. White to return her to her room. When she returned to her room, Mrs. McGlothlin immediately telephoned both her husband and Dr. Foret to report the fall. According to Mrs. McGlothlin, Dr. Foret came to her room soon thereafter and ordered an x-ray.
Ms. White testified that not only did the bathroom incident not occur, but that there had never been an incident in which Mrs. McGlothlin sustained any injuries while under her care.
Dr. Foret testified that on May 28, 1999, and after receiving a complaint from Mrs. McGlothlin that she had injured her knee in the bathroom, he ordered an x-ray of Mrs. McGlothlin's left knee. According to Dr. Foret, Mrs. McGlothlin told him that she had been in the bathroom with an aide trying to get her up when her knee went to the side. The x-ray was taken the same day, and a radiologist's subsequent report revealed that there was a possible lateral patella displacement; that is to say, the kneecap had become displaced.
Dr. Foret testified that a displaced patella is usually caused when the patient's foot slips to the side and a valgus angle is created, so that the kneecap goes to the outside. According to Dr. Foret, the danger of this kind of injury is one of the reasons that a patient who is recovering from knee replacement surgery is transported by multiple people to try to maintain stability of the knee. The doctor also noted that, in the case of Mrs. McGlothlin, this extra assistance was made even more important by the patient's obesity. He described the injury to Mrs. McGlothlin's kneecap as completely consistent with the accident she described to him on May 28, 1999. He noted that while setbacks in rehabilitation occur regularly from knee pain, weakness, or bursitis setting in, "a trauma event is when the kneecap would dislocate."
The hospital first argues that Mrs. McGlothlin's kneecap became dislocated as a result of activities during rehabilitation on May 28, 1999, and without any negligence on the part of hospital employees. However, nothing in the medical records suggests that any traumatic event occurred during rehabilitation therapy to injure her knee. On the other hand, Mrs. McGlothlin's medical records do confirm that something occurred on May 28, 1999, that reversed the rehabilitation progress of the past few days. The occupational therapy assessment for the period of May 27 through June 2, 1999, contained a notation that on May 28, Mrs. McGlothlin was able to stand for five minutes before she began complaints of pain, and that rehabilitation activities had been placed on hold "since problems with knee have risen." Debra Loftin, a registered nurse who was working as the administrator of the rehabilitation unit in May of 1999, interpreted this report to mean that "the pain was starting to inhibit her mobility . . . on rehab," and that Mrs. McGlothlin's left knee symptoms took a turn for the worse on Friday, May 28, 1999.
Dr. Leonard testified that it was possible for a patella dislocation to occur in rehabilitation without there being any fault on the part of the rehabilitation workers.
The second page of the assessment report is not in the record, the report itself is not dated, and there is no evidence of the time of the assessment. The report itself reads as follows:
Patient able to tolerate standing up to-5 minutes on Friday before c/o pain to (L) knee began. Patient able to perform transfer on/off BSC w/ mod (I)-SBA. Toilets w/ SBA. Dresses LE w/ SBA using A/E. Patient continues to perform UE exercises at bedside since problems w/ (L) knee have arisen. Will await further orders to continue.
Additionally, Ms. Loftin had prepared an incident report on July 14, 1999, that stated:
Patient states that on May 20 th, when a nurse aide from Unit 51 brought her down to rehab, she twisted her knee getting into bed. Patient further states that on May 29 th, when she was assisted to the toilet in her room, the elevated toilet seat slipped and she twisted her left knee, which was painful.
When asked about the source of this information, Ms. Loftin stated "I would think the patient had already told me and the incident report had not been completed yet; and, so, they had requested that I complete the incident report."
The hospital also argues that if the incident in the bathroom described by Mrs. McGlothlin did occur, it took place on June 2, 1999, after her kneecap had already been dislocated. The hospital based this argument on three "markers" given by Mrs. McGlothlin's testimony, which would establish the day the incident in the bathroom took place: crying in bed, calling Dr. Foret, and being given morphine. A note in Mrs. McGlothlin's medical records shows that on June 2, at 1:45 p.m., she was crying in her room, complaining of pain, and that at 2:00 p.m. Dr. Foret saw Mrs. McGlothlin and ordered morphine for her. Ms. Haley testified that the medical records show that June 2 was the first day that Mrs. McGlothlin received morphine while in the rehabilitation unit. However, this analysis ignores the fact that Dr. Foret testified that he received an injury report on May 28; ignores the results of the x-ray taken on May 28; and disregards the fact that Mrs. McGlothlin's knee was x-rayed on May 28, but not on June 2.
