Richard McNabb v. Louisiana Medical Mutual Insurance Company and Dr. Clinton E. Hart

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW03-0565
CA03-0596

RICHARD MCNABB

VERSUS

LOUISIANA MEDICAL MUTUAL INSURANCE
COMPANY AND DR. CLINTON E. HART

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SUPERVISORY WRIT OF REVIEW AND APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 01-2108
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

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Court composed of Ned E. Doucet, Jr., Chief Judge, Oswald A. Decuir, and Marc T.
Amy, Judges.

WRIT GRANTED IN PART AND MADE
PEREMPTORY; DENIED IN PART.

JUDGMENT ON APPEAL AFFIRMED;
MOTION TO DISMISS DENIED.

DAMAGES FOR FRIVOLOUS APPEAL DENIED.

John E. Bergstedt
John Gregory Bergstedt
The Bergstedt Law Firm
Post Office Box 1884
Lake Charles, LA 70602-1884
(337) 436-4600
COUNSEL FOR DEFENDANTS/RESPONDENTS:
Louisiana Medical Mutual Insurance Company
Dr. Clinton E. Hart
Michael Keith Prudhomme

Thomas Patrick LeBlanc
Lundy & Davis
Post Office Box 3010
Lake Charles, LA 70602
(337) 439-0707
COUNSEL FOR INTERVENOR/APPELLANT/APPLICANT:
Louisiana Patients’ Compensation Fund

Michael H. Schwartzberg
Vamvoras & Schwartzberg
1111 Ryan Street
Lake Charles, LA 70601
(337) 433-1621
COUNSEL FOR PLAINTIFF/APPELLEE/RESPONDENT:
Richard McNabb

AMY, Judge.

The plaintiff filed suit alleging injury following a procedure to remove a

pterygium on his right eye. A jury found in favor of the plaintiff, awarding $300,000

in general damages. The Louisiana Patients’ Compensation Fund intervened and

appealed the judgment, advancing arguments regarding the substance of the verdict.

Subsequently, the plaintiff and the defendant physician entered into a settlement for

the physician’s statutory limit under the Medical Malpractice Act. A petition for

approval of the settlement was filed with the trial court. The settlement was approved.

In a writ application to this court, the LPCF asserted that the trial court was without

jurisdiction to consider a post-appeal petition for approval of settlement. The writ

application was consolidated with the merits of the LPCF’s appeal. Subsequently, the

plaintiff filed an answer to the appeal, seeking damages for frivolous appeal. This

opinion addresses each of these filings. For the following reasons, the judgment

approving of the post-trial, post-appeal settlement is affirmed in part and vacated in

part. Accordingly, the writ is granted in part and made peremptory. The trial court’s

judgment on the merits of the case, the subject of the appeal, is affirmed. The motion

to dismiss the appeal is denied, as is the request for damages for frivolous appeal.

Factual and Procedural Background

The multiple filings addressed in this opinion relate to damages allegedly

stemming from a 1998 eye surgery. The record indicates that, in 1997, the plaintiff,

Richard McNabb was diagnosed as having a pterygium on his right eye by Dr.

Kenneth Harper, an ophthalmologist. The record reveals that a pterygium is a growth

on the outside layer of the eye. Although the pterygium may start as a small growth

in the corner of the eye, it may slowly grow over the cornea of the eye. Dr. Harper

explained that the pterygium was more than likely caused by a previous eye injury and

was reaching the point in its growth where it interfered with the vision in the

plaintiff’s right eye. He described the removal procedure as elective in nature. Mr.

McNabb twice scheduled to have the pterygium removed, but never had the procedure

completed. Dr. Harper testified that he was under the impression that the plaintiff was

cautious or apprehensive about the surgery.

On September 5, 1998, the plaintiff reported to Dr. Clinton Hart, an

ophthalmologist. Dr. Hart recorded the plaintiff’s history of having had a previous

eye injury and also diagnosed the plaintiff as having a pterygium on his right eye. He

recommended that the pterygium be removed, scheduling the procedure for November

23rd. Dr. Hart explained that his routine in such situations was to explain to the

patient the risks and comparative risks associated with the procedure. According to

Mr. McNabb, Dr. Hart told him that the procedure was a simple operation. He denied

that Dr. Hart informed him of any complications or that he was at an increased risk

from the surgery due to a previous injury.

The procedure was performed on November 23rd. Following the surgery, Mr.

McNabb reported to Dr. Hart’s office for post-operative visits on November 24th and

28th as well as on December 3rd. Dr. Hart’s notes from these visits do not reflect any

observations regarding concerns over the healing process.

