Leslie Schilling v. Lynn W. Aurich, ph.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1325

LESLIE SCHILLING

VERSUS

LYNN W. AURICH, PH.D., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-99-4357 C/W C-96-3899
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and Shannon J. Gremillion, Judges.

JNOV REVERSED; CONDITIONAL GRANT OF MOTION FOR NEW
TRIAL REVERSED;JURY VERDICT REINSTATED.

Rick A. Caballero
Attorney at Law
7470 Highland Road
Baton Rouge, LA 70808
(225) 763-6679
COUNSEL FOR PLAINTIFF/APPELLANT:
Leslie Schilling

James J. Hautot, Jr.
Judice & Adley
P. O. Drawer 51769
Lafayette, LA 70503
(337) 235-2405
COUNSEL FOR DEFENDANTS/APPELLEES:
Lynn W. Aurich, Ph.D.
Charter Cypress Behavorial Health Systems, LLC

GREMILLION, Judge.

The plaintiff, Leslie Schilling, appeals the trial court’s grant of a judgment

notwithstanding the verdict (JNOV) and, conditionally, a motion for new trial in

favor of the defendant, Dr. Lynn W. Aurich. For the following reasons, we reverse

the grant of JNOV, reverse the conditional grant of motion for new trial, and

reinstate the jury’s verdict and award.

FACTUAL AND PROCEDURAL BACKGROUND

Leslie was involuntary committed to psychiatric care by Dr. Aurich on

August 15, 1995, the same day as her seventeen-year-old son’s (Trey) funeral at

which her then-husband, Herbert Schilling, removed his wedding band, placed it

on their deceased son’s hand, and announced to Leslie that the marriage was over.

Dr. Aurich did not conduct a face-to-face interview with Leslie before

committing her to the care of Charter Cypress Hospital. A medical review panel

found this failure was a breach of the standard of care.

Leslie filed suit in September 1999.1 Following a five day trial in August

2010, the jury found that Dr. Aurich breached the standard of care owed to Leslie

and awarded her $50,000 for mental anguish and $15,000 for loss of enjoyment of

life. Dr. Aurich filed a motion for judgment notwithstanding the verdict (JNOV)

and/or a motion for new trial. The trial court granted Dr. Aurich’s motion for

JNOV, finding that “[t]he evidence . . . was insufficient to support the jury’s

findings that Dr. Aurich breached the standard of care and had caused damages to

the plaintiff.” The trial court continued:

1
Leslie initially filed suit against Dr. Aurich and Charter Cypress Behavioral Health
System, L.L.C. in August 1996 (docket number 96-3899). In November 1996, Leslie voluntarily
dismissed the claim against Dr. Aurich in order that her claims could be brought before the
medical review panel. The medical review panel convened and made a finding adverse to Dr.
Aurich. The current suit followed (docket number 99-4357). The two suits were initially
consolidated by the trial court in November 1999. However, on appeal, docket number 96-3899
(CA 11-1324) was dismissed.

During the trial, Dr. Simoneaux, a member of the medical review
panel who found Dr. Aurich had deviated from the standard of care,
was offered by the plaintiff as an expert. Dr. Simoneaux’s
testimony appeared to be advocating to support his medical review
panel decision instead of being objective. Because of this, the
court placed little emphasis on his testimony. Additionally there
was testimony that Dr. Aurich spoke with the plaintiff on the
evening of her commitment and went to the hospital to execute the
commitment paperwork. Notwithstanding the fact that Dr. Aurich
did not wait for the plaintiff to arrive at the hospital to conduct a
face-to-face observation, this court feels that given the prior
relationship of the plaintiff and Dr. Aurich, that [sic] fact that Dr.
Aurich was familiar with the plaintiff’s history, and at the
insistence of the plaintiff’s family and friends, Dr. Aurich’s
decision to execute the PEC was appropriate. Therefore, it is the
opinion of this court that the defendant, Dr. Aurich did not breach
the standard of care and is not liable to the plaintiff for damages.

The trial court further conditionally granted a motion for new trial. Leslie

now appeals.

