Opinion
2011 CA 1609
09-21-2012
ERNESTINE J. WASHINGTON v. JAMES M. LEBLANC, IN HIS CAPACITY AS SECRETARY OF LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; STATE OF LOUISIANA THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; DIXON CORRECTIONAL INSTITUTE; STEVE RADER IN HIS CAPACITY AS WARDEN OF DIXON CORRECTIONAL INSTITUTE; ABC INSURANCE COMPANY; AND XYZ INSURANCE COMPANY
Kenneth H. Hooks, III Brent P. Frederick Michael J. Beckers Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Ernestine J. Washington John L. Dugas Whitney Higginbotham Greene Baton Rouge, Louisiana Counsel for Defendant/Appellee Louisiana Department of Public Safety and Corrections, et al.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket Number 571,228
The Honorable William A. Morvant, Judge
Kenneth H. Hooks, III
Brent P. Frederick
Michael J. Beckers
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellant
Ernestine J. Washington
John L. Dugas
Whitney Higginbotham Greene
Baton Rouge, Louisiana
Counsel for Defendant/Appellee
Louisiana Department of Public
Safety and Corrections, et al.
BEFORE: WHIPPLE, GAIDRY, McDONALD, McCLENDON,
AND HUGHES, JJ.
HUGHES , J.
This is an appeal of a district court judgment awarding a plaintiff damages for negligence in the medical treatment of the plaintiff's inmate son, which led to his death. The plaintiff appeals the assessment of fault to the inmate and the amount of damages awarded. For the reasons that follow, we affirm in part, amend in part, and affirm as amended.
FACTS AND PROCEDURAL HISTORY
Saleem R. Coates, a twenty-nine-year-old inmate at Dixon Correctional Institute ("DCI"), was treated by the DCI infirmary nursing staff on February 19, 20, 21, and March 1, 2008 for complaints of headaches, ear pain, and congestion. On March 3, 2008 Mr. Coates was seen by Dr. Angelo Anthony Tarver, the medical director for DCI, who noted that Mr. Coates had a red eardrum and a boil behind his right ear. Mr. Coates was prescribed the antibiotic Ciprofloxacin ("Cipro"), which was to be taken twice a day for fourteen days, along with Guaifenesin (an expectorant) and Motrin (a pain reliever).
Mr. Coates did not take the medication as prescribed. At DCI, prescribed medications were available, at that time, to inmates at "pill call," which took place at meal times. When an inmate went to "pill call," he was required to pay $2.00 for each medication dispensed, and a log was made by the "pill call" officer of what medications were dispensed, the date, the time, and the amount the inmate was charged. The prescribed medications were available to Mr. Coates from March 3, 2008 through March 16, 2008. The medication records show that Mr. Coates appeared at pill call and took his medications as follows: on March 5, 2008, at 5:00 a.m., he took all three medications; on March 9, 2008, at noon, he took only Guaifenesin and Motrin; on March 11, 2008, at 5:00 a.m., he took all three medications; on March 16， 2008, at noon, he took only Guaifenesin and Motrin. These records show that Mr. Coates took a total of only two Cipro pills before the prescription expired on March 16, 2008.
The charges imposed for the prescription medications were debited from the inmate's account.
On March 28, 2008 Mr. Coates'' mother, Ernestine J. Washington, paid him a visit at DCI and observed that he appeared ill and was having trouble hearing from one of his ears. The next day she called the prison and requested that he be seen by a doctor.
On March 31, 2008 Mr. Coates was again seen by the DCI infirmary nursing staff, complaining of a headache, which he stated had been ongoing for about a month, but was worse that morning. Mr. Coates was given ibuprofen and told to return if needed. Thereafter, Mr. Coates' condition worsened and DCI security officers had him transported to the infirmary on April 2, 2008 at 12:30 a.m., because he had been acting strangely for two days. He was examined by a nurse who found that he was confused, having difficulty following verbal commands, and complaining of dizziness and pain in the right side of his head. Mr. Coates was admitted to the infirmary for observation. At approximately 5:00 a.m., Mr. Coates got out of bed and tried to dress himself though he had no clothes. The nurses' notes indicated that, at that time, he was not responding to verbal commands and appeared confused: he was placed in a bed with rails in an isolation cell. At no time after Mr. Coates arrived at the infirmary on that date did the nursing staff contact a doctor. However, at approximately 6:30 a.m. on April 2, 2008, a DCI social worker telephoned Dr. Tarver, who then instructed the nursing staff to have Mr. Coates transferred to Earl K. Long Hospital ("EKL") in Baton Rouge.
