Yong Turner v. Southwest Louisiana Hospital Assoc

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-0237

YONG TURNER

VERSUS

SOUTHWEST LOUISIANA HOSPITAL
ASSOCIATION, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 00-1000
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

AFFIRMED AS AMENDED.

Richard B. Cappel
Raggio, Cappel, Chozen & Berniard
P. O. Box 820
Lake Charles, LA 70602
(337) 436-9481
Counsel for Defendants:
St. Paul Fire & Marine Ins. Co.
Dr. David Drez

M. Keith Prudhomme
Lundy & Davis, L.L.P.
P. O. Box 3010
Lake Charles, LA 70602
(337) 439-0707
Counsel for Defendant/Appellant:
Louisiana Patients' Compensation Fund

Randall Scott Iles
Attorney at Law
P. O. Box 3385
Lafayette, LA 70502
(337) 234-8800
Counsel for Defendant:
John B. Blackmon, Sr.

Benjamin Joseph Guilbeau
Stockwell, Sievert, Viccellio
P. O. Box 2900
Lake Charles, LA 70602-2900
(337) 436-9491
Counsel for Defendants:
Southwest Louisiana Hospital Association
Judith Murray

Jeffery Wade McDonald
Attorney at Law
3715 Canal Street
New Orleans, LA 70119
(504) 483-0750
Counsel for Plaintiff/Appellee:
Yong Turner

DECUIR, Judge.

This medical malpractice action against the Louisiana Patient’s Compensation

Fund stems from one of two consolidated suits filed by the divorced parents of John

Black

mon, Jr., a minor child who died following shoulder surgery in May of 1997. During

the course of the litigation, one health care provider paid the maximum amount of his

liability exposure in settlement of the plaintiffs’ claims, and the Fund paid

$250,000.00 to John Blackmon, Sr. in settlement of his claims. The Fund appeals a

$400,000.00 judgment rendered in favor of Yong Turner, the decedent’s mother, after

a jury assessed damages at $10,000,000.00. Finding legal error, we amend the

judgment rendered below, and as amended, affirm.

John Blackmon, Jr. injured his right shoulder at school in the winter of his

sophomore year at East Beauregard High School. He was initially treated by a

physician in DeRidder who then referred him to Dr. David Drez, a Lake Charles

orthopedic surgeon. After physical therapy was unsuccessful, Dr. Drez recommended

shoulder stabilization surgery to correct what he diagnosed as a recurrent traumatic

anterior dislocating right humeral head. The recommended procedure was to be

scheduled as outpatient surgery when the school year ended. Although the surgery

was considered minor, John Blackmon, Sr. arranged his work schedule so that he

could be home from Saudi Arabia when his son’s surgery was to take place. Yong

Turner offered to travel from El Paso to Lake Charles for the surgery, but her son

persuaded her not to make the trip.

On the day of the surgery, Blackmon’s step-mother accompanied him to the

hospital while his father tended to their farm animals. After a lengthy delay, the

procedure began and turned out to be quite an extensive surgery. It was successful,

however, and the operative report states that Blackmon was sent to the recovery room

in “excellent condition.” Because of the late hour, Dr. Drez decided to keep

Blackmon in the hospital overnight. John Blackmon, Sr. testified his son was in good

spirits when they visited in his room that evening. The family drove home to Pitkin

for the night, planning to return to the hospital early the next morning to take

Blackmon home.

During the night, Blackmon was given Dilaudid for pain, a medication which

had been ordered by Dr. Drez to be administered every three hours as needed for pain.

The nurse on duty, Judy Murray, gave Blackmon two milligrams at 12:30 a.m. and

four milligrams at 3:30 a.m., both doses within the amount ordered by Dr. Drez. At

4:20 a.m., Nurse Murray noted Blackmon was resting peacefully, but the notes then

indicate at 5:57, the patient was “found unresponsive.” Resuscitation efforts were

started immediately. Dr. Drez was called, and he and a team of medical professionals

continued the resuscitation procedures. Their attempts were unsuccessful, and

Blackmon was pronounced dead at 7:44 a.m.