ISSUES

Leslie assigns as error:

1. The trial court erred in granting Dr. Aurich’s motion for JNOV
as there was ample evidence in the record upon which
reasonable jurors, in the exercise of their impartial judgment,
could have based their verdict in this case.

2. The trial court erred in granting Dr. Aurich’s motion for new
trial. The verdict in this case is not contrary to the law and the
evidence and does not represent a miscarriage of justice
warranting new trial.

JNOV

In Love v. Lewis, 00–06, pp. 4–5 (La.App. 3 Cir. 10/11/00), 771 So.2d 220,

222, writ denied, 00–3506 (La. 2/16/01), 786 So.2d 102, we stated:

La.Code Civ.P. art. 1811 provides the basis for filing a
Motion for JNOV. However, Article 1811 does not set forth any
specific grounds on which a trial court may set aside a verdict.
Therefore, we rely on the well-settled jurisprudence that a JNOV
may only be granted when the evidence points so strongly and
overwhelmingly in favor of the moving party that reasonable
people could not arrive at a contrary verdict on the facts at issue.
Peterson v. Gibraltar Sav. & Loan, 98–1601(La.5/18/99); 733
So.2d 1198. Additionally, “[t]he trial court may not weigh the

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evidence, pass on the credibility of witnesses, or substitute the
reasonable inferences of the facts for those of the jury.” McBride v.
H. Brown Machine Shop, 98–1271, p. 3 (La.App. 3 Cir. 3/31/99);
732 So.2d 650, 652, writ denied, 99–1288 (La.7/2/99); 747 So.2d
20, quoting Webb v. Goodley, 512 So.2d 527, 530 (La.App. 3
Cir.1987). In reviewing the grant of a JNOV an appellate court
must first determine whether the trial court erred in granting the
JNOV. The appellate court does this by applying the same criteria
as the trial court. Anderson v. New Orleans Public Service, Inc.,
583 So.2d 829 (La.1991). If reasonable people could have arrived
at the same verdict, given the evidence presented to the jury, then
the JNOV is improper. Id.

In Lastrapes v. Progressive Security Insurance Co., 10–51, p. 5 (La.

11/30/10), 51 So.3d 659, 662 (quoting Joseph v. Broussard Rice Mill, Inc., 00–

628, pp. 4–5 (La. 10/30/00), 772 So.2d 94, 99), the supreme court recently stated

(emphasis added):

The motion should be denied if there is evidence opposed to the
motion which is of such quality and weight that reasonable and
fair-minded persons in the exercise of impartial judgment might
reach different conclusions. 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. This rigorous standard is based
upon the principle that when there is a jury, the jury is the trier of
fact.
We find the trial court erred in granting a JNOV in favor of Dr. Aurich. The

jury had sufficient evidence before it to allow them to conclude that Dr. Aurich

breached the standard of care and that Leslie suffered damages as a result of the

involuntary commitment. Louisiana Revised Statute 28:53(B)(1) regulates the

involuntary commitment of a person and stated in part, at the time of Leslie’s

commitment:

Any physician, psychiatric mental health nurse practitioner,
or psychologist may execute an emergency certificate only after an
actual examination of a person alleged to be mentally ill or
suffering from substance abuse who is determined to be in need of
immediate care and treatment in a treatment facility because the
examining physician, psychiatric mental health nurse practitioner,
or psychologist determines the person to be dangerous to self or
others or to be gravely disabled. Failure to conduct an examination

3

prior to the execution of the certificate will be evidence of gross
negligence.

The July 1999 medical review panel opinion stated in part:

1. The evidence supports the conclusion that the
defendant, DR. LYNN AURICH, failed to comply with the
appropriate standard of care as charged in the complaint.

The conduct complained of was not a factor in the resultant
damages.

The reasons for the panel’s opinion are as follows:

Dr. Lynn Aurich breached the standard of care
because he did not meet with Mrs. Schilling face to face and
conduct an actual examination before commitment. We feel there
is a general lack of impairment arising from the commitment and
that the hospitalization was probably appropriate and beneficial to
Mrs. Schilling. The major emotional damages were caused by the
death of her son and the divorce and the commitment did not
significantly add to that burden.