Mr. Coates was thereafter diagnosed at EKL with meningitis, and despite the administration of intravenous antibiotics, he died at the hospital on April 3, 2008. A written report by Dr. John Smith stated, in part:
[Mr. Coates] had a lumbar puncture performed which showed gross pus with an obvious meningitis . . . . He eventually grew out pneumococcal meningitis with evidence of very increased intracranial pressure and quickly developed likely brainstem herniation and quickly displayed evidence of brain death .... The CT [scan] of his head showed completely occluded right mastoid. The patient just presented [to EKL] too late. He had evidence of permanent bacterial meningitis and altered mental status upon presentation and was essentially dead when he hit the door at [EKL]. He had fixed dilated pupils at the time we saw him . . . . We initially tried to treat the bacterial meningitis with Rocephin, vancomycin, and IV steroids and he had rifampin as well for increased tissue penetration, but it was likely too late. The patient had no evidence of any brainstem reflexes and was essentially dead when he hit the door.An autopsy and Mr. Coates' death certificate showed that he died of meningitis.
Thereafter, Ms. Washington filed suit against the State of Louisiana, through DCI, James M. LeBlanc, in his capacity as Secretary of the Louisiana Department of Public Safety and Corrections, Steve Rader, in his capacity as Warden of DCI, XYZ Insurance Company, Dr. Tarver, the medical director at DCI, and DCI nurses Brenda Waddell and Caroline Travis. Ms. Washington asserted that her son was denied proper medical treatment at DCI, which resulted in his death, and she sought damages for his physical pain and suffering, his mental pain and suffering, and her own mental anguish and emotional distress.
During the April 4, 5, and 6, 2011 jury trial, the jury answered jury interrogatories as follows:
Note that the handwritten tally of the number of jurors voting for or against the response to each question was omitted.
1) Do you find by a preponderance of the evidence that Dr. Angelo Anthony Tarver was at fault in not providing reasonable medical care to Saleem Coates?
YES ___ NO √
2) Do you find by a preponderance of the evidence that the nurses working within Dixon Correctional Institute were at fault in not providing reasonable medical care to Saleem Coates?
YES √ NO __
(If you answered "no" to both questions 1 and 2, please sign and date the verdict form and return the form to the bailiff. If you answered "yes" to either question 1 or 2, please proceed to question 3).
3) Do you find that Saleem Coates suffered mentally and physically before his death?
YES √ NO ___
(If you answered "no," please proceed to question 9. If you answered "yes," please proceed to question 4.)
4) Was the mental and physical suffering that Saleem Coates endured before his death caused by the failure of Dr. Angelo Anthony Tarver to provide reasonable medical care?
YES ____________ NO √
5) Was the mental and physical suffering that Saleem Coates endured before his death caused by the failure of the nurses working within the Dixon Correctional Institute to provide reasonable medical care?
YES √ NO _
(If you answered "no" to both questions 4 and 5, please proceed to question 9. If you answered "yes" to either question 4 or 5, please proceed to question 6.)
6) Do you find that the Defendants have proven by a preponderance of the evidence that Saleem Coates contributed to his own injury and/or death?
YES √ NO __
(If you answered "yes," please proceed to question 7. If you answered "no," please proceed to question 8.)
7) What percentage of fault would you apportion to the following parties:
Dr. Tarver and/or Nursing Staff 50%8) Without reduction for percentages of fault, what amount in dollars and cents will fairly and adequately compensate Saleem Coates for the suffering he endured before his death?
Saleem Coates 50%
TOTAL 100%
Physical and Mental Pain and Suffering $50,000.00
9) Without deduction for percentages of fault, what amount in dollars and cents will fairly and adequately compensate Ernestine Washington for the loss of her son, Saleem Coates?
Mental Anguish, Loss of Love and Affection $5,000.00
A judgment was signed on May 2, 2011 in accordance with the jury's verdict, awarding Ms. Washington $50,000.00 for the physical arid mental pain and suffering of Mr. Coates, $5,000.00 for her own mental anguish and loss of love and affection, and apportioning 50% fault to Mr. Coates and 50% fault to "Dr. Tarver and/or Nursing Staff." In accordance with the apportionment of fault, the judgment reduced the $55,000.00 damage award by Mr. Coates' 50% fault, awarding Ms. Washington $27,500.00, with interest "as specified by La. R.S. 13:5112," and with each party to bear 50% of the costs. The State of Louisiana through the Department of Public Safety and Corrections was cast in judgment as the judgment debtor.
