Articles Posted in Pain And Suffering Claims

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The plaintiff in this case, Eileen Laday, was a passenger on a bus owned by the Lafayette City-Parish Consolidated Government. The bus had been donated to the City-Parish in the aftermath of Hurricane Katrina. When the bus was donated, it was missing a plexiglass shield that was designed to keep the bus door from coming into contact with passengers. As Ms. Laday sat in the front seat, the door opened and trapped her arm. She was not consistent about how long her arm was trapped.

Ms. Laday went to a doctor the next day, complaining of neck and shoulder pain radiating into her right arm. The doctor ordered an MRI, which showed degenerative cervical disc conditions as well as a disc herniation. She later saw an orthopedic surgeon, who recommended that she undergo surgery. As of the date of trial, she had not yet had the surgery, which was estimated to cost between $60,492.60 and $61,492.60.

The judge conducted a bench trial (where there is no jury) and ruled in favor of Ms. Laday because of the high standard of care imposed on common carries like operators of public buses. He awarded her $60,000 in general damages, $24,084.56 in past medical expenses, and $60,492.60 for future surgery costs to be placed into a reversionary trust under La.R.S. 13:5106, with interest to go to Ms. Laday.

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In a prior post, we saw that the trial court is afforded considerable deference in the setting the amount of general damages in tort cases. More than 30 years ago, the Louisiana Supreme Court stated:

“[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.” Reck v. Stevens.

The Court went on to advise that an appellate court’s primary role is to determine whether a trial court’s general damages award amounted to an abuse of discretion. Only if such abuse is found is it appropriate for the appellate court to review prior judicial opinions to determine a range of amounts reasonably applicable in the case.

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On the evening of October 29, 2004, Jeanine Pryor, then 69, attended a football game between Barbe High School and New Iberia High School at Lloyd G. Porter Stadium in Iberia Parish. Pryor, who was there to see her grandson play, was recovering from hip surgery and required a cane to get around. She sat in the bleachers on the visitors’ side of the stadium to be with the other fans of the Barbe High Bucs. The seat boards on the visitors’ side bleachers were uniform and approximately eight inches apart in height, except that the space between the first and second seat boards had 18 inches between them. When Pryor first arrived, she realized she could not step up the distance between the first row and the second, so she “grabbed the second board and lay on her side so she could swing one leg up at a time.” Then she stood up and was assisted by her daughter the rest of the way up the rows to her seat. At halftime, when Pryor descended the bleachers in order to visit the restroom, she attempted to simply step down the distance between the first and second seats, rather than use the same maneuver she had executed on the way up. In the process, she fell and was severely injured. Pryor filed suit against the New Iberia school board alleging that the bleachers were defective. After a bench trial, the district court entered a judgment for the school board, having determined under a risk/utility analysis that the condition of the bleachers was not unreasonably dangerous. Pryor appealed and the court of appeal reversed. It rejected the district court’s analysis, finding there was “no utility or social value in exposing visiting patrons to an eighteen-inch vertical differential between the seat boards in question.” The court apportioning 70 percent fault to the school board and 30 percent fault to Pryor, awarding her damages of over half a million dollars. The school board appealed.

The Louisiana Supreme Court recited the general rule that “the owner or custodian of property has a duty to keep the property in a reasonably safe condition,” though the owner generally has “no duty to protect against an open and obvious hazard.” It is the trial court’s role to decide which risks are unreasonable based upon the facts and circumstances of each case, and review of its determination on appeal is subject to the manifest error standard. Louisiana courts have adopted a risk-utility balancing test for this analysis, which requires weighing four factors:

(1) the utility of the thing. Here, the court concluded, “it is undisputed that the bleachers serve a social utility purpose by providing seating for patrons of the stadium,” and further, that “the eighteen-inch gap between the first and second seat is not a defect in the bleachers per se, but simply part of their design.”

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In previous posts on this blog, we have discussed the elements that the victim of a car accident must prove in order to recover from an at-fault driver. Whether the defendant’s negligent conduct caused the accident and the victim’s injuries is a question to be resolved by the fact-finder. This role is usually assumed by the jury, but can also be left to the judge in the case of a bench trial. Much deference is given to a fact-finder’s decision on such issues: the appropriate standard for appellate review of factual determinations is the “manifest error/clearly wrong standard.” This high standard means that an appellate court can set aside the trial court’s factual determination only if it is “clearly wrong in light of the record reviewed in its entirety.” In order to overturn a factual finding, the appellate court must make a two-part inquiry: (1) the court must find from a review of the trial record that no reasonable factual basis exists for the finding; and (2) the record must establish that the trial court’s finding was clearly wrong. It is important to note that the appellate court is not merely asked to determine whether the trier of fact was objectively right or wrong; instead the court must decide if the factfinder’s conclusion was reasonable in light of the evidence. The Second Circuit Court of Appeal’s opinion in the recent case of Hopkins v. Nola provides an example of an appellate court’s application of this analysis to overturn a critical factual finding of the trial court.

