Eubanks v. Salmon

756 So. 2d 517, 99 La.App. 5 Cir. 425, 2000 La. App. LEXIS 200, 2000 WL 178011
CourtLouisiana Court of Appeal
DecidedFebruary 16, 2000
DocketNo. 99-CA-425
StatusPublished
Cited by1 cases

This text of 756 So. 2d 517 (Eubanks v. Salmon) 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
Eubanks v. Salmon, 756 So. 2d 517, 99 La.App. 5 Cir. 425, 2000 La. App. LEXIS 200, 2000 WL 178011 (La. Ct. App. 2000).

Opinions

I.GOTHARD, Judge.

In this medical malpractice action, defendants, Dr. John Salmon, Salmon Chiropractic Clinic and National Chiropractic Mutual Insurance Company, appeal from a Judgment Notwithstanding the Verdict (JNOV), which also conditionally granted plaintiffs Motion for New Trial. The judgment overruled the jury’s verdict and awarded damages to plaintiff, Jerry Eu-banks for a ruptured cervical disc. For reasons that follow, we affirm.

Mr. Eubanks, a fireman, sought treatment on September 4,1991 from Dr. Salmon for low back pain which occurred when he helped carry ice chests up some stairs during the Labor Day weekend. The doctor treated Mr. Eubanks with heat, ice, electrical stimulation and manipulation. He also began manipulating plaintiffs neck sometime around September 6, 1.4.991. On September 30, 1991, Mr. Eubanks alleges that Dr. Salmon manipulated his neck, causing immediate pain. Mr. Eubanks connects this incident with the rupture of his cervical disc, which was subsequently discovered. The rupture impinged on a nerve and resulted in a fusion. Following the surgery, he spent three days in the hospital, was off of work for six weeks, and spent six weeks on light duty.

As a result, plaintiff filed a medical malpractice action against defendants. On September 28, 1993, the medical review panel found no breach of the standard of care and no liability. Suit was filed on October 26, 1993. On December 22, 1993, an intervention was filed by Louisiana Health Service Indemnity Company d/b/a Blue Cross/Blue Shield of Louisiana for the recovery of medical payments. A jury trial was held on January 26-28, 1998. The jury found no liability. A judgment dismissing plaintiffs claim was rendered on February 2, 1998. On February 6, 1998, plaintiff filed a motion for JNOV and, alternatively for a new trial. On March 4, 1998, the trial judge granted the motion for JNOV, without ruling on the plaintiffs motion for New Trial. In the JNOV, the trial judge awarded plaintiff $135,000 in general damages and $12,-772.76 in medical expenses. The judgment was rendered only against Dr. Salmon. Furthermore, it failed to recognize the intervention.

On March 12, 1998, all of the defendants filed a Motion for New Trial from the JNOV. Defendants asserted that the judgment was manifestly erroneous and that the award was excessive. In addition, defendants contended that it violated the limitations on general damages under the Medical Malpractice Act, and that it failed to award the intervener its | ¿medical payments. On March 31,1998, plaintiff filed a “Motion for Clarification of Judgment.” Plaintiff asserted that the judgment failed to include the other two defendants, that it should find joint and several liability among the defendants, and that it failed to include an award for the intervener. On April 6, 1998, the intervener filed a similar motion, entitled “Motion to Modify and/or Amend Judgment” asking for inclusion of its lien in the judgment against defendant. This is marked “Moot” because the trial judge rendered an “amended” judgment on that date pursuant to plaintiffs motion to clarify. In addition, a minute entry on April 6, 1998, indicates that the trial judge denied a Motion for New Trial, (which appears to be the motion filed by defendants on March 12.)

The judgment of April 6 granted the plaintiffs “Motion to Clarify ... It reiterated that the JNOV was granted, reduced plaintiffs award to $100,000 in general damages, reserved plaintiffs right to seek excess damages from the Louisiana Patient’s Compensation Fund, and awarded the intervener the sum of $12,772.76.