Pursuant to La. R.S. 9:2794(A), medical malpractice actions require that the

plaintiff bear the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care
ordinarily exercised by physicians, dentists, optometrists, or
chiropractic 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, dentists, optometrists, or chiropractic
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.

(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.

Many witnesses testified during the week-long trial. Jackie Cefalu, a retired

teacher, testified that she met Leslie in the late 1960s or early 1970s, shortly after

Leslie had moved to Lafayette. She said they were close friends. Cefalu testified
4

that as soon as she learned of Trey’s death she went to stay with Leslie. She

attended the funeral and remained with Leslie throughout the day except for one

hour when she attended a back-to-school function. She said Leslie was never

suicidal and never indicated to anyone that she was going to commit suicide.

Cefalu further testified that during the entire time she was there, Leslie did not talk

with anyone on the telephone. Cefalu testified that when she returned from her

function the police were at the Schilling home. She said Leslie had “no idea what

was going on.” She asked if “they” had informed Leslie of what was about to

happen and said that no one had told her. Cefalu said she asked if she could go and

let her know what was about to happen. Cefalu said she was not involved in any

way in the decision-making process and that no one asked her opinion. She stated

that Leslie “absolutely [did] not” know what was about to happen until Cefalu told

her.

Cefalu testified that she rode with Leslie in the police car to Cypress. She

described it as a “horrible experience.” Cefalu said that she told Herbert that she

would have stayed with Leslie every minute of the day if it could have prevented

her from having to go to Cypress, but that the decision had been made without her

knowledge.

Leslie testified that she was fifty-eight years old at the time of trial and was

the Director of the Humanities Resource Center at the University of Louisiana at

Lafayette. She said she has worked in the resource department since 1993. Leslie

testified that she had been married to Herbert from 1977 to 1996, a little over

eighteen years. Leslie said that she and Herbert had three children. At the time of

Trey’s death, her daughter was sixteen and her youngest son was twelve.

Leslie said that she knew her marriage to Herbert was headed for divorce in

July 1995, following a family trip. She said that upon return from the trip, she
5

contacted Dr. Aurich, on August 1, 1995. She said that she went to see him

because there was a lot of “family discord,” and she was concerned about her

children going through the divorce. She said that during the trip to Florida, her son

Trey had been arrested and her youngest son had become “totally inebriated” and

that she was worried for her children and wanted to talk to someone to develop a

guidance plan for them.

Leslie discussed the Life History Questionnaire that she filled out at her first

visit with Dr. Aurich. She noted her age (43) and her main problem as follows

“Presently I am depressed. I feel as though I’ve been stretched so thin that I’m not

capable of doing even the most basic tasks.” The twelve-page questionnaire

requires lengthy written responses in addition to several sections that instruct one

to “Underline any of the following that apply to you.” In one of those sections,

that contains forty options for underlining, Leslie underlined eighteen of them,

including one that said “suicidal ideas.” With regard to that response, Leslie

testified:

Q. Explain to the jury what you meant when you
underlined suicidal ideas.

A. Sometimes we need a place to start from, and when
everything is totally out of control, that’s exactly what it would
be if you’re not there. And that’s the point from which you
build what you will do to either rectify or solidify or bring
together whatever the disparate elements are.

Q. Had you had thoughts about suicide at some point in
your life?

A. I think everybody has.

Q. Had you?

A. I’m certain that were times when yes.

Q. Okay. Had you ever gotten so far in your mind that
you were like, well, I’m going to do it and start thinking about
how to do it or had you just had –
6

A. Oh, heavens no.

Leslie testified that Herbert was physically and emotionally abusive.

Leslie’s next contact with Dr. Aurich was on August 5, 1995. She said that

she called and told him that “when I came home from mass, Herbie had attacked

me in the washroom and threatened to kill me and make it look like suicide. I was

calling him to tell him that no matter what, if something happened to me, it was not

suicide.” She denied ever indicating that she was suicidal. Leslie said that Dr.

