Mitch Benson v. Rapides Healthcare System, L.L.C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1083

MITCH BENSON

VERSUS

RAPIDES HEALTHCARE SYSTEM, L.L.C., ET AL.

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 72300-A
HONORABLE GARY J. ORTEGO, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED IN PART AND REVERSED IN PART.

William H. Parker, III
Allen & Gooch
A Law Corporation
Post Office Box 81129
Lafayette, LA 70598-1129
(337) 291-1000
COUNSEL FOR DEFENDANT/APPELLANT:
Rapides Healthcare System, L.L.C.
D/B/A Savoy Medical Center

Bryan D. Scofield
Scofield & Rivera, LLC
Post Office Box 4422
Lafayette, LA 70502
(337) 235-5353
COUNSEL FOR PLAINTIFF/APPELLANT:
Mitch Benson

PICKETT, Judge.

The plaintiff and the defendant appeal the trial court judgment in this

medical malpractice case. For the following reasons, we affirm the judgment in

part and reverse the judgment in part.

FACTS

On October 21, 2007, while trimming trees with the assistance of a neighbor,

Mitch Benson began experiencing severe chest pain. Mr. Benson was transported

to the emergency room (ER) at Savoy Medical Center1 (Savoy) in Mamou. He

arrived at 4:50 p.m. 2 and was treated by ER physician, Dr. Clifford Godley.

Dr. Godley determined that Mr. Benson was experiencing an acute ST elevation

myocardial infarction, a heart attack, and that his right coronary artery was 100%

blocked. At 5:00 p.m., he consulted Dr. Charles Monier, an interventional

cardiologist,3 who advised Dr. Godley to immediately administer a thrombolytic

agent which is used to dissolve blood clots. Dr. Monier also advised Dr. Godley

that he would know within twenty to twenty-five minutes if the thrombolytic

therapy dissolved the clot.

Dr. Monier was not employed by Savoy but was the director of its

catheterization laboratory (cath lab) where diagnostic imaging equipment is used to

visualize the arteries of the heart and treat any blockages or abnormality found.

Dr. Monier testified that he informed Dr. Godley that Savoy’s cath lab was not

1
Rapides Healthcare System, LLC managed Savoy Medical Center at that time.
2
In his medical records, military time was used to document the administration of
treatment to Mr. Benson and other events that occurred. At trial, witnesses testified using
standard time to reference when events occurred that evening. For ease of reading, we use
standard time when referencing events documented in Mr. Benson’s medical records.
3
Interventional cardiologists are cardiologists who specialize in catheter-based treatment
of structural heart disease.

open on Sundays; therefore, he had to be prepared to transfer Mr. Benson to a

hospital that had a cath lab open that day if the thrombolytic agent did not dissolve

the clot. Dr. Monier also testified that he recommended Dr. Godley contact the

referral hospital before administering the thrombolytic agent because some doctors

do not like to perform cath procedures after the use of a thrombolytic agent fails.

Dr. Godley administered thrombolytic therapy, but it failed to dissolve the

clot. An attempt by Savoy employees to get the cath lab staff to the hospital to

perform a cath procedure on Mr. Benson failed, and at 7:02 p.m., Savoy contacted

Acadian Ambulance to transport Mr. Benson to the Heart Hospital of Lafayette.

At 8:02 p.m., when the ambulance arrived at Savoy, Dr. Godley signed an order

transferring Mr. Benson to the Heart Hospital. A cath procedure was performed on

Mr. Benson at 10:31 p.m. that evening to clear the blockage in his heart.

Mr. Benson filed a medical review panel claim against Savoy, Dr. Godley,

as an employee of Savoy, and Dr. Monier, asserting that their treatment of him was

negligent and caused him to sustain greater heart damage than he would have had

if he had been transferred to the Heart Hospital immediately after it was known the

thrombolytic therapy failed. The medical review panel found in favor of each

health care provider, and Mr. Benson filed suit against the three health care

providers. During the course of the litigation, Dr. Godley was shown not to be

employed by Savoy, but Mr. Benson never named him, individually, or his

employer as a defendant. Mr. Benson settled his claims against Savoy for less than

$100,000, and it was dismissed from the litigation. Mr. Benson reserved his right

to proceed against the Louisiana Patients’ Compensation Fund Oversight Board

(PCF), as provided in the Louisiana Malpractice Act, La.R.S. 40:1299.41–1299.49,

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and asserted a claim against the PCF for damages in excess of $100,000 caused by

Savoy’s negligence.

A jury trial was held in May 2015. Dr. Godley passed away before the trial.

