Carter v. Haygood

865 So. 2d 824, 3 La.App. 3 Cir. 791, 2003 La. App. LEXIS 3613, 2003 WL 22998734
CourtLouisiana Court of Appeal
DecidedDecember 23, 2003
DocketNo. 03-791
StatusPublished

This text of 865 So. 2d 824 (Carter v. Haygood) 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
Carter v. Haygood, 865 So. 2d 824, 3 La.App. 3 Cir. 791, 2003 La. App. LEXIS 3613, 2003 WL 22998734 (La. Ct. App. 2003).

Opinion

JjGREMILLION, Judge.

The defendant, Dr. Gary Haygood, DDS, and his insurer, The Medical Protective Company (collectively referred to as Dr. Haygood), appeal the judgment of the trial court finding in favor of the plaintiffs, Brenda and Charles Carter, in this dental malpractice case. For the following reasons, we affirm in part; reverse in part; and render.

FACTS

Brenda first saw Dr. Haygood on June 25, 1996, to obtain an estimate on a dental plate. During the examination, they discussed correcting her overbite. At her second appointment on July 11, 1996, it was agreed that Dr. Haygood would extract a number of Brenda’s teeth and fit her with top and bottom partial dentures (partíais). On August 30, 1996, Dr. Hay-good extracted eleven teeth and then fitted Brenda with metal-based, permanent par-tíais made from impressions taken of her teeth at her previous visit. She returned for adjustments to the partíais several times. Based on her complaints, Dr. Hay-good replaced the metal partíais with semi-permanent acrylic partíais on September 12, 1996. Brenda returned for adjustments to these partial on September 30, and October 9, 1996. On January 6, 1997, Dr. Haygood recommended that she have the partíais realigned at a cost of $150 per partial. The realigns were performed, but Brenda understood the price to be $150 for both partíais. She never paid either amount. Later that day, Charles called and told Dr. Haygood that they had already paid over $2,000 for the work performed, and they did not feel like they should have to pay more for the realigns. Although Brenda later tried to schedule appointments with Dr. Haygood for adjustments to her partíais, he [¡.refused to see her and recommended that she seek help elsewhere.

On December 18, 1997, Brenda filed a medical malpractice complaint against Dr. Haygood with the Division of Administration based on his deviation from the normal standard of care. On March 3, 1999, the Medical Review Panel rendered an opinion finding that “the evidence does not support the conclusion that Dr. Gary Stephen Haygood failed to meet the applicable standard of care as charged in the complaint.”

On April 28, 1999, the Carters filed suit against Dr. Haygood, the State of Louisiana Patient Compensation Fund, and ABC Insurance Company seeking general, special, and loss of consortium damages based on the negligence of Dr. Haygood. They filed an amending and supplemental petition naming The Medical Protective Company, Dr. Haygood’s malpractice insurer, as defendant. In his answer to this petition, Dr. Haygood requested a trial by jury. Upon the filing of a Dilatory Exception of Prematurity by the Patient’s Compensation Fund, the Carters and the Fund filed a Joint Motion for Partial Dismissal dismissing their suit against the fund without prejudice. Thereafter on December 1, 1999, Dr. Haygood filed a'Motion for Summary Judgment arguing that the pleadings and attachments demonstrated that there were no genuine issues of material fact. After a hearing on the motion, the trial court denied the motion for summary judgment.

[827]*827On July 6, 2000, Dr. Haygood filed a Second Motion for Summary Judgment. Following a hearing on the motion, the trial court granted judgment in favor of Dr. Haygood and dismissed the Carters’ claims with prejudice. A judgment was rendered on October 30, 2000. On November 7, 2000, the Carters filed a Motion |3for New Trial alleging that the trial court erroneously granted the summary judgment in favor of Dr. Haygood. On January 31, 2001, the trial court granted the motion in favor of the Carters. Dr. Hay-good sought supervisory writs on this decision from this court. On May 14, 2001, we denied the writ finding no error in the trial court’s ruling. Unpublished writ No. 01-367 (La.App. 3 Cir. 5/14/01). Although Dr. Haygood applied for writs to the Louisiana Supreme Court, that application was not considered as it was filed untimely. Carter v. Haygood, 01-1763 (La.9/28/01), 797 So.2d 682.

Brenda filed a Motion to Convert Jury Trial to Bench Trial, arguing that her damages did not exceed the $50,000 jury trial jurisdictional amount. Thus, the matter was converted to a bench trial. Dr. Haygood then filed a peremptory exception of prescription.

The hearing on the exception of prescription was held prior to the start of the trial on the merits. Dr. Haygood argued that the Carters’ claims had prescribed since Brenda filed her medical malpractice claim with the Patient’s Compensation Fund more than one year after the extraction of the eleven teeth. After hearing argument on this issue, the trial court denied Dr. Haygood’s exception and the matter proceeded to trial. After the close of evidence, the trial court took the matter under advisement. It then issued written reasons finding in favor of the Carters and awarding them damages as follows: $22,000 in general damages, $13,616 in special damages, and $3,000 for loss of consortium. Judgment was rendered in this matter on February 14, 2003. This appeal by Dr. Haygood followed.

__yssuES

On appeal, Dr. Haygood raises five assignments of error. He argues that the trial court erred in reversing its ruling on his motion for summary judgment and in denying his exception of prescription. He further argues that the trial court erred in finding him liable to the Carters and in awarding Brenda future medical expenses and excessive general damages.

SUMMARY JUDGMENT

In his first assignment of error, Dr. Haygood argues that the trial court erred in reversing its judgment granting summary judgment in his favor since the Carters failed to introduced any further evidence as part of their motion for a new trial. However, the record is devoid of any evidence pertaining to either Dr. Hay-good’s motion for summary judgment or the Carters’ motion for a new trial.

The record does not contain a transcript of either hearing, although the judgments pertaining to both indicate that hearings were held in each matter. It contains no minute entries pertaining to the hearings on the motion for summary judgment or the motion for new trial, which would indicate the introduction of evidence at either hearing. All that we have are the judgments rendered in each matter, which indicate that briefs were submitted in support of and in opposition to each motion. However, those briefs and their attachments were not introduced into the record.

In Our Lady of the Lake Hosp. v. Vanner, 95-754, pp. 3-5 (La.App. 1 Cir. 12/15/95), 669 So.2d 463, 465, the court stated:

[828]*828Pursuant to LSA-C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which 15is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments and other rulings, unless otherwise designated. LSA-C.C.P. arts. 2127 and 2128; Official Revision Comment (d) for LSA-C.C.P. art. 2127. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence.
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... Ordinarily, the inadequacy of a record is imputable to the appellant. State ex rel. Guste v. Thompson, 532 So.2d 524 at 527 (La.App. 1 Cir. 1988). However, the inadequacy of an appellate record for which an appellant is responsible cannot operate to the detriment of an appellee. State ex rel. Guste v. Thompson, 532 So.2d at 527.

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865 So. 2d 824, 3 La.App. 3 Cir. 791, 2003 La. App. LEXIS 3613, 2003 WL 22998734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-haygood-lactapp-2003.