Mr. McNabb explained that, on the morning of December 8th, he was eating

breakfast when he heard a “pop” or “ping” from his eye. He stated that he saw colors

of the rainbow and that, later in the day, he contacted Dr. Hart’s office to report the

event. The plaintiff explained that his message to Dr. Hart was not returned. He

waited until his previously scheduled appointment on December 11th to report to Dr.

Hart. Mr. McNabb testified that, on that date, he told Dr. Hart that he could not see

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with the eye and that upon examination of the eye, Dr. Hart became pale and left the

room.

According to Dr. Hart, the exam revealed that Mr. McNabb had suffered a

“corneal melt.” This process is a thinning of the eye tissues, which, in this case,

resulted in a perforation of the cornea. Following the discovery, Dr. Hart sought the

assistance of his son, Dr. William Hart, an ophthalmologist who practiced with his

father. Dr. William Hart explained that although he was initially called in to observe

the condition, he suggested that he perform a conjunctival patch graft to protect the

eye. Mr. McNabb was then referred to Dr. Marshall Bowes Hamill, a corneal

specialist at Baylor College of Medicine in Houston.

Upon presentation in Houston the following day, Dr. Hamill performed a patch

graft, which was initially successful in sealing the hole left by the corneal perforation.

A cataract subsequently formed, however, prompting Dr. Hamill to perform a second

surgery to try to remove the cataract on March 31, 1999. By January 30, 2000, Mr.

McNabb’s patch graft had become opaque hindering his vision and prompting him to

elect a corneal transplant. Dr. Hamill performed the transplant in February 2000. Dr.

Hamill described Mr. McNabb as having performed reasonably well during the year

of 2000. However, by 2001, Mr. McNabb’s vision began deteriorating and, at the

time of his August 2001 deposition, Dr. Hamill described Mr. McNabb’s vision in his

right eye to be legally blind if left uncorrected. He was hopeful that Mr. McNabb

could be fitted with a contact lens in the future to improve his vision.

At Mr. McNabb’s request, a Medical Review Panel was convened to consider

his treatment by Dr. Clinton Hart. He asserted a number of breaches of the standard

of care. In an opinion joined by two of its members, the Medical Review Panel

concluded that: “The evidence supports the conclusion that the defendant, Clinton E.

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Hart, failed to comply with the appropriate standard of care as to the issue of informed

consent detailed herein.” In particular, the two physicians concluded that there was

lack of evidence indicating that a written, informed consent was completed by Mr.

McNabb prior to the pterygium surgery. All three of the physicians concluded that:

“It appears from the records provided that the excision of the pterygium and the

application of the strontium 90 by Dr. Hart were done appropriately, and the post-

operative complication of corneal perforation was recognized and dealt with in an

appropriate manner.”

The instant matter was instituted by a petition filed on April 24, 2001. Dr.

Clinton Hart and his insurer, LAMMICO, were named as defendants. The petition

alleged negligence in the failure to obtain informed consent, improper surgical

technique or over-radiation of the eye, and substandard post-operative procedures

prohibiting post-surgical intervention to decrease damage from the corneal thinning.

The matter proceeded to trial. Prior to submission to the jury, the trial court entered

a directed verdict as to Dr. Hart’s failure to disclose risks associated with the

pterygium surgery. The jury additionally concluded that Dr. Hart breached the

standard of care in his post-operative treatment of Mr. McNabb. Both breaches were

found to have caused injury. The jury further found a breach of the standard of care

in the surgical procedure, but concluded that this was not a cause of injury. The jury

awarded damages in the amount of $300,000.

On November 15, 2002, the Louisiana Patients’ Compensation Fund intervened

in the matter and, thereafter, filed a petition for appeal. The suspensive appeal was

granted on January 6, 2003. Subsequently, the plaintiff filed a Petition for Approval

of Agreed Settlement with the trial court. The plaintiff informed the trial court that

he and Dr. Hart had reached a settlement whereby Dr. Hart and LAMMICO would

4

pay to the plaintiff $115,000 plus court costs.1 In exchange, the plaintiff would

dismiss the suit against them with prejudice. Dr. Hart was to remain in the suit as a

nominal defendant for purposes of the Medical Malpractice Act. The LPCF asserted

an exception to the petition for approval, contending that the trial court lacked

jurisdiction to consider the petition for approval of settlement as it was preceded by

an order of suspensive appeal. Furthermore, the LPCF argued that a post-appeal

settlement between the parties must be treated as a partial satisfaction of judgment and

not as a settlement under La.R.S. 40:1299.44(C)(1) which would establish liability on

the part of Dr. Hart. Following a hearing, the trial court approved the settlement and

denied the exception finding that jurisdiction existed and that liability was established.