Mr. Benson argued that only Savoy was liable to him because its employees

delayed his transfer from Savoy to the Heart Hospital and that the delay resulted in

increased damage to his heart. He presented evidence that Dr. Godley’s treatment

of him did not fall below the standard of care. The PCF argued that Dr. Godley

committed medical malpractice in failing to transfer Mr. Benson within the time

frame recommended by Dr. Monier and that only Dr. Godley had authority to

transfer Mr. Benson; therefore, Savoy employees were not responsible for the

delayed transfer of Mr. Benson.

During trial, neither Mr. Benson nor Savoy presented evidence to establish

that Dr. Monier’s treatment of Mr. Benson constituted negligence, and he filed a

motion for directed verdict at the conclusion of Mr. Benson’s presentation of

evidence. Dr. Monier averred that no evidence established his treatment of Mr.

Benson fell below the standard of care applicable to him; therefore, he was entitled

to have the claims against him dismissed. The motion was not opposed, and the

trial court granted the motion, dismissing Mr. Benson’s claims against Dr. Monier.

At the conclusion of the trial, the jury returned a verdict in Mr. Benson’s

favor. It assigned Dr. Godley with 60% liability and Savoy 40% liability for

Mr. Benson’s claims and awarded Mr. Benson the following damages:

Past & future emotional and mental anguish $62,500

Past & future physical pain and suffering $31,250

4
Effective June 2, 2015, the Louisiana Medical Malpractice Act was redesignated as
La.R.S. 40:1231.1-1231.10.

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Past & future loss of enjoyment of life $31,250

Past & future scarring and disability $31,250

Loss of chance for better treatment $31,250

Both Mr. Benson and Savoy filed motions for judgment notwithstanding the

verdict. Mr. Benson urged that the evidence did not establish Dr. Godley’s

treatment of him was negligent because no expert evidence established the

standard of care applicable to him and that his treatment fell below that standard of

care. He also argued that three of the jury’s five damage awards were too low.

Savoy argued that no evidence established negligence on the part of any Savoy

employee that rendered it liable to Mr. Benson. The trial court denied both

motions, finding the evidence presented at trial provided a reasonable basis for all

the jury’s findings. The trial court also awarded Mr. Benson $175,000 in damages

for loss of earning capacity although he had not requested such damages.

Both parties appealed the trial court’s judgment.

ASSIGNMENTS OF ERROR

Mr. Benson assigns three issues for review:

1. Did the jury err in allocating 60% of the fault against a non-party,
Dr. Clifford Godley, without expert testimony?

2. Did the District Court err in failing to admit into evidence the
Emergency Medical Treatment and Active Labor Act (EMTALA)
Transfer Policy of Rapides Healthcare System, LLC d/b/a Savoy
Medical Center attached to Rapides’ Requests for Production of
Documents, and in light of that legal error, is the applicable
standard of review manifest error or de novo?

3. Did the jury abuse its discretion regarding its award for past and
future emotional and mental anguish, past and future physical pain
and suffering, and past and future scarring and disability?

Savoy assigns for review the following as errors it contends were committed

in the trial court:

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1. The jury committed error, either manifest or legal, in concluding
that Savoy committed medical malpractice, in any percentage, and
specifically in the amount of 40%.

2. The jury committed error, either manifest or legal, in concluding
that Dr. Clifford Godley’s fault herein was any less than 100%,
and was specifically in error in limiting his percentage of fault to
60%.

3. The trial judge committed error, either manifest or legal, in
granting the plaintiff’s Motion for Judgment Notwithstanding the
Verdict/Motion for New Trial, in the form of making an award to
the plaintiff for “loss of earning capacity” in any amount, and
specifically in the amount of $175,000.

DISCUSSION

Medical Malpractice

Whether a health care provider’s conduct falls below the applicable standard

of care is a factual determination that is subject to the manifest error standard of

review. Martin v. E. Jefferson Gen. Hosp., 582 So.2d 1272 (La.1991). Appellate

review of a jury’s factual findings must be conducted in accordance with the long-

held tenet that, if the “jury’s findings are reasonable in light of the record reviewed

in its entirety, the court of appeal may not reverse, even though convinced that had

it been sitting as the trier of fact, it would have weighed the evidence differently.”

Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

When reviewing a jury’s factual findings, “the evidence must be viewed in

the light most favorable to the party who prevailed before the trier-of-fact;” we

cannot substitute our own factual findings for those of the trier of fact. Thibodeaux

v. Jurgelsky, 04–04, p. 29 (La. 3/11/05), 898 So.2d 299, 316. Accordingly,

“[w]here there are two permissible views of the evidence, the factfinder’s choice

between them cannot be manifestly erroneous or clearly wrong.” Rosell v. ESCO,

549 So.2d 840, 844 (La.1989). If, however, we find that the trial court’s verdict

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was clearly without evidentiary support, or clearly wrong based on the evidence,

we must reverse the verdict. Ambrose v. New Orleans Police Dep’t Ambulance

Serv., 93-3099, 93-3110, 93-3112 (La. 7/5/94), 639 So.2d 216.

Unless credible documents or objective evidence contradict a witness’s story

such that “a reasonable fact finder would not credit” his story, we cannot find

manifest error or clear wrongness in a finding based on a credibility determination.

Rosell, 549 So.2d at 845. If no such contradictory factors are present, and a fact

finder’s findings are based on credibility determinations of witnesses, “that finding

can virtually never be manifestly erroneous or clearly wrong.” Id.

To successfully establish a claim for medical malpractice, a plaintiff must

prove the standard of care applicable to the health care providers sued, that the

healthcare providers deviated from the applicable standard of care, and that their

deviation caused injury to him. See La.R.S. 9:2794(A); Johnson v. Morehouse

Gen. Hosp., 10-387, 10-488 (La. 5/10/11), 63 So.3d 87. Hospitals have the “duty

to protect a patient from dangers that may result from the patient’s physical and

mental incapacities as well as from external circumstances peculiarly within the

hospital’s control.” Hunt v. Bogalusa Cmty. Med. Ctr., 303 So.2d 745, 747

(La.1974). Whether a hospital has “breached the duty of care it owes to a

particular patient depends upon the circumstances and facts of that case.” Id.

As a general rule, expert testimony is required to establish the standard of

care and a breach thereof. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880.

Cases where the health care provider’s negligence is so obvious that a lay person

can infer negligence without the guidance of expert testimony are exceptions to the

general rule; expert testimony is not required in such situations. Id. Examples of

obvious negligence that do not require expert testimony include amputating the

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wrong limb, “dropping a knife, scalpel, or acid on a patient, leaving a sponge in a

patient’s body,” or violating a statute and/or the hospital’s bylaws. Pfiffner v.

Correa, 94-924, 94-963, 94-992, p. 9 (La. 10/17/94), 643 So.2d 1228, 1233.

In his first assignment of error, Mr. Benson argues the evidence does not

establish that Dr. Godley committed malpractice because no expert testimony

establishes the standard of care applicable to Dr. Godley and that Dr. Godley

breached that standard of care as required by La.R.S. 9:2794(A). He contends,

therefore, that the jury’s assessment of fault to him constitutes legal error. The

PCF argues to the contrary that only Dr. Godley had the authority to transfer

Mr. Benson from Savoy to the Heart Hospital and that he did not transfer

Mr. Benson until 8:02 p.m.; consequently, he alone is liable for the delay in

Mr. Benson’s transfer.

In its first assignment of error, the PCF asserts that Mr. Benson failed to

prove Savoy committed malpractice because he did not present expert evidence

establishing the standard of care applicable to the registered nurse it contends

initiated the attempt to have the cath procedure performed at Savoy and that the

nurse’s actions fell below the standard of care required of a registered nurse.

Mr. Benson argues the Savoy employees’ attempt to bring in the necessary staff

to perform a cath procedure on him after the thrombolytic therapy failed caused

an extended delay in his being transferred to the Heart Hospital and that the delay

exacerbated the damage caused by his heart attack. He argues that Savoy

administrators caused the delay because although he had been prepared for the

cath procedure and persons qualified to perform the procedure were ready to

proceed, the administrators would not allow the cath procedure to be performed.

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Liability of Dr. Godley

Dr. Monier’s testimony establishes that he advised Dr. Godley at 5:00 p.m.

to immediately administer thrombolytic therapy to Mr. Benson, that he informed

Dr. Godley he would know within twenty to twenty-five minutes whether the

therapy worked, and that if the therapy did not work, Dr. Godley needed to

transfer Mr. Benson immediately to a facility that could perform a cath procedure.

Dr. Godley ordered prescription medication for Mr. Benson between 4:55

p.m. and 6:05 p.m. At 5:50 p.m., he noted in his Emergency Physician Record:

“Discussed [history], exam, results, [diagnosis] and plan with

Dr. Ardoin[/]Monier.” No order or notation was made regarding the transfer of

Mr. Benson until 7:02 p.m. when Acadian Ambulance was called to transport him

to the Heart Hospital. Dr. Godley signed an order transferring him to the Heart

Hospital at 8:02 p.m. when Acadian Ambulance arrived at Savoy.

