Sharon Boxie v. Dr. Dwight Lemoine

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-0905

SHARON BOXIE

VERSUS

DR. DWIGHT LEMOINE, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 2003-4045
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett and Billy H. Ezell, Judges.

AFFIRMED.

John L. Hammons
Nelson & Hammons
705 Milam Street
Shreveport, LA 71101
(318) 227-2401
COUNSEL FOR PLAINTIFF/APPELLEE:
Sharon Boxie

James R. Shelton
Durio, McGoffin, Stagg & Ackermann
Post Office Box 51308
Lafayette, LA 70505
(337) 233-0300
COUNSEL FOR DEFENDANTS/APPELLANTS:
Dr. Dwight Lemoine, St. Paul Fire & Marine Insurance Company, and the
Louisiana Patient’s Compensation Fund.

PETERS, J.

The defendants in this medical malpractice suit, Dr. Dwight R. Lemoine, St.

Paul Fire & Marine Insurance Company (St. Paul), and the Louisiana Patient’s

Compensation Fund (PCF), appeal the trial court’s grant of a judgment

notwithstanding the verdict awarding Sharon Boxie general and special damages for

injuries she sustained as a result of a surgical procedure performed May 8, 2000. Ms.

Boxie responded to the appeal by filing a peremptory exception of no right of action

addressing the right of the PCF to participate in the appeal. For the following

reasons, we reject the exception of no right of action, affirm the trial court’s judgment

notwithstanding the verdict, and affirm the trial court’s damage awards.

In early 2000, Dr. William Foster, a Lake Charles, Louisiana neurosurgeon,

was treating Sharon Boxie for pain arising from disc protrusions in the cervical region

of her spine. On May 8, 2000, in an effort to relieve Ms. Boxie’s pain from the disc

protrusions, Dr. Foster performed surgery on her neck.1 Ms. Boxie checked into a

Lake Charles hospital at approximately 8:00 a.m. on that morning, and, after

admission and pre-operation procedures were completed, surgery began at

approximately 10:15 a.m. Dr. Lemoine participated in the surgery as the

anesthesiologist with the assistance of his nurse-anesthetist, John Scott.2 The surgical

procedure rendered Ms. Boxie a quadriplegic, and the litigation now before us

involves her medical malpractice claim against Dr. Lemoine.

After a medical review panel empaneled pursuant to La.R.S. 40:1299.47

rejected her claim against Dr. Lemoine, Ms. Boxie instituted suit against the doctor

1
The actual procedure was described as a cervical hemilaminotomy and foraminotomy at C3-
4 and C4-5.
2
Dr. Lemoine has admitted that Mr. Scott was operating under his supervision, and that he
is responsible for Mr. Scott’s actions and inactions. Although Mr. Scott is not a defendant, any
negligence on his part is considered the fault of Dr. Lemoine. Thus, when referring to Dr. Lemoine’s
fault herein, such referral includes reference to Mr. Scott’s actions.

and his liability insurer, St. Paul. A five-day trial in November of 2006 resulted in

a jury verdict which concluded that neither Dr. Lemoine nor Mr. Scott violated the

standard of care applicable to them, i.e., that neither man was at fault in causing Ms.

Boxie’s injuries. On November 30, 2006, the trial court executed a judgment

dismissing Ms. Boxie’s suit against Dr. Lemoine.3

In response to this judgment, Ms. Boxie filed a motion seeking a judgment

notwithstanding the verdict (JNOV) or, in the alternative, a new trial. After a January

22, 2007 hearing, the trial court granted the JNOV.4 In doing so, the trial court

assessed Dr. Lemoine with sixty percent of the fault in causing Ms. Boxie’s damages

and assessed Dr. Foster with the remaining forty percent. With regard to damages,

the trial court awarded Ms. Boxie the following amounts: $700,000.00 for past

medical expenses; $2,300,000.00 for future medical expenses and related care;

$1,000,000.00 for lost wages; and $1,000,000.00 for pain and suffering. Based on

its assessment of fault, the trial court then reduced the award for general damages and

lost wages to $500,000.00 pursuant to La.R.S. 40:1299.42 et seq. Thus, the final

judgment executed by the trial court on February 21, 2007, awarded Ms. Boxie

$500,000.00 for general damages and lost wages; $700,000.00 for medical expenses

sustained between May 8, 2000, and November 13, 2006; and a continuing care

award pursuant to La.R.S. 40:1299.43. The judgment also limited the liability of Dr.