The LPCF filed an application for supervisory writ of review of the approval

of settlement by this court. The matter was consolidated with the previously filed

appeal on the merits. The plaintiff subsequently filed an answer to the LPCF’s appeal

of the merits of the judgment, asserting entitlement to damages for frivolous appeal.

The plaintiff also filed a motion seeking dismissal of that portion of the appeal relating

to liability issues as, the plaintiff contends, the settlement approval precludes litigation

of liability. This opinion addresses each of these filings.

On the merits, the LPCF assigns the following as error:

1
With regard to a qualified health care provider’s responsibility under the Medical
Malpractice Act, La.R.S. 40:1299.42(B) provides:

B. (1) The total amount recoverable for all malpractice claims for
injuries to or death of a patient, exclusive of future medical care and related benefits
as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus
interest and costs.

(2) A health care provider qualified under this Part is not liable for an
amount in excess of one hundred thousand dollars, plus interest thereon accruing
after April 1, 1991, for all malpractice claims because of injuries to or death of any
one patient.

5

1) The trial court erred in entering a directed verdict in favor of
plaintiff concluding there existed a material risk of the pterygium
surgery unknown to plaintiff and that Dr. Hart failed to inform
plaintiff of that material risk, as sufficient evidence was presented
on these issues to permit reasonable jurors to reach differing
conclusions.

2) Assuming a material risk of the pterygium surgery unknown to
plaintiff was not disclosed by Dr. Hart, the jury erred in finding
causation on plaintiff’s claim of informed consent, in light of the
clear and overwhelming evidence that plaintiff would have
undergone the surgery notwithstanding the disclosure by Dr. Hart
of all material risks.

3) The trial court committed reversible error in redacting the medical
review panel opinion and admitting only a portion of the opinion
into evidence in contravention of the express provisions of the
Medical Malpractice Act, La.R.S. 40:1299.47(G)-(H).

4) The trial court committed reversible error by improperly
commenting upon the evidence and thereby depriving Dr. Hart
and LAMMICO of a fair trial on plaintiff’s claim that Dr. Hart’s
post-operative care fell below the applicable standard of care.

Discussion

Writ Application

Post-Appeal Approval of Settlement

We first address the LPCF’s writ application regarding the settlement as its

determination affects the treatment of the appeal on the merits. Advancing several

assignments of error in this writ application, the LPCF essentially questions the trial

court’s approval of a post-judgment, post-appeal settlement of Dr. Hart’s $100,000

statutory responsibility. The LPCF contends that, in the least, the trial court was

without jurisdiction to approve the settlement within the confines of the Medical

Malpractice Act insofar as it would establish the plaintiff’s liability. The plaintiff,

however, contends that the statute conveys no time limit on approval. If approved, the

plaintiff asserts, the defendant health care provider’s liability is established for

purposes of La.R.S. 40:1299.44(C)(5).

6

La.R.S. 40:1299.44(C) provides, in pertinent part:

C. If the insurer of a health care provider or a self-insured
health care provider has agreed to settle its liability on a claim against its
insured and claimant is demanding an amount in excess thereof from the
patient’s compensation fund for a complete and final release, then the
following procedure must be followed:

(1) A petition shall be filed by the claimant with the court in
which the action is pending against the health care provider, if none is
pending in the parish where plaintiff or defendant is domiciled seeking
(a) approval of an agreed settlement, if any, and/or (b) demanding
payment of damages from the patient’s compensation fund.

....

(4) As soon as practicable after the petition is filed in the court
the judge shall fix the date on which the petition seeking approval of the
agreed settlement and/or demanding payment of damages from the fund
shall be heard, and shall notify the claimant, the insurer of the health care
provider or the self-insured health care provider as the case may be, and
the board thereof as provided by law.

(5) At the hearing the board, the claimant, and the insurer of the
health care provider or the self-insured health care provider as the case
may be, and the claimant cannot agree on the amount, if any, to be paid
out of the patient’s compensation fund, then the court shall determine the
amount of claimant’s damages, if any, in excess of the amount already
paid by the insurer of the health care provider. The court shall determine
the amount for which the fund is liable and render a finding and
judgment accordingly. In approving a settlement or determining the
amount, if any, to be paid from the patient’s compensation fund, the
court shall consider the liability of the health care provider as admitted
and established where the insurer has paid its policy limit of one hundred
thousand dollars, or where the self-insured health care provider has paid
one hundred thousand dollars.

