Opinion
NO. 2012 CA 0763
05-17-2013
MAJDI KHAMMASH, MAHA KHAMMASH, AND SARRIS, SARRARA AND DANNIAH KHAMMASH v. JOHN E. CLARK, M.D., JOHN E. CLARK M.D., LTD., LOUISIANA SPINE AND SPORTS MEDICINE, LLC, GLORIA WALL, HEATHER B. LANDRY AND CAPITOL CITY PHYSICAL THERAPY GROUP
WILLIAM C. SHOCKEY BRADLEY C. STIDHAM BATON ROUGE, LA ATTORNEYS FOR PLAINTIFF-APPELLANT MAJDI KHAMMASH WILLIAM C. ROWE, JR. DAVID C. BOLTON BATON ROUGE, LA ATTORNEYS FOR DEFENDANTS-APPELLEES PATIENT'S COMPENSATION FUND & PATIENT'S COMPENSATION FUND OVERSIGHT BOARD ON BEHALF OF DR. GRAY BARROW
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. 521,746
Honorable Wilson E. Fields, Judge
WILLIAM C. SHOCKEY
BRADLEY C. STIDHAM
BATON ROUGE, LA
ATTORNEYS FOR
PLAINTIFF-APPELLANT
MAJDI KHAMMASH
WILLIAM C. ROWE, JR.
DAVID C. BOLTON
BATON ROUGE, LA
ATTORNEYS FOR
DEFENDANTS-APPELLEES
PATIENT'S COMPENSATION
FUND & PATIENT'S
COMPENSATION FUND
OVERSIGHT BOARD ON BEHALF
OF DR. GRAY BARROW
BEFORE: KUHN, PETTIGREW, AND MCDONALD, JJ.
PETTIGREW , J.
This appeal arises out of a medical malpractice action alleging the failure to properly diagnose and promptly treat a spinal injury, in which the plaintiffs settled with the defendant doctor and his insurer for $100,000.00, and proceeded to a jury trial seeking to recover alleged additional damages of $400,000.00 (the medical malpractice statutory maximum) against the Louisiana Patient Compensation Fund (LPCF). The plaintiff now appeals a judgment adopting a jury verdict that refused to award damages based on a 9-3 decision that the defendant doctor's breach of the standard of care did not cause any damage or injury to the plaintiff. The plaintiff contends on appeal that the trial court improperly allowed the jury to determine the issues of liability and causation when those issues were statutorily admitted by the court-approved settlement. Moreover, plaintiff asserts that in this matter that error was further compounded because a previous partial summary judgment had been granted on the issue of liability and causation, becoming either res judicata or the law of the case, and precluding those issues from being presented to the trier of fact at the trial.
After a through review of the record, we conclude that the trial court erred in not recognizing and enforcing the October 6, 2009 partial summary judgment, which judgment was certified as final and not appealed, in which the judgment unequivocally finds the defendant at fault and that the injuries complained of by Majdi Khammash in these proceedings were caused by the fault of the defendant doctor. Therefore, for the reasons explained below, we find the trial court erred in allowing any and all testimony and evidence concerning the issue of causation, as well as allowing any jury instructions and jury verdict inquiries that placed the issue of causation before the jury. This error of law interdicts the jury verdict; and, because the record before us is complete, we must perform a de novo review to determine whether we can properly quantify the damages or whether we need to remand the matter for a new trial.
RELEVANT FACTUAL BACKGROUND
The facts underlying the litigation are essentially undisputed. On September 6, 2000, Majdi Khammash, while in the course and scope of his employment as a paramedic supervisor with Acadian Ambulance Service, was lifting a box weighing approximately fifteen to twenty-five pounds. As he attempted to hold the box and unlock a door, he lost grip of his keys, and twisted sharply, in an attempt to grab the keys and not drop the box. As he did so, he felt an immediate and painful pull in his back.