Aurich spoke with both Herbert and Trey that evening.

Leslie next saw Dr. Aurich on August 9, 1995, at which time she turned in

the Life History Questionnaire and also partially completed the MMPI-2.2 Leslie

testified that she did not answer all of the 567 questions on the test, leaving some

bubbles unmarked. However, all of the questions had been answered on the form

submitted into evidence.

On August 12, 1995, Trey was killed when he was accidentally run over by

a truck. Leslie testified that Dr. Aurich’s office sent flowers to the funeral home

on Monday August 14, 1995. Leslie said that she spent time that day writing thank

you notes at her dining room table. She said eventually she wrote over 200 thank

you notes, which were mailed by Herbert’s secretary. However, she said that the

thank you note to Dr. Aurich was written on the 14th because she would not have

written the note after the commitment.

Leslie described the events on the day of Trey’s funeral, including Herbert’s

announcement at her son’s casket that their marriage began with Trey and ended

with his death. She said that Herbert further announced she was no longer a part of

this family. Leslie said that upon returning home from the funeral, she bathed.

2
The Minnesota Multiphasic Personality Inventory is a clinical assessment test used by
mental health professionals.
7

She denied speaking to Herbert at all and said that she never spoke to Dr. Aurich at

all on that day and had not spoken to him since August 9.

Leslie said that Herbert walked in from the kitchen and “told me that the

police were here to take me to the hospital because Dr. Aurich wanted to talk to

me.” She said that the police said nothing to her. Leslie said that upon her arrival

at Cypress, she felt tricked because she thought Dr. Aurich wanted to speak with

her, and he was not there. She said, “I realized that Herbie had done this to get me

out of the house.” Leslie went on to describe the ensuing strip search and meeting

with doctors the next day.

Leslie said that while in the institution, she first saw Dr. Aurich on August

16, 1995, at which time he suggested that she take medication. Leslie testified that

she declined to take the medication based on the “zombie-like” appearance of the

other patients in the facility. She said that Dr. Aurich told her that if she was not

cooperative, he would cease being her doctor. Leslie said that she was at Cypress

until August 24, 1995. Other than taking an antibiotic for an upper respiratory

infection, Leslie said that she did not take any other medication while there. Leslie

said that on the day of her departure from the hospital, she called friends who

picked her up. She attempted to return to her home, but two deputies served her

with divorce papers and would not allow her to go into the house. She said that

she never spent another night in the home.

Leslie described how the commitment affected her: she was unable to see

her children during the critical time following their brother’s death; she was unable

to care for her father, who was dying of cancer and relied upon her for basic tasks;

and how the commitment affected all custody issues and her children’s view of

her, stating that Herbert used “the forced commitment as evidence that their mother

was crazy.” Leslie continued that the forced commitment was a problem at school
8

(her employment). She said that she worked with a therapist for several months to

deal with the emotional impact of the forced commitment.

Dr. John Simoneaux, an expert psychologist, testified that he was a member

of the medical review panel that decided whether Dr. Aurich breached the standard

of care. Dr. Simoneaux testified that he has been involved with hundreds of PECs

(Psychologist Emergency Certificates) over the years involving his employment at

various institutions. In sum, Dr. Simoneaux testified that it was the panel’s

opinion that the statute’s requirement of an “actual” exam required an in-person

examination before a person can be involuntary committed. He said that the

normal practice in the area has determined “actual” to mean an in-person

examination. Dr. Simoneaux testified that the panel was further of the opinion that

it violated the standard of care to conduct a phone interview rather than an in-

person examination. Essentially, the standard of care required an in-person

examination before a person can be involuntarily committed. Thus, Dr. Aurich

breached the standard of care by not conducting an in-person examination of

Leslie. However, Dr. Simoneaux opined that “the damage resulting from the

hospitalization [was] not there because a hospitalization probably would have

occurred had he done an actual examination anyway.” Dr. Simoneaux further

testified that the commitment damages were not significant in comparison to the

damages Leslie was already suffering due to other life events. However, Dr.