The medical records submitted into evidence indicate the cause of death is

unknown. The pathologist who conducted an autopsy was unable to determine the

cause of death. However, the plaintiffs allege the medical review panel convened in

this matter found the actions of the hospital, Dr. Drez, and Nurse Murray more likely

than not caused the death of the decedent. The evidence contains inferences and

allegations that Blackmon perhaps may have been given too much medication for his

age and size, was improperly monitored by the nursing staff, or may have even been

the victim of a mix up in the hospital charts. None of these suggestions was proven

because Dr. Drez admitted liability by paying $100,000.00 to the plaintiffs in

settlement of their claims. The settlement was made pursuant to La. R.S. 40:1299.44,

which provides in part that payment by a health care provider of the maximum

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amount of his liability exposure establishes that the patient is a victim of that health

care provider’s malpractice. Stuka v. Fleming, 561 So.2d 1371 (La. 1991).

The Fund’s liability under the statute is admitted and established for any excess

damages “emanating from the original apparent consequences or harm from the

medical malpractice.” Bijou v. Alton Ochsner Med. Found., 95-3074, p.6 (La.

9/5/96), 679 So.2d 893, 896. The Bijou court described such harm as “original or

primary harm,” which was limited to “damages that are encompassed by the health

care provider’s duty not to commit medical malpractice, and which directly result

from the health care provider's breach of duty or medical malpractice.” Id. In the

present case, the harm to the decedent was death. By virtue of Dr. Drez’s payment

of $100,000.00, the limit of his liability exposure, Dr. Drez is statutorily deemed to

have admitted liability for Blackmon’s death.

In their original petitions, the plaintiffs named as defendants not only Dr. Drez

but also the hospital and Nurse Murray. When they settled with Dr. Drez, they

dismissed the remaining defendants. At the trial for excess damages against the Fund,

the trial court refused to allow the Fund to present evidence of negligence or fault on

the part of the hospital or the nursing staff. The Fund contends the trial court’s ruling

was in error. We find, however, the evidentiary ruling was correct. In Stuka, the

court concluded that the Fund is precluded from raising the issue of the fault of any

health care provider when one has paid in settlement the maximum amount of his

liability exposure. The court reasoned:

We recognize that this literal interpretation of the statute affords
less rights to the Fund when claims against multiple health care
providers are settled than when such claims are tried. In the case of a
trial the Fund has the opportunity for reduced exposure when more than
one health care provider is determined to be liable. But in the case of a
settlement with one health care provider for $100,000 the Fund does not
have this opportunity in the subsequent litigation with the victim.
However, the Legislature chose in cases of settlement simply to declare

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the admission of liability by the $100,000 payment of one health care
provider and did not provide for the Fund’s affirmative right to litigate
liability on the part of any other named or unnamed health care
providers.

561 So.2d at 1374. See also, Graham v. Willis-Knighton Med. Ctr., 97-0188 (La.

9/9/97), 699 So.2d 365; Bijou.

The Fund contends the ruling of Stuka has been compromised by recent

jurisprudence which has indicated the Fund may offer proof of victim or third party

fault in a trial for excess damages. Indeed, the supreme court very recently handed

down the case of Hall v. Brookshire Bros., Ltd., 02-2404, 02-2421 (La. 6/27/03), 848

So.2d 559, which held that in a trial against the Fund for excess damages, evidence

that victim or third party fault caused any portion of the damages “is clearly relevant

and admissable.” Id. 848 So.2d at 568. In Hall, the third party was a pharmacist

who was not a qualified health care professional under the malpractice act, and the

victim herself was alleged to be partially at fault. In describing potential third parties,

the Hall court specifically referred to the statutory listing of “a non-covered health

care provider or a product manufacturer” found at La. R.S. 40:1299.44(D)(2)(b)(x),

which provides authority for the Fund to seek indemnity or reimbursement from such

parties. The Hall case originally included, as did the instant case, two qualified

health care professionals who were dismissed by the plaintiffs after their settlement

with another physician. The Fund in Hall made no attempt to prove malpractice or

fault on the part of the two dismissed health care professionals. The trial court,

however, allowed the Fund to present evidence on the fault of the pharmacist and the

victim, and this ruling was affirmed by the supreme court.