The question at issue before the court in this writ application is whether the

post-trial and post-appeal approval of the settlement under the above provision was

appropriate. The LPCF asserts both that the trial court was divested of jurisdiction to

approve of the settlement after the order of appeal and that application of the

7

presumption of liability described in La.R.S. 40:1299.44(C) constitutes a substantive

amendment of the judgment.2

La.Code Civ.P. art. 2088 provides:

The jurisdiction of the trial court over all matters in the case
reviewable under the appeal is divested, and that of the appellate court
attaches, on the granting of the order of appeal and the timely filing of
the appeal bond, in the case of a substantive appeal or on the granting of
the order of appeal, in the case of a devolutive appeal. Thereafter, the
trial court has jurisdiction in the case only over those matters not
reviewable under the appeal, including the right to:

(1) Allow the taking of a deposition, as provided in Article
1433;

(2) Extend the return day of the appeal, as provided in Article
2125;

(3) Make, or permit the making of, a written narrative of the
facts of the case, as provided in Article 2131;

(4) Correct any misstatement, irregularity, informality, or
omission of the trial record, as provided in Article 2132;

(5) Test the solvency of the surety on the appeal bond as of the
date of its filing or subsequently, consider objections to the form,
substance, and sufficiency of the appeal bond, and permit the curing
thereof, as provided in Articles 5123, 5124, and 5126;

(6) Grant an appeal to another party;

(7) Execute or give effect to the judgment when its execution
or effect is not suspended by the appeal;

(8) Enter orders permitting the deposit of sums of money within
the meaning of Article 4658 of this Code;

(9) Impose the penalties provided by Article 2126, or dismiss
the appeal, when the appellant fails to timely pay the estimated costs or
the difference between the estimated costs and the actual costs of the
appeal; or

(10) Set and tax costs and expert witness fees.

2
La.Code Civ.P. art. 1951 provides that a judgment may be amended by “the trial court at
any time, with or without notice, on its own motion or on motion of any party; (1) To alter the
phraseology of the judgment, but not the substance; or (2) To correct errors of calculation.”

8

We observe that much of this issue as argued by the LPCF was resolved by the

Louisiana Supreme Court in Koslowski v. Sanchez, 576 So.2d 470 (La.1991), which

also involved a settlement post-trial. The supreme court explained:

Liability under the Medical Malpractice Act is based on the initial
$100,000 paid by the health care provider or its insurer, pursuant to
judgment, settlement, or arbitration. When the insurer has admitted
liability up to the statutory maximum, the liability of the health care
provider is established, and the only remaining issue is the damages, if
any, owed by the patient’s compensation fund. The fund cannot contest
liability when there is a binding settlement for $100,000 by the health
care provider, either before or after trial.

The court of appeal erred in holding that the fund could contest
liability following a post trial settlement by the insurer of the health care
provider for $100,000.

Id. at 474. Although a portion of Koslowski was later overruled by Russo v. Vasquez,

94-2407 (La. 1/17/95), 648 So.2d 879, the portion regarding the question of whether

a post-trial settlement established liability was not at issue in the subsequent case.

Accordingly, it remains applicable law. See also Bijou v. Alton Ochsner Med. Found.,

95-3074, p. 5 (La. 9/5/96), 679 So.2d 893, p. 896 (wherein the supreme court again

stated that “the Fund cannot contest liability when there is a binding settlement for

$100,000 by the health care provider, either before or after trial.”) But see Richardson

v. O’Byrne, 00-2202 (La.App. 4 Cir. 10/16/02), 830 So.2d 1013, writ denied, 02-2771

(La. 1/24/03), 836 So.2d 49; Dawes v. Kinnett, 99-3157 (La.App. 4 Cir. 1/17/01), 779

So.2d 978. However, what is novel about this case is that the settlement is not merely

post-trial, but post-appeal. It is upon this final consideration that the present case

turns.

The suspensive appeal related only to the judgment insofar as it involved the

intervenor, the LPCF. Accordingly, satisfaction of the judgment with regard to Dr.

Hart’s $100,000 responsibility under the judgment was certainly within the trial

9

court’s jurisdiction. According to the terms of La.Code Civ.P. art. 2088, however, the

trial court lacked jurisdiction to consider “all matters in the case reviewable under the

appeal.” The issue of liability in this case is such an issue insofar as there had been

no settlement entered at the time of the appeal.

The March 2003 judgment approving of the settlement stated in part that: “the

LIABILITY of Dr. Clinton Hart and Louisiana Medical Mutual Insurance Company

is ADMITTED AND ESTABLISHED pursuant to LSA-R.S. 40:1299.44C(5) by the

payment of ONE HUNDRED FIFTEEN THOUSAND AND 00/100 ($115,000.00)

DOLLARS and all costs of court to date which represents the policy limits of One

Hundred Thousand and 00/100 ($100,000.00) DOLLARS, plus legal interest[.]” This

issue was clearly the subject of the LPCF’s suspensive appeal and, thus, inappropriate

for consideration by the trial court. Accordingly, we vacate that portion of the March

19, 2003 judgment indicating that the approved settlement establishes liability

pursuant to La.R.S. 40:1299.44(C)(5).

