In this medical malpractice case, the appellants, Dr. Shawn Humphries and the Louisiana Patient's Compensation Fund and Louisiana Patient's Compensation Fund Oversight Board (collectively, the Board), through the defendants, Dr. Humphries and Lady of the Sea General Hospital, appeal the trial court's entry of a judgment notwithstanding the jury's verdict and its conditional grant of a motion for a new trial in favor of the plaintiffs, Duane and Torrie Wood. For the following reasons, we reverse that judgment and reinstate the jury's verdict, together with the judgment of April 13, 2011, rendered in accordance with the jury's verdict.
Duane and Torrie Wood filed a petition against Dr. Shawn Humphries and Lady of the Sea General Hospital (LOSGH), located in Lafourche Parish, alleging that they breached the applicable standard of care in their emergency room treatment of Mr. Wood on March 30, 2005, resulting in serious and permanent damage to him as the result of a major stroke. After extensive discovery, the case was tried to a jury on March 30 and 31, 2011, and April 1, 4, and 5, 2011. The first question on the special jury interrogatories asked whether the jury found, by a preponderance of the evidence, that the plaintiffs had proved the standard of care applicable to Dr. Humphries and LOSGH regarding the medical care provided to Mr. Wood. The jury response as to both defendants was "No." On April 13, 2011, the court signed a judgment in accordance with the jury verdict, dismissing the suit with prejudice.
The plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV) and a motion for a new trial. After a hearing on May 31, 2011, the court granted the motion for JNOV and rendered judgment in favor of Mr. Wood in the amount of $5,580,675 and in favor of Mrs. Wood for $150,000, plus judicial interest on both awards from November 3, 2005, until paid, and all court costs. The judgment also ordered the defendants to pay expert fees in the amount of $12,000. The court allocated 90% fault to Dr. Humphries and 10% fault to LOSGH. To comply with the medical malpractice cap on damages in LSA-R.S. 40:1299.42(B)(1), the total amount of damages awarded was reduced to $500,000, plus legal interest and costs, exclusive of future medical care and related benefits, as provided in LSA-R.S. 40:1299.43. The motion for new trial was also conditionally granted in favor of the plaintiffs, in accordance with LSA-C.C.P. art. 1811(C)(1) and (2), for the same reasons that supported the trial court's grant of the JNOV. The judgment was signed June 20, 2011.
The Board became involved in the appeal as a matter of law, because the court had granted the JNOV and awarded damages above the statutory cap of $100,000 for qualified health care providers, as provided in LSA-R.S. 40:1299.42(B)(2). The plaintiffs dismissed their claims against LOSGH with full reservation of their claims against the Board.
The Board assigns as error the trial court's reversal of the jury's verdict and granting of the JNOV, based on the court's allegedly faulty interpretation of the Medical Malpractice Act and LSA-C.C.P. art.
The plaintiffs' burden in a medical malpractice case against a physician is to prove by a preponderance of the evidence the three elements set forth in LSA-R.S. 9:2794(A), which states, in pertinent part:
These elements can be summarized in the context of this case as requiring Mr. and Mrs. Wood to prove: (1) the standard of care applicable to Dr. Humphries in her practice as an emergency room physician; (2) Dr. Humphries' breach of that standard of care; and (3) the causal relationship between that breach and the injuries sustained by Mr. and Mrs. Wood. The jury verdict in this case was that the plaintiffs failed to prove the standard of care applicable to Dr. Humphries. Obviously, if that standard of care is not known, it is impossible to determine whether it was breached. Therefore, the jury's answer to this question required the court to enter judgment dismissing the plaintiffs' case.
A JNOV is a procedural device authorized by LSA-C.C.P. art. 1811, by which the trial court may modify the jury's findings to correct an erroneous jury verdict. Article 1811 states, in pertinent part:
Article 1811 does not set out the criteria to be used when deciding a motion for JNOV. However, the Louisiana Supreme Court has established the standard to be used in determining whether a JNOV is legally called for, stating:
Joseph v. Broussard Rice Mill, Inc., 00-0628 (La. 10/30/00), 772 So.2d 94, 99.