Defendants filed an appeal from both the April 6, 1998 “amended” judgment, and the March 4, 1998 JNOV. This Court determined that the appeal was premature because the trial judge had not ruled on plaintiffs original Motion for New Trial filed with the Motion for JNOV in Febru[519]*519ary 1998. The appeal was dismissed and the ease remanded.

On January 6, 1999, the trial judge rendered a “Second Amended Judgment.” In it, he repeated the content of the April 6, 1998 judgment, but added that plaintiffs Motion for New Trial was denied, unless the JNOV 'was reversed on appeal, in which case plaintiff s Motion for New Trial |Rwas granted.' As -he did in the first JNOV, the trial judge determined that the jury disregarded the charges on causation, and that the facts and inferences point so strongly and overwhelmingly in favor of plaintiff that reasonable men could not have arrived at a contrary verdict. This judgment again casts only Dr. Salmon in judgment, and fails to include the other two defendants, Salmon Chiropractic Clinic and National Chiropractic Mutual Insurance Company. Nevertheless, all three defendants appealed the JNOV of March 4, 1998, the amended judgment of April 6, 1998, and the second amended judgment of January 6,1999.

On appeal, defendants assert that the trial judge erred in granting plaintiffs motion for JNOV, and conditionally granting plaintiffs Motion for New Trial from the original judgment in favor of defendants.

INVALID JUDGMENTS

Before addressing the merits of the appeal, we note that the only valid judgments before this Court are the March 4, 1998 judgment that initially granted the JNOV and awarded plaintiff damages and medical expenses against Dr. John Salmon, and the ruling on the plaintiffs Motion for New Trial rendered pursuant to our decision of January 5, 1999 remanding the case. Both the April 6, 1998 judgment, and those parts of the January 6, 1999 judgment that reiterate the changes made in the April 6, 1998 judgment, are invalid.

A final judgment' may not be amended after it is rendered, except for the reasons set out in LSA-C.C.P.- article 1951. That article provides that the judgment may be amended by the trial court at any time “(1) To alter the phraseology of the judgment, but not the substance; or (b) To correct errors [fiof calculation.” Both the April 6, 1998 judgment and parts of the January 6, 1999 judgment contain substantive changes to the March 4, 1998 judgment because they reduce (or change) plaintiffs monetary award, and add an award to the intervener for monetary relief. Furthermore, neither of these judgments are rendered pursuant to a timely motion for new trial. See, LSA-C.C.P. article 1974. Thus, neither of those judgments are valid and properly before this Court.

EVIDENCE

At the trial on the merits, Mr. Eubanks testified that he is a fireman for the Department of the Navy, at the Naval Air Station in Belle Chasse. As part of his employment he was required to undergo a physical examination annually. He testified that prior to September, 1991, he played softball, did some fishing and hunting, and did some remodeling work as a side job.. He explained that on Labor Day in 1991, he strained his lower back lifting an ice chest. He sought treatment for the injury from defendant, Dr. Salmon. Dr. Salmon took X-rays of plaintiffs lower back, but not his neck.

After about four visits, Dr. Salmon began manipulating his neck, although Mr. Eubanks did not complain of a neck problem. By the weekend of September 28, 1991, plaintiff, whose back pain was resolved, played softball, and went fishing.

. Mr. Eubanks testified that when he told Dr. Salmon his back felt fine, the. doctor wanted to keep him on a maintenance program. In order to get insurance coverage for the continued treatments, Dr. Salmon began manipulating his neck. Plaintiff testified that Dr. Salmon told him it was necessary to “come up with another diagnosis” for insurance purposes.

|70n September 30, 1991, Mr.

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Bluebook (online)
756 So. 2d 517, 99 La.App. 5 Cir. 425, 2000 La. App. LEXIS 200, 2000 WL 178011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eubanks-v-salmon-lactapp-2000.