Mr. Benson supports his claim that Dr. Godley did nothing wrong with

testimony by Dr. Monier that Dr. Godley did “everything [he was] allowed to do

to properly treat” Mr. Benson. Dr. Monier also testified, however, that he was

surprised to receive the phone call from Dr. Godley at 5:50 p.m. because he

thought Mr. Benson would have been transferred by that time. Furthermore,

when asked whether Dr. Godley contacted him at 5:00 p.m. to collaborate on

whether to administer thrombolytic therapy, Dr. Monier responded:

It shouldn’t require a collaboration. I mean in my opinion[,] any ER
physician that’s worth his weight . . . should know how to treat
patients. I mean they should. Now that being said, maybe the phone
call is because we do have a cardiologist in the parish and hey, do we
have a cath lab today[?]

Dr. Monier explained that the heart is a muscle, that the deprivation of

oxygen to muscle damages the muscle, that the standard of care is to restore

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oxygen to the muscle as quickly as possible, and that the longer muscle is

deprived of oxygen, the likelihood of damage to the muscle increases. Dr. Kevin

Courville, an interventional cardiologist who is Mr. Benson’s treating physician,

and Dr. Jon Leleux, an interventional cardiologist who testified on behalf of

Savoy, agreed that the delay in transferring Mr. Benson, once it was known the

thrombolytic therapy failed, was very important because the longer the flow of

oxygen and nutrients to Mr. Benson’s heart was blocked, the odds of damage to

his heart increased. The experts further agreed that if thrombolytic therapy fails

and a cath procedure cannot be performed, the standard of care is to immediately

transfer a heart attack patient to a facility that can perform a cath procedure.

As argued by Mr. Benson, the PCF did not present the testimony of an

expert in emergency room medicine regarding the standard of care applicable to

emergency room physicians or that Dr. Godley’s treatment of Mr. Benson fell

below that standard of care. In Smith v. Clement, 01-87, p. 5 (La.App. 3 Cir.

10/3/01), 797 So.2d 151, 156, writs denied, 01-2878, 01-2982 (La.1/25/02), 807

So.2d 249, 843, respectively, this court held “a specialist in one field can give

expert testimony regarding the standard of care applicable to those areas of

practice that are common to both disciplines.” In Smith, a pathologist’s testimony

was accepted to establish the standard of care applicable to the defendant, a

gynecologist who performed a tubal ligation on a patient, and that the

gynecologist’s treatment fell below the standard of care. The pathologist testified

that “special knowledge would not be required of a physician to understand the

final diagnosis stated on the lab report, i.e., only one tube had been cut during the

surgery” and that “a fourth-year medical school student would understand the

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report.” Id. at 156-57. See also, Corley v. State, Dep’t of Health & Hosp., 32,613

(La.App. 2 Cir.12/30/99), 749 So.2d 926.

We find the diagnosis and emergency treatment of acute heart attacks is an

area of practice in which the disciplines of cardiology and emergency room

medicine overlap to such a degree that Dr. Godley should have known and

understood the importance of following Dr. Monier’s treatment instructions and

the potential damage that could result to Mr. Benson’s heart if he did not follow

those instructions. Accordingly, it was reasonable for the jury to accept that the

testimony of Drs. Monier, Courville, and Lejeune established the standard of care

applicable to Dr. Godley. Therefore, the jury’s determination that Dr. Godley’s

treatment of Mr. Benson fell below that standard of care is supported by the

evidence and is not manifestly erroneous.

Liability of Savoy

Steve Manuel, the department head of Savoy’s cath lab, was working as a

nursing supervisor the day of Mr. Benson’s heart attack; he did not provide care to

Mr. Benson in the ER. Mr. Manuel testified that Dr. Brent Ardoin, Savoy’s chief

of staff, asked him to try and get the cath lab staff into the hospital to perform a

cath procedure on Mr. Benson. He also testified that he called and asked

Dr. Monier if he would come to Savoy to perform the cath procedure.

Mr. Manuel explained that three people are necessary to perform a cath

procedure at Savoy: two Savoy employees, Mr. Manuel and Nancy Lafleur, a cath

tech; and Dr. Monier. Ms. Lafleur was not at work that day, and Mr. Manuel’s

attempts to contact her were unsuccessful. When he could not contact Ms. Lafleur,

Mr. Manuel contacted Chris Bordelon, a former Savoy employee who had worked

in the same capacity as Ms. Lafleur, to request his assistance in performing the

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cath procedure. Mr. Bordelon had left Savoy’s employment on good terms a short

time before over a pay dispute but had been talking to Mr. Manuel about returning

to Savoy in his previous position in the cath lab. He was willing to assist in the

cath procedure or to be re-hired that day if the hospital administration would

approve either scenario.

