In its judgment filed on June 28, 2017, the Court of Appeal Second Circuit State of Louisiana (“Louisiana Appellate Court”) affirmed the trial court’s judgment in favor of the plaintiffs (husband and wife) in a Louisiana medical malpractice case in which the jury found that the defendant surgeon’s breach of the standard of care caused the husband the loss of a better outcome but amended the amount of damages awarded by the trial judge for general damages and for the wife’s loss of consortium claim.
The Underlying Facts
The defendant surgeon was scheduled to perform non-emergency gallbladder surgery on the husband in August 2013. The morning of the surgery, the husband had a chest X-ray and EKG at the hospital that were ordered by the defendant surgeon. The defendant surgeon did not read the husband’s pre-operative EKG that indicated: 1) possible left atrial enlargement; 2) nonspecific intraventricular block; 3) possible septal infarct; and 4) inferior infarct. The defendant surgeon also did not read the chest x–ray that showed congestive heart failure. The husband was unaware of any of these medical conditions.
Despite the unsettling results of the EKG and chest x-ray, the husband was put under general anesthesia for his gallbladder surgery after which he was discharged later the same day. Almost 32 hours later, the husband went to the emergency room of a local hospital complaining of shortness of breath and significant swelling. He was determined to be in critical condition and was transported via ambulance to another hospital where he was admitted to the ICU and was diagnosed as having suffered an acute myocardial infarction and respiratory failure, as well as worsening of pulmonary edema, congestive heart failure, and bilateral pleural effusions. The husband had to be intubated, placed in a medically induced coma, had a heart catheterization during which an intra-aortic balloon pump was inserted to assist the pumping of his heart, and was placed on a ventilator to assist his breathing.
The husband was determined to not be a candidate for heart bypass surgery and was transported to another hospital where he had a heart transplant. As a result, the 58-year-old husband became disabled from working as a heavy equipment mechanic. He is under strict medical treatment for the remainder of his life due to his status as a heart transplant recipient. The life expectancy for heart transplant patients is 13 years.
The plaintiffs filed their Louisiana medical malpractice claim with the Medical Review Panel (“MRP”) that determined that the defendant surgeon had breached the standard of care by failing to review the pre-op tests he had ordered for the husband. The MRP found that the chest X-ray report warranted postponing the surgery until a cardiology consult could be obtained and that the defendant surgeon’s failure to review the chest x-ray report and request a cardiology consult was a factor of the resultant damages.
The plaintiffs subsequently filed their Louisiana medical malpractice case in court against the defendant surgeon, the Louisiana Patient’s Compensation Fund (“PCF”), and others. The defendant surgeon settled for $100,000.00 and the other defendants were subsequently dismissed from the case. Trial proceeded against the PCF only.
The Louisiana medical malpractice jury determined that there were no damages caused by the breach of the standard of care but concluded that the defendant surgeon’s breach of the standard of care caused the husband a lost chance of a better outcome. The jury awarded the husband a lump sum of $ 680,000.00 in damages for his lost chance, but it did not indicate if those damages were general or special. The trial judge applied the medical malpractice statutory cap for noneconomic damages in the amount of $500,000.00 and therefore reduced the jury verdict from $680,000.00 to $400,000.00, taking into consideration the $100,000.00 settlement that had been paid by the defendant surgeon. The plaintiffs appealed.
The Louisiana medical malpractice jury’s responses on the Verdict Form were inconsistent. In response to the question, “Have the plaintiffs proven, by a preponderance of the evidence, that Dr. Forrest Wright’s breach of the applicable standard of care was a substantial factor in contributing to the injuries of Roger Burchfield?” the jury answered, “No.” However, in response to the question, “Do you find that Roger Burchfield lost a chance at a better outcome as a result of the breach of the standard of care by Forrest Wright, M.D.?” the jury answered, “Yes.”
The Louisiana Appellate Court held that the trial judge erred in concluding that a lost chance of a better outcome could consist only of general damages, thereby reducing the jury verdict from $680,000.00 to $400,000.00, primarily because the answers to the two questions stated above were “patently inconsistent, leading to an inability of the jury to consider all of the damages suffered by the Burchfields as a result of Roger’s heart transplant … the answers to jury interrogatory numbers one and six, the only interrogatories answered, are conflicting and cannot form the basis for any proper result.”
