STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2022 CA 1288
DENISA JOSHUA, et al.
VERSUS
COMMUNITY CARE CENTER OF HERITAGE HOUSE, LLC, et al.
Judgment Rendered. SEP 0 5 2023
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. 678234
The Honorable Trudy M. White, Judge Presiding
William C. Rowe, Jr. Attorneys for Appellants,
Joseph S. Manning Louisiana Patient' s Compensation Baton Rouge, LA Fund and Louisiana Patient' s Compensation Fund Oversight Board
David L. Bateman Attorneys for Appellee, Denisa J. Michael McDonald Joshua, Individually and on Behalf of Baton Rouge, LA the Estate of Deloris Simon
Vincent J. Sotile, Jr. Prairieville, LA
Eric John Miller Attorney for Appellee, Baton Rouge Alexandria, LA Heritage House, LLC, et al.
BEFORE: GUIDRY, C.J., WOLFE AND MILLER, JJ. WOLFE, J.
In this medical malpractice action, defendants/ appellants, the Louisiana
Patient' s Compensation Fund and the Louisiana Patient' s Compensation Fund
Oversight Board (" the PCF"), appeal from an adverse judgment rendered on
December 3, 2021. Subsequent to a jury trial, the judgment awarded $ 400, 000.00
in damages, plus all costs, to plaintiff/appellee, Denisa Joshua (" Ms. Joshua"),
This individually, and on behalf of the estate of Deloris Simon (" plaintiff').
judgment was rendered for both the survival action and wrongful death claims Ms.
Joshua filed against the PCF following the death of her mother, Deloris Simon
Mrs. Simon"). For the reasons set forth herein, we affirm the judgment.
In 2002, Mrs. Simon became a resident at the Baton Rouge Heritage House
Heritage House"), a nursing home facility. She had a prior medical history of a
stroke, muscle weakness, lack of coordination, as well as mental illness including
manic disorder and schizophrenia. In July 2013, Mrs. Simon experienced a
choking incident while eating a meal in the Heritage House dining room. As a
result, a swallow study was ordered for her. Based on the results, it was
determined Mrs. Simon had difficulty swallowing and was placed on a diet of only
pureed food, which remained in effect until her death. Further, during her stay at
Heritage House, Mrs. Simon was confined to a wheelchair and could not get in or
out of her bed without nursing home staff assistance.
Antoinette Hoffman (" Hoffman"), a CNA with nearly a decade of
experience and employment at multiple nursing homes, became employed at
Heritage House on January 18, 2017. On the evening of January 21, 2017,
Hoffman, who was still in training, was tasked with distributing evening snacks to
the Heritage House residents and, inadvertently, swapped some intended items: a
sandwich was provided to Mrs. Simon and a cup of Jell- O to Mrs. Simon' s 2 roommate. The snacks were allegedly not marked with appropriate identification
and Hoffman claimed to receive no training in the distribution of the evening
snacks to the Heritage House residents, although a resident' s dietary restrictions
are noted on the identification board behind each resident' s bed. Nevertheless,
Hoffman distributed the incorrect snacks, left Mrs. Simon' s room, and went on
break. Several minutes later, Phyllis Mitchell, another Certified Nursing Assistant
at Heritage House, entered Mrs. Simon' s room for a final round of her shift and
found Mrs. Simon unresponsive. Mitchell notified her supervising nurse, Kierra
Benoit, who came to the room, likewise found Mrs. Simon to be unresponsive, and
ordered a " code blue," an internal code signifying the beginning of life
resuscitating measures. Acadian Ambulance was notified of the emergency and,
upon the EMT' s arrival, found Heritage House personnel attempting to resuscitate
Mrs. Simon through chest compressions. It was reported to Acadian Ambulance
personnel that Mrs. Simon " was given a sandwich and patient has difficulty
swallowing, is not supposed to have normal food[.]" The responding EMT quickly
realized Mrs. Simon choked and, despite attempts to resuscitate her, ultimately
determined Mrs. Simon died. At that point, according to Acadian Ambulance' s
protocol, the emergency department at the closest hospital, Our Lady of the Lake
in Baton Rouge, was contacted, and the ER physician advised of the termination of
efforts to revive Mrs. Simon.
Following Mrs. Simon' s death, Heritage House notified the East Baton
Parish Coroner' s Office; however, when the investigator arrived that evening, the
Heritage House staff failed to disclose that Mrs. Simon was fed a sandwich in
violation of her dietary restrictions. Additionally, the staff did not disclose the
copious" amount of food in Mrs. Simon' s throat upon the EMT' s arrival. Based
on the information provided, the Coroner, Dr. William Clark, stated that " nothing
seemed abnormal" regarding Mrs. Simon' s death, which was initially classified in 3 her death certificate as " natural" and due to cardiovascular disease. However,
when the Coroner' s Office later received the records from Acadian Ambulance
concerning Mrs. Simon' s death, the Coroner' s Office updated its report, and issued a second death certificate, classifying Mrs. Simon' s death as " accidental" and due
to " choking." Furthermore, Heritage House failed to follow applicable state and
federal administrative guidelines in reporting Mrs. Simon' s death to the Louisiana
Department of Health, as well as its own internal policies regarding deaths due to
unknown causes. As a result, Heritage House paid a civil fine of $7, 247. 00 for its
failure to appropriately and timely report Mrs. Simon' s death.