The hospital's medical records reflect clearly that Mrs. McGlothlin was consistent and immediate in her complaints about her treatment on both May 20 and May 28. The same Debra Loftin who completed the July 14, 1999 incident report had made an entry in Mrs. McGlothlin's records on May 21, 1999, concerning the patient's complaint involving the transfer the day before. The entry notes that "[p]atient complains. Yesterday when that aide from the other floor brought me down, she twisted my knee getting me into bed." Mrs. McGlothlin's complaints also appear in a hospital quality assurance committee variance report dated July 14, 1999. That report contained a notation that "Pt states that on May 20, when a nurse aide from U51 brought her down to rehab, she twisted her knee getting into bed. Pt further states that on May 29 when she was assisted to the toilet (in her room) the elevated toilet seat slipped [illegible] she twisted her lt knee, which was painful."
We note that Carroll Boudreaux, a registered nurse, recorded no complaints from Mrs. McGlothlin or her family in his initial assessment report when Mrs. McGlothlin first came to the rehabilitation unit on May 20, 1999. However, Mr. Broudreaux had no independent recollection of the review and there is no evidence concerning when or where the review was performed.
It is unclear from the record whether these comments were derived from Mrs. McGlothlin after the two incidences at issue or taken from hospital records.
Despite Dr. Foret's description of a kneecap displacement as a traumatic event, those employees of the hospital responsible for investigation of patient complaints seem to automatically resolve the complaints as unfounded if they found no record of a contemporaneous complaint. This approach ignores the obvious with regard to the May 28 incident — a traumatic event occurred resulting in Mrs. McGlothlin's kneecap becoming dislocated. Absent a showing of any other possible cause, Mrs. McGlothlin's account has credibility.
Reviewing the entire record de novo, we conclude that the McGlothlins carried their burden of establishing that on one occasion, May 28, 1999, a hospital employee breached her duty of the care due to Mrs. McGlothlin when she attempted to transfer Mrs. McGlothlin without assistance, and that this breach resulted in an injury to Mrs. McGlothlin's left knee.
Assignment of Error Number Four
In their final assignment of error, the McGlothlins seek damages for the injuries they suffered. Dr. Foret performed surgery on July 15, 1999, to correct the kneecap displacement. In doing so, he discovered that the retinaculum, the connecting band that holds the kneecap in place, was completely torn. After this surgery, Dr. Foret asked Dr. Carlos M. Choucino, a Lake Charles, Louisiana, infectious disease specialist, to follow Mrs. McGlothlin because he was concerned about possible infections. In a consultation report dated July 29, 1999, Dr. Choucino related to Dr. Foret that he had discovered an extremely rare bacteria in Mrs. McGlothlin's left knee — stenotrophomonas maltophilia. Dr. Choucino began treating Mrs. McGlothlin with a combination of several antibiotics, and she convalesced until October of 1999. However, on October 18, 1999, biopsies taken by Dr. Foret revealed a staph infection in Mrs. McGlothlin's left knee.
On October 21, 1999, Dr. Foret inserted a Jackson Pratt drain in Mrs. McGlothlin's left knee in an effort to eliminate the infection without having to remove the entire joint. On October 25, 1999, Dr. Foret replaced the Jackson Pratt drain. However, Mrs. McGlothlin's problems persisted and, on January 18, 2000, Dr. Foret bought Mrs. McGlothlin back into surgery and opened up both sides of the knee to obtain in an effort to see if there was an infection in both components of the knee. Dr. Foret repeated his search for infection on March 2, 2000, when he made incisions in the four quadrants of Mrs. McGlothlin's left knee joint to drain the knee and to take additional cultures. All of these procedures took place in the operating room, with Mrs. McGlothlin under general anesthesia.
At one point, while fighting these infections, Mrs. McGlothlin's kidneys failed and she had to undergo three dialysis treatments. Dr. Foret ultimately decided that the infection in the joint could not be resolved, and on July 17, 2000, he removed the artificial knee from her left leg, leaving her able to only partially bend her left leg. Mrs. McGlothlin remained in the hospital after that surgery until July 26, 2000. On August 10, 2000, Dr. Foret performed another operation, during which he found dead tissue inside Mrs. McGlothlin's left knee joint and cleaned out the joint in an effort to prevent further infection.
Dr. Foret testified that Mrs. McGlothlin can bend her left leg only slightly; she is unable to walk; and she is confined to her bed and her wheelchair. According to the doctor, there is no expectation that her condition will ever change.
