Ketchum v. Roberts

Full title: KATHY R. KETCHUM v. RICHARD ROBERTS, LYNN MACDOUGALL, M.D. AND ST. TAMMANY…

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: May 29, 2014

2012 CA 1885 (La. Ct. App. May. 29, 2014)

Opinion

2012 CA 1885

05-29-2014

KATHY R. KETCHUM v. RICHARD ROBERTS, LYNN MACDOUGALL, M.D. AND ST. TAMMANY PARISH HOSPITAL

Kenneth V. Ward, Jr. Shanda Redmon Redmon Law Firm Mandeville, LA Attorneys for Plaintiff-Appellee Kathy R. Ketchum Margaret H. Kern Sam J. Collett, Jr. Bailey D. Morse Jones Fussell, L.L.P. Covington, LA Attorneys for Defendant-Appellant St. Tammany Parish Hospital

PARRO

NOT DESIGNATED FOR PUBLICATION

On Appeal from the 22nd Judicial District Court

Parish of St. Tammany, Louisiana

Docket No. 2007-10988, Division "C"

Honorable Richard A. Swartz, Jr., Judge Presiding

Kenneth V. Ward, Jr.
Shanda Redmon
Redmon Law Firm
Mandeville, LA
Attorneys for
Plaintiff-Appellee
Kathy R. Ketchum
Margaret H. Kern
Sam J. Collett, Jr.
Bailey D. Morse
Jones Fussell, L.L.P.
Covington, LA
Attorneys for
Defendant-Appellant
St. Tammany Parish Hospital

BEFORE: WHIPPLE, C.J., PARRO, KUHN, WELCH, AND DRAKE, JJ.

PARRO, J.

Defendant, St. Tammany Parish Hospital (STPH), appeals a judgment awarding damages to plaintiff, Kathy Ketchum, for injuries she sustained as a result of medical malpractice committed by STPH's emergency room nurse manager. Ms. Ketchum has answered the appeal, seeking additional damages and contesting the judgment insofar as it found her to be 60% at fault for her injuries. For the reasons that follow, we amend the judgment and affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

On Friday, February 13, 2004, Ms, Ketchum was involved in an automobile accident, which occurred when she suddenly lost consciousness while driving. She was transported by ambulance to the emergency room at STPH for medical treatment. Upon her arrival at STPH, several tests and X-rays were ordered, including X-rays of her left ankle. Upon examining the X-rays of her ankle, emergency room physician Dr. Nicolas Gorton did not perceive any fractures. Therefore, he diagnosed an ankle sprain and ordered that a gel splint be applied. Dr. Gorton also diagnosed a possible seizure as the cause of Ms. Ketchum's loss of consciousness.

Shortly thereafter, Ms. Ketchum was discharged from the emergency room with written discharge instructions. The preprinted portion of these instructions stated that she should apply ice to her sprained ankle and keep it elevated for the "first 24-48 hours." It further provided that, in the event she experienced "numbness, swelling, [or] increased pain," she should contact her doctor or return to the emergency room. The handwritten portion of the instructions further directed that, on the Monday after discharge, Ms. Ketchum was to follow up with Dr. Landers, her primary care physician, and Dr. Ganji, a neurologist she had previously seen. It further cautioned Ms. Ketchum not to drive or do any other activity that would be dangerous should she lose consciousness again. According to Dr. Gorton, he also verbally instructed Ms. Ketchum to follow up with Dr. Landers specifically for her ankle injury, but to follow up with Dr. Ganji regarding the possible seizure. Dr. Gorton further instructed Ms. Ketchum to refrain from bearing weight on her ankle until she was able to follow up with Dr. Landers. Following her discharge, Ms. Ketchum's parents drove her to their home, rather than her apartment, so that they could care for her and monitor her for seizures.

On Monday, February 16, 2004, Ms. Ketchum did not contact Dr. Ganji. Instead, she called Dr. Landers, seeking only a referral to another neurologist. During this call, Ms. Ketchum made no mention of her sprained ankle nor did she make an appointment with Dr. Landers to have her ankle examined. Pursuant to her request, Dr. Landers referred Ms. Ketchum to neurologist Dr. Michael Fischer.

That same Monday, pursuant to STPH policy, the X-rays of Ms. Ketchum's ankle were forwarded to STPH's radiology department for review. A radiologist, Dr. Lynn McDougall, determined that Ms. Ketchum's ankle was not sprained but was actually fractured in three places. Specifically, Dr. MacDougall noted "avulsion fractions involving both the medial and lateral malleoli and ... [a] comminuted fracture of the medial aspect of the talus."

In accordance with STPH policy, the emergency room nurse manager, Mark Stephens (Nurse Stephens), was charged with contacting Ms. Ketchum to notify her of the radiology "overread," inform her that her ankle was fractured, and provide her with appropriate instructions. Such instructions would have included advising her not to bear weight on her ankle and to follow up with her primary care physician. STPH policy required Nurse Stephens to make three attempts to contact Ms. Ketchum by telephone. If he was unable to establish telephone contact, he was required to send her notification by certified mail. STPH's telephone records indicate that a 44-second telephone call (including ring time) was made to the telephone number at Ms. Ketchum's apartment on Tuesday, February 17, 2004, and that a 30-second telephone call (including ring time) was made to this number on Wednesday, February 18, 2004. According to the records, no further calls were made to Ms. Ketchum's number.¹ Nor was a certified letter sent to Ms. Ketchum. The parties dispute whether Nurse Stephens actually achieved the required contact with Ms. Ketchum on February 18.

1 Although not required by policy, the evidence in the record established that when there was a lack of success in achieving telephone contact with patients at their home, calls were often made to the patients' emergency contacts listed on the "face sheet" of their record, or by placing calls or faxing reports to their primary care physicians. None of these resources was pursued in this case.

According to Ms. Ketchum, she remained non-weight bearing on her ankle until February 20, 2004, when her parents brought her to her appointment with Dr. Fischer. Approximately two weeks later, on March 7, 2004, Ms. Ketchum entered DePaul Tulane Behavioral Health Center (DePaul), an in-patient rehabilitation facility, to undergo treatment for substance abuse. She and her parents maintain that, from the time she was discharged from the emergency room at STPH until the time she was admitted to DePaul, she resided solely at her parents' home and made no trips to her own apartment. Her father, however, would make occasional trips to her apartment mailbox to retrieve her mail.

Upon her admission to DePaul, Ms. Ketchum underwent a physical exam and was questioned about her medical history. The pertinent record indicates that Ms. Ketchum reported that she had been in a motor vehicle accident and had suffered a sprained ankle, but that the emergency room X-rays were negative for any evidence of fracture. On March 9, 2004, a nurse at the facility expressed concern about Ms. Ketchum's ankle and brought her to the emergency room at Tulane University Hospital and Clinic (Tulane). At Tulane, X-rays were taken of her left ankle. The subsequent X-ray report noted a "fracture involving the dome of the talus with bony fragmentation. ... Additionally, there is a sclerotic appearance of the superior portion of the talus consistent with avascular necrosis." According to the record, avascular necrosis, or AVN, is a serious condition involving necrosis of the bone due to deficient blood supply. See Ida G. Dox, et al., Attorney's Illustrated Dictionary A85 (1997). Ms. Ketchum was informed of the fracture, placed in a posterior splint, and discharged with instructions to follow up with an orthopedist. The Tulane emergency room physician noted that Ms. Ketchum had been ambulating "until now" and instructed her to be non-weight bearing until she could see an orthopedist. The nurse from DePaul informed the emergency room physician that the facility had a walker that Ms. Ketchum could use.

On March 18, 2004, Ms. Ketchum was examined by orthopedist Dr. Raoul Rodriguez. According to the history she gave to Dr. Rodriguez, she was unaware she had a fracture until her visit to Tulane's emergency room. Dr. Rodriguez ordered additional X-rays. They revealed a fracture at the neck of the talus with displacement of the distal fragment and increased bone density in the body of the talus. This appeared to him to be indicative of early avascular necrosis. He recommended Ms. Ketchum undergo ankle fusion surgery.

Ms. Ketchum sought a second opinion from another orthopedist, Dr. Mark Hontas, who noted that Ms. Ketchum had been using a wheelchair and a walker. Dr. Hontas ordered an MRI of her ankle that was performed on April 5, 2004. The MRI indicated that she had a fracture through the neck of the talus with a collapse of the talus in its vertical height and suggested early osteonecrosis (or avascular necrosis) at the dome of the talus. On April 13, 2004, Ms. Ketchum returned to Dr. Hontas' office. According to his notes, Dr. Hontas recommended that Ms. Ketchum be completely nonweight bearing, but she told him that "she can't do that." Dr. Hontas placed Ms. Ketchum in a surgical boot and told her to return in one month.