In January 2019, plaintiff filed a Petition for Approval of Settlement of
Medical Malpractice Claim and Reservation to Proceed Against the Louisiana
Patient' s Compensation Fund. She had previously agreed to settle with Heritage
House in the amount of $95, 000.00, which, pursuant to Louisiana Revised Statute
40: 1231. 4( C)( 1)', needed to be approved by the trial court. In her petition, Ms.
Joshua reserved her rights to proceed against the PCF for damages in excess of
100, 000. 00. On May 15, 2019, the trial court granted approval of plaintiff' s
settlement with Heritage House.'- At the conclusion of trial in November 2021, the
jury issued a verdict finding Heritage House breached the standard of care, causing
Mrs. Simon' s death, and awarded plaintiff $ 250, 000. 00 for her survival action
claim, and $ 500, 000. 00 for her wrongful death claim. These amounts were
i Louisiana Revised Statute 40: 1231. 4( C)( 1) states, "[ i] f the insurer of a health care provider or a self-insured health care provider has agreed to settle its liability on a claim against its insured and claimant is demanding an amount in excess thereof from the patient' s compensation fund for a complete and final release, then the following procedure must be followed: ( 1) [ a] petition shall be filed by the claimant with the court in which the action is pending against the health care provider, if none is pending in the parish where plaintiff or defendant is domiciled seeking ( a) approval of an agreed settlement, if any, and/ or ( b) demanding payment from the patient' s compensation fund."
2 Per the May 15, 2019 judgment approving plaintiff' s settlement, Heritage House remained a nominal defendant in the litigation while plaintiff sought additional damages from the PCF.
11 reduced to one award of $400, 000.00 pursuant to the medical malpractice damages
cap. 3 It is from this judgment that the PCF appeals, seeking review from this court.
ASSIGNMENTS OF ERROR
The PCF assigns the following as error:
1. The trial judge erred in preventing the PCF from putting on a defense of a gross negligence standard in a medical malpractice action according to the Emergency Powers Act. The judge denied a pre- trial m] otion aimed at this issue, and the judge further denied requests for jury instructions on this area of law.
2. The trial court abused its discretion in preventing the PCF from introducing in any format whatsoever pre-trial stipulations that were agreed upon by counsel, written, jointly signed, and filed into the court record. The jury never heard any of these stipulations.
3. The trial court abused its discretion in allowing [ p] laintiff' s counsel to make representations to the jurors about pre- trial offers to settle in closing arguments.
4. The trial judge erred in denying a mistrial motion that was lodged after [ p] laintiff' s counsel introduced argument and evidence about a gross negligence standard after this issue was precluded from being discussed by the defense.
5. The trial judge erred in giving the jury instructions on
administrative procedures and allowing counsel continuously to argue and introduce evidence about civil, administrative guidelines,
penalties, and procedures that run parallel to ( but are not part of) tort law and procedure.
6. The quantum awarded by the jury and delivered in final judgment was excessive.
DISCUSSION
Gross Negligence and the Emergency Powers Act (Assignment ofError No. 1)
In its first assignment of error, the PCF argues the trial court prevented it
from asserting a gross negligence burden of proof as set forth in Louisiana Revised
Statutes 29: 760, et seq., the Louisiana Health Emergency Powers Act (" LHEPA")
3 See La. R.S. 40: 1231. 2( B)( 1) ("[ tlhe total amount recoverable for all malpractices claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40: 1231. 3, shall not exceed five hundred thousand dollars plus interest and cost."); see
also Oliver v. Magnolia Clinic, 2011- 2132 ( La. 3113/ 12), 85 So. 3d 39 ( upholding the constitutionality of medical malpractice damages cap). 5 The PCF contends, "[ b] y not applying the law as set out by the legislature and by
not recognizing the gubernatorial proclamation by the governor triggering that
legislation, the court violated principles of separation of powers. [... ] The judge
did not apply the law enacted by the other two branches of government."
La. R.S. 29: 766( A) provides, "[ a] state of public health emergency may be
declared by executive order or proclamation of the governor, following
consultation with the public health authority, if he finds a public health emergency
as defined in R.S. 29: 762 has occurred or the threat thereof is imminent." Pertinent
herein, La. R.S. 29: 762( 12)( a)( iii) notes that a " public health emergency" may
include an " occurrence or imminent threat of an illness or health condition that
i] s believed to be caused by any of the following [... ] [ a] disaster, including
but not limited to natural disasters such as hurricane, tornado, storm, flood, high
winds, and other weather related events[.]" It is undisputed that at the time of Mrs.
Simon' s death, an active, continued State of Public Health Emergency, dated
August 22, 2016, was in effect pursuant to an executive proclamation, which
referenced LHEPA, all due to the 2016 Baton Rouge flooding events. Of note, and
found within LHEPA, La. R.S. 29: 771( B)( 2)( c)( i) provides, "[ d] uring a state of
public health emergency, no health care provider shall be civilly liable for causing
the death of, or injury to, any person or damage to any property except in the event
of gross negligence or willful misconduct." As stated in La. R.S. 29: 761( A), the
purpose behind this provision, as well as the LHEPA as a whole, is:
Because the government must do all that is reasonable and necessary to protect the health and safety of its citizens; because new and emergency dangers, including emergency and resurgent infectious diseases and incidents of civilian mass casualties, pose serious and immediate threats; because a renewed focus on the prevention, detection, management, and containment of public health emergencies is essential;and because emergency health threats, including those caused by bioterrorism, may require the exercise of extraordinary government powers and functions, the state must have the ability to respond, rapidly and effectively, to potential or actual public health emergencies.