Mrs. McGlothlin testified that since the removal of the artificial knee joint in July of 2000 she cannot dress herself and can only walk a short distance — perhaps ten feet — on her walker. She was dependent on a catheter for twenty-seven months after Dr. Foret removed the artificial knee joint in July of 2000, and at the time of trial had to have a catheter inserted any time she leaves home. She testified that her knee hurts constantly, that her pain is not relieved by medication, and the only place she goes is to the doctor. Mrs. McGlothlin testified that she cries all day because she cannot use her left leg; she is depressed and takes medication for depression.
Mr. McGlothlin testified that he retired from his cross-country truck driving career in 1999 to take care of his wife. When Mrs. McGlothlin was initially released from the hospital, one of their daughters moved in with them for six months to help care for her mother. After the daughter moved out of the home, Mr. McGlothlin has been the primary caretaker and assists her with all of her daily living chores. According to Mr. McGlothlin, since the infections began, his wife has expressed that she is in constant pain.
While acknowledging that the subsequent infections may have occurred regardless of the July 15, 1999 surgery, Dr. Foret testified that it was more probable than not that the infections came about as a result of the patella revision surgery on July 15. He noted that there was no sign of infection immediately after the knee replacement surgery, and were they to relate to that surgery, he would have expected symptoms of the infection to have appeared earlier. Dr. Leonard testified that the infections could have arisen from the May 17, 1999 surgery, but he could not be sure whether they developed from the first or subsequent surgeries. He did agree, however, that the risk of infections increases when there are additional surgeries.
Based on the evidence presented at trial, we find that the McGlothlins established the hospital's liability for both the displaced patella and the series of infections.
Because we are making an initial award of damages, not reviewing an award made by the trial court, we are not limited by a determination of either the lowest or highest amount that should be affirmed. Broussard v. Med. Protective Co., 06-331(La.App. 3 Cir. 2/21/07), 952 So.2d 813. Rather, we base the amount of damages on what the record reveals is just compensation. Id. However, the McGlothlins' claims for damages are governed by the Medical Malpractice Act, La.R.S. 40:1299.41-1299.49, which limits recovery by medical malpractice victims who have been injured by qualified health care providers as follows: "The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost." La.R.S. 40:1299.42(B)(1).
Medical Expenses
Medical care and related benefits as provided for in La.R.S. 40:1299.42(B)(1) include all reasonable medical treatment incurred after the date of the injury until the date of the judgment and reasonable medical treatment that will be incurred after the date of the judgment. La.R.S. 40:1299.43(B) and (D). At trial the parties stipulated that the medical expenses incurred through the date of trial totaled $64,815.41. However, this included $2,474.12 for expenses of the May 17, 1999 double knee replacement surgery and its attendant rehabilitation, neither of which were caused by the hospital employees' negligence. Accordingly, we reduce the stipulated amount to $62,341.29. Thus, we find that the McGlothlins are entitled to an award of $62,341.29 in special damages for past medical expenses, and for the expenses of reasonable medical treatment that will be incurred after the date of the trial court judgment.
General Damages"General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty." Miller v. LAMMICO, 07-1352, p. 27 (La. 1/16/08), 973 So.2d 693, 711. General damages can include an award for mental or physical pain and suffering and loss of enjoyment of life. Id. Mr. McGlothlin also seeks damages for his loss of consortium. The compensable elements of damage in a claim for loss of consortium of a spouse include loss of love and affection, loss of companionship, loss of material services, loss of support, impairment of sexual relations, loss of aid and assistance, and loss of felicity. Ferrell v. Fireman's Fund Ins. Co., 96-3028 (La. 7/1/97), 696 So.2d 569. Mr. McGlothlin's claim for damages for loss of consortium arises under La.Civ. Code art. 2315 and is a separate cause of action from his wife's claim. McGee v. A C And S, Inc., 05-1036 (La. 7/10/06), 933 So.2d 770.
However, even though Mr. McGlothlin's loss of consortium claim is a separate cause of action, under the Medical Malpractice Act that applies to private health care providers, La.R.S. 40:1299.41-1299.49, his loss of consortium claim is combined with Mrs. McGlothlin's medical malpractice claim for purposes of the $500,000.00 statutory cap in La.R.S. 40:1299.42(B)(1). Under these statutes, which apply to all private health care providers, only Mrs. McGlothlin is considered a "patient." Louisiana Revised Statutes 40:1299.41(A)(15) defines "patient" as "a natural person, including a donor of human blood or blood components and a nursing home resident who receives or should have received health care from a licensed health care provider, under contract, expressed or implied." Under La.R.S. 40:1299.42(B)(1) (emphasis added), "[t]he total amount recoverable for all malpractice claims for injuries to or death of a patient . . . shall not exceed five hundred thousand dollars plus interest and cost." Since here only Mrs. McGlothlin is considered a patient, and Mr. McGlothlin's claim for loss of consortium is a derivative of her malpractice claim, their claims are combined for purposes of the $500,000.00 statutory cap.
