Summary
In Christophe v. State Through LDHH, 663 SO.2d 289 (La. App. 3d Cir. 1995), a plaintiff who actually contracted Hepatitis A because of the defendant's negligence recovered only $22,500 in general damages.
Summary of this case from Blanchard v. Becton, Dickinson & Co.Opinion
No. 95-398.
October 4, 1995.
APPEAL FROM DISTRICT COURT, PARISH OF NATCHITOCHES, NO. 65,711 STATE OF LOUISIANA, HONORABLE JOHN B. WHITAKER, J.
Otis Edwin Dunahoe Jr., for Sam Christophe.
Richard Phillip Ieyoub, William R. Carruth Jr., Sydney Picou-Kendrick, for State of Louisiana, Through Dept. of Health and Hospitals.
Before KNOLL, THIBODEAUX and DECUIR, JJ.
This appeal involves a medical malpractice claim against the Natchitoches Parish Health Unit (health unit) for failing to administer Immune Serum Globulin (ISG) to a mother and her daughter who were exposed to Hepatitis "A." The trial court found the health unit negligent, and held the Louisiana Department of Health and Hospitals (LDHH), the state entity that operates the health unit, liable. The trial court awarded general damages of $10,000 to Sam Christophe, as natural tutor of his daughter, Heather Renee Christophe, $4,982.85 to Sam Christophe, individually, for Heather and Anastasia's medical expenses, $5,000 to Sam Christophe, individually, for the loss of consortium of his wife, $1,000 to Sam Christophe, individually for the loss of consortium of his daughter, Heather, and general damages of $22,500 to Anastasia Christophe, Heather's mother.
LDHH appeals, contending that the trial court erred: (1) in its conclusion that the medical review panel did not have sufficient evidence before it to make an informed decision; (2) in finding that Orealia Roque was the contact person or source of the Hepatitis "A" contracted by Heather and Anastasia Christophe; (3) by finding that the health unit personnel should have administered ISG; and (4) by awarding excessive damages. We affirm.
FACTS
The facts of this case involve repercussions from the illness of Dan Roque and his hospitalization in Shreveport, Louisiana for Hepatitis "A." When Mr. Roque was hospitalized, his daughter, Orealia, stayed in the household of Sam and Anastasia Christophe. Shortly thereafter, medical personnel also diagnosed Orealia as suffering from Hepatitis "A."
On March 13, 1991, Mrs. Christophe brought her daughter, Diedre, to their family pediatrician, Dr. Wilhelmina Wise, in fear that she had been exposed to the Hepatitis "A" virus when Orealia stayed in their home. Dr. Wise referred Mrs. Christophe and her children to the parish health unit, the only source of ISG treatment for exposure to the Hepatitis "A" virus.
From this point forward the parties dispute the facts. Since these facts will be elaborated upon in the opinion, we will only broadly sketch the parties' contentions here. Mrs. Christophe contends that she told the health unit personnel that Orealia spent several nights in their home and that Orealia was diagnosed as suffering from Hepatitis "A." To the contrary, the health unit contends that only Diedre was at risk because the Christophes said that Diedre was exposed to the virus when she spent the night in the Roque home. The Christophes returned to Dr. Wise's office without receiving treatment. After Dr. Wise's personnel telephoned the health unit, the Christophes then returned to the health unit. Ultimately, the health unit only gave the ISG injection to Diedre since, as it contends, the history that was given by Dr. Wise's office and Mrs. Christophe indicated that Diedre was the only family member at risk. The Christophes, Dr. Wise, and Dr. Wise's staff disagree with the health unit's appreciation of the facts.
On April 24, 1991, Mrs. Christophe went to the emergency room of the Natchitoches Parish Hospital with flu-like symptoms that had begun several days before. She was treated conservatively and released. Two days later, Mrs. Christophe was hospitalized for nausea, vomiting, and a high fever; medical tests confirmed that she was suffering from Hepatitis "A." Two days after that, Mrs. Christophe's daughter, Heather, was also diagnosed as having Hepatitis "A" and was hospitalized with her mother. After approximately one week in the hospital, Mrs. Christophe and Heather were released. Mrs. Christophe's recuperative period lasted about six months and Heather's lasted approximately two months.
The trial court found that the health unit was negligent in taking the medical history of the Christophes and in ultimately deciding only to inoculate Diedre.
EFFECT OF MEDICAL REVIEW PANEL'S DECISION
LDHH contends that the trial court erred when it held that the medical review panel did not have sufficient evidence to support its opinion that the health unit did not commit medical malpractice. It argues that if insufficient evidence was presented to the medical review panel, such failing should be attributed to the Christophes.
La.R.S. 40:1299.47(H) 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.
In Everett v. Goldman, 359 So.2d 1256 (La. 1978), the Louisiana Supreme Court found that the sole duty of the medical review panel is to express its expert opinion(s) and that its findings were not binding on the litigants. Later, the Supreme Court reaffirmed this position in Derouen v. Kolb, 397 So.2d 791 (La. 1981).
Since the jurisprudence equates the findings of the medical review panel to that of an expert, we find it appropriate to refer to the holdings of appellate courts regarding expert testimony. After weighing and evaluating medical testimony, the trial court may accept or reject the opinion expressed by the medical expert. The trial court should evaluate the expert testimony by the same rules which are applicable to other witnesses and the trial court is not bound by expert testimony. McCartney v. Columbia Heights Nursing Home, Inc., 25,710 (La.App. 2 Cir. 3/30/94); 634 So.2d 927. The effect and weight given expert testimony is within the broad discretion of the trial court. The importance placed upon such testimony is largely dependent upon the expert's qualifications and the facts that form the basis of his opinion. Bolton v. Louisiana State University Med. Ctr., 601 So.2d 677 (La.App. 2 Cir. 1992).