Conversely, the Fund in the case sub judice seeks to prove the fault of the

hospital and its nursing staff. This is procedurally identical to Stuka, where the

plaintiffs dismissed the remaining defendants who were qualified health care

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professionals and proceeded to trial solely against the Fund for their damages. Stuka

held the Fund was prohibited from asserting the fault of the dismissed parties,

inferring that this reduction in the plaintiff’s burden of proof was the legislature’s

attempt to balance the myriad constraints, both procedural and substantive, on a

medical malpractice claimant’s cause of action under the malpractice act. See also

Graham, (Calogero, C.J. dissenting); Recent Developments, 72 Tul. L. Rev. 1431

(1998). More recently, the legislature has now barred the Fund from asserting claims

for contribution against qualified health care professionals under circumstances such

as that presented herein in its amendment to La.R.S. 40:1299.44(C)(5).1 Accordingly,

1
2003 La. Acts No. 882 provides in part:

(b) The board shall not be entitled to file a suit or otherwise assert a claim against any qualified
health care provider as defined in R.S. 40:1299.41(a)(1) on the basis that the qualified health care
provider failed to comply with the appropriate standard of care in treating or failing to treat any
patient.

(c) The board may apply the provisions of Civil Code Article 2323 or 2324, or both, to assert a
credit or offset for the allocated percentage of negligence or fault of a qualified health care
provider provided at least one of the following conditions is met:

(i) A payment has been made to the claimant by, in the name of, or on behalf of the qualified
health care provider whose percentage of fault the board seeks to allocate.

(ii) A payment has been made to the claimant by, in the name of, or on behalf of another
qualified health care provider in order to obtain a dismissal or release of liability of the qualified
health care provider whose percentage of fault the board seeks to allocate, provided that there
shall be no separate credit or offset for the fault of an employer or other vicariously liable entity
who was not independently negligent or otherwise at fault and who makes a payment in order to
obtain a dismissal or release of liability of a single qualified health care provider for whom the
payor is vicariously liable.

(iii) All or a portion of a payment made by another qualified health care provider, by the insurer
of another qualified health care provider, or by the employer of another qualified health care
provider has been attributed to or allocated to the qualified health care provider whose percentage
of fault the board seeks to allocate, provided that there shall be no separate credit or offset for the
fault of an employer or other vicariously liable entity who was not independently negligent or
otherwise at fault and who makes a payment in order to obtain a dismissal or release of liability
of a single qualified health care provider for whom the payor is vicariously liable.

(iv) A medical review panel has determined that the qualified health care provider whose
percentage of fault the board seeks to allocate failed to comply with the appropriate standard of
care and that the failure was a cause of the damage or injury suffered by the patient, or a medical
review panel has determined that there is a material issue of fact, not requiring expert opinion,
bearing on liability of the qualified health care provider whose percentage of fault the board
seeks to allocate for consideration by the trier of fact.

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we find the well reasoned and established rationale of Stuka controlling in the case

before us.

The Fund also questions the trial court’s award of $400,000.00 to Mrs. Turner,

an amount which, when combined with the Fund’s payment of $250,000.00 to

Blackmon’s father, exceeds the $500,000.00 statutory cap on medical malpractice

damages. The Fund contends the trial court should have awarded $150,000.00,

reflecting credit for the Fund’s settlement with the father and the physician’s

settlement with both parents. Mrs. Turner argues her damages are subject to a

separate cap from the decedent’s father’s damages because their claims are personal

to each of them and each is independent from the other. She also contends the Fund

should not have the right to decide the value of each plaintiff’s claim when there is

a limited amount to be distributed among multiple plaintiffs.

The medical malpractice act contains the following limitation on damages:

§ 1299.42. Limitation of recovery

B. (1) 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.

(v) The qualified health care provider does not object within thirty days after notice of the
board’s intention to allocate the health care provider’s percentage of fault is delivered via
certified mail to the plaintiff, the qualified health care provider, and the qualified health care
provider’s professional liability insurer or to their attorneys.

(vi) The court determines, after a hearing in which the qualified health care provider whose
percentage of fault the board seeks to allocate shall be given an opportunity to appear and
participate, that there has been collusion or other improper conduct between the defendant health
care providers to the detriment of the interests of the fund.