Although only Mrs. McGlothlin is considered a "patient," both she and Mr. McGlothlin together are considered to be one "claimant." Louisiana Revised Statutes 40:1299.41(A)(4) defines a "claimant" as "a patient or representative or any person including decedent's estate, seeking or who has sought recovery of damages or future medical care and related benefits under this part," and provides that "[a]ll persons claiming to have sustained damages as a result of injuries to or death of any one patient are considered a single claimant."
In reaching this conclusion, we note that a different definition of "patient" is given in La.R.S. 40:1299.39-1299.39.3, which govern the malpractice liability for state health care providers. There a patient is defined as "a natural person who receives, or should have received, health care from a person covered by this Part and any other natural person or persons who would or may have a claim or claims for damages under applicable law arising out of, or directly related to, the claim or claims of the natural person who receives, or should have received, health care from a person covered by this Part." La.R.S. 40:1299.39(A)(3) (emphasis added). Under that definition of "patient," Mr. McGlothlin might also be considered a patient, and thus his consortium claim would be subject to a separate $500,000.00 statutory cap. See dissent in Hollingsworth v. Bowers, 96-257 (La.App. 3 Cir. 12/30/96), 690 So.2d 825.
Considering the length of time that Mrs. McGlothlin suffered debilitating surgeries and hospitalizations; the extent of her current incapacity, which has no hope of improving; and the impact these injuries have had on Mr. McGlothlin's life, we find that her pain and suffering and loss of enjoyment of life and Mr. McGlothlin's loss of consortium far exceed the statutory cap of $500,000.00, and accordingly award the McGlothlins the statutory maximum of $500.000.00.
DISPOSITION
For the foregoing reasons, we reverse the trial court's judgment dismissing the claims of Margie McGlothlin and John McGlothlin and render judgment in their favor and against Christus St. Patrick Hospital in the amount of $500,000.00, inclusive of the general damage award to Mrs. McGlothlin and loss of consortium award to Mr. McGlothlin; $62,341.29 in past medical expenses and the expenses of reasonable medical treatment that will be incurred after the date of the trial court judgment; and all legal interest from the date of the filing of the complaint until paid as per La.R.S. 40:1299.47(M). We assess all costs of these proceedings, both at trial and on appeal, to Christus St. Patrick Hospital.
Louisiana Revised Statutes 40:1299.47(M) provides that "[l]egal interest shall accrue from the date of filing of the complaint with the board on a judgment rendered by a court in a suit for medical malpractice brought after compliance with this Part."
REVERSED AND RENDERED.
GREMILLION, Judge, concurs in part and dissents in part.
This medical malpractice action involves the admissibility of the medical review panel's opinion and the prejudicial effect that panel opinion had on the outcome of a jury trial that resulted in a verdict in favor of the defendants. The majority concludes that the opinion should not have been admitted into evidence. On that point, I concur. However, the majority determines that a de novo review of the record reveals that the jury verdict should be reversed. From that conclusion I dissent.
Louisiana Revised Statute 40:1299.47(G) establishes the sole duty of the medical review panel. The panel is to render an opinion that the evidence does or does not support the conclusion that the defendant or defendants failed to comply with the appropriate standard of care, or that there is a genuine issue of material fact, not requiring expert testimony, for consideration by the court. When the panel deviates from that duty, its opinion may be excluded from evidence. Whittington v. Savoy, 05-1169 (La.App. 3 Cir. 5/31/06), 931 So.2d 1198.
The panel clearly discounted the accounts of injury supplied by the McGlothlins. In this, the panel deviated from its duty and its opinion should have been excluded.
I disagree that this case should be reviewed de novo. Rather, Whittington v. Savoy, 05-1169 (La.App. 3 Cir. 5/31/06), 931 So.2d 1198, illustrates the manner in which we should proceed. In Whittington, the plaintiff complained of the length of the scar she bore following surgery. The panel opined that the length of the scar was immaterial, despite the fact that the length of the scar was the only allegation of malpractice. The trial court admitted the panel opinion into evidence. This court held that the panel exceeded its statutory duty in commenting upon the materiality of the length of plaintiff's scar. Nonetheless, the application of the manifest error standard necessitated affirming the trial court's judgment.
In the present matter, a review conducted under the manifest error standard would, I believe, result in upholding the findings of the jury. I would affirm the trial court.
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