On January 17, 2008, Sharnetta Hopkins was involved in a car accident with Brian Nola near the intersection of Desoto Street and Cole Avenue in Monroe, Louisiana. In her complaint, Hopkins alleged that the accident occurred when Nola struck her car after executing an illegal pass. Nola countered that he did nothing wrong, but was actually struck by Hopkins’s car when she ran a stop sign. At the bench trial in March, 2010, the parties offered conflicting testimony on the incident. Also, Shawn Maynard, an officer with the Monroe Police Department who responded to the accident and issued Hopkins a citation for running the stop sign, offered testimony as to Hopkins’s fault. Nevertheless, the trial court entered a judgment against Nola, awarding Hopkins damages after apportioning 80 percent of the fault to Nola. In its decision, the trial court noted that it effectively ignored Officer Maynard’s testimony because he “did not take any photographs, diagram the location of any debris from the accident, and did not talk to all of the witnesses.”

On appeal taken by Nola, the Second Circuit reviewed the trial record according to the manifest error standard. The court found that “the trial court committed reversible error in its wholesale dismissal of Officer Maynard’s testimony due to deficiencies in his investigation of the accident.” The court reached this conclusion because “the trial court’s articulation in its written ruling of perceived deficiencies is unfounded.”

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Gleason v. Louisiana Dept. of Health and Hospitals is a Medical Malpractice case arising out of the unfortunate death of a 47-year-old severely mentally challenged man, Donnie Gleason. Donnie had been a resident of Northwest since December of 1974 and was nonverbal and incapable of self-medicating, arranging or monitoring his own medical assistance. On December 23, 2002, after two earlier unsuccessful attempts, Donnie was transported to Willis Knighton Medical Center (“Willis Knighton”) in Bossier City, to undergo a routine CT scan and EEG after he suffered a seizure. When Donnie returned, he was lethargic and placed in the infirmary.

The documentation of his treatment there showed that Donnie had ingested a foreign object which caused a bowel impaction that precipitated Donnie’s fecal vomiting. Presumably due to his condition, Donnie was unable to expel the vomit and breathed some of the gastric content into his respiratory tract. At Willis Knighton, Donnie was placed on a ventilator in the intensive care unit and diagnosed with bowel obstruction, respiratory failure and aspiration pneumonia relating to the vomit aspiration. After a brief recovery, Donnie once again went into respiratory distressed, was placed on a ventilator, and passed. The staff were unable to revive him.

In Louisiana, medical malpractice complaints must first be filed with the Louisiana Patient’s Compensation Fund before a lawsuit may be commenced. That organization’s medical review panel ruled for the defendants in this action – Northwest (intermediate care facility) and Willis Knighton (hospital) and their doctors and physician’s assistants individually. The panel concluded that the evidence did not support the conclusion that Northwest failed to comply with the appropriate standard of care because they found no evidence that Donnie ingested a foreign object while there. After the panel ruling, Donnie’s family filed suit against Northwest and Willis Knighton. They alleged, among other things, that Northwest’s failure to properly supervise Donnie and his treatment and its failure to recognize the seriousness of his condition and the inadequacy of the monitoring of Donnie’s respiratory status.

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The Louisiana Code of Civil Procedure generally affords the trial court wide discretion in assessing the costs of litigation to one or more of the parties. “Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against

any party, as it may consider equitable.” La. C.C.P. Art. 1920. The expenses that the court can tax as costs include the fees of the court clerk or sheriff, witness’ fees, costs of taking depositions, and the cost of photocopies of laws, regulations, medical reports, and hospital records used during the trial. So great is the trial court’s discretion, in fact, that the trial court’s assessment can be overturned only upon a showing of abuse of discretion.

As mentioned, though, there are limitations in the law to the trial court’s authority. For instance, special provisions exist for allocating costs in workers’ compensation cases as well as those involving a plaintiff who proceeds in forma pauperis (through a pauper’s action). The recent case of Curry v. HealthSouth Rehabilitation Hospital illustrates that one path to reversible error on the part of the trial judge is running afoul of the special rules for impoverished plaintiffs.

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As we have explored in numerous prior posts, a doctor or other healthcare provider owes his or her patient a duty to meet the standard of care applicable to the patient’s situation. The failure to follow the standard of care points to the doctor’s negligence which, in the case of the death of the patient, can give rise to a claim of “lost chance of survival” for the spouse or children of the deceased. In a lost chance of survival action, the plaintiff “does not have to shoulder the unreasonable burden of proving that the patient would have lived had proper treatment been

given.” Rather, the plaintiff must establish by a preponderance of the evidence that the doctor’s negligent conduct “denied the patient a chance of survival.” In other words, a lost chance of survival claim will not be successful if the patient would have died anyway due to causes unrelated to the doctor’s actions; the plaintiff must tie the doctor’s negligence to the death of the decedent. Whether a plaintiff carries this burden is a question of fact reserved for the jury.