Dr. Monier confirmed that Mr. Manuel asked him to perform a cath

procedure on Mr. Benson, and he agreed. Dr. Monier testified that he informed

Mr. Manuel the administration would have to approve Mr. Bordelon’s participation

in the cath procedure. Mr. Manuel testified that he made it clear to everyone

involved that the administration had to authorize Mr. Bordelon to assist with the

cath procedure. Mr. Bordelon confirmed Mr. Manuel made that clear to him.

After talking to Mr. Manuel, Dr. Monier rushed from his home in Ville

Platte to Savoy, arriving at approximately 6:15 p.m. to 6:20 p.m. Ms. Lafleur was

still not available. Mr. Bordelon was at the hospital, willing to assist in the

procedure. In fact, he and Mr. Manuel had prepped the cath lab and Mr. Benson,

and everything was ready for Dr. Monier to perform the cath procedure. The

administration had not, however, approved Mr. Bordelon’s participation in the

procedure.

Dr. Monier conferred with Savoy administrators, but the request to perform

the cath procedure was not approved because Mr. Bordelon was not a Savoy

employee. He documented the denial at 6:46 p.m. Dr. Monier testified that due to

Dr. Ardoin’s and Mr. Manuel’s positions at Savoy, he believed the cath procedure

would be performed, even though Mr. Bordelon would have to assist in Ms.

Lafleur’s absence. When asked at trial who caused the delay, Dr. Monier stated,

“between Steve and Dr. Ardoin, I was led to believe we would be doing a [cath]

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procedure.” Dr. Monier testified that he personally spoke with Dr. Ardoin and that

Dr. Ardoin asked him to go in and perform the cath procedure. Dr. Monier also

testified that because Dr. Ardoin had been in Mamou for a long time, he “thought

by the time I got there they would’ve worked it out with administration. We’d be

doing a procedure.” According to Dr. Monier, Dr. Ardoin and Mr. Manuel, the

cath procedure would be performed.

Dr. Ardoin did not testify at trial, but the testimonies of Mr. Manuel and

Dr. Monier and Savoy’s records established he was involved with Mr. Benson’s

treatment at Savoy. He is identified as a “CONSULT,” along with Dr. Monier, for

Mr. Benson. Furthermore, notes in the record establish his presence by Mr.

Benson’s bedside throughout the time Mr. Benson was at Savoy.

Mr. Benson argues the testimony of Drs. Monier, Courville, and Leleux

establish the standard of care applicable to Savoy. That standard of care is: if

thrombolytic therapy fails to dissolve a clot in a patient experiencing a heart attack

and a cath procedure cannot be performed at the treating facility, the patient should

be immediately transferred to a facility that can perform a cath procedure. With

regard to Mr. Manuel, specifically, Dr. Monier testified that he “assume[d]” Mr.

Manuel knew and understood that when the heart is deprived of oxygen, it sustains

damage.

Counsel for Mr. Benson reviewed the following information contained in

Savoy’s informed consent for “T-PA infusion treatment [thrombolytic therapy] of

myocardial infarction” with Dr. Courville:

Our goal is to prevent and/or decrease loss of heart muscle
during the heart attack and to decrease your risk of mortality. Time is
of the essence.

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This consent had to be completed on Mr. Benson’s behalf for him to receive the

thrombolytic therapy.

Drs. Monier, Courville, and Leleux treat patients in rural hospitals, like

Savoy, around Lafayette. Dr. Courville testified that he is familiar with the

applicable standards of care of hospitals in Evangeline and St. Landry Parish with

regard to cardiology services. He agreed with Mr. Benson’s counsel that one

could infer from the above statements “that the Savoy . . . people knew or at least

should have known that time is of the essence and you better hurry to . . . treat a

heart attack like Mitch was having.”

Dr. Courville further opined that the failure to call Acadian Ambulance until

7:02 p.m. was a prolonged delay in light of the fact it was known at 5:25 p.m. that

the thrombolytic therapy failed. Dr. Courville also testified: “if the hospital

invited the physician to come and do the procedure . . . and everybody shows up

to do the procedure, and the hospital[] says, no, then I would think the blame

would be to the hospital delaying it.” He agreed that “if Savoy . . . couldn’t do the

cath procedure, waiting an hour and twelve minutes to an hour and thirty minutes

to even call Acadian Ambulance does not meet the applicable standard of care.”