Co In its Answer to plaintiff' s Petition, the PCF did raise the affirmative defense
of contributory negligence of Mrs. Simon, third -party fault, as well as failure to
mitigate damages. The PCF did not specifically assert the tort immunity defense as
set forth in La. R.S. 29: 771( B)( 2)( c)( i) in LHEPA. Additionally, plaintiff
propounded written discovery to the PCF requesting support on any affirmative
defense it planned to assert, yet the PCF never mentioned or discussed the gross
negligence tort immunity defense. However, on September 9, 2021, two months
prior to the start of trial, the PCF filed a Motion for Summary Judgment and/ or
Motion in Limine, citing the above LHEPA principles, and " seek[ ing] to establish
that the standard of care in this medical malpractice [ action] is that of gross
negligence only. [ The PCF] seeks to prevent any argument, allusion, or statements
to the jury at the trial of the merits by counsel asserting any theory or claim for
recovery of mere negligence." The trial court subsequently denied the PCF' s
motion.
The gross negligence defense, as contained in La. R.S. 29: 771( B)( 2)( c)( i), is
an affirmative defense that must be properly pled pursuant to Louisiana Code of
Civil Procedure article 1005. See Welch v. United Medical Healthwest-New
Orleans, L.L.C., 2021- 0684 ( La. App. 5th Cir. 8/ 24/ 22), 348 So. 3d 216, 221- 22
the tort immunity provided by [ La. R.S.] 22: 771( B)( 2)( C) of LHEPA [... ] is, in
fact, an affirmative defense which the trial court considered properly pled, pursuant
to La. [ Code Civ. P.] art. 1005."). Tort immunity is an affirmative defense for
which the one asserting the defense has the burden of proof. Pursuant to La. Code
Civ. P. arts. 1003 and 1005, an affirmative defense should be pled in a defendant' s
answer. An affirmative defense raises a new matter that, assuming the allegations
in the petition to be true, constitutes a defense to the action and will have the effect
of defeating plaintiff' s demand on its merits. The purpose of the statute requiring
that certain defenses be affirmatively pled is to give fair and adequate notice of the 7 nature of the defense, preventing last minute surprise. Aucoin v. Larpenter, 2020-
0792 ( La. App. 1st Cir. 4/ 16/ 21), 324 So. 3d 626, 633, writ denied, 2021- 00688
La. 9/ 27/ 21), 324 So. 3d 87. Herein, the PCF' s answer fails to affirmatively plead
defense as set forth in LHEPA. the tort immunity of gross negligence
Accordingly, this assignment of error lacks merit.
Readies ofPre- Trial Stipulations to Jua (Assignment ofError No. 2)
In its second assignment of error, the PCF contends the trial court erred in
preventing it to have read aloud to the jury, or otherwise have prepared as jury instructions, nine factual stipulations agreed to between it and plaintiff,
memorialized in a February 8, 2021 pre-trial order. Of note, the PCF does not
claim plaintiff failed to comply with the stipulations or otherwise exceeded their
scope during her presentation of evidence, but simply argues the trial court failed
to allow the stipulations to be presented to the jury, either openly or through jury
instructions. The nine stipulations included:
1. Mrs. Simon was a resident at Heritage [ House] on January 21, 2017.
2. Since July 11, 2013, Mrs. Simon had been placed on a restricted diet of `pureed food' only by her physician.
3. Mrs. Simon' s diet restrictions was a medical order in her records at Heritage [ House].
4. On January 21, 2017, Mrs. Simon was provided a meal by Heritage House] which was not in accordance with her diet restriction.
5. Mrs. Simon died on January 21, 2017 while a resident at Heritage House].
6. Dr. William Clark as coroner for East Baton Rouge Parish, declared Mrs. Simon' s death ` natural' due to ` atherosclerotic cardiovascular
disease.'
7. Following Mrs. Simon' s death, the Coroner' s Office obtained the records from Acadian Ambulance causing the Coroner' s Office to supplement its investigative finding and led to Dr. Clark reclassifying Mrs. Simon' s death as ` accidental' caused by `choking.'
8. [ Mrs.] Simon was confined to a wheelchair and unable to get in and
out of bed without assistance of nursing home staff. 9. The diet restrictions for residents at Heritage House are placed above the resident' s bed.
In clarifying why it is concerned with the jury being aware of the parties' pre-trial
stipulations, the PCF argues, "[ i] n a case involving a death, [ insinuation] about the
defendant not wanting to accept responsibility for the facts of the death is
incredibly prejudicial." The PCF continued, claiming " Heritage House was
painted as an organization that was unwilling to accept any admissions or accept
any responsibility until the day of the jury trial[,]" and "[ t] o offset these prejudicial
comments, the PCF wanted to show the jury that the defense had — in fact —
stipulated and admitted to the facts of the accident well before trial." ( emphasis in
original).
Although stipulations cannot affect the powers, duties, and prerogative of
the court, generally a stipulation has the effect of a judicial admission that binds
the parties and the court when it is not in derogation of the law. Pre- trial
stipulations as to what evidence will be presented to the court have been enforced.