In a case such as this, the trial court must first determine whether the facts and inferences point so strongly and overwhelmingly in favor of the plaintiffs that reasonable jurors could not arrive at a contrary verdict. Stated simply, if reasonable persons could have arrived at the same verdict, given the evidence presented to the jury, then a JNOV is improper. Cavalier v. State, Dep't of Transp. & Dev., 08-0561 (La.App. 1st Cir.9/12/08), 994 So.2d 635, 644.
An appellate court reviewing a trial court's grant of a JNOV employs the same criteria used by the trial court in deciding whether to grant the motion. See Smith v. State, Dep't of Transp. & Dev., 04-1317 (La.3/11/05), 899 So.2d 516, 525. In other words, the appellate court must determine whether the facts and inferences adduced at trial point so overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary finding of fact. Id. If the answer is in the affirmative, then the appellate court must affirm the grant of the JNOV. Id. However, if the appellate court determines that reasonable minds could differ on that finding, then the trial court erred in granting the JNOV, and the jury verdict should be reinstated. Id.
Therefore, our initial inquiry is whether the evidence at trial so overwhelmingly supported the plaintiffs on the standard of care issue that reasonable jurors could not have concluded that the plaintiffs had failed to establish the standard of care applicable to Dr. Humphries' treatment of Mr. Wood. If so, then the trial court was correct in granting the JNOV. However, if reasonable jurors in the exercise of impartial judgment might conclude from the evidence that the plaintiffs had failed to establish the applicable standard of care, then the trial court erred in granting the motion, and the jury's verdict should be
Dr. Craig Kennedy, board certified in family practice and emergency medicine, was the first expert witness called by the plaintiffs; he testified as a medical doctor with a specialty in emergency room medicine. He stated that in emergency medicine, the physician must know how to recognize the signs and symptoms of a stroke. He said that if he suspected that a patient might be having a stroke, he had to transfer that patient to a medical center with more technology, more testing capability, and more specialists to determine if there was a stroke or not. Whether working in a small or large facility, the emergency room physician has the same duty to the patient to rule out the most life-threatening thing first and get the patient into the hands where he needs to be. Dr. Kennedy said the standard of care for an emergency room doctor or nurse was no different in Louisiana than it was anywhere else in the country. That standard included the identification of a stroke, diagnosis, and treatment or transfer. Asked specifically about the standard of care for an emergency room physician in the treatment and diagnosis of a patient with a suspected stroke, he said:
Dr. Kennedy then stated that the LOSGH medical records reflected that the only diagnostic test performed on Mr. Wood was the CT scan, and opined that the failure to perform additional diagnostic testing was a breach of the standard of care by Dr. Humphries, as was her failure to have an adequate suspicion for a stroke, so she would take the correct action. He also stated that if the patient meets the criteria for a stroke, the emergency room physician should administer a "clot buster" medication within an hour. Dr. Kennedy said that, given the symptoms of hypertension, headache, and visual problems that Mr. Wood was experiencing when he went to the emergency room, his case was
The next expert witness to testify for the plaintiffs was Dr. Lanny Jay Turkewitz, a neurologist with 32 years of practice. Currently practicing at Baptist Hospital in Nashville, Tennessee, he had been director of the stroke program at Charity Hospital in New Orleans before Hurricane Katrina. Dr. Turkewitz had practiced at two of the hospitals where Mr. Wood was treated following his stroke, i.e., St. Charles Parish Hospital and St. Anne General Hospital in Lafourche Parish. He remembered Mr. Wood's case very well, because it was a difficult stroke case, and Mr. Wood did not do well. Shown an MRI scan of Mr. Wood from 2007, Dr. Turkewitz pointed out the brain tissue that had died and said that the size of the stroke would have been less if Mr. Wood's blood pressure had been maintained. He said that, especially in hypertensive patients like Mr. Wood, it was important to maintain the blood pressure and not lower it at all, because even a small drop in blood pressure could be significant in a stroke situation. He also stated that if Dr. Humphries had simply covered and uncovered each eye, she would have realized that Mr. Wood's peripheral vision deficit was in the right quadrant of
Dr. Richard Sobel, an emergency physician for 30 years, also testified on behalf of the plaintiffs. He defined emergency medicine as the science of the initial evaluation and stabilization of patients at the emergency department. In his opinion, the care provided to Mr. Wood at LOSGH did not comply with the standard of care that was reasonable under the circumstances of Mr. Wood's presentation to the emergency room of LOSGH that day, including the patient examination and workup, the approach to the differential diagnosis of the patient, and the discharge from the emergency room with a referral to an ophthalmologist. He said that, based on Mr. Wood's symptoms when he arrived at the emergency room, Dr. Humphries should have had stroke as number one on her differential diagnosis list. In fact, he said stroke was really the only working diagnosis that the emergency physician should have been dealing with as an emergency medical condition. He stated there were an array of tests that were required in the workup of a stroke, reiterating the types of tests described by Dr. Kennedy. Dr. Sobel called it "a whole huge database that we emergency physicians are expected to do under the standard of care when we're suspecting a stroke." He said a crucial test was the "cover and uncover" test of both eyes, called visual field testing by confrontation. The standard of care required Dr. Humphries to do this exam properly and document it fully. It also required that she consult a neurologist to determine the proper treatment. Dr. Sobel stated that:
Dr. Sobel said that a thorough exam would have revealed that "[t]his patient is predestined to be a transfer" to another facility with the ability to provide the necessary treatment.