On October 3, 2000, Mr. Khammash was treated by Dr. John E. Clark for this work-related injury. Dr. Clark diagnosed him with a soft disc protrusion in the right foramen at the L3-4 level and a large disc herniation in the right neural canal at the L4-5 level, deforming the exiting L4 nerve root. Dr. Clark referred Mr. Khammash to physical therapy and, on October 31, 2000, released him to return to full duty at work with no restrictions.
Almost three years later, on or about June 3, 2003, Mr. Khammash experienced a sudden recurrence of symptoms of pain in the right side of his back, not related to any recent event or injury, and he returned for treatment with Dr. Clark, reporting a return of his prior symptoms for a duration of approximately three weeks. On or about June 9, 2003, Dr. Clark performed a neurological exam, which was normal, but also ordered an MRI, which showed a disc herniation at L3-4. Dr. Clark's impression at that time was that Mr. Khammash had a "fragile back" subject to a high risk of recurring pain.
Mr. Khammash returned to Dr. Clark on or about June 19, 2003, at which time he reported, in addition to the increase in pain, symptoms of pain radiation, resulting in weakness in his right leg. He testified that as a result of the pain and the added weakness in the right leg, he reported to Dr. Clark that he was experiencing many falls as a result of his right leg "giving out" on him. An MRI was conducted, and Dr. Clark diagnosed him with a L3-4 broad base disc bulge with encroachment of the right L3 nerve root in the foramen. (At that time, Dr. Clark noted that the right L4-5 disc herniation and free disc fragment - Mr. Khammash's previous 2000 injury - had largely resolved itself.) Again, Dr. Clark referred Mr. Khammash to physical therapy, which Mr. Khammash began on or about July 1, 2003.
On that date, the physical therapist placed Mr. Khammash in mechanical lumbar traction for twenty minutes. Mr. Khammash informed the therapist that during that traction, he felt an immediate onset of pain in his back, radiating down to his right leg. Mr. Khammash returned for scheduled therapy two days later, on July 3, 2003, at which time he was again placed in mechanical lumbar traction, and again, he felt and reported the immediate onset of pain in his back and legs. Mr. Khammash testified that even though he was in pain, he was able to walk unassisted from his car to the physical therapy office, but after the traction treatment, his pain and weakness were so severe, he had to be taken by wheelchair to his car.
On July 5, 2003, a Saturday, unable to withstand the increasing pain in his lower right back and leg, Mr. Khammash went to the emergency room of Our Lady of the Lake Regional Medical Center. The triage notes admitted into evidence reveal that he complained of not only pain in those areas, but aiso a marked increase in weakness and motor ability in the right leg. He was treated with pain and steroid medications and was released, with instructions to return to see Dr. Clark first thing Monday morning.
On Monday, July 7, 2003, Mr. Khammash reported to his regularly scheduled physical therapy appointment and immediately advised the therapist that he had been to the emergency room due to the sudden increase in the severity of the pain and significant weakness in his right leg. As the therapist was examining him, his symptoms of pain and weakness were so severe that she immediately transported him in a wheelchair to Dr. Clark's office, located in the same building. Dr. Clark, however, was out of town, and Mr. Khammash was placed in a room and prepared for an epidural injection. Shortly thereafter, Dr. Gray Barrow (the only remaining defendant at the time of trial), entered the room, introduced himself as Dr. Clark's associate, and explained that he was there to administer an epidural injection to alleviate Mr. Khammash's pain. Dr. Barrow did not perform a physical examination of Mr. Khammash, either before or after administering the injection, nor did he consult with Mr. Khammash after the injection was administered.
On July 15, 2003, Mr. Khammash returned to Dr. Clark and reported an increase in the pain in his right extremities as well as the significant loss of use of his right leg. Dr. Clark re-performed a neurological exam, which this time was positive for "absent right deep tendon reflex." Dr. Clark also ordered a nerve conduction study and an EMG, which revealed serious impingement of the L-3 nerve. Based on these findings, Dr. Clark testified that he believed Mr. Khammash needed a spine surgical consult and that his increasingly worsening symptoms presented a "time sensitive condition."