Ratliff v. State ex rel. Dept. of Transp. and Development, 2002- 0733 ( La. App.
1st Cir. 3/ 28/ 03), 844 So. 2d 926, 933- 34, writ denied, 2003- 1739 ( La. 10/ 10/ 03),
855 So. 2d 350. Parties are bound by their stipulations regarding factual matters.
Cotton v. Gaylord Container, 96- 1958 ( La. App. 1st Cir. 3/ 27/ 97), 691 So. 2d
760, 768, writ denied, 97- 0800 ( La. 4/ 8/ 97), 693 So. 2d 147. However, as noted
above, the PCF does not claim the pre- trial stipulations were violated or exceeded.
Therefore, this particular assignment of error turns on trial management and the
presentation of evidence, rather than any substantive evidentiary ruling by the
court. In deciding whether to have the pre- trial stipulations read to the jury, the
trial court stated:
All right. I don' t see the need to read the stipulations to the jurors, but I note your objection. In closing arguments you —maybe that might be the appropriate time for you to argue that[.]
OJ When questioned on this issue later during the trial, and upon the PCF' s continued
request to have the pre-trial stipulations orally read to the jury, the trial court
stated:
And I have read each and every one of them and there has been testimony supporting each and every one of those nine particular items. I see no reason now, now that I' ve laid eyes on this stipulation[,] as to why they need to be read out to the jury, because it came out organically and naturally by the witnesses themselves.
Louisiana Code of Civil Procedure article 1631( A) states, "[ t]he court has
the power to require that the proceedings shall be conducted with dignity and in an
orderly and expeditious manner, and to control the proceedings at trial, so that
justice is done." The trial court has great discretion in the manner in which
proceedings are conducted before the court, and it is only upon a showing of a
gross abuse of discretion that appellate courts have intervened. Thomas v.
Department of Wildlife & Fisheries, 2018- 0869 ( La. App. 1st Cir. 10/ 2/ 19), 289
So. 3d 579, 598, writ denied, 2019- 01767 ( La. 1/ 14/ 20), 291 So. 3d 687. Upon our
review, we cannot say the trial court abused its vast discretion in precluding the
nine, purely factual, pre-trial stipulations to be recited before jury or otherwise
crafted as jury instructions. As referenced above, these nine stipulations were
naturally and straightforwardly discussed throughout the trial, such that repeating
them again before the jury was unnecessary. Additionally, these stipulations were
only to simple factual assertions, not to legal questions such as negligence, the
standard of care, breach of the standard of care, or a causal connection thereto.
Moreover, as to the PCF' s claim the pre- trial stipulations should be reduced
to jury instructions, the jury is the trier of fact. See Smith v. State, Dept. of
Transp. & Development, 2004- 1317 ( La. 3/ 11/ 05), 899 So. 2d 516, 525. As such,
adequate jury instructions are those which fairly and reasonably point out the
issues and which provide correct principles of law for the jury to apply to those
issues. The trial court is under no obligation to give any specific jury instructions 10 that may be submitted by either party; the judge must, however, correctly charge
the jury. Adams v. Rhodia, Inc., 2007- 2110 ( La. 5/ 21/ 08), 983 So. 2d 798, 804.
emphasis added). Therefore, as the jury is the trier of fact, it would be
inappropriate for the trial court to instruct the jury on factual issues. Accordingly,
this assignment of error lacks merit.
Settlement Discussions During Closing Arguments ( Assignment ofError No. 3)
In its third assignment of error, the PCF argues the trial court abused its
to make discretion in allowing plaintiff' s counsel, during closing arguments,
and representations to the jury concerning pre- trial settlement negotiations
discussions. The specific comment at issue, made by plaintiff' s counsel, was:
They came in here and they said, oh, we admit fault, and she didn' t — we tried to settle this case.They want — they want you to think that Ms. Joshua is greedy ( inaudible). They knew that the law won' t allow me to tell you what they wanted cause they knew that you would be as hardline as I was. Just threw it out there, hey, we tried —we tried to take care of this without — without telling you what the deals were because they can' t come -- .
The PCF then objected, eventually requesting a curative instruction from the trial
court. However, during this quick exchange, plaintiff' s counsel stated he was
done," " ready to move on[,]" and closing arguments proceeded without any
further mention of pre- trial settlement offers. While the PCF frames this exchange
as the trial court " overrul[ ing] the objection [ and giving] no curative instruction to
the jury," at no time did the trial court actually indicate the objection was either
overruled or sustained; it was rather not addressed due to plaintiff' s counsel' s
implicit agreement to continue in closing arguments without further discussion of
pre- trial settlement offers. Moreover, a mistrial was not requested by the PCF nor
did the trial court file one on its own motion. See La. Code Civ. P. art. 1631( C). 4
a La. Code Civ. P. art. 1631( C) states, "[ t] he court on its own motion, or the motion of any party, after hearing, may grant a mistrial." 11 While the substantive introduction of evidence concerning pre- trial
settlement activities is heavily regulated by Louisiana Code of Evidence articles
408 and 413, the test of whether argument of counsel is prejudicial or
inflammatory is whether such comment is unreasonable or unfair in the eyes of the
law. This test is balanced against the well- settled jurisprudence that counsel has
great latitude in argument before a jury. This latitude is subject to regulation and
control by the court who has a duty to confine argument within the proper bounds.