On May 7, 2004, Ms. Ketchum sought a third opinion from orthopedist Dr. Melvin Parnell. Five days later, Dr. Parnell performed a closed reduction on Ms. Ketchum's ankle. For approximately a year and a half, Dr. Parnell treated Ms. Ketchum's ankle conservatively. However, because she experienced limited improvement, he ultimately referred her back to Dr. Rodriguez for fusion surgery.

Ms. Ketchum revisited Dr. Rodriguez in June 2006, and he again recommended fusion surgery to address the avascular necrosis of her talus. On October 11, 2006, Dr. Rodriguez performed a tibiotalocalcaneal fusion on Ms. Ketchum's left foot and ankle with an intramedullary rod fixation and bone graft. Essentially, Dr. Rodriguez removed the dead portion of the talus and inserted a rod to fuse her ankle to her foot. As a result of the surgery, Ms. Ketchum's left leg is now one inch shorter than her right leg and she has extremely limited motion in her left ankle. Moreover, as a consequence of the surgery, Ms. Ketchum was required to undergo physical therapy and pain management treatment.

After submitting the matter to a Medical Review Panel, Ms. Ketchum filed suit against STPH alleging that STPH, through its nurse, Mark Stephens, had breached the standard of care by failing to inform her of the fracture and that this failure to inform caused her to sustain severe injury and permanent impairment.² Essentially, Ms. Ketchum asserted that due to STPH's failure to notify her that her foot was fractured, she continued to walk on her ankle and go without proper orthopedic care. As a consequence, her fracture worsened, and she subsequently developed avascular necrosis, which necessitated fusion surgery.

2 Ms. Ketchum's suit originally named several defendants, including Dr. Gorton; however, she dismissed her claims against all defendants except STPH prior to trial.

A one-day bench trial was held on February 28, 2012. At the outset, the parties stipulated that the applicable standard of care required Nurse Stephens to contact Ms. Ketchum and notify her that she had a fractured ankle. The parties then presented evidence on the remaining issues.

On April 25, 2012, the trial court issued written reasons for judgment in which it concluded that Nurse Stephens had failed to contact Ms, Ketchum, thereby breaching the applicable standard of care. It further found that this breach caused Ms. Ketchum to suffer injury. Based upon the medical evidence., the trial court found that, upon her discharge from STPH's emergency room, Ms. Ketchum had a Type I fracture, which, if correctly treated, only had a 10% risk of developing avascular necrosis. However, the X-rays taken in Tulane's emergency room showed that Ms. Ketchum's fracture had become a Type II fracture, which increased the possibility of developing avascular necrosis to 40% to 50%. The trial court concluded that the change from a Type I fracture into a Type II fracture was caused by Ms. Ketchum continuing to walk on her ankle, because she was unaware thai: she had a fracture. However, the trial court found that Ms. Ketchum's failure to follow instructions also contributed to her injury. After denoting the standard for a comparative fault analysis, the trial court allocated 40% fault to STPH and 60% fault to Ms. Ketchum. The trial court then awarded Ms. Ketchum general damages in the amount of $75,000, which was reduced to $30,000 due to the amount of fault attributable to her.

The trial court further stated that while Ms. Ketchum presented medical expenses totaling in excess of $260,000, it found that this amount included expenses unrelated to her ankle injury. It also concluded that Ms. Ketchum was a Medicaid recipient and that medical expenses related to her ankle included "amounts that were 'written-off' by the health care providers when accepting Medicaid as payment in full." Therefore, pursuant to Bozeman v. State, 03-1016 (La. 7/2/04), 879 So.2d 692, it purported to deduct these "written-off" amounts from the relevant expenses. Ultimately, the trial court determined that Ms. Ketchum's medical expenses totaled $70,429.10, with STPH's portion being $28,171.64.

On June 18, 2012, the trial court signed a judgment in accordance with its written reasons. From this judgment, STPH appeals, asserting that the trial court erred: (1) in determining that STPH, through its nurse manager, Mark Stephens, failed to notify Ms. Ketchum about the change in her radiology results, thereby breaching the applicable standard of care; (2) in determining that any such breach was a cause in fact of any injuries or damages sustained by Ms. Ketchum; and (3) in failing to allocate any degree of fault to Dr. Gorton for failing to identify and diagnose the ankle fracture prior to Ms. Ketchum's discharge from the emergency room.

Ms. Ketchum has answered STPH's appeal, arguing that the trial court erred in failing to award her adequate general and special damages. She further asserts that the trial court erred in determining that she was 60% at fault.

APPLICABLE LAW

Standard of Review

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Morris v. Safeway Ins. Co. of Louisiana, 03-1361 (La. App. 1st Cir. 9/17/04), 897 So.2d 616, 617, writ denied, 04-2572 (La. 12/17/04), 888 So.2d 872. In order to affirm the factual findings of the trier of fact, the supreme court posited a two-part test for the appellate review of facts: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact; and (2) the appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Thus, if there is no reasonable factual basis in the record for the trier of fact's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep't of Transp. and Dev., 617 So.2d 880, 882-83 (La. 1993); Moss v. State, 07-1686 (La. App. 1st Or. 8/8/08), 993 So.2d 687, 693, writ denied, 08-2166 (La. 11/14/08), 996 So.2d 1092. If the trial court's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Hulsey v. Sears. Roebuck & Co., 96-2704 (La. App. 1st Cir. 12/29/97), 705 So.2d 1173, 1176-77. However, an appellate court may find manifest error or clear wrongness in a finding purportedly based upon a credibility determination, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story. Id. at 1177.

Due to the trial court's opportunity to evaluate live witnesses or to evaluate a mixture of deposition and live testimony, great deference is accorded to the trial court's factual findings. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La. 1990). Where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

Further, a trial court may accept or reject in whole or in part the opinion expressed by an expert; such testimony is to be weighed the same as any other evidence. Matherne v. Barnum, 11-0827 (La. App. 1st Cir. 3/19/12), 94 So.3d 782, 790, writ denied, 12-0865 (La. 6/1/12), 90 So.3d 442. The weight to be given to the testimony of experts is largely dependent upon their qualifications and the facts upon which their opinions are based. Ponthier v. Vulcan Foundry. Inc., 95-1343 (La. App. 1st Cir. 2/23/96), 668 So.2d 1315, 1317. In evaluating the testimony of medical experts, the trial court must consider the opportunities each physician had for observation and examination of the patient and the expert's familiarity with the patient and his or her history. Woods v. Petroleum Helicopters, Inc., 415 So.2d 978, 982 (La. App. 1st Cir. 1982). Therefore, a treating physician's opinion is generally given more weight than a non-treating physician. Pontbier, 668 So.2d at 1317. Medical Malpractice

To establish a medical malpractice claim against a physician, a plaintiff must establish by a preponderance of the evidence the applicable standard of care, a breach of that standard of care, and a causal connection between the breach and the plaintiffs resulting injuries. See LSA-R.S. 9:2794(A). Nurses who perform medical services are subject to the same standards of care and liability as are physicians. Johnson v. Morehouse General Hosp., 10-0387 (La. 5/10/11), 63 So.3d 87, 96; Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 661 (La. 1989).

A hospital may be liable for the negligence of its employees, including its doctors and nurses. See Grimes v. Louisiana Medical Mut. Ins. Co., 09-0292 (La. App. 1st Cir. 9/11/09), 29 So.3d 505, 508; see also Bolton v. Willis-Knighton Medical Center, 47,923 (La. App. 2nd Cir. 4/24/13), 116 So.3d 76, 83, writs denied, 13-1307 and 1308 (La. 9/20/13), 123 So 3d 176. Consequently, in a medical malpractice action against a hospital, the plaintiff is required to prove by a preponderance of the evidence that the hospital owed the plaintiff a duty to protect him against the risk involved (or the applicable standard of care), and that the plaintiff was injured when the hospital breached its duty. See Johnson, 63 So.3d at 96; see also Grimes, 29 So.3d at 508.

Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached. See Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 884. When a causal connection between the act and injury is not obvious, expert testimony is also required to establish whether a breach of the standard of care caused injury to the plaintiff. Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002, 1009. Comparative Fault

Louisiana Civil Code article 2323 governs the application of comparative fault. It states, in pertinent part:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.

Because the finding of percentages of fault is a factual determination, the trier of fact is owed some deference in its allocation of fault. Duncan v. Kansas City S. Ry. Co., 00-0066 (La. 10/30/00), 773 So.2d 670, 680, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Thus, a trier of fact's allocation of fault is subject to the manifest error or clearly wrong standard of review. See Stobart, 617 So.2d at 882. Allocation of fault is not an exact science or the search for one precise ratio, but rather an acceptable range, and any allocation by the fact finder within that range cannot be clearly wrong. Foley v. Entergy Louisiana, Inc., 06-0983 (La. 11/29/06), 946 So.2d 144, 166. Only after making a determination that the trier of fact's apportionment of fault is clearly wrong can an appellate court disturb the apportionment, and then only to the extent of lowering it or raising it to the highest or iowest point respectively that is reasonably within the trier of fact's discretion. Clement v. Frey, 95-1119 (La. 1/16/96), 666 So.2d 607, 611.

In Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985), the supreme court articulated the factors appropriate for consideration in allocating fault between two or more parties, as follows:

In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Special Damages

A plaintiff may recover reasonable medical expenses that he incurs as a result of his injury. See Mack v. Wiley, 07-2344 (La. App. 1st Cir, 5/2/08), 991 So.2d 479, 489, writ denied, 08-1181 (La. 9/19/08), 992 So.2d 932. Special damages are those damages that can be determined with some degree of certainty and include past and future medical expenses. Richardson v. Christus Schumpert Health System, 47,776 (La. App. 2nd Cir. 2/27/13), 110 So.3d 264, 274, writ denied, 13-0621 (La. 4/19/13), 112 So.3d 228. A plaintiff bears the burden of proving special damages by a preponderance of the evidence, and a trial court's award of special damages is subject to the manifest error standard of review. Id. A. Past Medical Expenses

When claims for accrued medical expenses are supported by medical bills, these expenses should be awarded unless there is contradictory evidence or reasonable suspicion that the bills are unrelated to the defendant's negligence. See Mack, 991 So.2d at 489. The failure of the trial court to award the full amount of medical expenses proven by a plaintiff is error. Montgomery v. Keday, 44,601 (La. App. 2nd Cir. 8/26/09), 21 So.3d 980, 987, writ denied, 09-2110 (La. 11/25/09), 22 So.3d 167. B. Future Medical Expenses

As special damages, future medical expenses must be established with some degree of certainty, and a plaintiff must demonstrate that such expenditures will, more probably than not, be incurred as a result of the injury. Menard v. Lafayette Ins. Co., 09-1869 (La. 3/16/10), 31 So.3d 996, 1006. The proper standard for determining whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence that the future medical expenses will be medically necessary. Id. An award of future medical expenses is justified if there is medical testimony that they are indicated and that sets out their probable cost. Hanks v. Seale, 04-1485 (La. 6/17/05), 904 So.2d 662, 672. The trial court should award all future medical expenses that the medical evidence establishes that the plaintiff, more probably than not, will be required to incur. Hymei v. HMO of Louisiana. Inc., 06-0042 (La. App. 1st Cir. 11/15/06), 951 So.2d 187, 206, writ denied, 06-2938 (La. 2/16/07), 949 So.2d 425. When the record establishes that future medical expenses will be necessary and inevitable, courts should not reject the award because the record does not provide the exact value, if the court can determine from the record, past medical expenses, and other evidence a minimum amount that reasonable minds could not disagree would be required. Levy v. Bavou Indus. Maint. Services. Inc., 03-0037 (La. App. 1st Cir. 9/26/03), 855 So.2d 968, 975, writs denied, 03-3161 and 03-3200 (La. 2/6/04), 865 So.2d 724 and 727. General Damages

General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La. App. 1st Cir.), writs denied, 605 So.2d 1373 and 1374 (La. 1992). The factors to be considered in assessing quantum of damages for pain and suffering are severity and duration. Jenkins v. State ex rel. Dep't of Transp. and Dev., 06-1804 (La. App. 1st Cir. 8/19/08), 993 So.2d 749, 767, writ denied, 08-2471 (La. 12/19/08), 996 So.2d 1133. Much discretion is left to the judge or jury in the assessment of general damages. LSA-C.C. art. 2324.1. Thus, the abuse of discretion standard of review applies when an appellate court examines a fact finder's award of general damages. Wainwright v. Fontenot, 00-0492 (La, 10/17/00), 774 So.2d 70, 74.

It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances, that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Only after it has been determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La. 1976).

ANALYSIS

Medical Malpractice

In the present medical malpractice action, the parties agree that the applicable standard of care required STPH, through its employee Nurse Stephens, to contact Ms. Ketchum and inform her that her ankle was fractured and provide her with appropriate instructions. However, the parties dispute whether such contact occurred. STPH maintains that Nurse Stephens made telephone contact with Ms. Ketchum at her apartment on February 18, 2004. Ms. Ketchum maintains that she could not have received this call because she was not at her apartment but was at her parent's home.

In its first assignment of error, STPH argues that the trial court erred in finding that Nurse Stephens failed to notify Ms. Ketchum. Specifically, STPH maintains that the trial court improperly credited Ms. Ketchum's testimony, since at trial she admitted to having made false statements in an earlier deposition regarding her prior substance abuse. However, after a thorough review of the record, we cannot say that the trial court was manifestly erroneous in concluding that Nurse Stephens failed to contact Ms. Ketchum.

At the outset, we note that Ms. Ketchum's testimony regarding her lack of notification was consistent. More importantly, Ms. Ketchum's testimony in this regard was completely corroborated by that of her father, who maintained that she never returned to her apartment and resided solely at his home until her admission to DePaul. Therefore, simply crediting her father's testimony alone, the trial court could reasonably conclude that Ms. Ketchum was not contacted by phone at her apartment on February 18, 2004, as STPH contends.

Even so, we note that Nurse Stephens had no recollection of having called Ms. Ketchum. Moreover, STPH was never able to produce the "Overread Document" (or "Discrepancy Form")³ upon which Nurse Stephens was required to document his contact attempts. Nevertheless, Nurse Stephens testified that he must have made telephone contact with Ms. Ketchum at her apartment on February 18, 2004, based on an entry he made in the "Emergency Department Call Back Log" (Log). The Log entry was dated February 18, 2004, and contains Ms. Ketchum's name and the notation "followed up [with] PCP" and gives a completion date of February 20, 2004. Based on this entry, Nurse Stephens maintained that he must have spoken with Ms. Ketchum on February 18, 2004, at which time she told him that she had already followed up with her primary care physician. However, Nurse Stevens had previously submitted an affidavit to the medical review panel, presumably based on the same Log entry, which was inconsistent with his trial testimony. In his affidavit, he indicated that he attempted to make telephone contact with Ms. Ketchum on February 18, 2004, and successfully contacted her on February 20, 2004. At trial, he explained the discrepancy by stating that his affidavit contained "a clerical error." He suggested this error was probably due to a misinterpretation of the Log.

3 Pursuant to STPH's policy, Addendum K, entitled "ED PATIENT NOTIFICATION OF TEST RESULTS," the Nurse Manager was required to document all attempted notifications as well as any discussion with the patient on the overread or discrepancy form. " It further provided that the discrepancy form was "to be filed in the patient's medical record after completion of the three notification attempts."

Based on the foregoing, we cannot say that the trial court made an improper credibility determination as STPH contends. Indeed, the trial court's conclusion that Nurse Stephens failed to contact Ms. Ketchum is reasonably supported by, and consistent with, documents and other objective evidence presented at trial. Medical records, such as Ms. Ketchum's admission record to DePaul, as well as the medical histories she gave subsequent doctors, repeatedly indicate that she was unaware that her ankle was fractured until she was examined at Tulane on March 9, 2004. In addition, STPH's telephone records show that the duration of the telephone call that was placed to Ms. Ketchum's number on February 18, 2004, was only 30 seconds, including ring time. It would not be unreasonable to conclude that this length of time was insufficient to make contact and convey the necessary information.⁴ Accordingly, we find STPH's first assignment of error to be without merit.

4 At a minimum, such a phone call would entail: ringing until an individual answered; Nurse Stevens requesting to speak with Ms. Ketchum; Ms. Ketchum either confirming her identity or being retrieved by another individual; then Nurse Stevens identifying himself as being from the hospital; explaining to Ms. Ketchum that her ankle was not sprained but was fractured, instructing her not to bear any weight on the ankle and further instructing her to follow up with her doctor; and then Ms. Ketchum informing Nurse Stephens that she had already followed up with her primary care physician. Nurse Stephens also testified that he would have informed patients that they could obtain a copy of their record.

Alternatively, in its second assignment of error, STPH argues that the trial court was clearly wrong in determining that its breach was a cause in fact of Ms. Ketchum's injuries. In making this determination, it is evident that the trial court credited the testimony of Ms. Ketchum's expert witness and treating physician, Dr. Parnell.

