Christophe v. State ex rel. Department of Health & Hospitals

663 So. 2d 289, 95 La.App. 3 Cir. 398, 1995 La. App. LEXIS 2551, 1995 WL 579699
CourtLouisiana Court of Appeal
DecidedOctober 4, 1995
DocketNo. 95-398
StatusPublished
Cited by2 cases

This text of 663 So. 2d 289 (Christophe v. State ex rel. Department of Health & Hospitals) 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
Christophe v. State ex rel. Department of Health & Hospitals, 663 So. 2d 289, 95 La.App. 3 Cir. 398, 1995 La. App. LEXIS 2551, 1995 WL 579699 (La. Ct. App. 1995).

Opinion

h KNOLL, Judge.

This appeal involves a medical malpractice claim against the Natchitoches Parish Health Unit (health unit) for failing to administer Immune Serum Globulin (ISG) to a mother and her daughter who were exposed to Hepatitis “A.” The trial court found the health unit negligent, and held the Louisiana Department of Health and Hospitals (LDHH), the state entity that operates the health unit, liable. The trial court awarded general damages of $10,000 to Sam Christophe, as natural tutor of his daughter, Heather Renee Christophe, $4,982.85 to Sam Christophe, individually, for Heather and Anastasia’s medical expenses, $5,000 to Sam Christophe, individually, for the loss of consortium of his wife, $1,000 to Sam Christophe, individually for the loss of consortium of his daughter, Heather, and general damages of $22,500 to Anastasia Christophe, Heather’s mother.

I2LDHH appeals, contending that the trial court erred: (1) in its conclusion that the medical review panel did not have sufficient evidence before it to make an informed decision; (2) in finding that Orealia Roque was the contact person or source of the Hepatitis “A” contracted by Heather and Anastasia Christophe; (3) by finding that the health unit personnel should have administered ISG; and (4) by awarding excessive damages. We affirm.

FACTS

The facts of this case involve repercussions from the illness of Dan Roque and his hospitalization in Shreveport, Louisiana for Hepatitis “A.” When Mr. Roque was hospitalized, his daughter, Orealia, stayed in the household of Sam and Anastasia Christophe. Shortly thereafter, medical personnel also diagnosed Orealia as suffering from Hepatitis “A.”

On March 13, 1991, Mrs. Christophe brought her daughter, Diedre, to their family pediatrician, Dr. Wilhelmina Wise, in fear that she had been exposed to the Hepatitis “A” virus when Orealia stayed in their home. Dr. Wise referred Mrs. Christophe and her children to the parish health unit, the only source of ISG treatment for exposure to the Hepatitis “A” virus.

From this point forward the parties dispute the facts. Since these facts will be elaborated upon in the opinion, we will only broadly sketch the parties’ contentions here. Mrs. Christophe contends that she told the health unit personnel that Orealia spent several nights in their home and that Orealia was diagnosed as suffering from Hepatitis “A.” To the contrary, the health unit contends that only Diedre was at risk because the Christophes said that Diedre was exposed to the virus when she spent the night in the Roque home. The Christophes re[292]*292turned to Dr. Wise’s office without receiving treatment. After Dr. Wise’s personnel telephoned the health unit, the [3Christophes then returned to the health unit. Ultimately, the health unit only gave the ISG injection to Diedre since, as it contends, the history that was given by Dr. Wise’s office and Mrs. Christophe indicated that Diedre was the only family member at risk. The Chris-tophes, Dr. Wise, and Dr. Wise’s staff disagree with the health unit’s appreciation of the facts.

On April 24,1991, Mrs. Christophe went to the emergency room of the Natchitoches Parish Hospital with flu-like symptoms that had begun several days before. She was treated conservatively and released. Two days later, Mrs. Christophe was hospitalized for nausea, vomiting, and a high fever; medical tests confirmed that she was suffering from Hepatitis “A.” Two days after that, Mrs. Christophe’s daughter, Heather, was also diagnosed as having Hepatitis “A” and was hospitalized with her mother. After approximately one week in the hospital, Mrs. Christophe and Heather were released. Mrs. Christophe’s recuperative period lasted about six months and Heather’s lasted approximately two months.

The trial court found that the health unit was negligent in taking the medical history of the Christophes and in ultimately deciding only to inoculate Diedre.

EFFECT OF MEDICAL REVIEW PANEL’S DECISION

LDHH contends that the trial court erred when it held that the medical review panel did not have sufficient evidence to support its opinion that the health unit did not commit medical malpractice. It argues that if insufficient evidence was presented to the medical review panel, such failing should be attributed to the Christophes.

La.R.S. 40:1299.47(H) provides:

Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness.

|4In Everett v. Goldman, 359 So.2d 1256 (La.1978), the Louisiana Supreme Court found that the sole duty of the medical review panel is to express its expert opinion(s) and that its findings were not binding on the litigants. Later, the Supreme Court reaffirmed this position in Derouen v. Kolb, 397 So.2d 791 (La.1981).

Since the jurisprudence equates the findings of the medical review panel to that of an expert, we find it appropriate to refer to the holdings of appellate courts regarding expert testimony. After weighing and evaluating medical testimony, the trial court may accept or reject the opinion expressed by the medical expert. The trial court should evaluate the expert testimony by the same rules which are applicable to other witnesses and the trial court is not bound by expert testimony. McCartney v. Columbia Heights Nursing Home, Inc., 25,710 (La.App. 2 Cir. 3/30/94); 634 So.2d 927. The effect and weight given expert testimony is within the broad discretion of the trial court. The importance placed upon such testimony is largely dependent upon the expert’s qualifications and the facts that form the basis of his opinion. Bolton v. Louisiana State University Med. Ctr., 601 So.2d 677 (La.App. 2 Cir.1992).

In the case sub judice, the trial court discounted the findings of the medical review panel since it found that Mrs. Christophe’s testimony was not presented to the panel for consideration. LDHH, with neither statutory nor jurisprudential authority, asserts that the failure to procure Mrs. Christophe’s testimony should be adversely imputed to the Christophes. We disagree.

La.R.S. 40:1299.47(D) through (F) reference the presentation of evidence to the medical review panel. Although La.R.S. 40:1299.47(D) provides that the respective parties shall promptly submit the evidence to be considered by the medical review panel in written form, all of the references to the submission of evidence are stated in permissive rather than mandatory form. The sole exception to this statement |sis La.R.S. [293]*29340:1299.47(F) which states that the medical review panel has “the right and duty to request and procure all necessary information.” Such a duty is not expressed with regard to the plaintiff. We find no requirement that the plaintiff has to even submit evidence to the medical review panel, unless the panel requests such evidence. Thus, we find nothing in the statute that supports LDHH’s assertion.

TRIAL COURT’S FACTUAL DETERMINATIONS

LDHH next contends that the trial court erred in its factual determination that Heather and Mrs. Christophe contracted the Hepatitis “A” virus from Orealia. It argues that Heather and Mrs.

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663 So. 2d 289, 95 La.App. 3 Cir. 398, 1995 La. App. LEXIS 2551, 1995 WL 579699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christophe-v-state-ex-rel-department-of-health-hospitals-lactapp-1995.