Despite Dr. Clark's opinion that Mr. Khammash should be seen by a spinal surgeon as soon as possible, due to miscommunications between Dr. Clark's office staff and Mr. Khammash, he was not seen until August 8, 2003, by neurosurgeon, Dr. Waguespack, who diagnosed him as having a herniated disc fragment on the L3-4 right side and recommended surgery to remove the disc fragment. On August 20, 2003, Mr. Khammash underwent an L3-4 discectomy performed by Dr. Waguespack. At a post-op visit on September 5, 2003, Dr. Waguespack noted a significant improvement in Mr. Khammash's pain symptoms, but only some improvement in the numbness and weakness in the right leg. He referred Mr. Khammash to physical therapy in hopes of his regaining some strength in the leg. However, when Mr. Khammash returned on September 20, 2003, his right leg had a "severely weakened" quadricep muscle, and Dr. Waguespack noted a visible 60 percent atrophy in the right leg as compared to the left.
On January 23, 2004, Dr. Waguespack performed a myelogram and post myelogram CT scan on Mr. Khammash, and the results revealed there was nothing left that could be surgically fixed. On March 8, 2004, Dr. Waguespack reported to Mr. Khammash that, unfortunately, there was nothing more he could do medically for his symptoms or condition.
Mr. Khammash returned to Dr. Waguespack in 2005, where there was no noted improvement in the right leg, and Mr. Khammash reported pain and symptoms beginning in the left leg. A return visit in October 2006, also failed to reveal any change or improvement.
At the time of trial, Mr. Khammash reported that his lower back pain was significantly resolved by the surgery; although persistent, it was manageable. However, he stated the right leg had atrophied to the point where he often had to use a cane, and or wheelchair. Otherwise, he testified he has tried to re-learn to walk, and in that process, has sought additional medical help for pain symptoms in his left leg, particularly his knee and ankle. He testified that he has been advised that the left leg symptoms are the result of the compensation his body makes while attempting to walk without the use of the right leg, and that sometime in the future (five to ten years) he would probably be a candidate for and need surgery to the left leg.
PROCEDURAL HISTORY
On June 30, 2004, Mr. Khammash, together with his wife, and on behalf of their three minor children, filed a petition seeking damages from several defendants for alleged medical malpractice, i.e., the failure to properly diagnose and treat Mr. Khammash's spinal injury. Plaintiffs contended those acts of malpractice exacerbated Mr. Khammash's initial injury and caused a needless and unnecessary delay during which his chances of making a full recovery were significantly diminished, leading to the permanent pain and weakness in Mr. Khammash's back and legs. (The petition expressly noted that although some of the named defendants were qualified healthcare providers for whom claims first had to be reviewed by a medical review panel, other defendants were not such qualified providers, and the petition was filed against all out of an abundance of caution.)
On September 11, 2007, the plaintiffs filed leave (which was granted) to file a fourth amending petition based on the rendition of the medical review panel opinion, which had been reviewing the claims against Drs. Clark and Barrow, as well as Louisiana Spine and Sports Medicine. In this amending petition, the plaintiffs alleged that in its May 30, 2007 opinion, the medical review panel concluded that Dr. Clark did not deviate from the standard of care, but that Dr. Barrow did deviatefrom the appropriate standard of medical care. Thus, plaintiffs amended their action to add Dr. Gray Barrow as a named defendant (together with Gray Barrow, MD, Ltd. ana Louisiana Spine & Sports Medicine, L.L.C., on the theory of vicarious liability; hereinafter referred to collectively as "Dr. Barrow"), alleging that he failed to have in place the proper procedures whereby he could obtain adequate histories with regard to the patients he was overseeing for Dr. Clark; that he failed to actually conduct a physical exam on Mr. Khammash; that he failed to review prior records of the plaintiff and to observe and note a significant exacerbation of plaintiffs symptoms; and that he failed to perform a proper work-up and make a spinal surgical referral when he saw Mr. Khammash on July 7, 2003.