Dr. Parnell testified that the X-rays taken at STPH on February 13, 2004, revealed a Type I non-displaced fracture that had only a 10% risk of developing AVN. He explained that once there is any displacement of the bone, it becomes a Type II fracture, which has a 40% to 50% chance of developing into AVN. According to Dr. Parnell, the X-rays taken at Tulane on March 9, 2004, indicate that a displacement had occurred and that Ms. Ketchum's fracture had progressed to a Type II fracture. He maintained that the progression of a Type I fracture into a Type II fracture "changed the prognosis markedly." He opined that this displacement, caused by walking on her ankle, contributed more to Ms. Ketchum's AVN and need for subsequent surgery than the initial fracture did,

On appeal, STPH does not contest Dr. Parnell's testimony. Rather, it argues that Ms. Ketchum's failure to follow medical instructions, both prior and subsequent to learning of the fracture on March 9, 2004, was the primary cause of her injury. STPH argues that because Ms. Ketchum "was willfully non-compliant and ignored doctors' orders," it is "likely [she] would have sustained the same injuries and damages even if ... [it had] timely notified her about her ankle fracture."

In support of its argument, STPH makes numerous factual allegations. However, based on an exhaustive review of the record, we find several of these allegations to be without basis. For instance, STPH contends that, after her discharge from the emergency room at STPH, Ms. Ketchum suffered increased pain in her ankle and that her failure to comply with the preprinted discharge instructions to call her doctor or return to the emergency room if she suffered "increased pain" was the "clearest and most immediate cause of any resultant damage" she suffered. Specifically, STPH claims that Ms. Ketchum testified at trial that, following her discharge, her pain never decreased and "if anything, it got worse." STPH previously made this assertion in its post-trial memorandum and the trial court apparently incorporated it into its written reasons for judgment. However, a review of the record indicates that Ms. Ketchum made no such statement. Apparently, certain testimony by her father was mistakenly attributed to her. The pertinent testimony given by her father was, as follows:

Q. Was it your testimony that Kathy's pain level when she came home from the hospital was very high?
A. Yes.
Q. Did it get any better over the weekend, through Monday morning?
A. It didn't get any better. If anything, it got worse.

*****
Q. If anything, the pain got worse?
A. It was high and it stayed high, is my answer.

Similarly, Mr. Ketchum had earlier testified, as follows:

Q. The discharge instructions say that if you have swelling, increased pain, ... to call your local doctor or emergency department. Did you ever think about telephoning St. Tammany Parish Hospital emergency room?
A. No. The instructions said if the pain got worse or the swelling got worse. The pain was at a high level all the time, and the swelling was there all the time. There was no change in that.

Ms. Ketchum never testified that she had an increase in pain. Therefore, we find no merit in STPH's assertion that Ms. Ketchum willfully disregarded medical instructions to seek medical help for an increase in pain.

In another instance of Ms. Ketchum's alleged disregard of doctor's orders, STPH argues that during her visit with Dr. Rodriguez on March 15, 2004, he recommended that Ms. Ketchum undergo fusion surgery "right away." STPH further asserts that he ordered an MR1 of Ms. Ketchum's ankle, but that she did not have the test performed. However, STPH's allegation that Ms. Ketchum wilfully ignored Dr. Rodriguez's orders is not substantiated by the record. In Dr. Rodriguez's notes for the visit, which occurred on March 18, 2004, he in no way indicated the need for surgery "right away." On the contrary, while he stated he believed that fusion surgery would be suitable for Ms. Ketchum, he indicated that he wanted to have an MRI done for further evaluation. Furthermore, the record reflects that Ms. Ketchum chose to get a second opinion. Therefore, she consulted with Dr. Hontas and had an MRI performed on April 5, 2004.

Finally, STPH asserts that Ms. Ketchum had been instructed by Dr. Rodriguez to remain non-weight bearing on her left ankle. However, STPH points out that when she was seen by Dr. Hontas on March 31, 2004, he noted that she had been using "both a wheelchair and a walker." (Emphasis supplied.) In stressing the word "walker," STPH is apparently insinuating that the use of a walker was non-compliant with Dr. Rodriguez's non-weight bearing instruction. The trial court's written reasons for judgment also include this statement. However, the record is replete with instances indicating that the use of a walker would be consistent with non-weight bearing instructions. In fact, Dr. Rodriguez's discharge summary for Ms. Ketchum, following her fusion surgery, indicated "non-weightbearing left lower extremity" and noted that at the time of her discharge she "was ambulating well with a walker." Therefore, it can hardly be said that Ms. Ketchum's use of a walker was done in defiance of Dr. Rodriguez's instructions. Additionally, the records for Ms. Ketchum's visit to the Tulane emergency room contain the notation: "[Ms. Ketchum] was told no weightbearing until she follows up with orthopedics in 1 [week]. DePaul has a walker that she may use." Thus, the use of a walker was obviously deemed to comply with those instructions. Indeed, at trial, Dr. Parnell testified that for non-weight bearing instructions, the use of crutches or a walker would be appropriate. Dr. Parnell opined that, if a patient does not want to use crutches, a walker or wheelchair should be used. Based on the foregoing, we cannot say that Ms. Ketchum's use of a walker constituted a blatant disregard of medical orders as STPH contends.

Lastly, STPH contends that the medical testimony establishes that changes between the X-rays taken at Tulane on March 9, 2004, and the X-rays taken on April 5, 2004, were consistent with Ms. Ketchum's having continued to walk on her left ankle after she became aware of the fracture. Both plaintiff's expert, Dr. Parnell, and defense expert, Dr. Gosey, testified that the changes between the two sets of X-rays would be consistent with a patient who continued to walk on the fractured ankle. But they both stated that the changes would likewise be consistent with the presence of avascular necrosis. In light of the foregoing, we cannot say that Ms. Ketchum evidenced such willful disregard for medical orders that she would have necessarily incurred the same damages even if she had been timely notified by STPH of her fracture. Consequently, we find no error in the trial court's conclusion that STPH's breach was a cause in fact of Ms. Ketchum's AVN. Thus, STPH's second assignment of error is without merit.

In its third assignment of error, STPH contends that the trial court erred in failing to allocate any fault to Dr. Gorton for failing to identify and diagnose the fracture while Ms. Ketchum was in the emergency room. However, before any fault could have been allocated to Dr. Gorton, it would have been necessary to establish the standard of care applicable to him and a breach of that standard. Not only did STPH fail to establish the standard of care applicable to an emergency room physician, as required by LSA-R.S. 9:2794(A)(1), but STPH's own medical expert, orthopedist Dr. Gosey, testified that the fracture in question was "subtle" and that Dr. Gorton was not at fault in making the preliminary read because he is not a board certified radiologist. Ms. Ketchum's medical experts likewise opined that there was no breach by Dr. Gorton. Therefore, lacking any medical evidence in the record that Dr. Gorton breached the applicable standard of care owed by him, we find no error on the part of the trial court in failing to assess Dr. Gorton with a percentage of fault. Consequently, we find STPH's third assignment of error to be without merit. Comparative Fault

In her answer to STPH's appeal, Ms. Ketchum argues that the trial court erred in finding her to be 60% at fault. The trial court's written reasons pertaining to the issue of comparative fault included a recitation of facts on which it apparently relied in making its decision. It provides, in part:

The evidence ... established that emergency room physician, Dr. Gorton, instructed Ms. Ketchum to follow up with her primary care physician, Dr. Landers, for the ankle and other injuries she suffered in the accident. She did not follow Dr. Gorton's discharge instructions. The written discharge instructions given to Ms. Ketchum directed her to call her doctor or return to the emergency room "if you have swelling, numbness, increased pain...[.]" Ms. Ketchum testified that the pain in her ankle never decreased in the days following her discharge from the emergency room, and "if anything, it got worse." She did not follow the written discharge instructions and return to the hospital, or seek further care from a physician for her ankle.
On March [18], 2004, Dr. Rodriguez instructed Ms. Ketchum to remain non-weight bearing on the ankle. When she was seen by Dr. Hontas on March 31, 2004, he noted that she had been using both a wheelchair and a walker. On April 13, 2004, Dr. Hontas noted that he "recommended complete non-weight bearing but she says she can't do that." The evidence established that apparent changes between the X-rays taken on March 9, 2004 and on [April 5, 2004] were consistent with Ms. Ketchum haying continued to walk on the left ankle in the interim, when she was aware of the. fracture, and had been instructed to be completely non-weight bearing.

However, we have previously addressed the error of attributing testimony about an increase in pain to Ms. Ketchum. Furthermore, with regard to Ms, Ketchum's use of a walker, we have also noted that its use was apparently in compliance with the instructions she had received at Tulane and from Dr. Rodriguez.

Therefore, we proceed to address the remaining facts cited by the trial court. The evidence, as found by the trial court, established that Ms. Ketchum had been instructed to follow up on Monday, February 16, 2004, with Dr. Landers, her primary care physician, regarding her ankle. Ms. Ketchum clearly failed to do this. At trial, neither Dr. Gosey nor Dr. Parnell could say what Dr. Landers, as a primary care physician, would have done in terms of treatment or diagnosis. However, the record establishes that it was medically appropriate for Dr. Gorton to instruct Ms. Ketchum to follow up with a physician regarding her ankle. Obviously, there was a definite need or purpose for this follow-up, since the standard of care required it. In addition, Dr. Parnell testified that the internists that he works with would not hesitate to refer patients with suspicious sprains to an orthopedist and that he, as an orthopedist, gets such calls all the time.