(d) Except where the sum of one hundred thousand dollars has been paid by, in the name of, or
on behalf of the qualified health care provider whose percentage of fault the board seeks to
allocate, in any case in which the board is entitled pursuant to the provisions of Civil Code
Article 2323 or 2324, or both, to assert a credit or offset for the allocated percentage of
negligence or fault of a qualified health care provider, the board shall have the burden of proving
the negligence or fault of the qualified health care provider whose percentage of fault the board
seeks to allocate.

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Interpreting this provision, this circuit has previously determined that a single

$500,000.00 cap applies collectively to all claims which flow from one act of

malpractice resulting in a victim’s injury or wrongful death. See Todd v. Sauls, 94-10

(La.App. 3 Cir. 12/21/94), 647 So.2d 1366, writs denied, 95-206, 95-0219 (La.

3/24/95), 651 So.2d 289, where the decedent’s surviving spouse and seven adult

children shared in wrongful death damages limited to $500,000.00. Other circuits

have reached the same conclusion: Moody v. United Nat. Ins. Co., 95-1 (La.App. 5

Cir. 5/10/95), 657 So.2d 236, writ denied, 95-2063, 95-2085 (La. 11/17/95), 663

So.2d 713; LaMark v. NME Hospitals, Inc., 542 So.2d 753 (La.App. 4 Cir. 1989),

writ denied, 551 So.2d 1334 (La.1989). See also The Medical Malpractice Damages

Cap, 60 La.L.Rev. 547 (2000). We are persuaded neither by the action of the trial

court nor by Mrs. Turner’s arguments to disturb this well established principle

articulated in both our statutory law and jurisprudence. Accordingly, the damages

awarded to Yong Turner must be reduced to $150,000.00.

We address briefly the Fund’s remaining assignments of error raised in this

appeal. First, the Fund contends the trial court erred in failing to grant a continuance

requested because of the unavailability of the Fund’s expert witness. This witness

was to give his opinion on the cause of death; he was unable to attend trial because

of illness. In response, Mrs. Turner contends the trial had been continued on three

previous occasions, and she notes the Fund made no effort to secure the out-of-court

testimony of the witness. Indeed, the Fund chose to retain an expert witness from

Georgia; given the uncertainty of litigation schedules, it would have been prudent for

the Fund to depose its expert prior to trial or arrange for electronic testimony when

it was learned the witness could not travel. Our review of the proceedings reveals no

error in the denial of a continuance under these circumstances.

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The Fund next argues the trial court erred in striking the testimony of three

witnesses who were to testify regarding liability. Following the rule of Stuka and its

progeny, the trial court granted the plaintiffs’ motion in limine, finding the issue of

liability irrelevant in this trial on damages. As we have previously determined, the

trial court was correct in limiting this trial to a determination of damages in excess

of $100,000.00. Liability was not at issue. Accordingly, we find no error in this

evidentiary ruling.

The Fund contends the trial court improperly admitted into evidence certain

photographs of the decedent and two works of art he had produced a short while

before his untimely death. The items complained of were not disclosed to the Fund’s

attorneys as required by the court’s pre-trial order and were not produced in

discovery. While we certainly do not condone the admission of evidence which has

not been shared with opposing counsel prior to trial, we believe the offerings, two

childhood photos of the decedent and two drawings by him, were not prejudicial to

the Fund, and their admission constitutes harmless error.

Finally, we find no merit to the Fund’s contention that the trial court

improperly commented on the evidence by answering the jury’s question, posed

during deliberations, as to whether Mrs. Turner had any other pending lawsuits. The

trial judge answered the question in the negative, stating that he was not aware of any

pending lawsuits. The Fund did not object to the court’s proposed answer. We do

not find the court’s response to constitute an improper comment on the evidence.

For the above and foregoing reasons, the judgment of the trial court is amended

to award damages in favor of Yong Turner and against the Louisiana Patient’s

Compensation Fund in the amount of $150,000.00. In all other respects, the judgment

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of the trial court is affirmed. Costs of this appeal are assessed to the Louisiana

Patient’s Compensation Fund.

AFFIRMED AS AMENDED.

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