Dr. Leleux testified it could take up to ninety minutes to know whether the

thrombolytic therapy failed. Nonetheless, he agreed with Drs. Monier and

Courville that if it was known at 5:25 p.m. the thrombolytic therapy failed, not

calling Acadian Ambulance until 7:02 p.m. and Mr. Benson not being transported

from Savoy until 8:02 p.m., was not within the standard of care because the cath

procedure could not be performed at Savoy.

In Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986), the

supreme court held that when a health care provider’s alleged negligence consists

13

of violating a statute and/or the hospital’s bylaws is a circumstance in which expert

testimony is not required to prove malpractice. See also, Pfiffner, 643 So.2d 1228.

In Landry v. Clement, 97-852 (La.App. 3 Cir. 4/15/98), 711 So.2d 829, writs

denied, 98-1281, 98-1331 (La. 6/26/98), this court held that negligence could be

inferred to the defendant hospital because the hospital’s nurses failed to report all

fetal heart monitoring results to the patient’s physician and the nurses attending the

patient had not received training on performing fetal heart monitoring tests as

required by hospital policy.

Similarly, in Browning v. West Calcasieu Cameron Hospital, 03-332

(La.App. 3 Cir. 11/12/03), 865 So.2d 795, writ denied, 03-3354 (La. 2/13/04), 867

So.2d 691, the defendant hospital had outlined certain guidelines its EMTs were

required to follow when procuring a patient’s refusal to be transported to the

hospital after the patient called for an ambulance. The EMTs failed to follow those

guidelines, and the patient died. Another panel of this court determined that the

hospital’s protocols provided the standard of care applicable to the hospital’s

EMTs; therefore, the plaintiffs were not required to present expert evidence on that

issue.

After considering the above jurisprudence, we conclude Savoy’s informed

consent form sets forth the standard of care applicable to its treatment of heart

patients receiving thrombolytic therapy. The form’s stated goal of preventing

and/or decreasing the loss of heart muscle and its specific recognition that “Time is

of the essence” is an acknowledgement of the standard of care testified to by

Drs. Monier, Courville, and Leleux. Accordingly, we conclude Mr. Benson was

not required to present additional expert testimony to establish the standard of care

applicable to Savoy.

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Savoy further argues that only Dr. Godley had the authority to transfer

Mr. Benson. Dr. Monier did testify that only Dr. Godley had the authority to

transfer Mr. Benson, but Dr. Courville testified that Dr. Ardoin also had the

authority to order that Mr. Benson be transferred because Dr. Godley consulted

him regarding Mr. Benson’s treatment. Furthermore, the uncontradicted evidence

shows: (1) Dr. Ardoin initiated the attempt to have the cath procedure performed

at Savoy, and (2) the attempt to obtain the required staff and the authorization of

the administration to re-hire Mr. Bordelon or use a non-employee to assist in the

procedure that evening contributed to the extended delay in Mr. Benson’s transfer.

Although there is no evidence that Dr. Godley could not have transferred

Mr. Benson before he issued his transfer order at 8:02 p.m., the evidence does not

establish when Dr. Ardoin requested that Mr. Manuel attempt to get the cath lab

staff to the hospital to perform the procedure. Accordingly, questions surround

whether the delay of transferring Mr. Benson between 5:25 p.m. and 5:50 p.m.,

when it was known the thrombolytic therapy did not work, and thereafter was the

result of Dr. Godley’s failure to initiate the transfer or the result of Savoy’s attempt

to get a cath crew together and obtain administrative authority for Mr. Bordelon to

assist with the cath procedure. For these reasons, it was reasonable for the jury to

conclude that Savoy negligently contributed to the delay in transferring

Mr. Benson to the Heart Hospital.

Assessment of Fault

Mr. Benson and the PCF assign error with the jury’s assessment of fault to

Dr. Godley and Savoy. The apportionment of fault is a factual determination

which can only be disturbed if it is clearly wrong or manifestly erroneous.

Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96), 666 So.2d 607. The assessment

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of fault is guided by the factors set forth in Watson v. State Farm Fire & Casualty

Insurance Co., 469 So.2d 967 (La.1985), where the supreme court outlined various

factors that influence the percentage of fault assigned to the parties. Those factors

include: (1) whether the conduct resulted from inadvertence or involved an

awareness of the danger; (2) how great a risk was created by the conduct; (3) the

significance of what was sought by the conduct; (4) the capacities of the actor,

whether superior or inferior; and (5) any extenuating circumstances which might

require the actor to proceed in haste without proper thought. Id.