The trial court also relied on medical testimony regaining the undisputed progression of Ms. Ketchum's fracture as evidenced by changes between the X-rays taken on March 9, 2004, when Ms. Ketchum learned of the fracture, and the X-rays taken on April 5, 2004. Defense expert Dr. Gosey testified that the changes were consistent with two things: avascular necrosis and continuing to walk on the ankle. Plaintiff's expert Dr. Parnell testified that walking on the injured ankle would be one possible explanation for the changes. When questioned by the court as to other possible causes, he replied: "Just progression of the fracture. If she developed avascular necrosis things will change and things will collapse." Even though Ms. Ketchum's fracture had already progressed to a Type II fracture by the time she became aware of it, Dr. Parnell stated that further displacement caused by weight bearing would further increase the risk of AVN. Specifically, Dr. Parnell testified that "if you continue to bear weight and that causes increased displacement of the fracture, then that increases the risk of avascular necrosis, which would decrease the prognosis." Likewise, plaintiff's expert Dr. Tager, a podiatrist, agreed that the progression of Ms. Ketchum's injury could have been caused by her continuing to walk on her ankle and further opined that the risk of additional injury from weight bearing was greater with a Type II fracture than with a Type I fracture. Finally, and most significantly, on April 13, 2004, more than a month after Ms. Ketchum was informed of the fracture and instructed to be non-weight bearing, Dr. Hontas made the following notation: "I have recommended complete nonweightbearing [sic] but she says she can't do that." Accordingly, Dr. Hontas placed Ms. Ketchum in a boot. According to Dr. Parnell, if Ms. Ketchum was weight bearing in that boot, that would increase her risk of developing avascular necrosis.

Based on the foregoing, we find that it was reasonable for the trial court to conclude that Ms. Ketchum had failed to be completely non-weight bearing after learning of her fracture. Moreover, we find that the trial court was not clearly wrong in determining that Ms. Ketchum was partially at fault for her avascular necrosis. In doing so, we note that while the March 9, 2004 X-ray report noted "Sclerotic appearance of ... portion of the talus consistent with avascular necrosis," there was no definitive diagnosis of AVN in March.2004. The testimony of both defendant's expert, Dr. Gosey, and plaintiff's expert, Dr. Parnell, effectively established that this notation suggested the possibility of AVN but did not mean she actually had it.

Specifically, with regard to the March 9, 2004 X-ray report, Dr. Gosey testified: " 'Consistent with' does not mean that she has avascular necrosis." He contended that the only way to diagnosis AVN early is with an MRI, and that no diagnosis of AVN could be made from just an X-ray. According to Dr. Gosey, there was no obvious AVN in the March 9, 2004 X-rays, but he testified that AVN does appear in the MRI conducted in April 2004.

Moreover, Dr. Parnell reviewed X-rays taken on April 5, 2004 (almost one month after the March 9, 2004 X-rays). When asked if AVN was already present, Dr. Parnell testified: "There's the suggestion that she has that going on. But sometimes we also get revascularization. But that may take three to four years." Dr. Parnell agreed with Dr. Gosey that the standard for diagnosis of AVN is usually an MRI; nevertheless, with respect to the April 2004 MRI report, he noted that the report "says there's concern [or] there's suggestion of [AVN]. But it's not with a hundred percent certainty." Furthermore, in Ms. Ketchum's medical records from Dr. Parnell's office, Dr. Parnell's note dated August 5, 2004, stated "that only time will tell if she develops" AVN of the talus. Accordingly, we find no merit: in any assertion by Ms. Ketchum that any or all AVN had absolutely occurred as of March 9, 2004, when she learned of the fracture, thereby precluding her from contributing to her injury. Indeed, Ms. Ketchum's own expert and treating physician, Dr. Parnell, clearly testified that continued weight bearing after March 9, 2004, would increase her risk of developing AVN.

Nevertheless, Ms. Ketchum maintains the trial court was clearly wrong in finding her to be 60% at fault in light of the jurisprudential factors for determining the allocation of fault. She maintains that she possesses inferior capacity since she was diagnosed as a child with minimal brain dysfunction and having special needs. She maintains that she followed the initial discharge instructions by keeping her foot elevated for 48 hours and actually stayed off of her foot for an entire week. She did not seek further medical care because her pain did not worsen. Although she failed to follow up with Dr. Landers on the following Monday, she merely thought she had a bad sprain that would take a while to heal, and had no awareness of the potential danger. Her primary concern at that time was seeking treatment for seizures. When she did learn of the fracture, she pursued orthopedic care.

In contrast, she urges that STPH was in a superior capacity because it possessed knowledge of the X-ray "overread," as well as the ability to inform her of it. Moreover, STPH had a clear awareness of the danger the misdiagnosis presented and the need to make her aware of it, but failed to do so. She argues that had STPH sent her a certified letter alerting her of the fracture and instructing her to see an orthopedist, she likely would not have developed AVN.

Based on our review of the record, we agree with the trial court that some degree of fault must be attributed to Ms. Ketchum. Clearly, STPH was not at fault for the original Type I fracture that Ms. Ketchum sustained in her accident on February 13, 2004. As previously noted, this fracture already had a 10% chance of developing AVN. Moreover, Ms. Ketchum failed to follow up with Dr. Landers about her ankle as instructed. Finally, there was evidence to support a finding that even after being informed of the fracture, Ms. Ketchum continued to weight bear, thereby leading to a progression of her injury.

Nevertheless, we conclude that the trial court was manifestly erroneous in allocating a majority of the fault to Ms. Ketchum. Keeping in mind the factors set forth in Watson, 469 So.2d at 974, we note that STPH had knowledge of the X-ray overread indicating that Ms. Ketchum's foot was fractured. Without exception, all of the medical witnesses, as well as Nurse Stephens, stated that STPH had a duty to notify Ms. Ketchum about the overread, because of the danger presented to a patient who, unaware of a fracture, continued to bear weight. Thus, STPH had an awareness of the danger presented, as well as the risk created, by a failure to notify a patient that they had a fracture.

The minimum standard of care required three telephone calls, followed by a certified letter. Ms. Ketchum was neither notified by phone nor by certified mail. Unaware of the fracture, she continued to walk on her ankle and went without orthopedic care. Although she failed to follow up with Dr. Landers, it is uncertain whether such a follow-up would have definitively resulted in a diagnosis. Moreover, based on the X-rays, Dr. Parnell stated that the changes that occurred in Ms. Ketchum's ankle between February 13 and March 9 were greater than the changes that occurred between March 9 and April 5. Most significantly, by March 9, a displacement in the bone had occurred and the fracture had progressed from a Type I to a Type II fracture, making her four to five times more likely to develop AVN. Based on the record as a whole, we conclude that the highest percentage of fault that could have been attributed to Ms. Ketchum was 40%, and the judgment of the trial court must be amended accordingly. Special Damages

In her answer to STPH's appeal, Ms. Ketchum contends that the trial court erred in failing to award her certain special damages, namely, past and future medical expenses. A. Past Medical Expenses

Egan and STPH Expenses

Ms. Ketchum asserts that the trial court erroneously concluded that she was a Medicaid recipient and that, based on this premise, it improperly reduced her award for past medical expenses she incurred for physical therapy with Egan and for treatment at STPH. In its written reasons for judgment, the trial court, having determined that Ms. Ketchum was a Medicaid recipient, concluded that certain medical expenses related to her ankle included "amounts that were 'written-off by the health care providers when accepting Medicaid as payment in full." Therefore, citing Bozeman, 879 So.2d 692, it purported to deduct these "written-off" amounts from the Egan and STPH bills.

However, Ms. Ketchum contends that she "is not and never has been a 'Medicaid recipient.'" She maintains that "every one of her medical records" clearly identifies her insurance coverage as Medicare and Blue Cross/Blue Shield. She argues that the court in Bozeman made it clear that its holding was limited to "plaintiffs who receive Medicaid, not plaintiffs who receive Medicare or private insurance benefits." Bozeman, 879 So.2d at 705. Therefore, she contends that Bozeman is not controlling.

In Bozeman. the supreme court held that a plaintiff in a tort action who is a Medicaid recipient cannot recover Medicaid "write-off" amounts. Id. However, as noted by Ms. Ketchum, the holding is Bozeman is limited to Medicaid and is not applicable to a plaintiff who receives Medicare or private insurance benefits. Id.

At trial, Ms. Ketchum submitted bills from Egan totaling $4,480.00. From that amount, the trial court deducted a purported Medicaid write-off of $2,822.96 and awarded Ms. Ketchum $1,657.04. She also submitted a bill from STPH, dated April 5, 2004, in the amount of $1,467.00. From that amount, the trial court deducted $793.95,⁵ and awarded a total of $673.05. Accordingly, we must determine whether the trial court's deductions from the pertinent STPH and Egan bills were indeed Medicaid write-offs.