Dr. Scott Sondes, a physiatrist, provided expert testimony for the plaintiffs as a medical doctor with a specialty in physical medicine, rehabilitative medicine, and emergency room care. He agreed with the opinions expressed by the other doctors whose testimony preceded his, and stated:
The first physician to testify on behalf of the defendants as an expert in emergency room medical care and treatment was Dr. Luis Camero, who served on the Board of directors of the two most recognized institutions in the world in emergency medicine, The American College of Emergency Physicians and The American Academy of Emergency Physicians. Dr. Camero explained that the duties and responsibilities of emergency medicine doctors required each of them to be "a jack of all trades." He said emergency room doctors need to be able to evaluate whatever "pops through our door" and sometimes treat it, sometimes admit to the hospital, sometimes refer to the appropriate facility, and other times curtail life-threatening emergencies. They must also make sure that patients have follow-up and know what they are supposed to do when they leave the emergency department. Dr. Camero was a member of the Medical Review Panel that evaluated the care given to Mr. Wood by Dr. Humphries and LOSGH; the three-member panel unanimously agreed that neither of the defendants had breached the standard of care for emergency medicine in treating Mr. Wood. He said that he believed Dr. Humphries went "above and beyond the call of duty" and standard of care by personally arranging a follow-up appointment with an ophthalmologist, doing a very thorough physical exam, and providing immaculate documentation, including the pertinent positives and negatives during her examination of Mr. Wood. He stated that Dr. Humphries' notations on Mr. Wood's medical record indicated that she had performed a bilateral examination and found that only one eye was affected by a visual defect. He also said that he found it reasonable that Dr. Humphries had put an eye problem high on her differential diagnosis, while putting ischemic stroke low on the differential, because of the lack of focal neurological deficits in the findings based on a very, very thorough physical exam. Dr. Camero agreed that the tests discussed by the plaintiffs' experts and the medical reference book by Tintinalli described the standard of care "if the full-court press is going on because someone's having a stroke." However, not all of those tests help the physician diagnose a stroke. For instance, while an EKG was stated as a component of the standard of care, due to the possibility of atrial fibrillation, the EKG was not the only way to make that diagnosis, which could be determined clinically. If the physician listened to the heart and heard a very regular rhythm, that was sufficient to determine
Dr. Richard McConnell, a board certified emergency physician who also participated in the medical review panel pertaining to this case, testified for the defense as a medical doctor with a specialty in emergency room medicine. He reiterated the panel opinion and his own opinion that neither of the defendants breached the standard of care. Specifically, he said that, given Mr. Wood's history of headaches and a recent severe headache gradually resolving, "[a]nyone presenting like this, there are multiple diagnoses that should be considered.... You have immediately two reasons why he could be having headaches again," which were migraines and not taking his blood pressure medicine. He stated that Dr. Humphries had performed a complete physical exam, which was normal with the exception of the loss of vision in the right eye and the headache. Based on the emergency room records, he concluded that Dr. Humphries had correctly performed a confrontational exam, which revealed only a moderate disturbance in the right eye at the right side. This test further reduced the possibility of a stroke, which would show an area of blindness in the same visual field of both eyes, rather than a visual defect in only one eye. The normal CT scan further reduced the possibility of bleeding, tumor, or stroke. Based on the patient history and physical exam, he believed that Dr. Humphries' ultimate clinical impression of, "headache, rule out migraine versus secondary to uncontrolled high blood pressure" and a right peripheral visual field deficit, was a reasonable impression that met the standard of care. Dr. McConnell said various approaches to Mr. Wood's further treatment would have met the standard of care, including the approach taken by Dr. Humphries. Dr. McConnell said several times that Tintinalli's medical reference book did not establish the applicable standard of care for emergency room physicians, explaining:
He said the standard of care was what a reasonable physician, like himself, practicing emergency medicine, would do in a similar situation for the particular patient that is being evaluated. Dr. McConnell was questioned about certain of the recommendations in an article in Stroke, a journal published by the American Heart Association, and agreed that this article discussed "General Supportive Care in the Treatment of Acute Complications of Stroke," which established the standard of care for treatment of a stroke after a diagnosis has been made. However, it did not establish the standard of care for diagnosing stroke in every case. Dr. McConnell
In ruling on the JNOV, the trial court stated:
After reviewing the testimony of the medical experts in this case, we are forced to disagree with the trial court's conclusion that no reasonable juror could conclude that the plaintiffs had failed to establish the standard of care applicable to Dr. Humphries. Although the experts were in agreement about certain factors making up the standard of care in this situation, they disagreed on many other factors. For instance, although the medical experts agreed that Mr. Wood's history and symptoms indicated that he might be having a stroke when he entered the emergency room, they disagreed on whether other diagnoses, such as recurrent migraines, failure to take his blood pressure medicine, or the presence of a detached retina, could also reasonably be high on the list of possibilities in the differential diagnosis. Some of the experts, particularly Drs. Kennedy and Sondes, stated that the first action that should have been taken in this situation was to consult a neurologist or transfer Mr. Wood to a better-equipped hospital, while others believed such steps were necessary only if the CT scan and other physical tests were consistent in pointing to a stroke as the cause of Mr. Wood's symptoms. The experts who testified on behalf of Mr. and Mrs. Wood listed numerous tests, such as an EKG and cardio monitoring, that they felt were necessary components of the standard of care whenever a stroke was suspected; the physicians testifying on behalf of the doctor did
Under LSA-C.C.P. art. 1811(C)(1), if the trial court grants a JNOV, it must also rule on whether a new trial should be granted in the event the appellate court vacates or reverses the JNOV. The trial court must also specify the grounds for the grant or denial of the motion for a new trial. The trial court in this case stated that its reasons for granting the new trial were the same as those justifying the entry of the JNOV. Therefore, the court satisfied the requirements of Article 1811(C)(1). According to Article 1811(C)(2), if the motion for a new trial has been conditionally granted and the JNOV is reversed on appeal, the new trial shall proceed unless the appellate court orders otherwise. Therefore, we must consider whether the conditional granting of the motion for a new trial was appropriate in this case.
As provided in LSA-C.C.P. art. 1972, a new trial
The standard of review of a judgment on a motion for new trial, whether on peremptory or discretionary grounds, is that of abuse of discretion. See Magee v. Pittman, 98-1164 (La.App. 1st Cir.5/12/00), 761 So.2d 731, 746, writ denied, 00-1694 (La.9/22/00), 768 So.2d 31, 602. The breadth of the trial court's discretion to order a new trial varies with the facts and circumstances of each case. Horton v. Mayeaux, 05-1704 (La.5/30/06), 931 So.2d 338, 344. When the trial court grants a new trial based on Article 1972's mandatory ground of a jury verdict being contrary to the law and the evidence, the appellate court must review the record in view of the specific law or evidence found to conflict with the jury verdict to determine whether the trial court abused its discretion in granting a new trial. Martin v. Heritage Manor South, 00-1023, (La.4/3/01), 784 So.2d 627, 637.