Simoneaux noted that “it is unrealistic to think that someone who ha[s] been

committed does not suffer damages from a commitment.”

Dr. Philip Landry, a psychiatrist, testified that he believed a face-to-face

examination within twenty-four hours was required before a patient could be

involuntary committed. He testified that he agreed with the medical review panel’s

opinion that Dr. Aurich breached the standard of care. Dr. Landry testified that he
9

first met Leslie the day after her commitment to Cypress. He said that Leslie

appeared neither suicidal nor psychotic during his initial interview of her. He

testified that Leslie’s clinical presentation did not coincide with the descriptions

that were provided by Dr. Aurich.

Dr. Landry testified that at the time he saw Leslie, within twelve hours of

her admittance to the hospital, he did not believe she was suicidal nor did he find

any evidence of psychosis or a character disorder such as borderline personality.

Although Dr. Aurich recommended that Leslie be medicated, Dr. Landry did not

feel it was necessary to prescribe any medication for Leslie. He stated he would

not have committed her based on his impression of her when he assessed her the

following day. However, on cross-examination, he admitted that his final

diagnosis included, among other diagnoses, “borderline personality disorder,”

based on the history and testing he had received. He further testified that he agreed

to be the admitting physician at the hospital and that Dr. Aurich had telephoned

him prior to the commitment to confirm same, as Dr. Aurich was unable to admit

patients at Cypress without a consulting order from a doctor with privileges at the

hospital.

Dr. Landry was asked why he did not release Leslie sooner to which he

responded that he wanted to be sure she was not suicidal. Dr. Landry found

Leslie’s case “puzzling,” so much so that he did some investigation of collateral

sources. He stated that essentially, Herbert and his friends advised that she was

suicidal while Leslie’s friends stated that she was not. Dr. Landry did feel that the

hospitalization was beneficial to Leslie from an emotional standpoint due to all of

the tragedies that had occurred in her life; however, he was not sure if the

commitment would adversely affect her in other ways, such as harm to her

reputation or, from a legal standpoint, disadvantage her in child custody litigation.
10

Dr. Ted Friedberg, a clinical psychologist, was a member of the medical

review panel in this case. He testified he was of the opinion that Dr. Aurich

breached the standard of care because he failed to conduct a face-to-face

examination of Leslie. Dr. Friedberg further testified that he has never committed

anyone over the telephone; an in-person examination is required. However, he

said that the panel did not feel that Leslie’s damages were significant because of all

of the other trauma she was experiencing due to the loss of her son and marriage.

Dr. Friedberg testified that the panel decided that less than five percent of the

damages she was suffering at the time were attributable to the involuntary

commitment. Dr. Friedberg stated, “[S]he’s got bigger problems than this, you

know, even though when you PEC somebody, you put somebody in the hospital

against their will, that’s not a fun thing. Nobody is looking forward to that

experience. And it’s a traumatic experience. But compared to everything else, it

wasn’t much.”

Dr. Aurich testified that Leslie is the only patient he has ever had to

administer a PEC for admission. He reviewed his notes from their first visit on

August 1, 1995, noting that Leslie presented with a “stress reaction and significant

marital discord.” Dr. Aurich testified that he also noted “suicidal ideation.” Dr.

Aurich said that at the initial meeting he conducted a suicide risk assessment,

noting that some people may have suicidal thoughts, but really have no plans to

actually do it. He discussed his method of evaluating a person’s suicide risk based

on method, availability, specificity, and lethality. Dr. Aurich testified that Leslie

had suicidal thoughts but “didn’t have a plan or anything like that.” He said that he

felt her risk of suicide was low. He testified that he did have Leslie sign a no-

suicide contract in which she agreed to not commit suicide or to call him if she was

having suicidal thoughts.
11

Dr. Aurich testified that his next contact with Leslie was on the evening of

August 5. He stated that Leslie called and said that she felt suicidal following an

altercation with her husband and that in honoring the no-suicide contract she was

calling as instructed. Dr. Aurich testified that Leslie had intent and a plan this

time, indicating that she was going to crash her car or take drugs to complete her

mission. Dr. Aurich said he spoke with Herbert, but that he discounted Leslie’s

claims. Dr. Aurich said that he recommended Leslie go to the hospital that night

but she adamantly refused. Dr. Aurich indicated that she should have someone

stay with her, and her son, Trey, agreed to do so. Dr. Aurich had no further contact

with Leslie that evening.

