CARAWAY, J.
This is a medical malpractice action arising out of the death of Annette Toston. After 44-year-old Toston died from complications from an underlying kidney infection in November, 2002, her seven children instituted suit for her wrongful death against St. Francis Medical Center and the State of Louisiana ("E.A. Conway" hospital). The trial court determined that St. Francis committed medical malpractice and pursuant to the Medical Malpractice Act, assessed St. Francis with $100,000 in damages and the Louisiana Patients' Compensation Fund ("PCF") with $400,000. The PCF intervened and brings this appeal. For the reasons set forth below, we affirm.
This wrongful death and medical malpractice case concerns St. Francis's delay in admitting Annette Toston ("Toston") into the hospital on November 24, 2002. At the time, while Toston was a patient at E.A. Conway hospital, she needed a surgical
On remand, the case proceeded to a 3-day bench trial in July 2014, against St. Francis. In its oral ruling for the plaintiffs, the trial court discussed the nature of the case as follows:
The court reviewed the facts and testimony and ruled accordingly:
After this ruling on liability, the trial court determined damages. The court noted that Toston was 44 years old and making around $11,000 a year when she
A written judgment followed on July 14, 2014, assessing St. Francis with $100,000 damages and the PCF with $400,000 pursuant to the Medical Malpractice Act ("MMA"). Initially, St. Francis appealed and posted a bond of $162,000, consisting of $100,000 and the remaining judicial interest. Thereafter, the PCF intervened.
Subsequently, plaintiffs entered into a settlement agreement with St. Francis. In the settlement agreement, plaintiffs settled for $100,000, and released St. Francis from liability, reserving all rights to proceed against the PCF. Thereafter, plaintiffs and St. Francis filed a joint motion to dismiss St. Francis's appeal, which included a copy of the settlement agreement and a certificate of service that a copy had also been delivered to the counsel for the PCF. The trial court granted the joint order to dismiss. Thus, the PCF is the only remaining defendant and has brought this appeal.
Three
In Hanks, two defendant physicians performed surgery on the plaintiff. Eventually, problems and complications arose as a result of the surgery, and plaintiff was forced to undergo additional surgeries. After the medical review panel issued its opinion, plaintiff filed a medical malpractice claim against the two surgeons for the initial operation.
The matter proceeded to trial, and the jury found in favor of plaintiff, awarding damages over $4,000,000. The district court, pursuant to the MMA, assessed the physicians' damages of $100,000 plus interest and found the State Treasurer's Office and the Office of Risk Management liable for the remaining damages subject to the limits in the MMA. After the district court denied their post-trial motions, both doctors chose not to appeal and instead paid the statutory maximum of $100,000 plus interest. Thereafter, the PCF intervened and appealed.
The Supreme Court granted certiorari to determine whether the PCF was precluded from arguing the liability of the physicians. The court first recognized that the MMA provisions for settlement of liability in advance of trial, La. R.S. 40:1299.44(C), had no application in Hanks. Nevertheless, with the jury trial and the
The court's conclusion in Hanks was best summarized as follows:
Id. at 669.
In brief, the PCF attempts to distinguish Hanks on the basis of the appeal by St. Francis in this case and the PCF's intervention, both of which occurred before the time of St. Francis's settlement for $100,000. Additionally, urging La. R.S. 40:1299(C)(5)(e), the PCF continues to argue that the liability settlement legislatively addressed in that section of the MMA did not occur in this case so that this post-trial settlement does not preclude the PCF from contesting the medical malpractice liability in this appeal.
We reject these arguments because the ruling in Hanks did not rely on the specific pretrial settlement procedure addressed in the MMA. Instead, interpreting the broad context of the overall act, the court found that a liability determination through a trial on the merits before any allowance for the PCF's intervention was binding on the PCF upon the healthcare provider's later settlement for its initial $100,000 liability for the claim. We do not find the fact distinction between the time of settlement in this case and the Hanks' settlement relevant so long as the liability issue was foreclosed by the action of the healthcare provider prior to this appellate consideration.
As an additional issue concerning liability, the PCF also asserts that the trial court erred in failing to allocate fault to Willis-Knighton hospital in Shreveport for its refusal to accept the transfer of Toston from E.A. Conway at 1:00 a.m. on November 25, 2002.