Third Circuit Court of Appeal recently reviewed a jury verdict on this question in the case of Skinner v. Christus St. Francis Cabrini Hospital. Robert Skinner was admitted to Christus Hospital in Alexandria on August 17, 2000 for an elective hemorrhoidectomy and partial sphincterotomy. He died the following morning after spending the night in the hospital. His wife, Pamela Skinner, filed suit against the hospital and Stephen Ford, the nurse who had charge of Mr. Skinner from 7:00 PM to 7:00 AM during the night of his stay. At the trial, various witnesses from the hospital explained that the surgery had gone well. The only reason Mr. Skinner stayed overnight was because of his high level of anxiety over the procedure. Mr. Skinner had a history of mental and physical problems, and was taking numerous prescription medications to address his depression, high blood pressure, high cholesterol, and heart burn. Several members of the hospital staff reviewed Mr. Skinner’s medication list on separate occasions, and each time he neglected to mention that he had taken a particular antidepressant prior to coming to the hospital. In fact, the toxicology screening that was conducted as part of an autopsy revealed dangerously high levels of the drug in his system–a concentration which the medical experts in the case agreed was “known to kill.” Nevertheless, the jury found that the evidence supported the conclusion that the hospital and Nurse Ford failed to properly monitor Mr. Skinner after the surgery, Therefore, the defendants “deviated from the appropriate standard of care in the medical treatment of Mr. Skinner,” causing a lost chance of survival. The jury awarded Mrs. Skinner $250,000 in general damages. The defendants appealed, arguing that the jury erred in finding the plaintiff had carried her burden.

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The tort law system is designed to make whole those who have been injured. Since medical science is both an imperfect art and an imperfect science, money is most often the cure for what ails plaintiffs. In each case the jury must decide how much money it takes to remedy the injury the victim suffered? This gets further complicated when considering someone who suffers and will suffer from a permanent condition brought on by another. The issue of damages is strongly linked with the issue of causation. The courts seek to compensate plaintiffs for all of the monetary loss they suffer at the hands of those found liable (those who are found legally responsible). An important aspect of liability is the determination that a wrongdoer was the proximate or legal cause of a plaintiffs injury.

Pain is a somewhat subjective part of the human experience. Torts professors sometimes joke that there is no “Pain-o-meter” for measuring how much something hurts. In our civil justice system, the awarding and amount of pain and suffering awards are a matter for the fact finder. This means that the decision about how much to compensate someone for their pain is often left to a jury of their peers. This is often a difficult decision for jurors to make, especially considering the subjectivity of pain.

Doctors use a chart with a series of faces ranging from one that seems to express mild discomfort to one that has tears dripping down it to figure out how much pain a person is in. That is the height of the technology used to measure pain. Juries are often called upon to answer the question oh what value each of these bring, not for themselves, but for some other injured person. It is the job of the plaintiff’s attorney to call for an appropriate standard when compensating for pain. The standards used vary by location. Pain and suffering make up just one piece of an injured person’s damages. Juries must also account for lost wages, future wages, medical expense and future medical expenses, among other potential costs.

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For those wishing to be kept abreast of the latest products to receive governmental warnings regarding the safety surrounding their use, feel free to check out SaferProducts.gov. With a list of incident reports from other consumers, this effort by the government hopefully will help enable people to make conscious decisions regarding the products they put in their homes.

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The plaintiff in this case, Suzanne Hammond, was the mother of Latousha Tillman and the grandmother of her stillborn child, Ladaizya Tillman. On March 31, 2004, Ms. Tillman arrived at the St. Francis Hospital emergency room complaining of pain, nausea, and vomiting. She was 25 years old and 23 weeks pregnant. Dr. Joiner treated her and found her heart rate, liver enzymes, and glucose to be elevated, with decreased kidney function. Ms. Tillman was then transferred to another hospital, where problems with her unborn child were discovered. The fetus was found to have no heartbeat and labor was induced 3 days later, on April 4, 2004.

After the birth, Ms. Tillman’s condition dramatically declined and she was placed on life support. She then went into a persistent vegetative state and was pronounced dead on January 24, 2005, after the medical staff was unable to resuscitate her. Ms. Hammond sued St. Francis and Dr. Joiner for a survival action and a wrongful death action with regard to her daughter, and a wrongful death lawsuit as to her stillborn granddaughter.

A survival action compensates the survivors for the damages suffered by a victim from the time of injury to the moment of his or her death. The cause of action is “inherited” – it belongs to the victim and is passed on at death. If there is even a tiny amount of evidence showing any pain of suffering by a victim before her death, damages are warranted.

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