Dr. Aurich next saw Leslie on August 9, 1995, at which time she returned to

his office with her Life History Questionnaire. Dr. Aurich noted at the

appointment that Leslie:

called me Saturday night threatening suicide, very resistant to my
recommendations, talked with husband who was not cooperative
with me, recommended that she be hospitalized, but he disagreed. .
. . he still wants her out of the house. She reported to me that he
has threatened to kill her numerous times. We discussed that at
some length. And then my comment was she is in denial, resistant,
rigid.

Dr. Aurich had noted that Leslie indicated at the August 5th appointment

that Herbert threatened to kill her and make it look like a suicide. Dr. Aurich said

that “apparently, he had made these threats numerous times.” Dr. Aurich testified

that the MMPI-2 was administered to Leslie at this appointment, and the results

were received on August 14, 1995. Dr. Aurich then testified at length regarding

the MMPI-2 results. In sum, he said the results indicated that the most likely

diagnosis for Leslie, based on her answers, was paranoid schizophrenic.

He then testified regarding the events of August 15, 1995. Dr. Aurich said

he spoke with Herbert sometime between 8:00 and 9:00 p.m., who informed him
12

that Leslie was threatening suicide, indicating that she was going to be with Trey.

Dr. Aurich said that he spoke with Leslie after he spoke to Herbert. Dr. Aurich

testified that Leslie indicated that she wanted to go home with her son Trey and

was “done with everything.” Dr. Aurich said that he conducted a suicide

assessment over the phone using the four aforementioned factors. Dr. Aurich

related that Leslie said she was going to crash her car or take pills. He considered

Leslie to be a serious suicide risk that evening based on his assessment and the

surrounding facts and circumstances. He advised Leslie that he wanted her to go to

the hospital, but that she adamantly refused. He said that he spoke with Herbert

again and recommended a PEC because Leslie refused to go to the hospital. Dr.

Aurich testified:

[Herbert] agreed with me and agreed that he would see to it that
she got to Charter Cypress Hospital. I told him that I would
immediately go to the hospital and fill out the necessary paperwork
and would then call him back – or rather I would see – I’m sorry.
That I would then see her on the following day and follow her
while she was in the hospital.

Dr. Aurich then testified that he received a call from Nancy Mounce, a

family friend, who was extremely worried for Leslie’s safety. He said that he

went to the hospital to fill out the PEC. He recorded various assessments including

“suicidal ideation and specific plan.” Dr. Aurich testified there was nothing he

could have learned from a visual examination that would have changed his mind

about the necessity for hospitalization.

Regarding the need for an in-person, face-to-face examination, Dr. Aurich

opined that the ethical principles set forth by the Louisiana Board of Examiners

which incorporates the APA Ethical Principles of Psychologists do not require a

face-to-face or a visual assessment. Dr. Aurich testified that he met with Leslie the

day after she was involuntary committed. He said that he recommended that she

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take an anti-depressant medication. He continued to work with Leslie while she

was hospitalized, but he felt as though they were not making any progress. Dr.

Aurich noted that if Leslie continued to refuse medication, he would have “no

choice” but to remove himself from her care. By August 21, 1995, Dr. Aurich had

withdrawn from the case, leaving Leslie in the hands of Drs. Landry and Ally.