Finally, also related to the trial court's determination of liability, the PCF asserts that the trial court erred in finding that this court's previous ruling in Toston I established law of the case. This, according to the PCF, allowed a standard of care to be imposed upon St. Francis which was not supported by expert medical testimony. From the trial court's ruling above and the record, the court did not proceed under any view that Toston I had established law of the case. Aside from that point, the trial court's determination
With liability established, PCF's next assignment of error is that the plaintiffs did not carry their burden of proof that St. Francis's breach of the standard of care caused harm to Toston. As we have already held, St. Francis's settlement agreement is a admission that its breach caused harm resulting in damages of at least $100,000. PCF's assignment of error nevertheless can be viewed as its assertion that St. Francis's breach of the standard of care did not cause harm in excess of $100,000.
As the Louisiana Supreme Court explained in Hall v. Brookshire Bros., Ltd., 02-2404 (La. 6/27/03), 848 So.2d 559, 567:
PCF contends that the only treatments that St. Francis could provide, which were unavailable at E.A. Conway, were dialysis and the placement of stents. Thus, there was no evidence that the delay in dialysis or placement of stents caused harm that would not have otherwise occurred. We disagree.
Dr. Uma Rangaraj, who specializes in the field of internal medicine, and who was the supervising physician at E.A. Conway, described her thoughts when St. Francis initially said it would accept Toston on the night of November 24, 2002, before the 15-hour time delay:
Dr. Patrick L. Flyte, the treating physician at E.A. Conway, had the following exchange with counsel for plaintiffs when discussing Toston's chances of survival:
Dr. Michael R. Hand, who specializes in the field of nephrology stated that if intervention had happened earlier, Toston's chances would have improved. He also stated that when Toston finally arrived at St. Francis, her chance of survival was close to 0, less than 5%.
Dr. Michael Archie, a nephrology specialist, stated that Toston would have had an improved chance if St. Francis would have accepted her on the night of November 24. He further stated that Toston had a 30% chance of survival when she arrived at Conway at 11:30 a.m., and less than a 5% chance of survival when she finally arrived at St. Francis.
In Smith v. State, Dept. of Health and Hospitals, 95-0038 (La. 06/25/96), 676 So.2d 543, the Supreme Court recognized the right to recover damages for any lost chance of survival and set forth the method of valuation. In Smith, X-rays showed a fast-acting cancer. The patient was released without being told of the findings. When the patient returned the following year, it was too late. The hospital admitted negligence but asserted that the patient would have died anyway. The Smith court found that a tort-caused lost chance of survival of any degree is "a distinct compensable injury ... to be distinguished from the loss of life in wrongful death cases." Smith, 676 So.2d at 547. The two theories of injury are distinct. They entail different damage calculations. Where the evidence could support either a theory that the defendant's conduct caused the decedent's death (making full wrongful death damages appropriate) or a theory that the defendant's conduct caused the decedent a loss of a chance of survival, Louisiana law is clear that only one kind of damages or the other may be awarded. A jury may find the defendant liable either for causing the patient's wrongful death or for causing the patient's loss of a chance to survive, but not for both. The issue in loss of chance cases is whether the tort victim lost
In Smith, supra, the Supreme Court set forth the prerequisites to prove the loss of a less than 50% chance of survival. Plaintiff must show by a preponderance that: (1) the victim had a chance to survive at the time of the professional negligence; (2) the tortfeasor's action or inaction deprived the victim of all or part of that chance; and, (3) the value of that lost chance.
The manifest error standard of review applies to review of medical malpractice claims. Jackson v. Tulane Medical Center Hosp. and Clinic, 05-1594 (La. 10/17/06), 942 So.2d 509. A court of appeal may not set aside a trial court's or jury's finding of fact in the absence of manifest error or unless clearly wrong. In order to reverse a factfinder's determination, an appellate court must review the record in its entirety and find that a reasonable factual basis does not exist for the finding and further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Where there are contradictory expert opinions regarding compliance with the applicable standard of care, the appellate court is bound to give great deference to the conclusions of the trier of fact. Coody, supra.