5 The trial court intended to deduct the amount of $989.53; however, due to an error, it only deducted $793.95.

At the outset, we note that Ms. Ketchum's extensive medical records repeatedly denote Medicare as her primary insurer and Blue Cross/Blue Shield as her secondary insurer. However, we disagree with Ms. Ketchum's contention that she is not and never has been a Medicaid recipient. Medical bills and records from Dr. Conn's office, including a document signed by Ms. Ketchum, indicate Medicaid as her tertiary insurer, and reveal payments made by Medicaid to Dr. Conn.

More significantly, the pertinent STPH bill, which Ms. Ketchum contends that the trial court improperly reduced pursuant to Bozeman, reflects a payment made by Medicaid on April 5, 2004, in the amount of $195.58. This payment was in addition to payments made by Medicare and Blue Cross/Blue Shield. But while the relevant STPH bill does show that adjustments were applied to the bill, it does not indicate whether any of these adjustments constituted a Medicaid write-off as opposed to a contractual adjustment made pursuant to her primary (Medicare) and secondary (Blue Cross/Blue Shield) insurance coverage, which are clearly recoverable. Therefore, given the absence of any evidence of a Medicaid write-off, we find that the trial court erred in deducting $793.95 from the April 5, 2004 STPH bill.

Furthermore, we note that the bills from Egan only implicate Ms. Ketchum's coverage by Medicare and Blue Cross/Blue Shield and do not include any mention of, or payments by, Medicaid, and thus, we find that the deduction of $2,822.96 from the Egan bills was likewise erroneous. Consequently, we find that the trial court judgment must be amended to award Ms. Ketchum an additional $3,616.91, the total amount improperly deducted from the Egan and STPH bills as Medicaid write-offs.

Lakeview Expenses

Ms. Ketchum next argues that the trial court erred in failing to award her medical expenses she incurred at Lakeview Regional Medical Center (Lakeview) between June 29, 2006, and March 23, 2007. She maintains these expenses were associated with her fusion surgery performed by Dr. Rodriguez.

STPH maintains that the trial court's refusal to award these expenses was proper because the medical record from Lakeview reflects that these costs were incurred due to an injury Ms. Ketchum sustained when she tripped over a food tray while visiting a patient and thus were unrelated to her ankle injury. However, after a thorough review of the record, we find absolutely no support for STPH's allegation of any such incident.

On the contrary, the record clearly demonstrates that in conjunction with her ankle fusion surgery, Dr. Rodriguez ordered Ms. Ketchum to undergo certain preoperative and post-operative X-rays and laboratory tests and that these procedures were performed at Lakeview on an outpatient basis. The dates for all of the tests and procedures that were performed at Lakeview between June 29, 2006, and March 23, 2007, coincide precisely with the orders dictated by Dr. Rodriguez. And all of the results generated by Lakeview for those procedures and tests are contained in Ms. Ketchum's medical record with Dr. Rodriguez. Accordingly, we find that the trial court erred in failing to award Ms. Ketchum medical expenses she incurred at Lakeview between June 29, 2006, and March 23, 2007. Consequently, we find that the trial court's judgment must be further amended to award Ms. Ketchum an additional $2,397.00, the total amount of those particular expenses.

Dr. Conn/Pain Management Expenses

Ms. Ketchum next contests the amount of past medical expenses the trial court awarded for her pain management treatment with Dr. Ann Conn.⁶ Ms. Ketchum's records from her treatment with Dr. Conn were submitted into evidence, along with three charts created by STPH summarizing this treatment.

6 Ms Ketchum has filed a motion for leave to file attachments with her appellate brief. The attachments are two charts which are offered "to assist this Court in understanding her argument in support of" this particular issue. These charts were not submitted to the trial court. Moreover, they are duplicative of evidence already in the record and are unnecessary for our resolution of this matter. Therefore, the motion is hereby denied.

The records indicate that at her initial visit with Dr. Conn on December 27, 2007, Ms. Ketchum's primary pain complaints were lower back pain, from which she had been suffering for about five years, as well as left foot pain. Consequently, Dr. Conn ordered an MRI of Ms. Ketchum's lumbar spine that indicated mild changes due to spondylosis. Spondylosis is an abnormal thickening and immobility of a vertebral joint. See Dox, Attorney's Illustrated Medical Dictionary at S58. Ms. Ketchum subsequently made numerous office visits to Dr. Conn. She also underwent several injection procedures performed by Dr. Conn. Ms. Ketchum readily admits many of these visits and procedures were unrelated to her ankle fusion.

In her answer to the appeal, she contends that the trial court, pursuant to its written reasons for judgment, intended to award her all expenses related to Dr. Conn's treatment of her "leg, ankle[,] or foot pain." However, she points out that the trial court awarded her $9,241.34, the total cost for all of her routine office visits with Dr. Conn. Consequently, she argues that the trial court failed to make any award for the injection procedures Dr. Conn performed on her or their associated surgical center costs. In so doing, Ms. Ketchum contends that the trial court erred in failing to tailor its award to comport with its stated intention to award her all costs related to her "leg, ankle[,] or foot pain."

Ms. Ketchum posits that the trial court awarded her for routine office visits unrelated to her leg, ankle, or foot pain.⁷ Indeed, in her brief to this court, she essentially contends that she was only entitled to be reimbursed for ten routine office visits.⁸ The total cost for these ten visits is $1,907.00. Thus, Ms. Ketchum effectively concedes that the trial court awarded her $7,334.34 more than she was entitled to receive in compensation for routine office visits.

7 In its appeal, STPH did not contest the amount awarded by the trial court for Ms. Ketchum's treatment with Dr. Conn.

8 The dates of these particular office visits were 12/27/06, 3/22/07, 7/12/07, 10/14/07, 10/17/07, 4/30/08, 11/26/08, 6/2/09, 7/31/09, and 1/12/10.

Nevertheless, Ms. Ketchum contends that the trial court erred in failing to award her nearly $50,000 for nine injection procedures⁹ performed by Dr. Conn and their associated surgery center costs, because they were performed on dates when she had complaints of leg, ankle, or foot pain. After an exhaustive review of the pertinent medical records, we find Ms. Ketchum's argument to be without merit.

9 According to Ms. Ketchum's brief, the dates for the nine procedures are 2/8/07, 2/23/07, 3/27/07, 4/13/07, 4/27/07, 5/15/07, 8/17/07, 12/28/07, and 1/11/08.

Ms. Ketchum is only entitled to recover medical expenses causally related to her ankle fusion. However, the medical records pertaining to these nine procedures clearly reflect that the diagnoses for these procedures were: lumbar spondylosis (2 procedures); sacroiliitis¹⁰ sacroiliac joint pain (1 procedure); lumbosacral spondylosis¹¹ (5 procedures); and lumbar radiculopathy¹² (1 procedure). Thus, eight of these procedures were for diagnoses related to her lumbar/lower back issues and one was for her complaints regarding her hips. These diagnoses do not, by definition, expressly implicate pain treatment for Ms. Ketchum's ankle fusion. Moreover, Ms. Ketchum had neither Dr. Conn nor any other medical expert offer testimony to establish that more probable than not that these particular treatments were a consequence of her ankle fusion as opposed to her pre-existing lower back condition.

10 Sacroiliitis is an inflammation between the sacrum (a triangular bone composed of five fused vertebrae) and the back of the hipbone on either side. See Dox, Attorney's Illustrated Medical Dictionary at S2.

11 Lumbosacral refers to the lumbar portion of the spine and the sacrum. See Dox, Attorney's Illustrated Medical Dictionary at L49.

12 Radiculopathy is a disease of the spinal nerve roots. See Dox, Attorney's Illustrated Medical Dictionary at R2.

Ms. Ketchum argues that she is nonetheless entitled to compensation for these procedures because her complaints on the dates that the procedures were performed included complaints of leg pain, ankle pain, or foot pain. However, such an argument ignores the fact that most of these procedures were scheduled at, and as a consequence of, earlier visits that did not include complaints involving her left ankle fusion. Consequently, they were scheduled and performed for complaints unrelated to any complaints she may have been experiencing on the dates the procedures were actually carried out.

Moreover, notwithstanding the trial court's purported intention to award her for complaints related to leg, ankle, or foot pain, the mere fact that a report includes a complaint of pain in the leg or ankle pain does not automatically implicate Ms. Ketchum's fusion surgery. For instance, on one occasion, Ms. Ketchum complained of pain in her right ankle. On other occasions, she complained of lower back pain radiating down her leg. Thus, it cannot simply be assumed that every complaint of pain mentioning her leg, foot, or ankle is unquestionably a result of her fusion surgery.