However, as the trial court retained jurisdiction to consider the settlement

insofar as it approved of the satisfaction of judgment against Dr. Hart and

LAMMICO, and this portion of the judgment was not appealed, the trial court’s

approval and dismissal of Dr. Hart and LAMMICO from the suit were not in error.

Accordingly, this portion of the March 19, 2003 judgment is affirmed.

Motion to Dismiss

The plaintiff filed a motion to dismiss arguing that, due to the presumption of

liability established by the post-appeal settlement, the LPCF’s arguments on appeal

relating to liability must be dismissed. Due to the preceding conclusion that liability

has not been established under La.R.S. 40:1299.44(C)(5) for the purposes of the

present appeal, we find no merit in the plaintiff’s motion to dismiss the LPCF’s

10

appeal. The motion is denied. We therefore turn to consideration of the merits of the

LPCF’s appeal.

Appeal of the Merits of the October 18, 2002 Judgment

Directed Verdict

The plaintiff alleged that Dr. Hart failed to obtain informed consent as to risks

associated with the pterygium surgery which could result in loss of vision due to

corneal thinning/perforation and also failed to obtain informed consent as to an

increased risk of thinning/perforation as the result of a prior eye injury. After the

close of evidence the trial court granted a directed verdict in the plaintiff’s favor as to

this element. Although the LPCF concedes in its brief that “Dr. Hart failed to advise

plaintiff of the risk of loss of vision associated with corneal melt following pterygium

surgery[,]” it questions whether the risk was known to the plaintiff and whether its

relative rarity “rendered the risk immaterial.” In particular, the LPCF points to

information that Dr. Harper, the initial ophthalmologist recommending the surgery,

provided to the plaintiff regarding risks associated with the surgery. This information,

the LPCF argues, supplied the plaintiff with sufficient information so as to provide a

basis for an informed consent.

Louisiana Code of Civil Procedure Article 1810 provides that a party may move

for a directed verdict at the close of evidence. A directed verdict is appropriately

granted in the event that “facts and inferences are so overwhelmingly in favor of the

moving party that the court finds that reasonable men could not arrive at a contrary

verdict.” Guste v. Nicholls Coll. Found., 556 So.2d 682, 688-89 (La.1990). On

review, an appellate court also considers whether the evidence submitted indicates that

reasonable triers of fact would be unable to reach a different verdict. Pratt v. Himel

Marine, Inc., 01-1832 (La.App. 1 Cir. 6/21/02), 823 So.2d 394, writ denied, 02-2128

11

(La. 11/1/02), 828 So.2d 571, writ denied, 02-2025 (La. 11/1/02), 828 So.2d 572.

Cobb v. Kleinpeter, 95-271 (La.App. 3 Cir. 10/4/95), 663 So.2d 236, writ denied, 95-

2683 (La. 1/12/96), 666 So.2d 323. The court of appeal considers the evidence under

the substantive law applicable to the nonmoving party’s claim. Frazier v. Zapata

Protein USA, Inc., 02-0605 (La.App. 3 Cir. 12/11/02), 832 So.2d 1141, writ denied,

03-0145 (La. 3/21/03), 840 So.2d 537, writ denied, 03-0126 (La. 3/21/03), 840 So.2d

539.

In granting the motion for directed verdict on this issue, the trial court stated:

To me, I can’t conceive of a reasonable mind not coming to the
conclusion that Dr. Hart did not adequately inform, by his own
testimony, Mr. McNabb of something that I would perceive to be - - and
I think any person would perceive to be - - a risk that are even listed in
the Medical Disclosure Panel about loss of vision, loss of eyesight, loss
of an eye. And, so, I don’t see a particular problem with directing that
that question be marked “yes,” insofar as that is concerned and leave the
other issues about whether a person under similar circumstances as Mr.
McNabb would have chosen not to have the surgery.

To me, that’s a jury issue; and there might be different conclusions
as it concerns that. But insofar as what Dr. Hart did, I am satisfied that
he didn’t comply with the law in as far as informing Mr. McNabb of the
potential risk or risks that he should have informed him of.

We turn first to the LPCF’s assertion that the risk that was not revealed was not

“material” in nature. The Louisiana Supreme Court has explained that physicians are

under a duty to disclose those risks that are material. Brandt v. Engle, 00-3416 (La.

