Karen Unkel v. W.O. Moss Regional Hospital

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-0861

KAREN UNKEL

VERSUS

W.O. MOSS REGIONAL HOSPITAL, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-5915
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Oswald A. Decuir, and Jimmie C.
Peters, Judges.

AFFIRMED.

William M. Hudson, III
OATS & HUDSON
Gordon Square, Suite 400
100 E. Vermilion Street
Lafayette, LA 70501-0000
(337) 233-1100
Counsel for Defendants/Appellants:
W.O. Moss Regional Medical Center
Louisiana Department of Health & Hospitals
Dr. Nguyen Nguyen

Henry A. Bernard, Jr.
OATS & HUDSON
Gordon Square, Suite 400
100 E. Vermillion Street
Lafayette, LA 70501-0000
(337) 233-1100
Counsel for Defendants/Appellants:
W.O. Moss Regional Medical Center
Louisiana Department of Health & Hospitals
Dr. Nguyen Nguyen

Lisa Coleman Lee
Attorney at Law
1201 Capitol Access Road
Baton Rouge, LA 70821
(225) 342-0207
Counsel for Intervenor/Appellee:
Medicaid Louisiana Department of Health & Hospitals

Michael G. Hodgkins
Attorney at Law
P. O. Box 4190
Lake Charles, LA 70606
(337) 474-2690
Counsel for Plaintiff/Appellee:
Karen Unkel

DECUIR, Judge.

Karen Unkel filed this medical malpractice action against Dr. Nguyen Nguyen,

W.O. Moss Medical Center, and the Louisiana Department of Health and Hospitals

after sustaining injuries while hospitalized at Moss Regional. Summary judgment on

the issues of liability and causation was granted in Unkel’s favor and against the

hospital and the State. Subsequently, the trial court awarded the statutory cap of

$500,000.00 in damages, also via summary judgment, against the same defendants.

Dr. Nguyen was dismissed. Both the defendants and Unkel have appealed, Unkel

asserting the trial court erred in dismissing Dr. Nguyen, and the State and hospital

arguing that material issues of fact remain which should have precluded both

summary judgments. For the reasons which follow, we affirm.

In brief, the State and the hospital urge this court to reverse both the judgment

rendered against them on the issues of liability and causation and the judgment

awarding damages. Counsel for the defendants, however, has appealed only the

March 28, 2003 judgment awarding damages. Consequently, the prior judgment

wherein the State and the hospital were found to be liable for a breach in the standard

of care which caused the plaintiff’s damages is a final judgment and is not now before

us for review.

On the issue of damages, the plaintiff’s evidence reveals the following

undisputed facts. Unkel was injured at the hospital when a fellow psychiatric patient

attacked her, during which attack she sustained a serious blow to the head. The

attacker was an inmate from the Calcasieu Parish jail. Unkel was transported to the

emergency department of the hospital where she was examined and diagnosed with

soft tissue injuries.

After two years of continuing problems, Unkel was diagnosed with, among

other conditions, a subdural hematoma attributed to the injury received at Moss

Regional. Unkel then filed a medical malpractice claim asserting that hospital

employees were negligent in failing to prevent the attack which resulted in her

damages. Specifically, she asserted the hospital failed to follow its own rules and

procedures to safeguard her from a violent, aggressive fellow patient. A medical

review panel was convened. The panel ruled that the defendants were liable in

medical malpractice and the malpractice caused the plaintiff’s psychiatric and physical

injuries. Specifically concerning Dr. Nguyen, however, the panel determined that his

breach of the standard of care did not cause the plaintiff’s injuries because he was not

the attacker’s treating physician. Following that decision, this suit was initiated.