Finally, to the extent that some procedures were scheduled or performed on dates when her complaints included, among other complaints, those implicating her left ankle fusion, it does not necessarily follow that the procedures were intended to treat the ankle fusion complaints as opposed to or in unison with her other stated complaints, particularly those pertaining to her pre-existing, lower back pain. Therefore, given the absence of medical evidence establishing that these nine procedures or their associated surgery center costs were incurred as a result of Ms. Ketchum's ankle fusion, we find no error in the trial court's decision to exclude their costs. Accordingly, we decline to increase the amount awarded by the trial court relative to Dr. Conn's treatment of Ms. Ketchum.

Cellulitis and Osteomyelitis Related Expenses

Ms. Ketchum next asserts that the trial court erred in determining that she failed to prove by a preponderance of the evidence that the cellulitis and possible osteomyelitis that she suffered from in 2008 were more probably than not caused by her ankle fusion surgery.

Dr. Rodriguez performed the fusion surgery on Ms. Ketchum's ankle on October 11, 2006. According to his records, as of January 19, 2007, Ms. Ketchum's surgery incisions had healed and she was doing well.

On March 24, 2008, Ms. Ketchum was admitted to the emergency room at Lakeview, complaining of swelling in her left foot. She was diagnosed with cellulitis, which, according to her discharge instructions, is "an infection of the skin" that "usually starts with a scrape, cut, insect bite, blister or other opening in the skin which becomes infected." When she was discharged, she was instructed to follow up with her primary care physician, Dr. Starke, as well as Dr. Rodriguez.

The medical bills offered into evidence by Ms. Ketchum indicate that she followed up with Dr. Starke on March 27, 2008, March 31, 2008, and April 4, 2008. However, despite a thorough search of Ms. Ketchum's medical records, we are unable to locate Dr. Starke's records memorializing these visits and it appears that they were not submitted into evidence.¹³ Ms. Ketchum also followed up with Dr. Rodriguez on April 2, 2008. His records indicate that she was concerned about an infection in her left foot and reported that a cat had scratched her in that area.

13 A bone scan was apparently ordered by Dr. Starke on April 4, 2008. The bone scan report rendered by Dr. Hall and dated April 4, 2008, is in the record.

At trial, Ms. Ketchum testified as follows:

Q. Did you tell Dr. Rodriguez, when you saw him in April 2008, that - did you tell Dr. Rodriguez, when you saw him about the infection in your foot, that it had been caused by a cat scratch?
A. Yes.
Q. What happened with the cat? What was that injury?
A. Well, what started as cellulitis was, I was at a friend's house, and their kitten scratched my leg. And that's what my internist, Dr. Stark[e] told me how it got started.
Q. So that didn't have anything to do with the fact that you had an injured foot? You had a cat scratch and developed cellulitis from that; is that correct?
A. Yes.
Q. And it progressed to osteomyelitis?
A. Yes.

The report for a bone scan performed on Ms. Ketchum's foot on April 4, 2008, indicated findings "most consistent with osteomyelitis of the left ankle and left foot." At trial, Dr. Parnell explained that osteomyelitis is an infection of the bone.¹⁴ Based on the bone scan, Ms. Ketchum was hospitalized at STPH for one week for intravenous antibiotics. During her stay, a subsequent bone scan dated April 11, 2008, found "changes suggestive but not diagnostic of osteomyelitis." Even so, a PICC line was surgically inserted into Ms. Ketchum on April 14, 2008, to facilitate a six-week course of intravenous antibiotic treatment for probable osteomyelitis. In May, Ms. Ketchum was again admitted to the hospital, this time due to a suspected PICC line infection, A new PICC line was inserted and Ms. Ketchum resumed her intravenous antibiotic treatment until its conclusion at the end of May, 2008.

14 According to Dox, Attorney's Illustrated Medical Dictionary at 021, osteomyelitis is an inflammation of the bone marrow caused by bacteria that gain entry though a wound or injury.

Ms. Ketchum asserts that the uncontradicted medical testimony presented to the trial court established that the cellulitis and osteomyelitis were more likely than not caused by her fusion surgery. However, we disagree. None of the medical records she cites in her brief establishes that the fusion surgery was the cause of either the cellulitis or the osteomyelitis. At best, they recognize that these conditions occurred in a place where she previously had fusion surgery. Ms. Ketchum did not call her treating physician Dr. Starke to testify regarding the cause of these conditions nor did she submit his office medical records into evidence.¹⁵

15 Ms. Ketchum did submit hospital records into evidence. These records do contain certain reports by Dr. Starke.

Nonetheless, Ms. Ketchum argues that the deposition testimony of Dr. Steven Tager, a podiatrist from California, establishes that more probably than not the fusion surgery was the cause of both the cellulitis and the osteomyelitis. Dr. Tager has never examined or even met Ms. Ketchum. His medical opinions regarding Ms. Ketchum are based solely on his examination of two sets of X-rays and twelve documents taken from Ms. Ketchum's rather voluminous medical records. Dr. Tager maintained that, more probably than not, the cellulitis and osteomyelitis were caused by Ms. Ketchum's ankle fusion. However, a review of his relevant deposition testimony suggests that his opinion is based on nothing more than the fact that Ms. Ketchum previously had fusion surgery and subsequently had cellulitis and osteomyelitis. Given the limited basis for Dr. Tager's opinion and the fact that he has never seen or treated Ms. Ketchum, we find that it was well within the discretion of the trial court to reject his testimony.

Finally, Dr. Parnell, who did not treat Ms. Ketchum for the cellulitis and osteomyelitis, was questioned as to whether the conditions were the result of the ankle fusion. He responded:

It's a known complication of surgery you can get a superficial infection that can spread to the bone. But for something like this, it's not entirely out of the ordinary, and I've seen it happen in my patients, too.

Thus, while Dr. Parnell suggested that it would not be "entirely out of the ordinary," he did not state that these conditions were more probably than not caused by Ms. Ketchum's fusion surgery.

Based on our review of the record as a whole, we cannot say that the trial court was manifestly erroneous in concluding that Ms. Ketchum failed to establish by a preponderance of the evidence that the cellulitis and osteomyelitis were caused by her fusion surgery. B. Future Medical Expenses

In its written reasons for judgment, the trial court concluded that Ms. Ketchum had "failed to establish by medical testimony the need and probable cost of future medical care and related benefits for the injury sustained to her ankle." Ms. Ketchum asserts that, given the uncontradicted testimony of Doctors Parnell and Tager, she will have future medical expenses as a result of the ankle fusion surgery. Accordingly, she asserts that the trial court was manifestly erroneous in finding that she failed to establish the need for such care. Moreover, she submits that the probable cost of those expenses could have been extrapolated from her past medical records. Conversely, STPH maintains that the testimony regarding Ms. Ketchum's future medical expenses was nothing more than speculation. We note that an award for future medical expenses is by nature somewhat speculative; however, they must be established with some degree of certainty. See Grayson v. R.B. Ammon and Assoc., Inc., 99-2597 (La. App. 1st Cir. 11/3/00), 778 So.2d 1, 23, writs denied, 00-3270 and 00-3311 (La. 1/26/01), 782 So.2d 1026 and 1027. Based on our review of the evidence, we cannot say that the trial court was clearly wrong in finding that Ms. Ketchum failed to establish the need and cost for future medical care.

Despite Ms. Ketchum's assertion to the contrary, Dr. Parnell did not expressly state that she would need to continue taking pain medications as a result of the AVN and ankle fusion and that she will need long-term pain management. His testimony was simply that Ms. Ketchum's use of pain medication should be monitored given her past history of addiction. He opined that she has "a little bit of" arthritis in the midfoot, and stated that "she may" develop arthritis in other areas as a result of her altered gait. He further explained that the change in gait would aggravate any arthritis that "may" be in her back and put additional stressors on her right hip and knee. He finished by stating that Ms. Ketchum is "subject to" plantar fasciitis on her right side "if" she gets any heel core tightness. He did not state what future medical care would be required by the arthritis in her mid-foot. Nor did he opine as to what future treatment would be necessary to address the additional stress on her right foot or knee, or whether that stress and other issues caused by her gait could be alleviated by some type of orthotic. Indeed, the medical records memorializing his last examination of Ms. Ketchum in December of 2011 indicate that he recommended a heel lift as the best way to address the fact that she was one inch shorter on her left side. We cannot say that the trial court was manifestly erroneous in finding that the foregoing testimony of Dr. Parnell failed to establish the need and cost of future medical care.