Lemoine and St. Paul to $100,000.00, pursuant to La.R.S. 40:1299.42, and assessed

the balance of the judgment to the PCF.

3
The judgment does not mention St. Paul Fire & Marine Insurance Company.
4
The trial court also granted, as alternative relief, the motion for new trial. However, the
grant of that motion was conditioned on the action of the reviewing court. That is to say, in the event
a reviewing court reversed the grant of the JNOV, the trial court granted the new trial.

2

Dr. Lemoine, St. Paul, and the PCF appealed, asserting four assignments of

error:

1. The trial Court erroneously granted the JNOV Motion because it
created its own standard of care by requiring Dr. Lemoine to
listen to the patient’s carotid arteries with a stethoscope when
there was absolutely no evidence to support the Court’s finding.

2. The trial Court erroneously granted the Motion for a New Trial as
the verdict was not contrary to the law and evidence because there
was expert testimony that supported Dr. Lemoine’s management
of the case.

3. The award of $5,000,000.00 in damages is excessive, especially
the award of $700,000.00 in past medical expenses which
represented medical expenses incurred between May 8, 2000 and
the date of trial because a significant number of those bills were
not authenticated and were not connected to the treatment the
patient received as a result of her stroke.

4. The trial Court erred in giving a jury instruction regarding resa
ipsa loquitur.

Exception of No Right of Action

Before considering the merits of the appeal, we must first address the

peremptory exception of no right of action filed by Ms. Boxie. The defendants filed

their motion for suspensive appeal on March 12, 2007, and the trial court granted the

motion by written order on March 21, 2007. This exception is based on the fact that

the PCF has not sought recognition as a party to the litigation by filing a petition to

intervene.5 That being the case, Ms. Boxie asserts that, pursuant to La.Code Civ.P.

art. 927(A)(5), the PCF has no right to participate in this appeal.

An intervention is an incidental demand. La.Code Civ.P. art. 1031(B). As

such, it “shall be commenced by a petition which shall comply with the requirements

5
The record reflects that Dr. Lemoine, St. Paul, and the PCF filed their motion for suspensive
appeal on March 12, 2007, and that the trial court granted the motion on March 21, 2007. On May
2, 2007, the PCF filed an answer in the trial court to the original petition although it was not named
as a party defendant in the petition. At no time has the PCF sought to intervene in the proceedings.

3

of Articles 891, 892 and 893.” La.Code Civ.P. art. 1032. It may be filed without

leave of court before an answer to the principal demand is filed, but leave of court is

required thereafter. La.Code Civ.P. art. 1033. With regard to the right to intervene

by a party of interest, La.Code Civ.P. art 1091 provides:

A third person having an interest therein may intervene in a
pending action to enforce a right related to or connected with the object
of the pending action against one or more of the parties thereto by:

(1) Joining with plaintiff in demanding the same or similar relief
against the defendant;

(2) Uniting with defendant in resisting the plaintiff’s demand; or

(3) Opposing both plaintiff and defendant.

Unquestionably, the PCF is a third party having an interest in the litigation and

could have sought to intervene during the trial court proceedings. By intervening, it

could have united with the defendants in resisting Ms. Boxie’s demands and could

have submitted evidence at trial in support of its position. See Bennett v. Krupkin,

01-209 (La. 10/16/01), 798 So.2d 940. Had it done so, it would have become a party

to the litigation through that intervention. However, nothing requires the PCF to

intervene at the trial level. In fact, the PCF is before this court as one against whom

a judgment has been rendered and not as one who seeks intervention in a suit.

Despite not participating in the trial level litigation, PCF is statutorily liable for

all damages above $100,000.00. La.R.S. 40:1299.42(B)(3)(a); La.R.S. 40:1299.43.