In order to recover damages in their medical malpractice action, plaintiffs had to establish a breach of the standard of care applicable to St. Francis and prove that its breach caused Toston's death or a loss of chance of a better medical outcome or longer survival. The trial court could not find that St. Francis caused Toston's death by its negligence. Nevertheless, based on the above evidence, we find that the trial court had a reasonable factual basis to determine that St. Francis's breach caused Toston the loss of a chance of a better outcome or longer survival.
The PCF has also argued that the evidence was not sufficient to support the $600,000 damage award.
In the determination of general damages, 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. La. C.C. art. 2324.1; Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), Coody, supra at 492. Reasonable persons frequently disagree about the measure of general damages; therefore, it is only when the award is 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 decrease the award. Coody, supra.
In Smith, supra at 548-549, the supreme court stated:
The court also noted the distinction between calculating comparative fault damages and loss of a chance of survival damages:
The loss of any chance of survival is a distinct injury compensable as general damages which cannot be calculated with mathematical certainty. The factfinder should make a subjective determination of the value of that loss, fixing the amount of money that would adequately compensate the claimants for that particular cognizable loss. The factfinder is allowed to consider an abundance of evidence and factors, including evidence of percentages of chance of survival along with evidence such as loss of support and loss of love and affection, and any other evidence bearing on the value of the lost chance. The factfinder's verdict of a lump sum amount of damages can be tested on appeal for support in the record by reviewing the percentage chances and the losses incurred by the tort
PCF argues that Toston could not have had a close relationship with one of her seven children because of her mental and physical conditions and that only three of the remaining children were minors at the time of her death. PCF further argues that since Toston's income was less than $10,000 a year prior to her death, whatever financial support her seven children were receiving had to have come from sources other than their mother.
Toston's children were ages, 29, 24, 22, 20, 16, 11 and 9 when she died. Toston never married and raised her seven children alone until the time of her death. The oldest child, Sylvella, had a child of her own and sustained severe brain injury in a 1997 accident. She lived in a local nursing home where Toston had been employed. She was aware of her family and became more withdrawn and sad for months after her mother's death.
The second daughter, Lateea, testified that since her mother's death, she was required to get the school-age children up and out for school. She worked from 7-3 and then helped the children with homework. She fed them and got them to bed, after which she went to the nursing home to sit with her older sister until midnight. Lateea had not been living with her mother at the time of her death because she was in nursing school and the National Guard since she was 17. Lateea testified that she intended to complete nursing school in 2015 and complete her 20 years of service in the National Guard after deployment to Kuwait in 2015.
Lateea testified that it was her mother's plan to bring Sylvella home to Monroe and she was in the process of having a room designed for her daughter after her purchase of a new home. Lateea had been unable to complete her mother's plans due to her schooling and other responsibilities which were overwhelming. She had been able to move all the other children to the Monroe home. Sylvella's daughter had graduated from high school with honors and was attending college.
Lateea testified that her mother was close to all of her children. Lateea helped all of them receive education and obtain jobs after their mother's death. Cordney, 22, got off track after the death of his mother and was in a correctional facility for a marijuana conviction.
Toston's employer testified that Toston had worked at her nursing home for 15 years until her death; she was a good employee who volunteered for extra shifts. She testified that Sylvella could recognize her mother and siblings and spoke with her eyes by blinking. Sylvella became depressed after her mother's death and the employer could tell that all of the children were having a hard time with their mother's death. The employer saw Toston the day before she went into the hospital and she seemed fine. Additionally, two of Toston's close friends testified that Toston worked hard for her children and that she and her children had a close relationship.
In all, the trial court heard testimony from four of Toston's seven children and other witnesses. Reviewing the award of damages in the light most favorable to the plaintiffs, we do not find that the trial court abused its vast discretion in awarding plaintiffs damages in the lump sum amount of $600,000 for the damage to her children in this lost chance of survival case.
For the reasons expressed above, the judgment of the trial court is affirmed.
Assignment of Error # 3. The trial court erred when it found that appellees carried their burden of proof establishing the standard of care owed by SFMC and that it breached that standard of care in regards to the potential transfer from Conway on November 24, 2002, at 7:50 p.m., or thereafter.
Assignment of Error # 5. The trial court erred in failing to allocate fault to Willis-Knighton for accepting and then declining Ms. Toston's transfer.