Moreover, we find that Ms. Ketchum's reliance on Dr. Tager's deposition testimony to establish the need for future medical expenses to be misplaced. In his deposition, Dr. Tager opined that Ms. Ketchum either has or will have, more likely than not, reflex sympathetic dystrophy (RSD) or chronic regional pain syndrome which he maintained would require extensive pain management, physical therapy, and rehabilitation. However, as previously noted, Dr. Tager has never examined or even met Ms. Ketchum, and has only reviewed two sets of X-rays and twelve documents from her extensive medical records. He plainly states that his opinion regarding her development of RSD is based solely on a statement contained in the record of Dr. Conn's appointment with Ms. Ketchum on April 30, 2008, in which she notes "[l]eft ankle edema and diffuse swelling and hyperpigmentation." Based on this statement in April 2008 (eighteen months after the fusion was performed), he contends that Ms. Ketchum either has or will have RSD, necessitating extensive future medical care. Even assuming this notation was sufficient to form the basis of such a diagnosis, we note that this report was made at the time that Ms. Ketchum was suffering from a swollen foot as a result of cellulitis and possible osteomyelitis.

Dr. Tager further asserted that Ms. Ketchum would experience joint changes in her knees, hips, and back as a result of the fusion. However, his testimony regarding what future medical treatment would be necessary to address such changes was extremely speculative. For instance, he stated that "this may go on into future surgeries, such as either a knee replacement or hip replacement" or "she may have to undergo [arthroscopy]." Therefore, based on the record as a whole, we find no error in the trial court's refusal to award Ms. Ketchum future medical expenses. General Damages

Lastly, Ms. Ketchum asserts that due to the trial court's erroneous failure to award her future medical expenses, as well as costs related to her treatment for cellulitis and osteomyelitis and certain injection procedures, it consequently made an award for general damages that was abusively low. However, we have found that the trial court was not clearly wrong in making those determinations. Nevertheless, we do believe the trial court's award of $75,000 in general damages was abusively low.

The evidence indicates that Ms. Ketchum underwent two surgical procedures on her left ankle: (1) a closed reduction, and (2) a tibiotalocalcaneal fusion. As a result of the fusion surgery, her left leg is approximately one inch shorter than her right leg. She now has very limited motion in her left ankle and mild arthritis in her mid-foot. As a result, Dr. Parnell assigned her a 21% disability rating. In his last examination of Ms. Ketchum in December 2011, she informed him that she had "gotten used to the way her ankle is." She reported that it hurts "every now and again with weather changes" but that otherwise she was "doing pretty good." Nevertheless, at trial, Dr. Parnell testified that her limp and change in gait will place additional stresses on her back and on her longer side, especially at the knee and hip. He opined that these stresses may cause her to develop arthritis, exacerbate any existing arthritis, or possibly cause premature hip wear. Based on the record as a whole, we find that the lowest amount the trial court could have awarded Ms. Ketchum in general damages was $125,000, and we amend the judgment accordingly.

CONCLUSION

For all of the foregoing reasons, we conclude that the judgment of the trial court must be amended to award Ms. Ketchum an additional $6,013.91¹⁶ in special damages for past medical expenses incurred, to increase the amount of general damages from $75,000 to $125,000, and to account for the allocation of 40% fault to Ms. Ketchum and 60% fault to St. Tammany Parish Hospital. Therefore, the judgment of the trial court in favor of Kathy R. Ketchum and against St. Tammany Parish Hospital is hereby amended to award damages totaling $120,865.81, with $45,865.81 of that amount being defendant's attributable portion of special damages and $75,000.00 being defendant's attributable portion of general damages. In all other respects, the judgment is affirmed as amended. St. Tammany Parish Hospital is cast with the costs of this appeal in the amount of $3,512.90.

16 This additional amount is the sum of $3,616.91 related to the Egan and STPH bills and $2,397.00 related to the Lakeview expenses.

AMENDED AND AFFIRMED AS AMENDED.

KATHY R. KETCHUM

VERSUS

RICHARD ROBERTS, ET AL.

NO. 2012 CA 1885

WELCH, J., dissents.

I agree with the opinion to the extent that it finds no error in the following rulings by the trial court: (1) Nurse Stephens failed to contact Ms. Ketchum to inform her of the fracture; (2) the failure to notify Ms. Ketchum of the fracture was a cause in fact of Ms. Ketchum's avascular necrosis (AVN); (3) Dr. Gotten was not at fault; (4) Ms. Ketchum did not prove by a preponderance of the evidence that the cellulitis and possible osteomyelitis she suffered from in 2008 were more probably than not caused by the ankle fusion surgery; (5) Ms. Ketchum did not offer sufficient medical evidence establishing that the nine injections for her lower back were necessitated by the ankle fusion surgery; and (6) Ms. Ketchum is entitled to an additional $6,013.91 in special damages for past medical expenses due to the trial court's improper deduction from the Egan and STPH bills as Medicaid write-offs. Further, while I agree that the trial court committed manifest error in finding Ms. Ketchum 60% at fault and abused its discretion in awarding $75,000.00 in general damages. I disagree with the majority's assessment of 40% fault to Ms. Ketchum and would further raise the general damage award to $200,000.00.

First, I do not believe that the record supports a finding of 40% comparative fault on Ms. Ketchum's part. The evidence established that Ms. Ketchum initially had a Type I talus fracture (a fracture with no anatomic displacement other than the fracture itself, where the architecture of the structure is maintained), which typically heals nicely as long as it is immobilized. There is a 90% chance this type of fracture will heal well and not proceed to AVN. However, once there is any displacement of the bone, the risk of developing AVN increases to 40-50%. According to the evidence, the March 9, 2004 x-ray of Ms. Ketchum's ankle showed a fracture of the dome of the talus and a sclerotic appearance of the talus (AVN), all of which were not present on the initial x-ray. Along with showing early signs of AVN, the March 9, 2004 x-ray showed that the Type I fracture had now become a Type II talus fracture. According to Dr. Tager, with a Type II fracture, there is a complete disruption of the structure; the body of the talus is crumbled, and the neck of the talus is compressed. A Type II fracture is classified as a "crush injury."

Dr. Tager opined that the fusion surgery was more likely than not the result of the hospital's failure to timely notify Ms. Ketchum that her ankle was fractured and not sprained and that the resulting collapse of the talus due to walking caused the fracture to develop from a Type I fracture to a Type II fracture and the further development of AVN. Even STPH's expert, Dr. Gosey, admitted that just a couple of days walking on a Type I talar fracture can cause AVN to develop and can cause a Type I fracture to proceed to a Type II fracture. Thus, the evidence established that Ms. Ketchum's walking on her ankle before March 9, 2004, at a time she did not know she had a fracture, caused her to sustain a more serious fracture and to develop AVN for which she underwent ankle fusion surgery.

As the party asserting the defense of comparative fault, STPH bore the burden of proof by a preponderance of the evidence that Ms. Ketchum's fault caused her to develop AVN. Trinh v. Dufrene Boats, Inc., 2008-0824 (La. App. 1^st Cir. 1/22/09), writs denied, 2009-0406, 2009-0411 (La. 4/13/09), 5 So.3d 166, cert. denied, 558 U.S. 875, 130 S.Ct. 228, 175 L.Ed.2d 128 (2009). I do not believe that STPH met this burden. Rather, I find that the evidence demonstrated that by March 9, 2004, the damage caused by Ms. Ketchum's walking on her fractured ankle had been done and STPH did not prove that Ms. Ketchum's walking on her ankle after she learned of the fracture was somehow more responsible or was nearly as responsible for her ankle- fusion surgery. Therefore, I find that the highest percentage of fault attributable to Ms. Ketchum under all of the circumstances of this case is 10%.

Second, given the severity and duration of Ms. Ketchum's injury, I believe the $125,000.00 general damage award is inadequate to compensate Ms. Ketchum for her injury. The record demonstrates that as a result of the collapse of her talus bone, AVN and ankle fusion surgery, Ms. Ketchum has a 21% disability rating. She has no motion around her left ankle (an expected result of fusion surgery), her left leg is an inch shorter than her right, and she developed arthritis in her mid foot. Dr. Parnell testified that Ms. Ketchum's limp and gait problems will put additional stressors on her back and exacerbate her pre-exisiting back condition and will add additional stressors on the longer side of her hip and knee. Dr. Tager testified that after examining her pain management medical records, more likely than not, Ms. Ketchum has RSK, a disruption in her nervous system, requiring extensive pain management, physical therapy, and rehabilitation and questioned whether that condition would ever be resolved. He further observed that because of the fusion surgery, Ms. Ketchum's left extremity will no longer function as normal, additional joint changes will occur, which will result in the degeneration of her knee and the joints of her foot, her back, and likely her hip. He further observed that spinal stenosis is a very common result of unilateral leg length discrepancies which will precipitate the need for lift therapy or special shoes or orthotic management for the rest of her life, "if, in fact, she has the ability to ambulate at all," Under these facts, I believe that the lowest general damage award within the discretion of the trial court is $200,000.00, and I would amend the judgment to so reflect.