Moreover, the trial court is vested with broad discretion in conducting trials in a
manner that it determines will be conducive to justice. Further, an allegedly
objectionable statement is subject to corrective measures. Breitenbach v. Stroud,
2006- 0918 ( La. App. 1 st Cir. 2/ 9/ 07), 959 So. 2d 926, 931. Concerning this broad
discretion, as noted above, it is only upon a showing of a gross abuse of discretion
that appellate courts have intervened. Thomas, 289 So. 3d at 598.
Here, we find no abuse of the trial court' s great discretion in agreeing with
plaintiff' s counsel' s quick decision to " move on" without any further discussion of
pre-trial settlements, and without the need for any formal " ruling" on the PCF' s
objection. As argued by plaintiff' s counsel, " the PCF got what its counsel asked
for, no more mention of settlement in closing arguments[.]" Moreover, we find the
PCF " opened the door" to statements regarding pre- trial settlement offers when,
during voir dire, he mentioned he " cannot tell you if an offer was made. I can' t tell
you if one was made and what it was, and [ whether the prospective jurors would]
hold it against [ the PCF]." We further note that the trial court properly advised the
jury that its role was to " deliberate on this case without regard to sympathy,
prejudice, or passion for or against any party to this suit[,]" and that it was to make
an impartial deliberation and conclusion based upon all the evidence presented in
this case and nothing else." See Jones v. Bravata, 2018- 0837 ( La. App. 1 st Cir.
12 5/ 9/ 19), 280 So. 3d 226, 240, writ denied, 2019- 01850 ( La. 2/ 26/ 20), 294 So. 3d
477. Accordingly, we find this assignment of error lacks merit.
Motion for Mistrial re • Dr. Kamel' s Video Deposition (Assignment ofError No. 4)
In its fourth assignment of error, and in an extremely shrift argument, the
PCF claims, "[ d] espite prohibiting [ it] from raising the gross negligence issue[,]
the [ c] ourt allowed the [ p] laintiff to put on evidence from their independently
retained expert, Dr. Kamel, about gross negligence." The PCF continued,
claiming, "[ n] ormally, a [ p] laintiff putting on evidence of some sort can simply be Here, cured during the time allotted for a defense to offer its own evidence.
though, the [ p] laintiff was introducing evidence of gross negligence against the
defense, while the PCF' s hands were tied behind its back by the court on the gross
negligence issue [ and] unable to respond."
The record reflects that during trial, plaintiff offered the video deposition of
Dr. Hosan Kamel (" Dr. Kamel"), an expert retained by plaintiff in the field of
geriatrics and long-term care. Prior to playing the deposition recording for the
jury, which was taken five days before trial, counsel for the PCF initially sought to
waive all the questions he asked during Dr. Kamel' s deposition and have the jury
not hear those exchanges. Plaintiff' s counsel refused to agree, and the trial court
overruled the PCF' s request. The PCF' s counsel did specifically preserve his
objection to his " questioning going in against my wishes[.]" This, however, was
not assigned as error on appeal.
The entire video deposition of Dr. Kamel was played for the jury. However,
after the video deposition was played, and after the jury was retired for the
evening, counsel for the PCF objected to and claimed a mistrial regarding Dr.
Kamel' s deposition, stating, "[ t]here was much testimony [ from] the doctor about
gross negligence, an issue addressed by this court. Ruled away by this court, his
deposition was taken after that ruling. He had plenty of time to meet with and 13 confer with that expert." Counsel for the PCF continued, "[ w] e' re not allowed to
talk about gross negligence, we are not entitled to respon[ d], and certainly too late.
You can' t un -ring the bell and we can' t — we can' t do anything about it at this
point[.]" Following additional brief argument from counsel, the trial court denied the PCF' s request for a mistrial.
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. The failure to make a contemporaneous
objection during the trial waives the right of a party to complain on appeal that the
evidence was improperly admitted at trial. Louisiana State Bar Ass' n v. Carr
and Associates, Inc., 2008- 2114 ( La. App. 1st Cir. 5/ 8/ 09), 15 So. 3d 158, 172,
writ denied, 2009- 1627 ( La. 10/ 30/ 09), 21 So. 3d 292. Here, the record is clear: the
PCF did not contemporaneously object to Dr. Kamel' s testimony, or any
statements regarding a gross negligence standard, during the time the recording
was played for the jury. Moreover, in Dr. Kamel' s deposition, taken less than one
week before trial, counsel for the PCF did not object to Dr. Kamel' s opinions
regarding the gross negligence burden of proof; rather, he continued to question
Dr. Kamel on this issue. As such, any appellate review on this particular issue is
waived.
Additionally, as to the PCF' s claim that a mistrial should be granted due to
the insinuation that plaintiff' s counsel conspired with Dr. Kamel to have him
mention gross negligence during the deposition, we find this lacks merit. Although
La. Code Civ. P. art. 1631( C) allows the trial court to grant a mistrial, the trial
court is vested with broad discretion to grant a motion for mistrial where no other
remedy would afford relief or where circumstances indicate that justice may not be
done if the trial continues. Barnes v. Thames, 578 So. 2d 1155, 1161 ( La. App.