6/29/01), 791 So.2d 614. Furthermore, the supreme court has found the resolution of

the question of “materiality” to be a two-step process, explaining:

The first step is to define the existence and nature of the risk and the
likelihood of its occurrence. “Some” expert testimony is necessary to
establish this aspect of materiality because only a physician or other
qualified expert is capable of judging what risk exists and the likelihood
of occurrence. The second prong of the materiality test is for the trier of
fact to decide whether the probability of that type harm is a risk which
a reasonable patient would consider in deciding on treatment. The focus
is on whether a reasonable person in the patient’s position probably

12

would attach significance to the specific risk. This determination does
not require expert testimony.

Id. at 619, quoting, Hondroulis v. Schuhmacher, 553 So.2d 398, 412 (La.1988)(on

rehearing). The LPCF complains that the trial court’s determination of materiality did

not take into account the second factor, that regarding whether the information was

something to which a reasonable person would attach significance.

Having reviewed the evidence regarding the risk of impaired or lost vision as

a result of the pterygium surgery, we find no error in the trial court’s ruling. The

LPCF correctly points out that the experts testified that the occurrence of corneal

thinning and perforation is relatively rare following pterygium surgery. However, the

plaintiff’s experts’ testimony was consistent regarding the necessity of the need to

inform a patient of risks associated with the surgery, one of those being the risk of loss

of vision or impairment of vision. Neither are we persuaded by the assertion that this

type of risk is not one to which a patient could attach significance in deciding whether

to proceed with the surgery. The very nature of the risk, loss of vision or impairment

of vision, renders it significant. We find no error in the trial court’s failure to

articulate this finding in its reasoning.

Furthermore, we find unpersuasive the LPCF’s argument that information

provided by Dr. Harper in 1997 sufficiently apprized the plaintiff of the risks of the

1998 surgery performed by Dr. Hart. First, Dr. Harper advised the plaintiff of the

risks associated with pterygium removal some eighteen months prior to the surgery

at issue. Furthermore, Dr. Harper testified that he found the plaintiff to be

apprehensive about the surgery. The plaintiff’s testimony that he “was real scared”

about someone “fooling with [his] eye” supports Dr. Harper’s observation.

Furthermore, the surgery with Dr. Harper was, in fact, canceled, arguably due to the

13

disclosure of the risks. We do not conclude that Dr. Harper’s fulfillment of his own

obligation to the plaintiff can be found to relieve Dr. Hart of his obligation to obtain

informed consent for the surgery that he ultimately performed. Furthermore, as will

be seen below, the plaintiff denied that associated risks were revealed by Dr. Hart.

Accordingly, we find no error in the trial court’s determination to grant the

directed verdict.

Causal Relationship between Failure to Disclose and Injury Sustained

The LPCF argues that, in the event the directed verdict is affirmed, this court

should find to be in error the jury’s finding that the plaintiff’s injury was caused by

the failure to disclose. Specifically, it argues that even if the risk had been disclosed,

the plaintiff would have proceeded with the pterygium removal. This proof of

causation, is necessary as, a plaintiff “can only recover damages for those intrusions

in which consent would have been reasonably withheld if the patient had been

adequately informed.” Lugenbuhl v. Dowling, 96-1575, p. 12 (La. 10/10/97), 701

So.2d 447, 454.

Here, the jury concluded that the failure to disclose was a cause of the injury

sustained. Our review of the record reveals no manifest error in this factual

determination. Importantly, the jury heard testimony indicating that the plaintiff had

previously canceled a surgery with Dr. Harper for removal the pterygium. Dr. Harper

explained that he found the plaintiff to be apprehensive about the surgery.

Furthermore, the plaintiff testified as follows regarding his concern over the operation

his ultimate determination to proceed with the procedure at Dr. Hart’s office:

Q What reason did you present at Dr. Hart’s office?

A Well, I had the same problem. It wasn’t getting any worse; but my
wife kept bugging me some. And I always felt like it was a good way to

14

have a second opinion, not to question Dr. Harper but I just wanted a
second opinion. And, so, that’s why I went to a different doctor.

Q What was it about Dr. Hart that put you more at ease about having
this procedure done?

A I kind of questioned the young lady in Dr. Hart’s office that I had -
-

Q Dr. Hart?

A Dr. Hart’s - - Dr. Harper’s office. Excuse me. That I had taught
in school. And I found out that I would have to be in the hospital, the
way I understood it; and I don’t like hospitals either. And Dr. Hart said
that he would perform the surgery in his office and it’s no big deal. Then
you are out of here. And that’s the reason why I decided to go ahead and
do it.