As litigation continued, most of the named defendants were dismissed. On August 18, 2009, the plaintiffs filed a motion for partial summary judgment based on the medical review panel's decision finding that Dr. Barrow had breached the standard of care owed in this matter. They sought judgment finding Dr. Barrow at fault in connection with the injuries sustained by Mr. Khammash; that such fault was the cause of Mr. Khammash's resultant injuries; and declaring Mr. Khammash to be free from fault in connection with his injuries. In support of their motion, the plaintiffs attached the decision of the medical review panel, the most relevant portion of which provides, as follows:
It is the opinion of this medical review panel that there was a deviation from the appropriate standard of care by Gray Barrow, M.D., Gray Barrow MD Ltd and Louisiana Spine and Sports Medicine LLC. According to the records it appears Dr. Barrow did not examine Mr. Khammash on July 7, 2003. It was reported to Dr. Barrow by Ms. Wall [the physical therapist treating Mr. Khammash] that the patient was having increasing leg pain and weakness. An appropriate physical exam on July 7, 2003, might have prompted Dr. Barrow to perform further workup and make a spinal surgical referral at that time. It appears that the patient apparently had neurologic decline between the emergency room visit of July 5, 2003 and Dr. Clark's visit on July 15, 2003. Retrospectively it appears a more aggressive approach should have been taken by the emergency room and by Dr. Barrow on July 7, 2003. Regrettably, a spinal surgeon opinion and further radiological workup such as a lumbar CT myelogram was not obtained at that time. The outcome may have been different as by July 15, 2003, the neuro-deficits were present.
The plaintiffs' motion for partial summary judgment was set and heard on the same date that a summary judgment filed on behalf of Dr. Clark, seeking dismissal of all claims against him was heard, as well as the plaintiffs' supplemental petition seeking court approval of their settlement with Dr. Barrow and his insurer for $100,000.00, and allowing them to proceed for the additional $400,000.00 claimed in damages against the LPCF.
On October 6, 2009, the trial court rendered "Judgment Approving Settlement," approving Dr. Barrow and his insurer's settlement with the plaintiffs for $100,000.00, pursuant to La. R.S. 40:1299.44(C), and reserving for further proceedings the plaintiffs' remaining claims for damages against the LPCF.
On that same date, the trial court also rendered judgment on the motions for summary judgment The trial court granted partial summary judgment in favor of the plaintiffs: (1) finding Dr. Barrow " to be at fault with respect to the injuries to Majdi Khammash which are the subject of these proceeding [;]" (2) finding "that the injuries complained of by Majdi Khammash were caused by the fault of [Dr. Barrow ];" (3) finding Majdi Khammash free of fault with respect to the injuries suffered by him; and (4) precluding Dr. Barrow from raising the fault of any of the other named (since dismissed) defendants at the trial on the merits or including the fault of other parties in the jury verdict form. (Emphasis added.) The trial court also granted summary judgment in favor of Dr. Clark, dismissing all of plaintiffs' claims against him, leaving only Dr. Barrow, now replaced as a party by LPCF, as the only defendant for trial. (The judgment granting the above mentioned summary judgments was also certified as final pursuant to La. C.C.P. art. 1915(B).) However, no appeal was taken, and that judgment is now final.
In Hanks v. Seale, 2004-1485, p.12 (La. 6/17/05), 904 So.2d 662, 669, the Supreme Court held that when a health care provider chooses not to appeal a judgment of liability against him, the judgment of liability becomes final, precluding the LPCF from contesting liability.