We do not find that the statutory law or jurisprudence requires that the PCF file an

intervention to be properly before the court in a situation where it has been cast in

judgment by operation of law.

A different panel of this court previously addressed this issue and reached the

same result, although the issue was presented in a different procedural context. See

4

Boxie v. Lemoine, 07-905 (La.App. 3 Cir. 10/10/07), 967 So.2d 603, writ denied, 07-

2168 (La. 1/7/08), 973 So.2d 723. The prior ruling arose because, on August 24,

2007, Ms. Boxie filed a motion with this court to dismiss the appeal, but only insofar

as it related to the PCF. In rejecting the motion, this court stated the following:

We disagree with Appellee’s argument that the PCF needed to file an
intervention as a prerequisite to being included in the motion for
suspensive appeal filed on March 12, 2007. Because the judgment
against Dr. Lemoine exceeded one hundred thousand dollars, the PCF
became an interested party in this case. See Felix v. St. Paul Fire and
Marine Ins. Co., 477 So.2d 676 (La.1985). As an interested party, the
PCF had a right to appeal, regardless of whether it filed a petition of
intervention. Therefore, we find that the motion for suspensive appeal
filed on behalf of the PCF was not premature, even though it was filed
before the PCF filed its petition of intervention.

Id. at 605.

For the reasons set forth above, we find no ground to change the prior ruling

of this court on this issue. Thus, we reject Ms. Boxie’s exception of no right of

action.

Assignment of Error Number One

In a medical malpractice action, the plaintiff’s burden is to prove by a

preponderance of the evidence the three elements set forth in La.R.S. 9:2794(A):

(1) The degree of knowledge or skill possessed or the degree of
care ordinarily exercised by physicians ... licensed to practice in the state
of Louisiana and actively practicing in a similar community or locale
and under similar circumstances; and where the defendant practices in
a particular specialty and where the alleged acts of medical negligence
raise issues peculiar to the particular medical specialty involved, then
the plaintiff has the burden of proving the degree of care ordinarily
practiced by physicians ... within the involved medical specialty.

(2) That the defendant either lacked this degree of knowledge or
skill or failed to use reasonable care and diligence, along with his best
judgment in the application of that skill.

5

(3) That as a proximate result of this lack of knowledge or skill or
the failure to exercise this degree of care the plaintiff suffered injuries
that would not otherwise have been incurred.

Thus, to establish Dr. Lemoine’s liability to Ms. Boxie for her current physical

condition, Ms. Boxie was required to establish (1) the standard of care applicable to

Dr. Lemoine in his practice as an anesthesiologist, (2) that Dr. Lemoine breached that

standard of care, and (3) that his breach was the proximate cause of her injuries.

The supreme court has set out the criteria for the reviewing court’s evaluation

of the trial court’s grant or rejection of a JNOV in Joseph v. Broussard Rice Mill,

Inc., 00-628, p. 4-5, (La. 10/30/00), 772 So.2d 94, 99.

LA.CODE CIV. PROC. art. 1811 controls the use of JNOV.
Although the article does not specify the grounds on which a trial judge
may grant a JNOV, in Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270
(La.1986), we set forth the criteria used in determining when a JNOV is
proper. As enunciated in Scott, a JNOV is warranted when the facts and
inferences point so strongly and overwhelmingly in favor of one party
that the trial court believes that reasonable persons could not arrive at a
contrary verdict. The motion should be granted only when the evidence
points so strongly in favor of the moving party that reasonable persons
could not reach different conclusions, not merely when there is a
preponderance of evidence for the mover. The motion should be denied
if there is evidence opposed to the motion which is of such quality and
weight that reasonable persons in the exercise of impartial judgment
might reach different conclusions. Scott, 496 So.2d at 274. In making
this determination, the trial court should not evaluate the credibility of
the witnesses, and all reasonable inferences or factual questions should
be resolved in favor of the non-moving party. Anderson v. New Orleans
Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991). This rigorous standard
is based upon the principle that “[w]hen there is a jury, the jury is the
trier of fact.” Scott, 496 So.2d at 273; Jinks v. Wright, 520 So.2d 792,
794 (La.App. 3 Cir. 1987).