Q Did he tell you there was going to be any risks associated with the
surgery?

A No, sir, he kind of told me it was a simple operation and we will
just do it in here, I will get my nurse lined up and we will give you a shot
and deaden it and you will be on your way.

....

Q After hearing Dr. Hart’s description of the procedure to you, how
did you feel about the procedure at that time? What were your thoughts
at that time?

A I didn’t like the shot which was going to go beneath the eye. I was
a little concerned about that, which I think anybody would be. But he
said the procedure would be very simple. They would just pull it off.

Given this testimony the jury was free to conclude that, with disclosure of the

associated risks, the plaintiff would not have proceeded with the surgery. In fact, the

jury was aware that he had previously canceled the same surgery. Accordingly, we

find no manifest error in the jury’s determination of causation.

Redacted Medical Review Panel Opinion

15

At the beginning of the trial, the plaintiff filed a motion in limine seeking to

have the following, highlighted portions of the Medical Review Panel redacted before

presentation of the opinion to the jury:

The evidence supports the conclusion that the defendant, Dr.
Clinton E. Hart, failed to comply with the appropriate standard of care
as to the issue of informed consent detailed herein, however the conduct
complained of was not a factor of resultant damages. Dr. Baron, Dr.
Lusk.

....

We also feel that whether or not the deviation from the standard
of care as to informed consent occurred, it had no bearing on the
ultimate outcome to his patient. Dr. Baron, Dr. Lusk, Dr. Azar.

The trial court granted the motion in limine, finding that the portions highlighted were

questions to be resolved by the trier of fact. As this is causation in a lack of informed

consent case, the question of causation is not one on which expert testimony is

necessary. A writ application was immediately taken on the granting of the motion

in limine. Although a panel of this court concluded that another portion of the opinion

was improperly omitted, the writ application was denied with regard to the above two

passages. See McNabb v. Louisiana Medical Mutual Insurance Co., an unpublished

writ bearing docket number CW02-1147.

In our review of this question we are mindful of the broad requirement of

La.R.S. 40:1299.47(H), which provides:

Any report of the expert opinion reached by the medical review panel
shall be admissible as evidence in any action subsequently brought by
the claimant in a court of law, but such expert opinion shall not be
conclusive and either party shall have the right to call, at his cost, any
member of the medical review panel as a witness. If called, the witness
shall be required to appear and testify. A panelist shall have absolute
immunity from civil liability for all communications, findings, opinions
and conclusions made in the course and scope of duties prescribed by
this Part.

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The broad language of Section H has been found to mandate the admissibility of the

opinion. See Ardoin v. Mills, 00-1257 (La.App. 3 Cir. 3/8/01), 780 So.2d 1265, writ

denied, 01-1003 (La. 6/15/01), 793 So.2d 1242. Accordingly, the LPCF argues that

the report, in its entirety should have been submitted.

We must consider the above provision, however, in terms of what constitutes

the “expert opinion” under the statute. La.R.S. 40:1299.47 also provides, in part:

G. The panel shall have the sole duty to express its expert
opinion as to whether or not the evidence supports the conclusion that
the defendant or defendants acted or failed to act within the appropriate
standards of care. After reviewing all evidence and after any
examination of the panel by counsel representing either party, the panel
shall . . . render one or more of the following expert opinions, which
shall be in writing and signed by the panelists, together with written
reasons for their conclusions:

(1) The evidence supports the conclusion that the defendant or
defendants failed to comply with the appropriate standard of care as
charged in the complaint.

(2) The evidence does not support the conclusion that the
defendant or defendants failed to meet the applicable standard of care as
charged in the complaint.

(3) That there is a material issue of fact, not requiring expert
opinion, bearing on liability for consideration by the court.

(4) Where Paragraph (2) above is answered in the affirmative,
that the conduct complained of was or was not a factor of the resultant
damages. If such conduct was a factor, whether the plaintiff suffered: (a)
any disability and the extent and duration of the disability, and (b) any
permanent impairment and the percentage of the impairment.

The Medical Review Panel’s opinion indicates that it found that the evidence

supported a finding that the appropriate standard of care was not met, a finding

consistent with Subparagraph 1. According to Subparagraph 4, it is only in the event

that Subparagraph 2 is answered in the affirmative that the panel is to reach the

question of “whether the conduct complained of was or was not a factor in the

resultant damages.” We observe at this point that the LPCF asserts that the reference

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to “Paragraph (2)” in Subparagraph 4 is a typographical error within the statute. The

LPCF contends that the reference should be, instead to “Paragraph (1).” While a

reading of the statute may support this proposition, we do not speculate as to the

legislature’s intent.