Though we note that the judgment named the judgment debtor as "State of Louisiana through the Department of Public Safety and Corrections, et al." we nevertheless consider the judgment valid as to the State, but not as to any other unnamed party. See Jenkins v. Recovery Technology Investors, 2002-1788 (La. App. 1 Cir. 6/27/03), 858 So.2d 598, 600; Carter v, Williamson Eye Center, 2001-2016 (La. App. 1 Cir. 11/27/02), 837 So.2d43, 44; Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1 Cir. 12/20/02), 836 So.2d 364, 365-66; Scott v. State, 525 So.2d 689, 691 (La. App. 1 Cir. 1988), writ denied, 558 So.2d 1128 (La. 1990). See also Gail S. Stephenson3 Drafting Lucid, Unmistakable (and Valid) Judgments, 56 La. Bar Journal 181,181 (2008).
Ms. Washington is appealing the May 2, 2011 trial court judgment and makes three assignments of error, as follows:
I. The jury abused its discretion when compensating Saleem Coates only $50,000.00 for the pain and suffering he endured in the 46 days immediately before his death.
II. The jury abused its discretion in awarding Ernestine Washington only $5,000.00 for the mental pain, suffering and anguish she will forever endure as a result of the unnecessary death of her twenty-nine year old son.
III. The jury abused its discretion in finding Saleem Coates 50% responsible for his own death.
FIRST ASSIGNMENT OF ERROR
In her first assignment of error, Ms. Washington contends that the $50,000.00 awarded for the pain and suffering endured by Mr. Coates prior to his death was insufficient and should be increased.
The discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. 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 making a finding that the record supports the conclusion that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La. 1977).
After a thorough review of the appellate record, we are unable to say that, under the circumstances of this case, the trier of fact abused its discretion in awarding $50,000.00 for Mr. Coates' pain and suffering prior to his death. We affirm this portion of the trial court judgment.
SECOND ASSIGNMENT OF ERROR
Ms. Washington also asserts that the jury abused its discretion in awarding her only $5,000.00 for the mental anguish and loss of love and affection that she has endured and will continue to suffer as a result of the death of her son. Ms. Washington's testimony described a very close relationship with her son. She testified that although Mr. Coates was first assigned to a prison in North Louisiana (in Lake Providence), she worked to get him re-assigned, on the basis of a geographical hardship, to the Baton Rouge area where she lived, and the transfer to DCI was obtained in about one year. Ms, Washington testified that she visited her son almost every weekend at DO and that she talked to him on the telephone every Tuesday evening, as well as at other times, Ms Washington also testified that, because Mr. Coates .had been successful in the prison's "Pride" program, he was able to have extended visits with her and other family members she would bring with her to the prison, and that she was allowed to bring him home-cooked meals during the visits, as part of the program Ms. Washington further testified that Mr. Coates was a trustee, and he was participating in educational programs in an effort to be rehabilitated and released from prison as soon as possible. Ms. Washington stated that she last saw her son during her March 28, 2008 visit to the prison. Later in the week, she received a call that Mr. Coates was being rushed to EKL and was unresponsive. Ms. Washington testified that she immediately went to EKL, where she saw her son hooked up to medical devices;, that! she was told her son was brain dead, and that she had to decide to have him removed from the life support devices. Ms. Washington expressed her feelings of hurt at the death of her son and of betrayal by the legal system, in which she had worked for thirty years, in not. caring for her son so that he could finish his sentence and return home, She also testified that her religion and the help of her church ministers had helped her with the situation, but that she thinks about her son constantly.
Under the particular facts and circumstances of this case, we conclude that the jury abused its discretion in awarding Ms Washington only $5,00000 for the mental anguish and loss of love and affection she suffered as a result of the death of her son. The lowest damage amount that could reasonably be awarded for Ms. Washington's mental anguish and loss of love and affection is $40,000.00, Accordingly, we amend the trial court judgment to increase the award of general damages to Ms. Washington from $5,000.00 to $40,000.00.
THIRD ASSIGNMENT OF ERROR
In her third assignment of error, Ms. Washington asserts that the jury abused its discretion in finding Mr. Coates 50% at fault for his own death.