In reviewing a trial court’s decision on whether or not to grant a JNOV, the

appellate court must determine if the trial court erred in granting or denying the

JNOV “by using the aforementioned criteria just as the trial judge does in deciding

whether to grant the motion or not, i.e. do the facts and inferences point so strongly

6

and overwhelmingly in favor of the moving party that reasonable persons could not

arrive at a contrary verdict?” Id. at 99. If the answer to that question is in the

affirmative, then the motion should have been granted. If not, it should be rejected.

Id.

Much of the evidence concerning what occurred before, during, and after Ms.

Boxie’s surgery is not in dispute, and was provided by Dr. Foster, Dr. Lemoine, and

Mr. Scott—the three men who were present during the entire procedure. Other

testimony addressing the malpractice issue was provided by Dr. Brian Loftus, a

Houston, Texas neurologist; Dr. Brett David Wolff, a board certified anesthesiologist

and internal medicine physician from St. Louis, Missouri; and Dr. Timothy David

Faul, a Lafayette, Louisiana anesthesiologist who served as one of the physicians on

the medical review panel which first considered this matter.

Ms. Boxie’s hospitalization on the morning of May 8, 2000, was supposed to

be a relatively routine surgical procedure that was to begin around 8:00 a.m. and end

around 2:00 p.m. The events that occurred during that time occurred in three stages:

the pre-operative assessment; the surgery; and the recovery stage. The trial itself

included a vast amount of testimony presented by both sides concerning purported

medical mistakes by Dr. Lemoine in both the pre-operative and post-operative stages.

Ms. Boxie did not complain of the jury’s rejection of these issues in her JNOV, nor

has she complained of these findings on appeal. Thus, the dispute at the JNOV

hearing as well as on appeal involves the surgery phase.

The evidentiary record establishes that Ms. Boxie arrived awake and alert in

the operating room at approximately 10:15 a.m. Dr. Lemoine, with the assistance of

Mr. Scott, attached various monitors to Ms. Boxie, included an esophageal

7

stethoscope to measure her breath and heart sounds, as well as her temperature; an

instrument to monitor her blood pressure; an EKG to monitor her heart rate and

rhythm; a pulse oximeter to measure the saturation of the oxygen in her blood; and

an instrument to measure the amount of carbon dioxide exhaled by Ms. Boxie during

surgery.6 Dr. Lemoine then placed a jugular catheter in the right side of Ms. Boxie’s

neck. After attaching these monitors and the catheter, Mr. Scott placed an oxygen

mask on Ms. Boxie’s face and began administering oxygen to her. She was then

administered the anesthesia, and a breathing tube was inserted into her throat and

fixed in place.

When Dr. Lemoine and Mr. Scott completed their initial work, Dr. Foster and

his surgical nurse placed Ms. Boxie on the operating table in a seated position with

her head flexed toward her chest. They then taped her head to a horse-shoe shaped

headrest to prevent movement during the surgery. After positioning Ms. Boxie and

taping her head in place, Dr. Foster left the operating room to prepare for the surgery.

During his absence, Mr. Scott padded various pressure points to preclude

compromising nerve conduction. This included elbows, ankles, and similar points of

concern. Mr. Scott testified that he padded “anything that looks like it would be

compromised to [sic] normal circulation or physiology.” However, no areas near the

head or neck were padded. During Dr. Foster’s absence, the surgical team draped Ms.

Boxie with sheets to preserve a sterile area for the surgery. When Dr. Foster returned

to the operating room, he immediately began the surgical procedure.

6
These monitors were being attached during the time Ms. Boxie was being transferred from
the gurney onto the operating table. In fact, Dr. Lemoine had inserted an IV before Ms. Boxie left
the pre-surgery holding area.

8

From the time they were attached until their ultimate removal when Ms. Boxie

was transferred to the recovery room at 1:05 p.m., the monitors recorded vital sign

readings within normal ranges.7 Thus, on the surface, the surgery appeared to be

uneventful. However, this appearance proved to be false. Approximately twenty

minutes after Mr. Scott handed the care of Ms. Boxie to the recovery room staff, she

began to exhibit physical signs that suggested serious medical problems. She lapsed

into a coma, and when she emerged from that coma she was only able to move one

finger and to slightly move her right foot. Noone disputes the fact that her

quadriplegic condition is permanent.