Dr. Mark Warner, a clinical and neurological psychologist, testified that he

trained law enforcement officers for twelve years, served for fourteen years on the

medical ethics board, and the same amount of time training medical residents in

dealing with patients with emotional problems. Dr. Warner testified that all four

physicians who encountered Leslie following the commitment maintained the

commitment. He said that every doctor maintained Dr. Aurich’s initial PEC until

the coroner came in and rendered a Coroner’s Emergency Certificate, the next step

in the process. Dr. Warner opined that the medical review panel failed to consider

all of the sources and to document the basis for their opinion. He said in

determining whether the standard of care has been breached the panel should have

considered state law, licensing board regulations, ethical principles of the

professional associations, case law, and finally, consensus of the community. He

was of the opinion that the word “actual” did not require a face-to-face

examination, but that the extent of the data one had, and the evaluation conducted

to determine risk factors from an objective standpoint, were more important. Dr.

Warner felt Dr. Aurich’s actions were reasonable and clinically sound based on his

previous sessions with Leslie, the completed psychological testing, the phone calls,

the events of the day. Dr. Warner opined that Dr. Aurich met or exceeded the

standard of care for psychologists in issuing the PEC.

Marilyn Crane testified that she has known Leslie since about 1980 and that

their children attended school together. She also said that she has known Herbert
14

since 1970 or so; they attended college together and Herbert’s first wife was her

sorority sister. Crane’s husband has known Herbert since high school. Crane

said that she and Leslie developed a close friendship by about 1990. Crane

testified that she does not know Dr. Aurich. Crane said that she assisted with some

of the details of Trey’s funeral and that she had extensive conversations with Leslie

the day of the funeral. She said that Leslie indicated that her “life was over,” “that

she had nothing to live for,” and that “she wanted to be with her son.” Crane said

that Leslie was generally “theatrical,” but her demeanor that day was “was very

subdued and reserved and serious. And it worried me a lot.” Crane said she

informed Herbert that she was concerned about Leslie. She said that Herbert then

asked her to write down what Leslie had told her “so that they would have a clear

idea of what had transpired.” Crane then read her handwritten note.

DISCUSSION

Dr. Aurich’s argument in favor of his JNOV was that there was no evidence

presented to the jury that would allow them to conclude that Leslie would not have

been hospitalized had Dr. Aurich conducted an actual, face-to-face examination of

her. We agree that all of the doctors found that based on the facts and

circumstances known at the time, and after a face-to-face examination, an

involuntary commitment would have been proper. Yet, that is not the standard.

The jury heard testimony from several witnesses that an actual exam, according to

local standards, requires a face-to-face meeting within seventy-two hours prior to

the involuntary commitment. We find nothing unreasonable about this requirement

and do not think that this standard should be excused based on the particular

circumstances. The severity of committing someone against their will to a

psychiatric institution should, at a minimum, require that the strictest of formalities

15

be met. Clearly, the jury agreed, and it is not our function to second-guess their

credibility assessments and reasonable conclusions.

There was some debate as to whether Dr. Aurich spoke with Leslie on the

phone the evening of the commitment (he claimed he did, Leslie claims he did

not). Even assuming that he did, there was still no error in the jury’s finding that

he breached the standard of care by not conducting a face-to-face examination of

Leslie.

The trial court noted at the hearing on the JNOV, “What troubles me more

than anything else is the fact that Dr. Simoneaux was on that medical review panel

and then he was submitted as an expert in the plaintiff’s case.” We find this reason

for granting Dr. Aurich’s JNOV unimpressive. Members from the medical review

panel regularly testify at trial.

Dr. Aurich argues that the initial commitment without a face-to-face

examination was valid because the subsequent doctors maintained her commitment

for nine days before releasing her. However, reasonable people could conclude

from examining the evidence that, out of abundance of caution, and due to the

assertions made by Dr. Aurich, further investigation into Leslie’s emotional state

was required before it would be prudent to release her. It is not surprising that all

of the subsequent doctors who “maintained” the commitment noted the suicidal

ideation on their various forms given the circumstances and the information

presented to them by Dr. Aurich. The jury had evidence before it, including Dr.

Landry’s testimony, that he would not have committed Leslie. The fact remains

that reasonable people, including the medical review panel, could find that Dr.