On September 15, 2010, the plaintiffs filed another motion for summary judgment, referencing the foregoing summary judgment finding both liability and causation tied to Dr. Barrow's acts of malpractice, and asserting that the only issue remaining is the extent of damages suffered by Mr. Khammash because of the malpractice of Dr. Barrow. Plaintiffs further asserted there is no genuine issue of material fact regarding the extent of the injuries and permanent disability suffered by Mr. Khammash, detailed the evidence presented regarding Mr. Khammash's need for future medical care, including several surgeries, his lost wages and loss of earning capacity, as well as the permanency of his disability, and contended that the "PCF has provided and can provide no evidence to dispute this evidence." In support of their motion, the plaintiffs attached depositions and affidavits of ail of Mr. Khammash's treating providers, the medical records to correspond with that testimony, the medical review pane! opinion, evidence regarding Mr. Khammash's functional capacity evaluation, as well as affidavits of the experts establishing the quantification of his damages. Based on all the evidence attached, the plaintiffs argued that it would be an abuse of discretion to fail to award the full $500,000.00 allowable under Louisiana's Medical Malpractice Act, subject to the $100,000.00 credit for Dr. Barrow and his insurer's settlement. They also relied on Bijou v. Alton Ochsner Medical Foundation, 95-3074, pp. 7-8 (La. 9/5/96), 679 So.2d 893, 897, for the proposition that when the facts and circumstances show that there exists no genuine issue of material fact on the issue of whether plaintiff is entitled to the statutory limit of $500,000.00 (for medical malpractice victims), the court should grant summary judgment on the amount of damages, eliminating the need for unnecessary litigation and in the interests of promoting judicial economy.
In October 2010, the plaintiffs also filed a Motion in Limine seeking to exclude the testimony of Dr. Bert R. Bratton, the PCF's expert, intending to testify regarding causation and liability. The basis of this motion, as for the summary judgment motion, was the trial court's prior partial summary judgment establishing both liability and causation as to Dr. Barrow. They contended those two issues were final; therefore, Dr. Bratton's testimony would be not only irrelevant, but a "waste [of] judicial resources and time."
Both of the foregoing motions were heard by the trial court on December 6, 2010, at which time the trial court denied both motions. (Judgments to that effect were signed on January 11 and 18, 2011.)
On August 10, 2011, the plaintiffs filed a motion in limine "to limit the jury verdict form and preclude causation as an issue." Plaintiffs also filed objections to the proposed jury charges that pertained to either liability or causation. Again, these motions were denied, and the matter proceeded to a jury trial beginning on September 27, 2011.
FINDINGS OF THE JURY
On September 30, 2011, the following verdict was returned by the jury:
1) Do you find that the breach of the standard of care by Dr. Gray Barrow caused Mr. Khammash to suffer damages?As directed, the jury then skipped all other inquiries, and dated and signed the verdict form. Prior to rendering the verdict, the jury instructions pertinent to the issues raised in this appeal included: that the plaintiff must prove "that the injury which the plaintiff suffered was, in fact, caused by the conduct of the defendant" and "there was actual damage to the plaintiff's person;" that the plaintiff must show by a preponderance of the evidence "that he suffered the injury because of the defendant's conduct;" and that plaintiff must demonstrate "that the injury which he says he suffered was, in fact, caused by the conduct of the defendant."
[To which the jury checked: NO]
Notably, the trial court declined to give the following special jury charge, submitted by the plaintiffs:
I previously made rulings in this case in summary judgment that address the issues of fault and causation. I found that Dr. Gray (sic) Barrow was at fault in his case of Majdi Khammash and that this fault was the cause of Khammash's injuries. I additionally found that no other parties bear any fault in causing Khammash's injuries. Therefore, you may only consider Gray (sic) Barrow, M.D., Gray (sic) Barrow, M.D., Ltd. and Louisiana Spine & Sports Medicine as being at fault for Khammash's injuries and that such fault caused his injuries.
ASSIGNMENTS OF ERROR
The plaintiff appeals, assigning error to five of the trial court's findings, primarily contending the trial court erred by not applying the October 6, 2009 partial summary judgment, finding Dr. Barrow solely at fault for causing all of Mr. Khammash's injuries, to preclude the PCF from contesting liability at trial. The plaintiff's other assignments concern the denials of the plaintiffs' subsequent motions -- in limine, for summary judgment, objections to jury charges and jury verdict -- based on the trial court's refusal to recognize that causation was decided by the earlier judgment. Because we find reversible merit in the first assignment of error, we pretermit discussion of the other assignments of error as unnecessary.