Ms. Boxie was subsequently transferred to Diagnostic Hospital in Houston,

Texas, where she came under the care of Dr. Loftus, who became her primary treating

physician thereafter. After examining Ms. Boxie and conducting MRI and

radiographic studies of the blood vessels of the brain, Dr. Loftus found that her brain

stem function was intact,8 but that the cortices on both sides of her brain had been

damaged. Based on his findings, Dr. Loftus concluded that Ms. Boxie had suffered

simultaneous bilateral strokes caused by pressure on the carotid arteries on both sides

of her neck during the surgery. This conclusion is not disputed by any physician

testifying in this matter.9

The reason the carotid arteries became mechanically obstructed is also not in

dispute. All of the physicians who testified agreed that the obstruction resulted from

7
Mr. Scott testified that he took readings from the monitors every five minutes.
8
Dr. Loftus based this conclusion on the fact that Ms. Boxie was able to breath normally and
her eye movements were full.
9
At the time Ms. Boxie left the Lake Charles medical facility for transfer to Houston, neither
Dr. Lemoine nor Dr. Foster had an opinion concerning the cause of her condition, although they
knew from radiological studies performed in Lake Charles that she had suffered bilateral strokes.
Both later accepted the findings of Dr. Loftus.

9

Ms. Boxie’s chin coming to rest too low on her sternum, either during the positioning

process or sometime during the surgery. This position placed constant pressure on

the carotids during the surgical procedure, and the consequent deprivation of oxygen

to Ms. Boxie’s brain caused her bilateral strokes and resultant quadriplegia.10 Given

all of the uniform and undisputed medical testimony, we conclude that no reasonable

person exercising impartial judgment could reach any other conclusion.

All of the testifying physicians also agreed that the person or persons

responsible for positioning Ms. Boxie, and for maintaining the proper position, are

responsible for her injuries. They also all agree that the initial responsibility for

properly positioning the patient rests with the surgeon—in this case, Dr. Foster.

Thus, the first issue to be resolved is whether Dr. Lemoine had any legal obligation

to monitor Ms. Boxie’s positioning before and during surgery.

Although, in their testimony, Dr. Lemoine, Dr. Faul, and Mr. Scott attempted

to place the sole responsibility for positioning on Dr. Foster, all three witnesses also

testified that coordination between the anesthesiology team and the surgical team is

essential, and that positioning is a team effort. Specifically, the three men all agreed

that the anesthesiologist or his assistant has an obligation to inspect the patient to

satisfy himself that the head is not in a position that will cause problems. They

agreed that this obligation begins with the initial placement by the surgeon, and

extends during the surgery. If, at any time, their inspection reveals an improper

positioning situation, their obligation is to inform the surgeon of the problem so that

10
Dr. Lemoine couched his acceptance of this theory by stating that “[o]ther than what’s been
presented here about the possible positioning and the pressure on the carotids I don’t know for sure
what caused her stroke[s].” Dr. Faul initially speculated that Ms. Boxie “could have had some
anatomical variation in her carotid artery that predisposed her to a low blood flow state by a certain
positioning of her head which she did not report pre-operatively,” but acknowledged later is his
testimony that there is no evidence to support that speculation.

10

it might be corrected. Mr. Scott testified that it was his job to visually monitor head

movement before and during surgery, and to take immediate and appropriate action

if any was observed. Dr. Faul testified that “[as] anesthesiologist[s], and physicians,

we do our best to position a patient in what appears to be a comfortable, neutral

position for the patient.”

Dr. Lemoine also acknowledged that one of his obligations is to check the

positioning of the patient’s head once it was taped in place to insure that nothing

causes undue pressure to the facial or cranial nerves or blocks the airway. He also

testified that the sitting position has declined in use because it “is a more risky

position” than lying flat and one must take more care to make sure the patient is in

proper position. Still, he declared the position could be used safely if everyone did

his job.