1st Cir.), writs denied, 577 So. 2d 1009 ( La. 1991). We find that the trial court did 14 not abuse its broad discretion in denying the PCF' s motion and, accordingly, find
Iuty Instructions re •Administrative Guidelines (Assignment ofError No. 5) In its fifth assignment of error, the PCF argues that a portion of the jury
administrative guidelines instructions read by the trial court concerned " arcane"
and procedures, allegedly unrelated and " irrelevant" to the underlying issues of
medical malpractice. Specifically, the PCF claims the trial court erroneously
and local administrative provided jury instructions regarding federal, state,
guidelines concerning nursing home residents' treatment rights while at the home.
This included such specific instructions concerning appropriate fluid intake. It also
addressed nursing home staffing criteria and quotas along with requirements for
written procedures concerning reporting and documentation of various types of
incidents at a nursing home, as well as the exact types of information to be
included in such reports. In light of the previously discussed failure by Heritage
House to timely report Mrs. Simon' s death to the appropriate regulatory
authorities, as well as the assessed civil penalty, the PCF argues that "[ r] e-
introducing this law and argument to the jury served no valid purpose other than to
incentivize the jury to re -punish and re -award for those administrative violations.
This was improper, and it naturally led the jurors' minds to want to punish
Heritage House for violating administrative requirements rather than award fair
compensation to [ plaintiff][.]" On the final day of trial, prior to closing arguments,
the PCF noted its objection to this particular section of the trial court' s jury
instructions.
The trial court is required to instruct the jurors on the law applicable to the
case submitted to them. See La. Code Civ. P. arts. 1792( A) and 1796( B). The trial
court is responsible for reducing the possibility of confusing the jury and may
exercise the right to decide what law is applicable and what law the trial court 15 deems inappropriate. The sufficiency of a jury charge must be determined in light
of the charge as a whole. The charge must correctly state the law and be based on
evidence adduced at trial. LeBlanc v. Landry, 2008- 1643 ( La. App. 1st Cir.
6/ 24/ 09), 21 So. 3d 353, 358, writ denied, 2009- 1705 ( La. 10/ 2/ 09), 18 So. 3d 117
citations omitted). Adequate jury instructions are those which fairly and
reasonably point out the issues and which provide correct principles of law for the
jury to apply to those issues. The trial court is under no obligation to give any
specific jury instructions that may be submitted by either party; the judge must,
however, correctly charge the jury. Adams, 983 So. 2d at 804.
It is well established in Louisiana jurisprudence that an appellate court must
exercise great restraint before it reverses a jury verdict due to erroneous jury
instructions. Trial courts are given broad discretion in formulating jury
instructions, and a trial court judgment should not be reversed so long as the charge
correctly states the substance of the law. The rule of law requiring an appellate
court to exercise great restraint before upsetting a jury verdict is based, in part, on
respect for the jury determination rendered by citizens chosen from the community
who serve a valuable role in the judicial system. We assume a jury will not
disregard its sworn duty and be improperly motivated. We assume a jury will
render a decision based on the evidence and the totality of the instructions provided
by the judge. Id.
However, when a jury is erroneously instructed and the error probably
contributed to the verdict, an appellate court must set aside the verdict. In the
assessment of an alleged erroneous jury instruction, it is the duty of the reviewing
court to assess such impropriety in light of the entire jury charge to determine if the
charges adequately provided the correct principles of law as applied to the issues
framed in the pleadings and the evidence and whether the charges adequately
guided the jury in its deliberation. Ultimately, the determinative question is 16 whether the jury instructions misled the jury to the extent that it was prevented
from dispensing justice. Id.
Based on our review, the record is full of references and discussion on how
During trial, Frank nursing homes are regulated by state and federal law.
Pennington, former Director of Nursing at Heritage House, testified concerning the
applicable regulations, both internally and externally mandated, many of which
address patient care and safety. Also, Page McClean, a witness specifically called
on by the PCF, and who is the administrator at Heritage House, testified
extensively regarding the various state reporting requirements involving incidents
and deaths which occur at a nursing home facility. In fact, printouts of the various
statutes from the Federal Register, which address and regulate nursing homes and
incidents which occur therein, were introduced into the evidentiary record.
Moreover, Denisa Joshua (" Ms. Joshua"), Mrs. Simon' s daughter, testified that
Heritage House' s refusal to properly report and inform her of the death of her
mother caused continual feelings of pain and betrayal. However, despite this
evidence being presented to the jury, the PCF now argues, " Heritage House [ was
painted] as a rule -breaking entity[.]" We must note, however, that it is undisputed
Heritage House personnel neither followed appropriate state and federal reporting
and compliance requirements following Mrs. Simon' s death, nor their own internal
investigation procedures.
Upon our review, we find the trial court did not provide the incorrect
substance of the law in instructing the jury regarding compliance and reporting
requirements for nursing homes, and we further find it was a natural inclusion in
the jury instructions on the part of the trial court. Therefore, and based on the
broad discretion afforded to a trial court in formulating jury instructions, we
determine this assignment of error lacks merit.
17 Damages Award (Assignment ofError No. 6)
In its last assignment of error, the PCF contends the quantum award for
plaintiffs' wrongful death and survival action claims is excessive. As to plaintiffs'
survival action claim, the PCF argues, "[ t]he evidence was clear and convincing
that [ Mrs.] Simon could under no circumstances [ have] been consciously suffering
beyond thirteen minutes, which the video record notes indicate was the time that
elapsed between Nurse Hoffman entering the room and delivering the mixed- up
snacks until when she returned and found [ Mrs.] Simon unresponsive." The PCF
continues, noting testimony from Dr. William Clark, who opined that after eating
the sandwich which restricted her airflow, Mrs. Simon would have remained
conscious for two to four minutes. As such, the PCF argues, "[ t]wo to four
minutes of possibly conscious suffering does not support a $ 250, 000. 00 survival
action award." Further, as to plaintiff' s wrongful death claim, the PCF claims,
plaintiff] was not receiving any support or services from her mother, [ Mrs.]