The Louisiana Appellate Court stated that when faced with a legal error that has tainted a jury verdict, the general rule is that where the record is otherwise complete, the appellate court should make its own independent de novo review of the record to determine a preponderance of the evidence, and that the trial judge’s submission to the jury of a verdict sheet which either confuses or misleads the jury constitutes reversible legal error that triggers de novo review.
The Louisiana Appellate Court stated that in the case it was deciding, it had a complete record on appeal, and due to the jury’s reaching clearly inconsistent answers in its verdict form, de novo review is the appropriate remedy (in applying de novo review, the appellate court independently views the record, without granting any deference to the trial court’s findings, to determine the preponderance of the evidence, and the appellate court confines its de novo review to only those findings that have been interdicted by the error).
The Louisiana Appellate Court stated that the legal error in the verdict form did not affect all of the jury’s findings, i.e., the jury’s determination whether the plaintiff suffered a lost chance of a better outcome—the record clearly supports that. The Louisiana Appellate Court stated that the problem lies with the determination of the monetary amount of damages for that lost chance—the jury was not given adequate instructions on the verdict form (or instructions in the jury charge) on how to quantify the damages caused by the breach.
In the present case, the jury awarded damages in the amount of $680,000 but did not specify the elements of damages reflected in its award because the verdict form did not request the jury to break down its award of damages. The Louisiana Appellate Court stated that in calculating damages for a lost chance claim, the factfinder is to focus on the chance lost on account of the malpractice as a distinct compensable injury and to value the lost chance as a lump sum award on all the evidence in the record, as is done for any other item of general damages. In order to value the claim of loss of a chance of a better outcome, the factfinder should make a subjective determination of the value of that loss, fixing the amount of money that would adequately compensate the claimant for that particular cognizable loss.
In calculating an award for lost chance of a better outcome, a jury may consider what otherwise would be elements of special damages (for instance, lost wages and past, present, and future medical expenses). The Louisiana Appellate Court stated that an award for lost chance encompasses a “lump” of damages—a “lump” connoting a number of items taken together—that otherwise would have been delineated in damages for malpractice. Thus, logically, it follows if that is the case (i.e., damages for lost chance are a “lump”), then such an award may include special damages to adequately compensate a patient, and that “lump sum” damages should not be limited to the cap for general damages established by the Louisiana Medical Malpractice Act.
The Louisiana Appellate Court stated that in reducing the jury’s award in the present case, the trial judge reasoned that the lost chance damages were simply general in nature and subject to the medical malpractice cap ($400,000.00 after deducting the settlement amount), thus precluding the plaintiffs from awards for the husband’s past medical bills, his future medical care, and lost wages, which the Louisiana Appellate Court held was in error: but for the defendant surgeon’s breach of the standard of care, the husband would not have experienced the damage he did—a resultant heart transplant; more probably than not, the husband would have received a heart bypass instead of a heart transplant had the defendant surgeon not failed to review the pre-operative tests he ordered.
The Louisiana Appellate Court stated that it is completely illogical to conclude that the plaintiffs were indeed damaged by the defendant surgeon’s actions, but then not completely compensate them for their damages proved at trial directly attributable to the lost chance: the jury was presented testimony regarding the husband’s past medical bills that were a result of his heart transplant, which totaled $692,850.64, which was uncontested; the jury heard the husband’s testimony regarding the medications he is required to take as a result of his transplant-$1,718.78 in monthly expenses (of those medications, the ones directly related to his transplant (anti-rejection medication) total $1,202.77 a month); the jury heard testimony regarding the husband’s future wages, which the Louisiana Appellate Court determined to total $493,020.00 for 2014 through 2019; and, the jury had evidence of the substantive future medical protocol necessary for heart transplant recipients—the husband will be subject to medical treatment and resulting expenses for the rest of his life as a result of the lesser outcome.
The Louisiana Appellate Court affirmed that portion of the trial judge’s judgment that awarded “general damages” in the amount of $400,000.00 to the plaintiffs and further held that the medical malpractice was the direct cause of the husband’s lost chance of a better outcome, and, therefore, the husband deserves just compensation in the form of general and special damages.
The Louisiana Appellate Court amended the amount of damages awarded by the trial judge to award $400,000.00 in general damages, including past and future pain and suffering, as well as the wife’s loss of consortium, and awarded special damages for the following: $692,850.64 in past medical bills; future medicals to be awarded pursuant to La. R.S. 40:1231.3; and, lost wages in the amount of $493,020.00, all of which have been indisputably proven.
Source Burchfield v. Wright, No. 51,459-CA
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