The plaintiff, now in her 40s, has a long history of mental illness and depression

for which she receives ongoing treatment. The medical records indicate that prior to

the attack, Unkel was capable of attending college and had as her goal a nursing

career. However, as a result of her continued problems after the injury at Moss

Regional, Unkel was unable to finish college and is incapable of holding a job. This

was the consensus of the professionals who evaluated Unkel after her injury; they

included a neurologist, a physical medicine specialist, a neuropsychologist, and a

vocational rehabilitationist. The medical records further indicate that in addition to

the subdural hematoma, Unkel sustained a brain injury and lacerations in the attack,

and she suffers from brain dysfunction, cognitive deficits, post-concussion syndrome

with migraines, neck and back pain, and an exacerbation of preexisting major

depression and anxiety disorders. Unkel presented evidence of past medical expenses

totaling $108,596.78 and future medical costs estimated at $310,401.00. Unkel also

offered the testimony of an economist who estimated her past lost wages, loss of

earning capacity, and loss of household services to be in excess of $450,000.00. She

urged the court to assess damages somewhere between $350,000.00 and $800,000.00

excluding future medical expenses.

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Curiously, counsel for the State and the hospital presented no evidence

whatsoever to refute the economic evaluations and damage estimates presented by

Unkel. At the hearing on Unkel’s motion for summary judgment concerning liability

and causation, the defendants offered only the affidavit of Dr. Nguyen, which the trial

court determined was both self-serving and factually unsupported; it was not admitted

into evidence. At the hearing on damages, the defendants offered the affidavit of

James Misko, a clinical psychologist from Texas who had reviewed Unkel’s records.

Portions of Misko’s affidavit were stricken from the record as a result of the trial

court’s conclusion that his opinions on medical causation and medical diagnosis were

beyond the expertise of a psychologist. Misko’s affidavit did not pertain to damage

quantification issues, but rather, his comments pertained primarily to causation. The

defendants also offered the deposition testimony of Dr. Jake Hollen, the emergency

room physician who treated Unkel at the time of the attack. His testimony likewise

did not pertain to damages.

In a medical malpractice case, a court may resolve issues of liability and

damages by summary judgment under appropriate circumstances. Bijou v. Alton

Ochsner Med. Found., 95-3074 (La. 9/5/96), 679 So.2d 893; Reidling v. Smith, 02-778

(La.App. 4 Cir. 9/18/02), 828 So.2d 656, writ denied, 02-2487 (La. 3/14/03), 839

So2d 34. Specifically, when a plaintiff’s damages clearly exceed the statutory

maximum of $500,000.00, summary judgment may be appropriately granted. Bramlet

v. La. Patient’s Comp. Fund, 98-1728 (La. 11/6/98), 722 So.2d 984. Summary

judgment in such circumstances will “eliminate the need for unnecessary litigation on

this particular issue, and further the courts’ general interest in promoting judicial

economy.” Bijou, 679 So.2d at 897.

At the time of the summary judgment hearing, Article 967(B) of the Code of

Civil Procedure provided that when a motion for summary judgment is made and

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supported by competent evidence, “an adverse party may not rest on the mere

allegations or denials of his pleading,” but his response must set forth specific facts

showing that there is a genuine issue for trial. The provision further explained, “If he

does not so respond, summary judgment, if appropriate, shall be rendered against

him.”

In the present case, the defendants have failed to set forth any specific facts

which would reveal a genuine issue for trial. In granting summary judgment, the trial

court found Unkel had established clearly a prima facie case as to the extent of her

damages. The court then found the defendants had not met their burden of proof in

establishing that genuine issues of material fact remain. The court explained that

reasonable minds could not disagree with the conclusion that Unkel’s damages exceed

the $500,000.00 cap, and the court awarded that amount plus past and future medical

expenses. Upon review of the record, we conclude the trial court’s findings were

correct.

We decline to address Unkel’s argument raised in brief wherein she contends

the trial court erred in dismissing Dr. Nguyen because neither side requested his

dismissal and the question of his fault was never litigated. Because Unkel did not

formally answer the appeal as required by La.Code Civ.P. art. 2133, she is not entitled

to the relief requested. Therefore, issues regarding Dr. Nguyen’s liability are no

longer at issue as his dismissal is final.

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

Costs are assessed to W.O. Moss Medical Center and the Louisiana Department of

Health and Hospitals.

AFFIRMED.

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