The testimony at trial and Savoy’s records show: (1) Dr. Godley was the

only physician in direct contact with Dr. Monier regarding thrombolytic therapy

for Mr. Benson; (2) he knew or should have known at 5:25 p.m. that the

thrombolytic therapy failed; (3) he knew Savoy’s cath lab was not open on

Sundays; and (4) he did not transfer Mr. Benson immediately after knowing the

thrombolytic therapy did not work.

The evidence also shows: (1) Dr. Ardoin, Savoy’s chief of staff, initiated

the attempt to get the cath lab staff in to perform a cath procedure on Mr. Benson;

(2) one member of the cath lab staff could not be contacted; (3) Mr. Manuel

contacted a non-employee to assist in the procedure if the missing staff member

could not be reached; (5) Savoy’s administration would not approve a non-

employee’s participation in the cath procedure; (6) the attempt to assemble the cath

lab staff to perform the cath procedure contributed to the delay in transferring

Mr. Benson to the Heart Hospital; and (7) at least one expert testified that

Dr. Ardoin had the authority to transfer Mr. Benson.

Based on the evidence presented, the jury could have reasonably concluded:

(1) because Dr. Godley had the first knowledge that the thrombolytic therapy did

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not work, he had a superior ability to transfer Mr. Benson in a timely fashion; (2)

Dr. Godley did not transfer Mr. Benson as quickly as he should have; (3)

Dr. Ardoin could have transferred Mr. Benson when Dr. Godley did not; (4)

Savoy’s attempt to assemble the cath crew to perform the cath procedure

contributed to the extended delay in Mr. Benson being transported to the Heart

Hospital; and (5) Dr. Ardoin, as chief of staff, should have determined whether

Mr. Bordelon’s participation in the cath procedure would be authorized by Savoy’s

administration before Dr. Monier arrived at the hospital. For these reasons, we

cannot say the jury committed manifest error in its assessment of fault, and we

affirm the assessment of 60% fault to Dr. Godley and 40% fault to Savoy.

Excluded Evidence

Mr. Benson next argues that the trial court erred in refusing to admit Savoy’s

Rapid Transfer Policy into evidence. He points out that Savoy produced a

document entitled “EMTALA-Transfer Policy” in response to an interrogatory

that stated: “Please identify any of your interhospital transfer strategies, guidelines

and/or policies that were in effect on October 21, 2007[,] at the time Mitch Benson

was being treated at Savoy Medical Center” and a request for production of

documents that sought production of the “transfer strategies, guidelines and/or

policies.”

The PCF filed a motion in limine and objected to the admission of the

document because it was dated May 2009, one and one-half years after Mr. Benson

was treated at Savoy. Mr. Benson defended the introduction of the 2009 policy on

two bases: (1) Savoy produced it without objection; and (2) it established Savoy

did not have a rapid transfer policy in effect at the time of his heart attack.

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EMTALA stands for “Emergency Medical Treatment and Active Labor

Act.” 42 U.S.C. § 1395dd. It applies only to hospitals. In Spradlin v. Acadia-St.

Landry Medical Foundation, 98-1977, pp. 8 (La. 2/29/00), 758 So.2d 116, 121

(footnote omitted), the supreme court outlined the requirements established by

EMTALA:

Under EMTALA, any individual who appears in the emergency
department of a covered hospital and requests examination or
treatment must be provided an “appropriate medical screening
examination.” In the event the hospital determines that the individual
has an “emergency medical condition,” the hospital is additionally
required to provide further examination and treatment as may be
necessary to stabilize the condition or to arrange for an appropriate
transfer to another medical facility.

The trial court refused to allow the policy to be admitted into evidence or to

allow Dr. Courville to testify about the policy on the basis that Mr. Benson’s

attempt to use the 2009 policy to show that Savoy had no such policy in 2007

established that the 2009 policy constituted a subsequent remedial measure.

Louisiana Code of Evidence Article 407 prohibits the admission of evidence

of subsequent remedial measures “to prove negligence or culpable conduct in

connection with the event” at issue. The trial court noted other evidence, such as

an admission or stipulation by Savoy, could be used to establish that Savoy did not

have such a policy in place in 2007. Accordingly, the trial court properly refused

the admission of Savoy’s 2009 EMTALA –Transfer Policy into evidence.

Damages

In his last assignment of error, Mr. Benson assigns error with the jury’s

assessment of damages. He argues the jury’s awards of $62,500 for past and future

emotional and mental anguish and $31,250 each for past and future physical pain

and suffering, and past and future scarring and disability are abusively lowF.