Dr. Wolff was more specific in explaining the anesthesiologist’s obligation

with regard to the positioning of a patient’s head. He explained that the carotid

arteries pump blood at high pressure to the brain and that the importance of these

arteries, together with the fact that the flow through them is not registered by the

attached monitors, mandates that the anesthesiologist and the nurse anesthetist

administering anesthesia in this type of surgery monitor the positioning of the head

and neck both at the beginning and through the surgery to prevent the very pressure

on the carotids that caused Ms. Boxie’s strokes.11 According to Dr. Wolff, the

anesthesiologist must make sure that the position of the patient’s head maintains a

forty-five degree flexion between the chin and the sternum. He suggested that a

11
Dr. Wolff explained that the fact that Ms. Boxie was obese made the monitoring process
all the more important. The soft tissue in the neck of an obese person can be compressive, and
proper positioning is critical to prevent arterial and venous compression.

11

simple test for making sure the carotid arteries are not mechanically obstructed by the

positioning of the head is to place two fingers between the patient’s chin and sternum.

If there is less than two fingers of clearance compression may occur.

Given all of the uniform and undisputed medical testimony, we conclude that

no reasonable person exercising impartial judgment could conclude anything other

than that the standard of care applicable to an anesthesiologist includes the duty to

monitor the positioning of a patient’s head both before and during surgery. Having

reached that conclusion, we next consider whether Dr. Lemoine breached that duty

in his treatment of Ms. Boxie.

In their first assignment of error, the defendants limit their argument to the

assertion that the trial court created a nonexistent standard of care in that it found Dr.

Lemoine at fault for failing “to listen to [Ms. Boxie’s] carotid arteries with a

stethoscope” during the surgical procedure. While we agree that the record contains

no evidence to establish the use of a stethoscope as being within the standard of care

required of Dr. Lemoine, we find no merit in this assignment of error as stated,

because we find no reference in the trial court’s reasons for judgment to the use of a

stethoscope.12 Instead, the trial court stated that “it is undisputed that the cause of the

injury to Ms. Boxie was the mechanical obstruction of blood flow to the carotid artery

to the brain” over a period of time rather than an abrupt blockage, and that the partial

obstruction would not manifest itself on the blood pressure monitors in place during

the surgery. As previously stated, these assertions of fact were agreed to by all of the

expert witnesses who testified.

12
Both Dr. Wolff and Dr. Faul agreed that the use of a stethoscope was not required as a part
of the standard of care required of an anesthesiologist, although Dr. Wolff testified that it would have
been beneficial in this particular case.

12

With regard to monitoring the carotid arteries, the trial court noted that both Dr.

Lemoine and Mr. Scott acknowledged a responsibility to check pressure points during

the course of the surgery to avoid permanent nerve damage, and concluded that “the

carotid artery is a pressure point that should be monitored.” Based on this

conclusion, the trial court further concluded that the failure by Dr. Lemoine and/or

Mr. Scott to monitor that pressure point “amounts to negligence that caused the injury

suffered by [Ms. Boxie].”

The trial court also concluded that Dr. Foster’s initial placement of Ms. Boxie

in the position for surgery “more than likely was a substandard act on” his part, but

that the placement “was subject to the approval” of Dr. Lemoine; that Dr. Lemoine

had a continued obligation to monitor and approve placement; and that he “at any

time could have corrected this placement.” In reaching these conclusions, the trial

court found “dual substandard responsibility” between Dr. Foster and Dr. Lemoine

with regard to the placement issue.

The only statement of the trial court not necessarily supported by the record is

that Dr. Foster’s initial placement of Ms. Boxie was substandard. Dr. Foster, Dr.

Lemoine, and Mr. Scott all testified that they found nothing wrong with the initial

positioning. To reach the conclusion it did with regard to the initial positioning, the

trial court had to conclude that this testimony was not credible. That credibility

determination cannot be a part of the decision to grant or reject a motion for a JNOV.

Joseph, 772 So.2d at 99. However, it matters not whether the positioning was

initially improper or became improper during the surgery, as the result is the same.