Contributory negligence is defined as plaintiff's conduct which falls below the standard of care to which he should perform for his own protection. Louisiana has adopted a pure comparative negligence system, which was specifically designed to ameliorate the harshness of the contributory negligence doctrine by apportioning losses between the plaintiff and defendant when both are negligent. A defendant who claims contributory negligence as an affirmative defense must prove by a preponderance of the evidence that the injured party failed to act as a reasonable and prudent person and that his negligence was a legal cause of the accident. Contributory negligence is never presumed; such negligence on the part of the plaintiff must be proved as any other fact by a preponderance of the evidence. The threshold inquiry in determining legal cause is whether the act was a substantial factor in causing the accident. For the most part, a determination of contributory negligence is a factual matter lying within the discretion of the trial court, and such determination will not be disturbed on appeal in the absence of manifest error. Day v. South Line Equipment Company, 551 So.2d 774, 782-83 (La. App. 1 Cir.), writ denied, 553 So.2d 474 (La. 1989). See also Hebert v. Rapides Parish Police Jury, 2006-2001 (La. 4/11/07), 974 So.2d 635, 654.
In this case, the defense contended that Mr. Coates contributed to his own demise, because he failed to take the medication as prescribed by Dr. Tarver. However, the jury did not find Dr. Tarver at fault. The only defendants found at fault by the jury were the nurses in the infirmary, for failing to contact a doctor when Mr. Coates was brought to the infirmary on April 2, 2008, experiencing a mental status change. Thus, whether Mr. Coates had previously taken his medication or not was irrelevant. Furthermore, neither of the doctors who testified at trial stated that if Mr. Coates had taken the prescribed antibiotic Cipro, the development of meningitis would have been prevented. In fact, Dr. Barry L. Wenig testified that Mr. Coates should have been prescribed one of the two antibiotics Amoxicillian or Augmentin, rather than Cipro, and that it was a breach of the standard of care owed by Dr. Tarver to Mr. Coates not to have prescribed either Amoxicillian or Augmentin. Dr. Tarver testified that intravenous antibiotic therapy was the standard treatment for mastoiditis, however, he stated that he prescribed Cipro for Mr. Coates' ear infection. At no time did Dr. Tarver testify that a full course of Cipro would have prevented Mr. Coates' meningitis. Because the defendants failed to prove by a preponderance of the evidence that if Mr. Coates had taken the Cipro, previously prescribed by Dr. Tarver, he would not have developed meningitis, the trial court erred in finding Mr. Coates contributorily negligent. Therefore, we amend the judgment to assess 100% fault to the defendant, amend that portion of the trial court judgment reducing the damage awards by 50% to remove the reduction of damages, and amend the assessment of 50% of the costs to each party to assess 100% of the costs to the defendant.
Dr. Wenig further stated that when Dr. Tarver examined Mr. Coates on March 3, 2008, Mr. Coates then had mastoiditis (an infection of the mastoid bone, which is a part of the skull located behind the ear) and that Dr. Tarver should have been alerted to the possibility of the mastoid infection by the presence of a furuncle or boil, which was present and which Dr. Tarver saw, behind Mr. Coates' right ear. Dr. Wenig testified that the failure of Dr. Tarver to determine the cause of the furuncle, by culturing the fluid it contained and/or ordering a CT scan, was also a breach of the standard of care owed to Mr. Coates. Dr. Wenig testified that, left untreated, mastoiditis can, and did in Mr. Coates' case, progress into meningitis.
A preponderance of the evidence is evidence of greater weight, or evidence that is more convincing, than that offered in opposition to it. Smith v. Jack Dyer & Associates, Inc., 633 So.2d 694, 699 (La. App. 1 Cir. 1993).
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DECREE
For the reasons assigned herein, the judgment is affirmed in part, and amended in part: to increase the award to Ernestine J. Washington, for mental anguish and loss of love and affection, from .$5,000.00 to $40,000 00; to assess 100% fault to the defendant, State of Louisiana through the Department of Public Safety and Corrections; to render judgment in favor of Ernestine J. Washington and against the State of Louisiana through the Department of Public Safety and Corrections in the amount of $90,000.00; and to tax 100% of all trial court costs to the State of Louisiana through the Department of Public Safety and Corrections. In all other respects, the judgment is affirmed. Appellate costs in the amount of $2,464.82 are further assessed against the State of Louisiana through the Department of Public Safety and Corrections.
AFFIRMED IN PART; AMENDED IN PART; AFFIRMED AS AMENDED; AND RENDERED,