Bertrand v. Kudla

139 So. 3d 1233, 14 La.App. 3 Cir. 61, 2014 La. App. LEXIS 1471, 2014 WL 2515208
CourtLouisiana Court of Appeal
DecidedJune 4, 2014
DocketNos. 14-61, 14-62
StatusPublished
Cited by1 cases

This text of 139 So. 3d 1233 (Bertrand v. Kudla) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bertrand v. Kudla, 139 So. 3d 1233, 14 La.App. 3 Cir. 61, 2014 La. App. LEXIS 1471, 2014 WL 2515208 (La. Ct. App. 2014).

Opinion

KEATY, Judge.

1 plaintiffs, Talesha and James Bertrand, appeal from a judgment notwithstanding the verdict (JNOV) denying Plaintiffs’ request for an additional award of special damages to Talesha for her loss of income and for an increase of the general damage award. For the following reasons, we reverse in part and render.

FACTS AND PROCEDURAL HISTORY

Talesha delivered her third baby on December 13, 2004. She subsequently underwent a tubal ligation. Dr. Michael Kudla delivered her third baby and performed the tubal ligation. Dr. Robert Rumsey, a pathologist, examined the tube segments after Talesha’s surgery. In his pathologist report which was prepared on December 16, 2004, Dr. Rumsey indicated that the tubal ligation was incomplete. A copy of this report was placed in Talesha’s hospital chart and in her chart at Dr. Kudla’s office.

Talesha subsequently presented to Dr. Kudla on December 27, 2004, for a postpartum checkup. Dr. Kudla failed to advise Talesha that the tubal ligation was incomplete. Talesha was cleared medically to resume her daily activities, including sexual relations. Talesha thereafter became pregnant with her fourth child, which was unplanned. During her office visit with Dr. Kudla in May of 2005, he referred to Dr. Rumsey’s pathology report advising that Talesha’s tubal ligation was incomplete. Talesha’s fourth baby was subsequently delivered by Dr. Stephen Schorr on March 7, 2006. Dr. Schorr thereafter performed a complete tubal ligation on Talesha.

A request for a medical review panel against Dr. Kudla and Dr. Rumsey was filed by the Bertrands. Dr. Kudla settled the claims against him before the case | ¿was reviewed by the medical review panel. Dr. Kudla’s professional liability insurer, the Louisiana Medical Mutual Insurance Company (LAMMICO), paid the Bertrands $100,000.00 in settlement. The [1236]*1236Bertrands then filed a Petition for Damages against Dr. Kudla and LAMMICO (collectively Dr. Kudla) arising out of Dr. Kudla’s medical malpractice. After Dr. Kudla answered, the Bertrands filed a Petition Seeking Approval of Settlement and Demanding Payment of Additional Damages from the Louisiana Patient’s Compensation Fund (PCF). Dr. Kudla filed his answer to this petition acknowledging the settlement for $100,000.00. A Judgment of Approval of the settlement between the Bertrands and Dr. Kudla was signed by the trial court on August 23, 2007. In February 2008, the PCF1 intervened.

The medical review panel subsequently reviewed the claims against Dr. Rumsey. After the panel issued an opinion, the Ber-trands filed suit in December of 2008 against Dr. Rumsey and his professional liability insurer, Preferred Professional Insurance Company (PPIC) (collectively Dr. Rumsey). The two cases were consolidated in the trial court.

In June of 2012, the consolidated cases went to trial by jury. At trial, the Ber-trands attempted to prove that Dr. Rum-sey breached the standard of care. The Bertrands argued that Dr. Ramsey’s alleged negligence, combined with Dr. Kud-la’s admitted negligence, caused the undesired fourth pregnancy. The Bertrands sought general and special damages. The jury rendered a verdict in favor of Dr. Rumsey and against the Bertrands, dismissing their demands with [3prejudice against Dr. Rumsey only. The jury, however, found in favor of the Bertrands and against Dr. Kudla, and awarded $50,000.00 in general damages plus medical expenses from May 31, 2005, through March 15, 2006, in the amount of $6,252.15 for a total $56,252.15. The jury assigned 5% fault to Talesha and 95% fault to Dr. Kudla. James was awarded nothing on his loss of consortium claim. The trial court signed a judgment on November 26, 2012, in conformance with the jury verdict. The money judgment against Dr. Kudla was reduced by the 5% fault assigned to Talesha for a total of $58,439.54 plus legal interest.

The Bertrands subsequently filed a motion for JNOV. Their JNOV dealt with four aspects of the jury’s verdict in favor of Talesha and against Dr. Kudla. The JNOV was granted in part and denied in part by the trial court. Specifically, the trial court found that the jury’s finding of 5% fault to Talesha was contrary to the law and evidence and granted the JNOV as to this issue, finding Dr. Kudla 100% at fault. The trial court also granted the JNOV as to the jury’s award for past medical expenses, increasing the award from $6,252.15 to the stipulated amount of $19,588.56. The motion was denied in all other respects. Importantly, and for purposes of this appeal, the JNOV was denied with respect to the Bertrands’ request for an additional award of special damages to Talesha for loss of income. It was also denied with respect to the Bertrands’ request for an increase of the general damage award to at least $150,000.00.

Accordingly, the Bertrands appeal assigning the following errors on the part of the trial court:

(1) the jury abused its fact-finding discretion in failing to award Talesha special damages for the nine-and-a-half-month loss of income resulting from her inability to return to work arising out of the unplanned fourth pregnancy result[1237]*1237ing from Dr. Kudla’s admitted malpractice; and
|4(2) the jury abused its fact-finding discretion by awarding Talesha only $50,000.00 in general damages resulting from the physical and emotional effects of the unplanned fourth pregnancy resulting from Dr. Kudla’s admitted malpractice.

DISCUSSION

Motion to Strike

At the outset, we address the Ber-trands’ Motion to Strike portions of the PCF’s appellee brief. The Bertrands contend that the PCF failed to answer this appeal, and it failed to file a separate appeal from either the judgment on the merits or the JNOV judgment.

Louisiana Code of Civil Procedure Article 2138 provides:

A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court....
B. A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.

Despite the PCF’s failure to answer the appeal, the Bertrands allege that in its appellee brief, the PCF addresses the jury’s fault determination and argues that the Bertrands were partially at fault for not contacting Dr. Kudla. The Bertrands contend, however, that the fault issue was resolved by the trial court in its ruling on |Bthe JNOV motion. As such, the Ber-trands allege that any discussion on this issue should be stricken from the PCF’s appellee brief.

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Related

Frank Collatt v. Barbara T. Boudreaux
Louisiana Court of Appeal, 2019
Bertrand v. Rumsey
139 So. 3d 1283 (Louisiana Court of Appeal, 2014)

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Bluebook (online)
139 So. 3d 1233, 14 La.App. 3 Cir. 61, 2014 La. App. LEXIS 1471, 2014 WL 2515208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bertrand-v-kudla-lactapp-2014.