Following the holding in Joseph, we accept as accurate the testimony that the

initial positioning was proper. That being the case, the evidence demonstrates

13

conclusively that sometime after the beginning of the surgery, Ms. Boxie’s head

moved a sufficient distance to cause the mechanical obstruction of her carotid

arteries—a movement missed by Dr. Foster, Dr. Lemoine, and Mr. Scott. The

evidence also demonstrates conclusively that the only way to be assured that a

patient’s head remains in the correct position during surgery is by visual inspection.

Mr. Scott’s explanation for not leaving his seated position to lift the drapes and

check the physical position of Ms. Boxie’s head was that he did not consider it

necessary because the monitors continued to give acceptable readings and because

he observed no movement of Ms. Boxie’s head.13 However, both Dr. Lemoine and

Mr. Scott testified that they were aware that the attached monitors would give no

warning of difficulties with the carotid arteries.

The idea is vaguely suggested in some of the testimony that the

anesthesiologist or the nurse anesthetist is expected to lift the drapes to visually

inspect the head position only when a problem appears while the surgical procedure

is in progress. This is circular reasoning that flies in the face of common sense. It

requires us to believe that the anesthesiologist does not need to take action to prevent

a problem until he learns that the problem already exists. The lesson we learn from

this circular reasoning is brought home by the facts of this case: it was not until after

Ms. Boxie was extubated and in the recovery room that her nurses reported that

something was terribly wrong. Thus, inspection after the fact would have been of no

use because the strokes had already occurred and she had already suffered permanent

damage.

13
We note that the record contains testimony that a sudden head movement would have been
apparent to a person watching Ms. Boxie’s head. However, there exists no testimony concerning the
ease of discovery of a gradual or seemingly insignificant change in position. Dr. Wolff testified that
even slight slippage could reduce the spacing between the chin and the sternum to a dangerous angle.

14

Mr. Scott’s testimony that he did not see Ms. Boxie’s head move during the

two and one-half hour procedure does not establish that it did not move. To the

contrary, all of the physical evidence establishes that her head did move and he

missed the movement, apparently while checking his vital sign monitors and/or

attending to other details regarding the patient. The explanation of why neither Dr.

Lemoine, who was present during the surgery only occasionally, nor Mr. Scott

became aware that something was going terribly wrong during the surgical process

is overwhelmingly established by the evidence—they simply failed to monitor the

position of Ms. Boxie’s head during surgery. Dr. Faul summed up the situation in his

testimony when he stated that his study of the records in the case indicated to him that

at the time the events were unfolding in Ms. Boxie’s case, “nobody knew what was

going on.” In other words, although pressure was building in the patient’s carotid

arteries and Ms. Boxie was suffering massive strokes because of the decreased blood

flow to the brain, noone in the operating theater knew it.

Dr. Lemoine testified that he knew the inherent dangers of the use of the sitting

position, that he knew the attached monitors would provide no warning of mechanical

obstruction of the carotid arteries, that he acknowledged the joint responsibility of the

surgeon and the anesthesiologist in placement of a patient, and that he acknowledged

the anesthesiologist’s responsibility to make certain that a patient is properly

oxygenated (including oxygenation of the brain) while under anesthesia. Still, neither

he nor Mr. Scott performed a single visual inspection of the position of Ms. Boxie’s

head during the two and one-half hour procedure.

As pointed out by Dr. Wolff, a movement as slight as one reducing the spacing

between the chin and sternum to a one-finger distance would have placed the flow

15

through the carotid arteries in jeopardy, and such a movement would not have been

detectible absent an inspection of the patient’s head under the drapes. We have

reviewed the entire record, using the standards set forth in Joseph, 772 So.2d 94.

Even resolving all reasonable inferences or factual questions in favor of the non-

moving parties, on the basis of the evidence presented at trial, reasonable persons

could only conclude that Ms. Boxie’s head moved into an improper position during

surgery; that this improper positioning caused a mechanical blockage of the carotid

arteries during surgery, resulting in her stroke; and that Dr. Lemoine and his team

shared with the surgeon, Dr. Foster, a responsibility to ensure that Ms. Boxie’s head

was properly positioned prior to surgery. Accordingly, we must affirm the trial

court’s grant of the JNOV.