A motion for new trial requires a less stringent test than a motion for JNOV, as its determination involves only the issue of a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. Law v. State ex rel. Dep't of Transp. & Dev., 03-1925 (La.App. 1st Cir.11/17/04), 909 So.2d 1000, 1006, writs denied, 04-3154 and 04-3224 (La.4/29/05), 901 So.2d 1062. Whether to grant a new trial requires a discretionary balancing of many factors. Id. In deciding whether to grant
The trial court in this case conditionally granted the new trial on the same grounds on which the JNOV was granted, namely, that the jury made a mistake in concluding that the plaintiffs had not established the standard of care applicable to Dr. Humphries by a preponderance of the evidence. The trial court found that the evidence establishing the standard of care was so overwhelming that no reasonable juror could have concluded that the plaintiffs had not proved that element of their case. Examining the trial court's conclusion in the light of the peremptory and discretionary grounds for granting a motion for new trial, it appears that the motion for new trial was granted because the jury verdict was contrary to the evidence presented by Mr. and Mrs. Wood concerning the standard of care. If that were the case, LSA-C.C.P. art. 1972 would mandate the granting of a new trial.
However, this court's review of the testimony of all the medical experts led us to conclude that there was significant disagreement among them as to the applicable standard of care, such that a reasonable juror could find that this element of the plaintiffs' case had not been established. In a number of cases, courts have concluded that when a JNOV is reversed based on the appellate court's determination that the jury's verdict was reasonably supported by the evidence presented at trial, the alternative request for a new trial should also be denied or reversed on appeal. See Trunk v. Medical Ctr. of Louisiana at New Orleans, 04-0181 (La.10/19/04), 885 So.2d 534, 540 ("Because we have previously concluded [in reversing the JNOV] that the jury's verdict was reasonable in light of the evidence presented, we find that plaintiff is not entitled to a new trial."); Davis v. Witt, 02-3102 (La.7/2/03), 851 So.2d 1119, 1134 ("When any fair interpretation of the evidence supports the jury's verdict, the grant of a new trial must be reversed."); VaSalle v. Wal-Mart Stores Inc., 01-0462 (La.11/28/01), 801 So.2d 331, 342 ("Because we have previously concluded [in reversing the JNOV] that the jury's verdict is reasonable in light of the evidence presented, we find that plaintiffs are not entitled to a new trial."); Yohn v. Brandon, 01-1896 (La. App. 1st Cir.9/27/02), 835 So.2d 580, 587, writ denied, 02-2592 (La.12/13/02), 831 So.2d 989 ("As with the supreme court in VaSalle, we have `concluded that the jury's verdict was reasonable in light of the evidence presented,' and [therefore,] the plaintiff `was not entitled to a new trial.'"); In re Gramercy Plant Explosion at Kaiser, 04-1151 (La.App. 5th Cir.3/28/06), 927 So.2d 492, 502, writ denied, 06-1003 (La.6/14/06), 929 So.2d 1271 ("[W]hen a JNOV is reversed on determination that the jury's verdict was reasonable in light of the evidence presented, the conditional new trial also should be reversed.").
We find such reasoning is applicable to this case. In reversing the trial court's grant of a JNOV, we determined that the evidence in the record supported the jury's verdict that the plaintiffs had failed to
Furthermore, our review of the record discloses no other grounds — peremptory or discretionary — upon which a motion for new trial could have been granted. See LSA-C.C.P. arts. 1972 and 1973. "A conditional grant of a new trial is not to be used to give the losing party a second bite at the apple without facts supporting a miscarriage of justice that would otherwise occur." Joseph, 772 So.2d at 105. Accordingly, we find that the trial court abused its discretion in conditionally granting the plaintiffs' motion for a new trial.
For all of the above reasons, the June 20, 2011 judgment of the trial court, granting a JNOV in favor of Mr. and Mrs. Wood and conditionally granting a new trial, is hereby reversed, and the jury's verdict is reinstated, together with the April 13, 2011 judgment rendered in accordance with the jury's verdict. All costs of this appeal are assessed to Mr. and Mrs. Wood.
CARTER, C.J., concurring with reasons.
CARTER, C.J., concurring.
I do not agree with the jury verdict, but I cannot say that the evidence points so strongly in favor of the moving party that reasonable persons could not reach a different conclusion. Resolving all reasonable inferences or factual questions in favor of the non-moving party, I reluctantly agree with the majority opinion that a JNOV in this case was improper under the above standards. Further, although I do not agree with the jury verdict, I agree with the majority opinion that the jury verdict was not unreasonable. Therefore, Mr. and Mrs. Wood were not entitled to the trial judge's conditionally granting a new trial.