Considering the statute on its face, we observe that the Medical Review Panel

did not answer Subparagraph 2 in the affirmative, thus it exceeded its authority in

commenting upon causation in this case. Furthermore, we note that causation in this

case, that related to lack of informed consent, is not a conclusion requiring an “expert”

opinion. Rather, it is a reasonable person analysis to be employed by the trier of fact.

Accordingly, the trial court did not err in redacting those portions of the opinion that

exceeded the panel’s authority. This assignment lacks merit.

Deprivation of a Fair Trial

As stated above, in addition to the finding of lack of informed consent, the jury

additionally concluded that the plaintiff received substandard post-operative care. At

issue in this assignment is an instruction that the trial court provided to the jury at the

time Dr. Hart was questioned as to previous deposition testimony. The instruction,

which came at the time of the questioning, is as follows:

I think it’s appropriate, ladies and gentlemen, I want to give an
instruction here so that everybody understands what we are doing.

When a witness is questioned about an earlier statement he may
have made or earlier testimony he may have given which might be
inconsistent with his testimony before you, such questioning is permitted
in order to aid you in evaluating the truth or accuracy of his testimony at
this trial. Earlier statements made by a witness are not ordinarily offered
or received as evidence of the truth or accuracy of such statements but
are referred to for purposes of giving you a comparison and aiding you
in your determination concerning the credibility or weight to be given
the witness’ testimony when you hear it at this trial. Whether or not such
prior statements of a witness are, in fact, consistent or inconsistent with
his trial testimony is entirely for you to determine. I will of course give
you additional instructions at the end of the trial concerning a number of

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matters that you may consider in determining the credibility of the
witnesses and the weight to be given to their testimony. But I wanted
you to know at this point the purpose of examining a witness concerning
prior statements or testimony so that you might better understand the
following presentation of evidence.

The LPCF acknowledges that La.Code Civ.P. art. 1792(A) provides that: “At

any time during the trial, the court may instruct the jury on the law applicable to any

issue in the case.” However, the LPCF contends this statement, which was made

during Dr. Hart’s testimony, should have been made at another, less prejudicial point

in the trial. It asserts that the timing of the instruction amounted to a comment upon

the evidence in violation of La.Code Civ. P. art. 1791, which provides: “The judge

in the presence of the jury shall not comment upon the facts of the case, either by

commenting upon or recapitulating the evidence, repeating the testimony of any

witness, or giving an opinion as to what has been proved, not proved, or refuted.”

Having reviewed the record as a whole, and the instruction in particular, we do

not find that the instruction amounted to a comment upon the evidence. Rather, it was

instruction as to the purpose of the deposition and is expressly permitted by the Code

of Civil Procedure. Accordingly, this assignment lacks merit.

Answer to the Appeal

In an answer to the appeal, the plaintiff asserts that, due to the establishment of

liability from the settlement, the LPCF’s arguments regarding the merits of the appeal

are frivolous. As, after an appeal has been taken, the trial court was without

jurisdiction to find that the settlement established liability under the terms of the

Medical Malpractice Act, we find no merit in the answer. Although we do not grant

relief on any of the LPCF’s assignments of error, we do not find the arguments to be

so fully without merit as to allow for damages under La.Code Civ.P. art. 2164. See

Smith v. Clement, 01-87, p. 10 (La.App. 3 Cir. 10/3/01), 797 So.2d 151, 159, writ

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denied, 01-2878 (La. 1/25/02), 807 So.2d 249, writ denied, 01-2982 (La. 1/25/02),

807 So.2d 843 (wherein a panel of this court found damages for frivolous appeal

appropriate finding an appeal to be “so devoid of merit that it justified the label

frivolous.”).

DECREE

For the foregoing reasons, the application for supervisory writ taken from the

Judgment of March 19, 2003, is denied in part, granted in part and made peremptory.

Accordingly, that portion of the March 19, 2003 judgment establishing liability

pursuant to La.R.S. 40:1299.44(C)(5) is vacated. The motion to dismiss the

appellant’s appeal is denied. The October 18, 2002 judgment on the merits of the

case, from which the appeal is taken, is affirmed. Furthermore, the plaintiff’s answer

to the appeal, seeking damages associated with frivolous appeal is denied. All costs

of this matter are assigned to the appellant, Louisiana Patients’ Compensation Fund.

WRIT GRANTED IN PART AND MADE PEREMPTORY; DENIED IN PART.
JUDGMENT ON APPEAL AFFIRMED;
MOTION TO DISMISS DENIED.
DAMAGES FOR FRIVOLOUS APPEAL DENIED.

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