Simon. To the contrary, [ Mrs.] Simon was, if anything, supported by [ plaintiff].
There were no medical expenses. The only element recoverable under the facts of
the case was loss of love and affection, and there it was questionable at best as to
how much time [ plaintiff] actually spent with her mother in the nursing home."
The PCF concludes, "[ an] award of $500, 000. 00 was excessive for a 62 -year- old
daughter who[,] by own admission[,] did not visit her mother ` a lot[.]"'
At the conclusion of trial, the jury returned a damage award of $250,000.00
for plaintiff' s survival action claim and $ 500, 000.00 for plaintiff' s wrongful death
claim. These awards were reduced to one amount of $400, 000. 00 in the trial
court' s December 3, 2021 judgment, in accordance with the medical malpractice
damages cap. See La. R.S. 40: 1231. 2( B)( 1).
Although both actions arise from common tort, survival and wrongful death
actions are separate and distinct. The survival action comes into existence 18 simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim' s death. The survival action permits recovery only for the
damages suffered by the victim from the time of injury to the moment of death. It
is in the nature of a succession right. On the other hand, the wrongful death action
does not arise until the victim dies, and it compensates the beneficiaries for their
own injuries, which they suffer from the moment of the victim' s death and
thereafter. La. Civ. Code arts. 2315. 1 and 2315. 2; White v. Entergy Gulf States
Louisiana, L.L.C., 2013- 1608 ( La. App. 1st Cir. 11/ 10/ 14), 167 So. 3d 764, 769,
writ denied, 2015- 0478 ( La. 5/ 15/ 15), 170 So. 3d 163, citing, McGee v. A C And
S, Inc., 2005- 1036 ( La. 7/ 10/ 06), 933 So. 2d 770, 779- 80. In addition, a wrongful
death claim is like a loss of consortium claim insofar as it clearly compensates the
beneficiaries for their own injuries, separate and distinct from the primary victim' s
injuries. Id.
It is well settled that a judge or jury is given great discretion in its
assessment of quantum, of both general and special damages. See La. Civ. Code
art. 2324. 1. Due to the innate inexactitude of general damages in particular, the
role of the appellate court in reviewing these awards is limited. The court should
not decide what it believes is an appropriate award, but rather should review the
discretion of the trier of fact in accordance with the circumstances of the case.
Travis v. Spitale' s Bar, Inc., 2012- 1366 ( La. App. 1st Cir. 8/ 14/ 13), 122 So. 3d
1118, 1131, writs denied, 2013- 2409 & 2013- 2447, ( La. 1/ 10/ 14), 130 So. 3d 327,
329, citing, Youn v. Maritime Overseas Corp., 623 So. 2d 1257, 1260- 61 ( La.
1993), cert. denied, 510 U.S. 1114, 114 S. Ct. 1059, 127 L.Ed.2d 379 ( 1994). The
discretion vested in the trier of fact to set general damage amounts is " great, and
even vast," so an appellate court should rarely change such awards. Travis, 122
So. 3d at 1131. Only if an award is beyond what any reasonable person could have
assessed for the injury suffered in light of the evidence may an appellate court 19 disturb a jury award for general damages. In addition, only after determining that
the fact finder abused its great discretion may an appellate court consider awards in
similar cases, and even then may only do so for the purpose of determining the
highest or lowest figures within the fact finder' s discretion. Id. at 1131- 32, citing,
Howard v. Union Carbide Corp., 2009- 2750 ( La. 10/ 19/ 10), 50 So. 3d 1251,
1256 ( per curiam).
Concerning plaintiff' s survival action claim, and describing Mrs. Simon' s
choking death, Dr. Kamel testified:
W] hen you choke and there is no air, there is a state of panic, there' s a state of anxiety, you completely not — I mean, you want to scream and now here the problem you cannot even scream because you don' t have a voice. You keep continuing coughing and the sad thing that this can continue up to ten minutes like —like for ten minutes you are struggling and trying to get air in and you' re not able to ask for help and she had the curtains around her. And, of course, it will get blue and then you become unconscious and then you will die.
Dr. Kamel further explained that " your respiratory system fails and then your heart
fails. So, I mean, usually sometimes you say cardiac, it starts with the heart, and
you stop breathing. Here the heart would stop breathing and your brain because
there' s oxygen coming, but until this happens, you are really, really suffering and
that' s a horrible death." ( emphasis added). Dr. William Clark testified much the
same as Dr. Kamel, confirming how a choking victim " doesn' t know what' s going
on[,]" there is physical pain associated with the choking, along with anxiety and
fear when the individual begins to realize they may not live. Moreover, and in
addition to the physical description of choking as stated by Dr. Kamel and Dr.
William Clark, in the sole statement provided by Mrs. Simon' s roommate, on the
night of the fatal accident, following Hoffman' s distribution of the evening snacks,
Mrs. Simon' s roommate stated she " heard [ Mrs. Simon] coughing and a noise that
sounded like she fell[.]"