APPLICABLE LAW
In opposing this appeal, the LPCF correctly cites the appropriate law and jurisprudence with regard to the effect that a court-approved settlement, between a defendant doctor or his insurer with a victim for $100,000.00, pursuant to the Medical Malpractice Act, has on the plaintiff's remaining burden of proof at a trial seeking an excess judgment from the PCF.
The Medical Malpractice Act, specifically, La. R.S. 40:1299.44(5)(e), provides:
In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the trier of fact shall consider the liability of the health care provider as admitted and established where, the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.The statute clearly states a settlement establishes liability as to the health care provider. However, the statute being silent as to the "causation" of said liability, and how the finding of liability effects a plaintiff's burden of proof at further proceedings, a line of jurisprudence has emerged which consistently imposes on a plaintiff the burden of proving that admitted malpractice caused damages in excess of $100,000.00.
In Graham v. Willis-Knighton Medical Center, 97-0188, p. 15 (La. 9/9/97), 699 So.2d 365, 372, the court addressed the specific issue regarding the extent of plaintiff's burden of proving causation of the claimed damages after a defendant doctor's insurer paid $100,000.00 in settlement of the claim against him, thereby triggering an admission of liability under La. R.S. 40:1299.44C(5). The court concluded:
We now conclude that the legislative intent of "liability" in Section 1299.44 C(5) was that the payment of $100,000 in settlement establishes proof of liability for the malpractice and for damages of at least $100,000 resulting from the malpractice, which is a very significant benefit to the medical malpractice victim/However, at the trial against the Fund, the plaintiff has the burden of proving that the admitted malpractice caused damages in excess of $100,000. (Emphasis added.)See also Hall v. Brookshire Bros., Ltd., 2002-2404, p. 10 (La. 6/27/03), 848 So.2d 559, 566; Potier v. Commissioner of Insurance, 98-1063, p.8 (La. App, 1 Cir. 11/10/99), 753 So.2d 305, 310, writ denied, 2000-0319 (La. 4/2/00), 760 So.2d 345.
However, as argued by the plaintiff in this appeal, and apparently overlooked by both the trial court and the LPCF, this case is significantly distinguishable from the foregoing line of jurisprudence in that there has been a partial summary judgment (certified as final, and not appealed), granted in this matter in favor of the plaintiffs, establishing not only Dr. Barrow's liability, but also causation of Mr. Khammash's injuries. Given proper effect to that judgment, the trial court erred in allowing any testimony whatsoever concerning causation, as well as directing the jury and allowing inquiries in the jury verdict to place the issue of the causation of plaintiff's damages before the jury.
Given the statutory effect of Dr. Barrow's court-approved settlement together with giving effect to the partial summary judgment in this case, the sole issue properly before the jury was the quantification, if any, of Mr. Khammash's injury, beyond $100,000.00.
CONCLUSION
Accordingly, we find reversible error in the trial court's allowing causation testimony, as well as jury instructions and verdict inquiries regarding causation to be placed before the jury. We also find that error interdicts the jury verdict. Accordingly, the trial court's judgment adopting said jury verdict is hereby vacated and set aside.
Generally, when a legal error interdicts a jury verdict, but the record before this court is nonetheless complete, this court may conduct a de novo review of the evidence and determine an appropriate amount awardable as damages. However, we note that in this matter, the plaintiffs specifically sought a trial by jury, and we find no reasons to deny the plaintiffs their right to such fact finding because of reversible error committed by the trial court. We also note that Mr. Khammash's injuries that are the subject of these proceedings are complex and not subject to a clear-cut quantification. Thus, in all fairness to the litigants, we find that a remand for a new trial, solely on the quantification of the damages suffered by Mr. Khammash, is warranted.
Accordingly, we reverse the judgment of the trial court and remand this matter for a new trial in accordance herewith. All costs of this appeal, in the amount of $8,679.00 are assessed to the appellees, Louisiana Patient's Compensation Fund and Louisiana Patient's Compensation Fund Oversight Board.
REVERSED AND REMANDED.