Mary Williams and Melvin George Williams v. W.O. Moss Regional Medical Center

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 05-22

MARY WILLIAMS AND MELVIN GEORGE WILLIAMS

VERSUS

W.O. MOSS REGIONAL MEDICAL CENTER, ET AL

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 99-2029
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Glenn B. Gremillion, Billy Howard Ezell, and James T.
Genovese, Judges.

REVERSED.

Adam L. Ortego, Jr.
Assistant Attorney General
901 Lakeshore Drive, #820
Lake Charles, LA 70601
(337) 491-2844
Counsel for Defendants/Appellants:
W.O. Moss Regional Medical Center
Dr. Claude Simon

Daniel J. McGlynn
McGlynn, Glisson & Koch
P. O. Box 1909
Baton Rouge, LA 70821
(225) 344-3555
Counsel for Plaintiffs/Appellees:
Mary Williams
Melvin George Williams

Bobby Ray Lormand, Jr.
Maughan, Maughan & Lormand
634 Connell’s Park Lane
Baton Rouge, LA 70806
(225) 926-8533
Counsel for Plaintiffs/Appellees:
Mary Williams
Melvin George Williams

EZELL, JUDGE.

This case is a medical malpractice case. Moss Regional Medical Center (Moss

Regional) and Dr. Claude Simon appeal the judgment of the trial court granting a

judgment notwithstanding the verdict and new trial in favor of the Plaintiffs, the

family of Mary Williams. For the following reasons, we reverse the decision of the

trial court and reinstate the findings of the jury.

On January 29, 1996, Mrs. Williams had a mammogram performed at Moss

Regional. Dr. Claude Simon, a radiologist, reviewed the mammogram film. He

found two questionable nodules, but decided they were benign. One year later, Mrs.

Williams found a small lump in her breast and went back to Moss Regional for

another mammogram, which was performed on January 29, 1997. Dr. Simon again

reviewed the films, this time finding changes that indicated cancer. Mrs. Williams

had a radical mastectomy of her right breast. Mrs. Williams and her husband filed

this suit, claiming that the hospital and the doctor committed medical malpractice in

failing to find the cancer in the first mammogram. Mrs. Williams died from the

cancer after the suit was filed. Her husband and the couple’s three children amended

the suit to include wrongful death and survivorship actions.

A jury trial was held on May 3, 2004. The jury ruled in favor of the hospital

and the doctor, finding no failure to meet the appropriate standard of care. The

Plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV) and a

motion for new trial, claiming that the jury’s decision was against the law and the

evidence. After a hearing on these motions, the trial judge found that the jury’s

findings were against the law and evidence before the court, and granted the motion

for JNOV. After overruling the jury’s decision, the trial judge awarded the Plaintiffs

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$500,000 in damages. The trial judge also granted the motion for new trial. From

this decision, Dr. Simon and Moss Regional appeal.

Dr. Simon and Moss Regional assert two assignments of error. They claim that

the trial judge was wrong in overturning the jury’s decision and that the trial judge

was incorrect in granting the motion for new trial. We agree.

We will first address the JNOV. Louisiana Code of Civil Procedure Article

1811(F) is the authority for a JNOV. The article provides that a motion for JNOV

may be granted on the issue of liability or on the issue of damages or on both. In

Smith v. Lee, 00-1079, pp. 2-3 (La.App. 5 Cir. 4/11/01), 783 So.2d 642, 644, writ

denied, 01-1731 (La. 9/28/01), 798 So.2d 116, the court noted:

A judgment notwithstanding the verdict is warranted when the
facts and inferences point so strongly and overwhelmingly in favor of
one party that the court believes that reasonable men could not arrive at
a contrary verdict. The motion should be granted when the evidence
points so strongly in favor of the moving party that reasonable men
could not reach different conclusions, not merely when there is
preponderance of evidence for the mover. If there is evidence opposed
to the motion which is of such quality and weight that reasonable and
fair-minded men in the exercise of impartial judgment might reach
different conclusions, the motion should be denied. In making this
determination, the court should not evaluate the credibility of the
witnesses, and all reasonable inferences of factual questions should be
resolved in favor of the non-moving party. See Anderson v. New
Orleans Public Services, Inc., 583 So.2d 829 (La.1991), LSA-C.C.P. art.
1811 and Davis v. Wal-Mart Stores, Inc., 00-445 774 So.2d 84
(La.11/28/00).

The standard of review for a JNOV on appeal is a two part inquiry: first, the

appellate court must determine if the trial court erred in granting the JNOV, which is

done by using the same criteria used by the trial judge in deciding whether to grant

the motion. Second, after determining that the trial court correctly applied its

standard of review as to the jury verdict, the appellate court reviews the JNOV using

the manifest error standard of review. Martin v. Heritage Manor South Nursing

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Home, 00-1023 (La. 4/3/01), 784 So.2d 627. We find that the trial court erred in

granting the JNOV.

A review of the record makes it clear that the jury’s verdict was reasonable in

light of the evidence presented at trial. The Plaintiffs claimed that Dr. Simon

breached the standard of care in reviewing the 1996 mammogram without previous

mammograms or a pre-mammogram questionnaire. They further claimed that Moss

Regional failed to meet its standard of care in failing to prepare the questionnaire.