In the case sub judice, the trial court discounted the findings of the medical review panel since it found that Mrs. Christophe's testimony was not presented to the panel for consideration. LDHH, with neither statutory nor jurisprudential authority, asserts that the failure to procure Mrs. Christophe's testimony should be adversely imputed to the Christophes. We disagree.
La.R.S. 40:1299.47(D) through (F) reference the presentation of evidence to the medical review panel. Although La.R.S. 40:1299.47(D) provides that the respective parties shall promptly submit the evidence to be considered by the medical review panel in written form, all of the references to the submission of evidence are stated in permissive rather than mandatory form. The sole exception to this statement is La.R.S. 40:1299.47(F) which states that the medical review panel has "the right and duty to request and procure all necessary information." Such a duty is not expressed with regard to the plaintiff. We find no requirement that the plaintiff has to even submit evidence to the medical review panel, unless the panel requests such evidence. Thus, we find nothing in the statute that supports LDHH's assertion.
TRIAL COURT'S FACTUAL DETERMINATIONS
LDHH next contends that the trial court erred in its factual determination that Heather and Mrs. Christophe contracted the Hepatitis "A" virus from Orealia. It argues that Heather and Mrs. Christophe did not manifest the symptoms of the disease within the window of time accepted by the medical profession that would coincide with their contact with Orealia.
It is axiomatic that if an appellate court reverses a factual determination of the trial court, it must find that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the trial court's finding is clearly wrong. Weatherford v. Commercial Union Ins Co., 94-1793, 94-1927 (La. 2/20/95), 650 So.2d 763.
In the case sub judice, the record shows that the trial court was presented with expert medical testimony that established the usual time within which Hepatitis "A" will manifest itself after a party has been exposed to the virus. Although Heather and Mrs. Christophe's manifestations of the disease may just barely exceed the generally accepted exposure time, we cannot say that the trial court was manifestly erroneous in its conclusion that Orealia was the viral source of the disease. Clearly, the parties were unable to conclusively establish the exact dates that Orealia stayed with the Christophes, thus leaving the dates of their exposure as approximations. Similarly, Dr. Wise testified that even after Orealia left the Christophe household, the Hepatitis "A" virus could exist on household and bathroom surfaces in their home for several weeks. Moreover, when queried about other possible sources of the virus, LDHH conclusively stated that the only known cases of Hepatitis "A" prior to the Christophes' were that of Orealia and her father. Based upon these observations we find that the trial court had a reasonable factual basis to conclude that Orealia was the source of the Christophes' exposure and cannot say that such a factual determination was manifestly erroneous.
We next turn to the trial court's conclusion that the health unit was mistaken in its appreciation of the case history that brought the Christophes for treatment. Dr. Wise, the pediatrician who regularly treated the Christophes' children, testified that Mrs. Christophe always accurately described the case histories of illnesses her children suffered. When she came for treatment, Dr. Wise stated that Mrs. Christophe told her that she and her family were exposed to Hepatitis "A" when Orealia stayed several nights in their home. Dr. Wise further stated that she and her nurse, Mrs. Leslie McAlpin, related this history to the health unit when they referred the Christophes for immunization. Mrs. Christophe testified unequivocally that she told the health unit personnel that her household was exposed to Hepatitis "A" when Orealia spent several nights in their home.
Mrs. Bea Smith, one of the persons who met Mrs. Christophe at the health unit, testified that after talking with Mrs. Christophe, she determined that only Diedre had been in contact with Orealia within the last fourteen days. Mrs. Smith denied that Dr. Wise's office told her that Diedre had spent several nights at the Christophe home. It was on this basis that only Diedre was given ISG.
After considering these diametrically opposing assertions, we find that the trial court was faced with a factual dispute that it had to resolve. In an instance such as this, witness demeanor and credibility are integral to the trial court's determination. We find, in light of the record before us, no manifest error in the trial court's resolution of this factual difference.
As an ancillary contention, LDHH further asserts that the trial court erred in its determination that the health unit should have administered ISG to Heather and Mrs. Christophe. It argues that since the Christophes presented themselves to the health unit more than two weeks after exposure to the Hepatitis "A" virus, standard medical protocol indicated that ISG was not called for. The time frame discussed above is critical to LDHH's further contention. Since we found no manifest error in that determination of the trial court, we likewise conclude that the trial court was not manifestly erroneous in determining that the health unit was negligent in failing to administer ISG to Mrs. Christophe and Heather. A reasonable factual basis exists for the trial court's holding that they were exposed to the virus within the time frame established in the medical protocol and thus ISG should have been administered.
GENERAL DAMAGES AND LOSS OF CONSORTIUM
LDHH next contends that the trial court awarded excessive general damages to Heather and Mrs. Christophe, and that its loss of consortium awards to Mr. Christophe were not justified.
The standard for an appellate court's review of damages was well established in Reck v. Stevens, 373 So.2d 498 (La. 1979) and was confirmed in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Suffice it to say that we will not disturb a trial court's award of damages unless we find that the award constitutes an abuse of the trial court's discretion.
The trial court fully explored the record in its written reasons for judgment and detailed the particular injuries that each of the parties suffered. There is no need for us to restate or analyze the trial court's written reasons since LDHH has not criticized any of its findings. Instead, we will incorporate the trial court's reasons for its damage award and append it as Appendix "A." After carefully reviewing the record, we find that the trial court particularized the awards to the individuals and conclude that the trial court did not abuse its discretion in assessing the damages that the Christophes suffered.
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to LDHH as provided by
AFFIRMED.