20 While the PCF relies on this court' s decision in Maldonado v. Kiewit
Louisiana Co., 2012- 1868 ( La. App. 1st Cir. 5/ 30/ 14), 152 So. 3d 909, 936, writ
denied, 2014- 2246 ( La. 1/ 16/ 15), 157 So.3d 1129, for the argument that damages
are not appropriate in a survival action "[ w] here there is no indication that a
decedent suffered," it overlooks the prevailing principle that consciously
s] urvival damages are properly awarded if there is even a scintilla of evidence of
pain or suffering on the part of the decedent, and fright, fear, or mental anguish
during an ordeal leading to the death is compensable." Id. The PCF attempts to
argue that both Mrs. Simon did not consciously suffer and, conversely, that she
only suffered for two to four minutes. Regardless, the jury' s award of survival
action damages to plaintiff indicates it found " a scintilla of evidence" that Mrs.
Simon did consciously and horrifically suffer in the up to thirteen minutes between
being fed the sandwich and her ultimate death.
As to plaintiffs' wrongful death claim, the PCF advances a shrift argument,
stating "[ t]he evidence in the medical records showed that Ms. Simon was visited
by some family member two times a year (although Ms. Joshua denied this at trial)
notwithstanding Ms. Joshua' s denial, the fact is that Ms. Simon was in a nursing
home with a questionable level of family visitation and support." However, a mere
cursory review of the testimony presented at trial refutes these assertions.
Ms. Joshua, Mrs. Simon' s daughter, testified that, due to Mrs. Simon' s
mental illnesses, she developed a unique relationship with her mother from a very
early age, taking on both the responsibilities of Mrs. Simon' s physical care and
needs, as well as household tasks for herself and siblings. Ms. Joshua later moved
to California, but testified she called and visited her mother when she could, which
made her " happy and glad." Later, Ms. Joshua moved back to Baton Rouge and, in
2002, moved her mother to Heritage House. While at Heritage House, Ms. Joshua
testified she would often visit her mother, bringing various treats and items Mrs. 21 Simon enjoyed, as well as help with Mrs. Simon' s laundry. Further, due to Mrs.
Simon' s mental illness, Ms. Joshua testified it was not uncommon for the Heritage
House personnel to call her in order to assist them in helping Mrs. Simon through
any particularly difficult moments of the day. Ms. Joshua testified how she played
games with Mrs. Simon, watched television with her, sat outside, would take her to
Ms. restaurants away from Heritage House, and generally spent time together.
Joshua understood the mental challenges faced by Mrs. Simon, but nevertheless
continued to help, visit, and do what she could to make her mother happy. Also,
other individuals and family friends recognized Ms. Joshua and Mrs. Simon' s
relationship, noting that "[ Ms. Joshua] took care of her mother [ be] cause her
mother had those mental issue[ s], so she had to make decisions for her."
Unfortunately, staff at Heritage House did not disclose to Ms. Joshua the accurate
reasons of her mother' s death. Nearly three weeks after Mrs. Simon' s memorial
service, Ms. Joshua received an anonymous call informing her of the true cause of
Mrs. Simon' s death, to which she stated:
I felt angry, felt sad, and felt betrayed. It wasn' t like I didn' t have a relationship with —with the staff at Heritage House. That wasn' t the
case at all. I did not bring my mother there for a hospice situation. I brought my mom there for quality of life; and she had that, she had that there. I felt betrayed all of the times that they told me how much that they care for her, and I don' t doubt that they did, I' m not her[ e] to say that they didn' t. I just couldn' t believe that they misled me and nobody, even when I went to the office [ to gather Mrs. Simon' s personal items], [... ] [ n] obody said anything to me. Even the people who I invited to speak on her behalf. I just —I just couldn' t believe that they thought that little of me and her.
Ms. Joshua continued:
I' m not trying to be a champion for anybody, but certainly I don' t want anybody to have to relive the pains of going through what they would have to go through and finding of their love[ d] one. When I heard that my mother passed it was — I went through grieving and I just kept saying when am I going to come out of this. I felt like I was walking in a fog. But when I had that call, it almost took me back to day one. This is different and its new, and its grief on top of betrayal.
22 Therefore, we find the jury did not abuse its vast discretion in awarding
250, 000. 00 in damages for plaintiff' s survival action claim and $ 500, 000. 00 in
damages for plaintiff' s wrongful death claim. The testimony presented at trial
reflects Mrs. Simon suffered a tragic death, consciously suffering for a period of
time, up to her death thirteen minutes after being fed the sandwich. Additionally,
Ms. Joshua testified regarding the loving relationship she had with her mother, and
how she felt betrayed by Heritage House' s refusal to provide her with the truth
concerning Mrs. Simon' s death. However, the amounts initially awarded by the
jury were nevertheless reduced to one award of $400, 000. 00. Accordingly, the
PCF, due to the medical malpractice damages cap, has inherently already received
an automatic reduction of the jury' s award. Therefore, we cannot say such an
award is excessive in light of the circumstances surrounding Mrs. Simon' s death
and the relationship Ms. Joshua had with her mother. This assignment of error
lacks merit.
CONCLUSION
For the above reasons, the trial court' s December 3, 2021 judgment is
affirmed. Costs of this appeal are assessed against defendants/ appellants, the
Louisiana Patient' s Compensation Fund and Louisiana Patient' s Compensation
Fund Oversight Board.
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