Dr. Simon and Moss Regional presented expert testimony concerning the standard of

care required of them and whether they met that standard.

After her 1996 mammogram was read by Dr. Simon, Mrs. Williams was still

concerned about the nodules found on the films. She consulted with a surgeon of her

choice, Dr. Joseph O’Donnell, about having them removed. Dr. O’Donnell testified

that he examined the 1996 film reviewed by Dr. Simon, as well as films from 1992

and 1994. He stated that he noted nothing in the 1996 film that indicated a cancerous

change from the previous mammograms, further stating that he saw nothing on the

films that he felt should be biopsied. Dr. O’Donnell concluded that no surgery was

needed for Mrs. Williams at that time.

Dr. Jeffery Laborde, an expert in radiology, testified that he agreed with Dr.

Simon’s report following the 1996 mammogram that there was nothing indicating

cancer. He stated that after reviewing the films from the previous years, his opinion

did not change. Additionally, he stated that he would not send a patient to have a

biopsy based on the 1996 film. Dr. Laborde felt that Dr. Simon did adhere to the

required standard of care. Additionally, Dr. John Romero, another expert radiologist,

also testified that neither Dr. Simon nor Moss Regional deviated from the standard

of care in their treatment of Mrs. Williams.

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The Plaintiffs’ claims essentially depend upon the assertion that no pre-

mammogram questionnaire was prepared by Moss Regional or seen by Dr. Simon.

However, while it is true that the 1996 questionnaire no longer exists, there is no

evidence that the questionnaire was not completed or seen by Dr. Simon.

Karen Jongbloed, the radiology technician at Moss Regional who actually took

the mammogram, testified that it was hospital policy to always fill out the required

forms, and that she never deviated from that policy. She stated that she filled out a

questionnaire in every case. She stated that each time a patient came in for a

mammogram, she completed a new questionnaire by updating information from the

previous form, then the old form was discarded. Suzanne Smith, the radiology

manager, also testified that questionnaires were always performed and that old forms

were discarded prior to this litigation. While Dr. Simon did admit that it is possible

that he could receive a mammogram without the proper documents attached, he felt

it was highly unlikely this would occur. Accordingly, there was ample evidence for

the jury to conclude that a form had been completed as required by the standard of

care, then discarded prior to this litigation.

It is clear that the evidence does not point so strongly in favor of the Plaintiffs

that reasonable men could not rule against them. In fact, there does not even seem

to be a preponderance of evidence in favor of the Plaintiffs. Accordingly, the trial

court committed error in granting the JNOV.

Dr. Simon and Moss Regional next claim that the trial court erred in granting

a motion for new trial in favor of the Plaintiffs. Again, we agree. Louisiana Code

of Civil Procedure Article 1972(1) provides that a new trial shall be granted, upon

contradictory motion of any party, when the verdict or judgment appears clearly

contrary to the law and evidence. The applicable standard of review in ruling on a

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motion for new trial is whether the trial court abused its discretion. Martin ,784

So.2d 627. In order to apply this standard, “[w]e are faced with the balancing of two

very important concepts: the great deference given to the jury in its fact finding role

and the great discretion given to the trial court in deciding whether to grant a new

trial.” Davis v. Wal-Mart Stores, Inc., 00-445, pp. 11-12 (La. 11/28/00), 774 So.2d

84, 93-94. Though the “[trial] court has much discretion [in determining whether to

grant a new trial]. . . . , this court will not hesitate to set aside the ruling of the trial

judge in a case of manifest abuse.” Lamb v. Lamb, 430 So.2d 51, 53 (La.1983).

Thus, although “[t]he scales are clearly tilted in favor of the survival of the jury’s

verdict, the trial court is left with a breadth of discretion which varies with the facts

and events of each case.” Davis, 774 So.2d. at 94.

The Louisiana Supreme Court stated in Martin, 784 So.2d at 637, “[A] jury

verdict cannot be set aside on that [sic] the grounds that the verdict is contrary to the

evidence if it is supportable by any fair interpretation of the evidence.” This is a case

in which there was a dispute among the experts as to whether the defendants breached

the applicable standard of care. “It is the duty of the jury to evaluate the credibility

of each witness, and come to conclusions as to the facts based on these evaluations.”

Campbell v. Tork, Inc., 03-1341, p.11 (La. 2/20/04), 870 So.2d 968, 975. It is

apparent to this court that the jury accepted the substantial evidence put forth by Dr.

Simon and Moss Regional that there was no breach of the standard of care.

While a trial judge does have discretion in granting a new trial, and is entitled

to draw his own inferences and conclusions from the evidence as well as evaluate the

credibility of the witnesses, he may not interfere with a jury verdict with which he

simply disagrees when that verdict is based on a fair interpretation of the evidence.

Martin, 784 So.2d 627. In our case, the jury’s verdict is clearly supportable by a fair

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interpretation of the evidence, as there was substantial evidence heard by the jury to

lead it to conclude that Dr. Simon and Moss Regional did not breach the standard of

care. Therefore, it was an abuse of discretion for the trial court to grant a new trial.

For the above reasons, the rulings of the trial court granting the JNOV and

motion for new trial are hereby reversed and the jury’s verdict is reinstated. Costs of

this appeal are assessed against the Plaintiffs.

REVERSED.

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