Aurich’s failure to conduct a face-to-face interview of Leslie within seventy-two

hours before committing her was a breach of the standard of care requiring an

“actual” examination of the patient.
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Having noted all of that, we address whether Leslie suffered any damages.

It is preposterous to assume, as Dr. Aurich suggests, that being involuntarily

committed into a mental institution on the day of your son’s funeral is a tort

without damage. One does not need expert testimony to imagine what a traumatic

effect being carted off by the police, being stripped naked, and undergoing a cavity

search would have on a woman, not to mention the legal ramifications of having an

involuntary commitment used against you in divorce and custody litigation.

Clearly, burying a child is one of the worst things a person could endure, but that

does not lessen the effect of being involuntarily committed the same day. On the

contrary, it aggravates it. Any reasonable juror could have found that Leslie

suffered damages due to the involuntary commitment.

The case before us presents classic credibility determinations and

assessments of the evidence by the jury. A reasonable person, considering the

evidence before the jury, could readily find that Dr. Aurich breached the standard

of care and that Leslie suffered damages as a result. Accordingly, the trial court

erred in granting a JNOV in favor of Dr. Aurich.

MOTION FOR NEW TRIAL

In this assignment of error, Leslie argues that the trial court erred in

conditionally granting a motion for new trial in the event we find that JNOV was

not warranted. Louisiana Code of Civil Procedure Article 1972(1) provides that a

new trial shall be granted “[w]hen the verdict or judgment appears clearly contrary

to the law and the evidence.” We review the trial court’s grant of a motion for new

trial using the abuse of discretion standard. Martin v. Heritage Manor S. Nursing

Home, 00-1023 (La. 4/3/01), 784 So.2d 627. The trial court has wide discretion in

granting a new trial. Nevertheless,

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The fact that a determination on a motion for new trial
involves judicial discretion, however, does not imply that the trial
court can freely interfere with any verdict with which it disagrees.
The discretionary power to grant a new trial must be exercised with
considerable caution, for a successful litigant is entitled to the
benefits of a favorable jury verdict. Fact finding is the province of
the jury, and the trial court must not overstep its duty in overseeing
the administration of justice and unnecessarily usurp the jury’s
responsibility. A motion for new trial solely on the basis of being
contrary to the evidence is directed squarely at the accuracy of the
jury’s factual determinations and must be viewed in that light.
Thus, the jury’s verdict should not be set aside if it is supportable
by any fair interpretation of the evidence. Gibson v. Bossier City
General Hospital, et al., supra. See also Engolia v. Allain, 625
So.2d 723 (La.App. 1 Cir.1993). (Emphasis added.)

Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84, 93.

As part of its consideration of whether to grant a new trial, “the trial court

may evaluate the evidence without favoring either party; it may draw its own

inferences and conclusions; and evaluate witness credibility to determine whether

the jury had erred in giving too much credence to an unreliable witness.” Joseph v.

Broussard Rice Mill, Inc., 00-628, pp. 14-15 (La.10/30/00), 772 So.2d 94, 104. As

an appellate court “[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,

774 So.2d at 93-94. “The scales are clearly tilted in favor of the survival of the

jury’s verdict, but the trial court is left with a breadth of discretion which varies

with the facts and events of each case.” Id. at 94.

Based on our review of the evidence, the jury’s finding that Dr. Aurich

breached the standard of care was not clearly contrary to the law and evidence.

Thus, the trial court abused its discretion in conditionally granting the motion for a

new trial. We, therefore, reverse the trial court’s grant of a conditional new trial

and reinstate the jury’s verdict awarding Leslie $65,000 in damages.

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CONCLUSION

We reverse the trial court’s grant of a judgment notwithstanding the verdict;

reverse the trial court’s conditional grant of a motion for new trial; and render

judgment reinstating the jury verdict awarding the plaintiff-appellant, Leslie

Schilling, $65,000 in damages. All costs of this appeal are assessed against the

defendant-appellee, Dr. Lynn W. Aurich.

JNOV REVERSED; CONDITIONAL GRANT OF MOTION FOR
NEW TRIAL REVERSED; JURY VERDICT REINSTATED.

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