Anderson v. BOARD OF SUP'RS OF STATE UNIV.

943 So. 2d 1198, 2006 WL 2956492
Louisiana Court of Appeal·Decided October 17, 2006·No. 06-CA-153·Published·Cited by 6 cases

Opinion

943 So.2d 1198 (2006)

Sandra M. ANDERSON
v.
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE by and through the LOUISIANA STATE UNIVERSITY HEALTH SCIENCE CENTER.

No. 06-CA-153.

Court of Appeal of Louisiana, Fifth Circuit.

October 17, 2006.

*1199 Deborah E. Lavender, David C. Whitmore, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.

Patricia S. LeBlanc, Kelly McCarthy Rabalais, Attorneys at Law, Metairie, LA, for Defendant/Appellee.

Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.

WALTER J. ROTHSCHILD, Judge.

In this medical malpractice case, plaintiff, Sandra Anderson, appeals a jury verdict and trial court judgment in favor of defendant, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College by and through the Louisiana State University Health Sciences Center ("LSU"). For the reasons which follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 18, 1998, Sandra Anderson, who is a licensed practical nurse, underwent plastic surgery at Magnolia Surgical Facility. The doctors performing the surgery were Dr. Forrest Wall, who was a resident in the LSU plastic surgery department, and Dr. Walton Montegut, a physician in private practice who also served as a faculty member at LSU Medical School. Dr. Montegut performed a coronal forehead lift and a fat transfer to the upper and lower lips. Dr. Wall performed a full face lift and a neck lift, and he was supervised by Dr. Montegut *1200 during the surgery. As a result of these procedures, Ms. Anderson suffered nerve damage to her face, which causes hemifacial spasms.

A medical review panel was convened to consider Ms. Anderson's claims that the nerve injury to her face was caused by the negligence of Drs. Wall and Montegut. Ms. Anderson's primary claim was that she was not sufficiently informed of the risks of the procedures, i.e. she did not give an informed consent to these procedures. After considering the arguments of the parties, the medical review panel issued an opinion, finding that "[t]here is a question of fact as to whether or not the patient was pre-operatively informed of the potential of a facial nerve injury as a complication of facelift surgery."

On June 17, 2002, plaintiff filed this lawsuit against LSU for the actions of Drs. Wall and Montegut, asserting that both doctors deviated from the standard of care, failed to properly inform Ms. Anderson of known complications of the plastic surgery, and failed to obtain an informed consent for the plastic surgery procedures performed. Prior to trial, counsel for both parties signed a pre-trial order containing a stipulation that the only claim to be presented at trial was "whether Sandra Anderson was adequately consented regarding the risk of a rare but known complication of her surgery."

A jury trial was held on August 1, 2, and 3, 2005. At the conclusion of the trial, the jury found that the plaintiff did not prove by a preponderance of the evidence the existence of a material risk unknown to her. On August 10, 2005, in accordance with this finding, the trial judge signed a judgment dismissing plaintiff's claims against defendant, LSU. Plaintiff, Ms. Anderson, appeals.

DISCUSSION

In her first assignment of error, plaintiff argues that the trial court erred in granting defendant's Motion in Limine and ruling that plaintiff's counsel could not ask Dr. Montegut if he had passed the examination for board certification.[1] Apparently, defendant filed a Motion in Limine asking the trial court to exclude testimony concerning whether or not Dr. Montegut was board certified in plastic surgery at the time of plaintiff's surgery, arguing that it was not relevant to plaintiff's informed consent claim. Arguments on the Motion in Limine were heard just before the trial began. At the hearing, defendant argued that plaintiff's only purpose in asking if Dr. Montegut was board certified would be to prejudice the jury and to embarrass Dr. Montegut. Defendant further asserted that the jury had to assess credibility to determine whether or not Dr. Montegut informed plaintiff of the risks of surgery, and Dr. Montegut never lied about whether or not he was board certified, so this question was not relevant to credibility. Plaintiff responded that the issue of board certification is one that is asked of almost every medical expert who testifies in court and that the answer relates to whether or not Dr. Montegut was qualified to supervise Dr. Wall and whether or not he disclosed his education and experience to plaintiff.

After questioning plaintiff's counsel regarding whether or not she had proof that Dr. Montegut failed the board certification exam, the trial judge stated:

*1201 . . . . I will permit counsel to conduct an evidentiary hearing with the witness so that the facts may be established. Therefore, counsel will not be permitted to argue this before the jury nor engage in voir dire on that particular point because the matter has not been established sufficiently before the court to determine whether or not that is something which the jury will hear. And I state that because the representations in chambers were such that I was satisfied that this had, in fact, occurred and I'm not so at this point and therefore I will not permit it. I will allow the evidentiary hearing if counsel wishes to. (Emphasis added.)

At trial, plaintiff's counsel asked Dr. Montegut if he had failed the board certification examination. Defense counsel objected to the question, arguing that there had been no evidentiary hearing and thus, plaintiff could not question Dr. Montegut on this issue. The trial judge sustained the objection. Plaintiff's counsel then stated:

You know what, I'll just stay away from it. That's okay. I just won't even touch it again. . . .

On appeal, plaintiff argues that the trial court erred in granting the Motion in Limine on this issue, but defendant asserts that this issue cannot be reviewed on appeal because plaintiff did not make an objection for the record or request a proffer of evidence. We agree with defendant.

In order to preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence and state the reasons for the objection. Matthews v. Breaux, 04-958 (La.App. 5 Cir. 2/15/05), 896 So.2d 1146, 1150. The failure to make a contemporaneous objection in the trial court waives the right of a party to complain about the ruling on appeal. Hyland v. American Guarantee and Liability Insurance Company, 04-305 (La. App. 5 Cir. 9/28/04), 885 So.2d 30, 34.

In the present case, plaintiff's counsel did not request an evidentiary hearing prior to Dr. Montegut's testimony and did not make a contemporaneous objection when the trial judge sustained defendant's objection to her question regarding whether or not Dr. Montegut passed the examination for board certification. Rather, plaintiff's counsel simply stated, "That's okay," and "I'll just stay away from it." Accordingly, because plaintiff did not make a contemporaneous objection when the trial judge ruled that she could not question Dr. Montegut on this issue, we find that plaintiff has waived her right to contest this ruling on appeal. Thus, this assignment of error is without merit.

In her second assignment of error, plaintiff asserts that the trial court erred in granting defendant's Motion in Limine and excluding evidence which suggested that Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Anderson v. BOARD OF SUP'RS OF STATE UNIV., 943 So. 2d 1198, 2006 WL 2956492 (La. Ct. App. 2006).

943 So. 2d 1198 (Anderson v. BOARD OF SUP'RS OF STATE UNIV.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related