Louisiana Personal Injury Lawyer Blog
Many people wonder what can be done from a legal standpoint to get a better verdict. In situations involving accidents where the damages awarded don’t fully cover the perceived damage, it would be prudent to appeal your verdict. However, before any action be taken, it is crucial to note the role of the Appellate court and its scope of power in reviewing a damage award. This is important for two reasons: (1) to keep expectations realistic and (2) to highlight the pertinent actions to be taken after an injury.
Trying to get a damage award amended on appeal can be an uphill battle, but it is possible. To better understand this amendment process, a recent attempt to amend a general damage award provides a solid example.
In December of 2007, Shirley Langley was the victim of a bee sting, resulting in a severe allergic reaction. She was admitted to American Legion Hospital in Crowley, LA, where the hospital medical staff improperly administered epinephrine to Mrs. Langley, resulting in, amongst other ailments, permanent damage to her heart.
Mrs. Langley sued the hospital in the 15th Judicial District Court for her injuries and was awarded $25,000 in general damages. Mrs. Langley, unsatisfied with the amount, subsequently appealed the decision, stating that the awarded amount was excessively and abusively low considering the severity of the physical and emotional damages she sustained and because in other situations mirroring her own, higher general damages awards have been given.
On appeal, Mrs. Langley provided evidence to the court chronicling her visits to four separate doctors assessing her damages stemming from the improperly administered epinephrine. She testified that some of her doctors recommended she receive additional treatment and testing but she did not follow these suggestions. These recommendations were made to Mrs. Langley over a year before the trial took place. Therefore, a substantial amount of time elapsed between her doctors visits and the court date, during which time Mrs. Langley sought no medical attention.
Judge Elizabeth A. Pickett, the presiding judge on the case, agreed with the trial court’s determination that “the medical evidence… clearly shows [Mrs. Langley] experienced physical pain and psychological distress during the episode and continued to experience psychological distress after the episode… but concluded [that] Mrs. Langley
did not prove she continued to suffer such pain and/or distress at the time of trial.”
Because Mrs. Langley’s injuries could be seen as not being so extensive as to warrant any damages exceeding $25,000, the court determined that the trial court exercised proper discretion in its determination of the general damage award.
When appellate courts review a general damages award, their duty is not to consider whether or not the award is appropriate given the circumstances, but rather to review the exercise of the discretion of the trial court. Furthermore, trial courts are given wide latitude and discretion in when awarding general damages. It is important to, simply put, get it right the first time – meaning to do whatever it is you can to show the court that the injuries you sustained are not minor and require medical attention, and that you attempted to mitigate your damages. It is very possible that your damage award can be decreased for failure to mitigate damages.
So how do you make sure the court is aware that your injuries are serious? This can be done by simply adhering to the advice of your doctor or physician post injury. If your doctor recommends you take further tests, take further tests; if your doctor recommends a certain type of treatment, take the treatment. By adhering to the counsel of your doctor or physician, when a court is looking over your general damage award they are more likely to come to the conclusion that the injuries you sustained were serious enough to warrant reconsideration of your initial damage amount. In a situation where an individual does not seek out additional treatment or testing advised by a doctor, a court reviewing the damage award may conclude that the injury sustained by the individual is not extensive enough to warrant consideration, which is what happened with the case of Mrs. Langley.
If you have been injured, awarded general damages, and feel that you are entitled to a more favorable damage award, contact the Berniard Law Firm today.