Assignment of Error Number Two

The defendants argue that the trial court erred in ordering that the motion for

new trial would be granted if this court overruled its judgment granting the JNOV.

Because we find that the trial court did not err in granting the JNOV, we need not

consider this assignment of error.

Assignment of Error Number Three

The defendants assert in their third assignment of error that the entire award of

damages is excessive. However, on appeal they address only the excessiveness of the

award of $700,000.00 in past medical expenses. Specifically, they assert that Ms.

Boxie proved no more than $573,737.68 as past medical expenses. We review the

trial court’s award of damages pursuant to the JNOV using the manifest error

standard of review. Davis v. Wal-Mart Stores, Inc., 00-445 (La. 11/28/00), 774

So.2d 84.

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At trial, Ms. Boxie introduced a medical billing summary totaling $749,366.08

as evidence of her past medical expenses. The defendants objected to the admission

of the exhibit, contending that Ms. Boxie had not connected many of the charges to

her medical expenses arising from Dr. Lemoine’s malpractice. They make the same

argument on appeal.

The amount in dispute, $134,685.79, is supported by certified copies of bills

for medical services from various medical care facilities and pharmacies. None of the

disputed statements are dated before her surgery giving rise to this litigation.

Louisiana Revised Statute 13:3714(A) provides that when a certified copy of a bill

for medical services is offered in evidence,

it shall be received in evidence by such court as prima facie proof of its
contents, provided that the party against whom the bills, medical
narrative, chart, or record is sought to be used may summon and
examine those making the original of the bills, medical narrative, chart,
or record as witnesses under cross-examination.

Here, notations on the submitted medical bills establish that they were for treatment

provided to Ms. Boxie, and most of them contain sufficient information to show that

which of their services were related to Ms. Boxie’s quadriplegia. For example, a bill

from Lake Charles Memorial Hospital reflects that Ms. Boxie was admitted on

October 20, 2003 and discharged on October 23, 2003, with total charges of

$4,846.40 and final diagnoses that are described as “RECUR DEPR PSYCH-SEVER

. . . QUADRIPLEGIA, UNSPECIF . . . OTH PERSIST MENTAL DIS . . .

CONDUCT DISTURBANCE NO.” The charges from Christus St. Patrick Hospital,

dating from May 2, 2000 to April 5, 2006, total $38,791.86 and include charges for

a September 23, 2004 barium test of Ms. Boxie’s esophagus and February 24, 2004

diagnoses of her wrists, hips, and knees. The certified bills from Caraway’s

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Pharmacy total $7,829.55, and included bills for megestrol (used to treat sudden,

unexplained weight loss), lexapro (used to treat severe depression), bisacodyl (a

laxative), celexa (also used to treat depression), and furosemide (used to treat

incontinence). The $75,426.00 in bills from Leading Health Care of La., Inc., by

contrast, do not contain sufficient information on their faces to identify the services

they provided to Ms. Boxie. But Ms. Boxie also introduced a notification from the

State of Louisiana stating that Louisiana’s Department of Health and Hospitals had

paid the bills submitted to it by Leading Health Care of La., Inc., and that those bills

were related to Ms. Boxie’s injuries on May 8, 2000.

We conclude that there was sufficient evidence of medical expanses totaling

at least $700,000.00 that were established to be for services provided to Ms. Boxie

and related to the injuries that she received as a result of as a result of Dr. Lemoine’s

malpractice. Accordingly, we find that the trial court did not manifestly err in

awarding Ms. Boxie $700,000.00 in past medical damages.

Assignment of Error Number Four

Finally, we find it unnecessary to address the defendants’ argument that the

trial court erred in giving a jury instruction regarding res ipsa loquitur. The jury

returned a verdict in the defendant’s favor. Therefore, any error concerning this

instruction would be harmless. Thomas v. Black & Decker (U.S.), Inc., 502 So.2d 157

(La.App. 3 Cir. 1987).

DISPOSITION

For the foregoing reasons, we reject the exception of no right of action, affirm

the trial court’s judgment notwithstanding the verdict, and affirm its awards of

damages. We assess all costs of this appeal to the defendants.

AFFIRMED.

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