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The jury’s determination of the amount to award in damages is a finding of

fact. Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La. 5/22/09), 16 So.3d

1065. On appellate review, the initial inquiry regarding an award of damages is

whether the award for the particular injuries and their effects upon the particular

injured person is a clear abuse of the trier of fact’s great discretion. Id. Only if a

detailed analysis of the facts shows the award to be an abuse of discretion can the

award be considered either excessive or insufficient. Id. We review the jury’s

exercise of discretion, not decide the damage award we believe would be

appropriate. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert.

denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994).

Mr. Benson presented the testimony of family and friends regarding the

limitations he has suffered as a result of his October 21, 2007 heart attack. He also

presented the testimony of Dr. Courville, who has been his treating physician since

2010, to establish the validity of those limitations and that they were more

probably than not the result of additional damage caused by the delay in the cath

procedure being performed at the Heart Hospital. Mr. Benson recites testimony

highlighting the effects his heart attack has had on his life. He relies on Dr.

Courville’s testimony to show that the delay in treatment after the failed

thrombolytic therapy caused all of the complaints and restrictions he now has.

Dr. Courville initially opined that more probably than not Mr. Benson’s

complaints of fatigue, shortness of breath, tiring easily, and other restrictions

resulted from the delay between the onset of his heart attack and the insertion of

the stent during the cath procedure at the Heart Hospital. Under cross-

examination, Dr. Courville acknowledged, however, that it was reasonable to

conclude that his complaints and restrictions were not all related to his October

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2007 heart attack. Dr. Courville also agreed that Mr. Benson could be having

symptoms during his treatment that are not related the heart attack. He further

acknowledged that he could not know what symptoms Mr. Benson experienced

between October 2007 and January 2010, when he became Mr. Benson’s treating

physician, are attributable to the October 2007 heart attack and the treatment

therefore and what symptoms are attributable to a 95% occlusion of another heart

artery that was diagnosed in January 2010.

Dr. Leleux testified that based on his review of Mr. Benson’s records, he

does not believe Mr. Benson has permanent heart damage. Specifically, he

referenced test results from January 2010, February 2011, and February 2012 that

he considered normal. He explained his conclusion and opined that Mr. Benson’s

heart was working properly. Furthermore, Dr. Leluex opined that Mr. Benson’s

tiredness, fatigue, and shortness of breath could be attributable to medications used

to treat patients who have had heart attacks or have weakened heart muscles. He

also observed that an echocardiogram evidenced increased pulmonic velocity

which is suggestive of right ventricular pressure volume overload that is indicative

of a problem with the lungs. Dr. Leleux explained that this condition can cause

stretching of the blood vessel between the heart and lung causing some chest pain

and fatigue. He further observed there is data evidencing that patients with heart

attacks on the bottom of the heart like Mr. Benson’s tend to do just as well if

nothing additional is done, i.e., cath procedure, after thrombolytic therapy failed,

but most doctors do not follow that methodolgy.

The evidence establishes that Mr. Benson has significant heart disease and

that he has been treated for additional cardiac problems since his October 21, 2007

heart attack that were not related to that heart attack. Dr. Courville attributed

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Mr. Benson’s residual limitations to the 2007 heart attack but conceded it was not

definitively established that all those limitations were caused solely by the 2007

heart attack and the delayed cath procedure. Dr. Courville did not deny that

Mr. Benson’s residual limitations could not have been caused by the heart attack

itself and/or contributed to by Mr. Benson’s subsequent cardiac problems.

Dr. Leleux contradicted Dr. Courville’s opinion in many respects and explained the

basis and reasoning for his contradictory opinion.

It was the jury’s duty to weigh the credibility of the expert’s opinions in

light of the evidence presented. The jury’s damage awards reflect it weighed the

opinions of each expert and accepted Dr. Leleux’s opinion over Dr. Courville’s.

Accordingly, we cannot say the awards are abusively low.

The PCF assigns error with the trial court’s award to Mr. Benson of

$175,000 for loss of earning capacity because Mr. Benson did not request such an

award. Mr. Benson admits in his appellate brief that he did not seek an award for

loss of earning capacity. Accordingly, the trial court’s award of $175,000 for loss

of earning capacity is reversed.

DISPOSITION

The trial court’s grant of the Louisiana Compensation Fund’s motion in

limine, refusing to allow Savoy’s “EMTALA – Transfer Policy” to be admitted

into evidence is affirmed. The judgment of the trial court is reversed with respect

to the award of $175,000 for loss of future earning capacity but affirmed in all

other respects. All costs are assessed to the Louisiana Patients’ Compensation

Fund.

AFFIRMED IN PART AND REVERSED IN PART.

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