Fanguy v. Lexington Insurance Co.

210 So. 3d 483, 15 La.App. 5 Cir. 450, 2016 La. App. LEXIS 2427
CourtLouisiana Court of Appeal
DecidedDecember 28, 2016
DocketNO. 15-CA-450
StatusPublished
Cited by1 cases

This text of 210 So. 3d 483 (Fanguy v. Lexington Insurance Co.) 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
Fanguy v. Lexington Insurance Co., 210 So. 3d 483, 15 La.App. 5 Cir. 450, 2016 La. App. LEXIS 2427 (La. Ct. App. 2016).

Opinions

JOHNSON, J.

[ jDefendants/Appellants, Lexington Insurance Company and Michael Graham, M.D., appeal the judgment and award of damages in favor of Plaintiff/Appellee, Re-nea Fanguy, for a medical malpractice action filed in the 24th Judicial District Court, Division “L”. For the following reasons, we affirm the trial court’s finding that Dr. Graham breached the standard of care in failing to obtain Ms. Fanguy’s informed consent before performing surgery and in awarding Ms. Fanguy past medical expenses for both the June 2008 and December 2008 procedures. We amend the trial court’s award of $49,664 for medical expenses to conform to the evidence and award $48,607.69. Further, we amend the trial court’s award of $33,000 for general damages, finding it abusively low and award Ms. Fanguy $50,000 for pain and suffering. Finally, we reverse the trial court’s denial of compensation for loss of enjoyment of life and render an award of $15,000 in that regard. Thus, we reverse in part and affirm the judgment as amended by this Court.

PROCEDURAL HISTORY

This is the second appeal between the parties in this medical malpractice aetion. In the first appeal, this Court reversed the trial court’s judgment that sustained Defendants’ exception of prescription and denying Ms. Fanguy’s motion in limine to exclude the medical review panel’s opinion from evidence. Fanguy v. Lexington Ins. Co., 12-136 (La.App. 5 Cir. 11/13/12), 105 So.3d 848; affirmed in part and reversed in part and remanded, 13-114 (La. 4/1/13); 110 So.3d 127. Following this Court’s previous decision, the Louisiana Supreme Court granted writs of certiorari, affirmed this Court’s decision as to the prescription issue, reversed this Court’s decision to strike the medical review panel opinion, and ^ordered the medical review panel to be reconstituted with different physician-members to deliberate and to issue an opinion on the issues presented in this case.

After the matter was remanded to the trial court by the Louisiana Supreme Court, a second medical review panel was constituted to review whether Dr. Graham committed medical malpractice in his treatment gynecologic medical and surgical of Ms. Fanguy. In the “Findings of the Medical Review Panel,” the medical review panel found that the evidence did not support the conclusion that Dr. Graham failed to meet the applicable standard of care, which was informed consent. At the conclusion of the second medical review panel, Ms. Fanguy pursued her ongoing case in district court.

A trial on the merits of Ms. Fanguy’s petition was held on February 24, 2015. In a judgment rendered on February 26, 2015, the trial court found that Dr. Graham’s treatment fell below the standard of care in failing to obtain informed consent to remove Ms. Fanguy’s right ovary and in removing the right ovary. The trial court awarded Ms. Fanguy a total amount of $82,664, which consisted of $33,000 for past, present and future pain and suffering, and $49,664 for past medical expenses.

Defendants filed a Motion for New Trial on March 9, 2015, asserting the judgment was contrary to the law and evidence submitted in the matter. On March 10, 2015, Ms. Fanguy filed a Motion to Tax Costs, requesting that various costs in the [488]*488amount of $37,876.08, plus any further post-trial motion costs, be assessed against Defendants. The motions were heard on April 20, 2015. In a judgment rendered on the same date as the hearing, the trial court denied Defendants’ motion and partially granted Ms. Fanguy’s motion by disallowing certain fees and only taxing $32,138.38 in costs against Defendants. Defendants timely filed their Motion for Appeal, and the instant appeal followed.

J^FACTS

Renea Fanguy was a long time patient of Dr. Michael Graham. Prior to 2008, Dr. Graham sporadically treated Ms. Fanguy for left-sided pelvic pain and four pregnancies.1 On June 6, 2008, Ms. Fanguy saw Dr. Graham after an emergency visit to the hospital for pelvic pain. Dr. Graham performed an examination and recommended a laparoscopy for diagnostic purposes and possible vaporization of adhe-sions. Ms. Fanguy signed a consent form and the surgery was performed on June 17, 2008. Dr. Graham’s operative report diagnosed Ms. Fanguy with endometrios-is2 and possible adenomyosis.3 No problems were noted on Ms. Fanguy’s followup visit.

On December 1, 2008, Ms. Fanguy returned to Dr. Graham with complaints of left-sided pelvic pain4 and dyspareunia.5 Dr. Graham discussed and recommended laparoscopic supracervical hysterectomy with left salpingo-oophoreetomy (removal of the left ovary and fallopian tube). On December 18, 2008, Ms. Fanguy met Dr. Graham for a preoperative visit, during which they discussed the planned procedure, purpose, risks, benefits, and treatment options. Ms. Fanguy signed a consent form, and the surgery was performed on December 26, 2008. Dr. Graham’s preoperative diagnosis was left-sided pelvic pain, | ¿dyspareunia, and menorrhagia.6 During the surgery, Dr. Graham saw that the uterus was “pressing on the left-hand side.” After further examination, Dr. Graham determined that the left ovary was normal, whereas the right ovary was totally encapsulated with adhesions and stuck to the uterus. Based on Ms. Fanguy’s request to keep one ovary to prevent early menopause, Dr. Graham removed the right ovary. Ms. Fanguy subsequently returned to Dr. Graham complaining of continued left-sided pain and a new right-sided pain. In October 2009, Ms. Fanguy sought a [489]*489second opinion with Dr. Susan Jeanfreau for her continued left-sided pain and her new right-sided pain. Dr. Jeanfreau treated Ms. Fanguy, and she is now relatively pain free.

In her medical malpractice complaint against Dr. Graham, Ms. Fanguy contended that Dr. Graham breached the applicable standard of care by failing to obtain her informed consent for the June 2008 and December 2008 surgeries. Ms. Fanguy argued that the two surgeries were unnecessary, ineffective, and for each surgery Dr. Graham failed to discuss therapeutic alternatives, (ie., Lupron), for chronic pelvic pain and endometriosis. Ms. Fanguy also contended that Dr. Graham breached the applicable standard of care by failing to inform her of the risk of removing only one ovary as opposed to both ovaries as it relates to endometriosis. Finally, Ms. Fan-guy claimed that Dr. Graham breached the applicable standard of care when he removed the wrong ovary.

The second medical review panel found that Dr. Graham did not breach any of the standards of care applicable to the claims above. The panel found that the informed consent obtained for the December 2008 surgery was appropriate and it allowed “for the possibility of the removal of either ovary in this procedure.” The panel also found that

|fiIn a young patient desiring to maintain ovarian function, a reasonably prudent physician would remove the diseased ovary and save the healthy ovary. Based on the photograph provided to the panel, despite the lack of pathologic confirmation, it appears that the right ovary had a diseased appearance. This is confirmed by his operative note. It is not uncommon that the surgical findings for later-ality may not match the preoperative imaging or symptomatology in a patient with chronic pelvic pain.7

ASSIGNMENTS OF ERROR

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Bluebook (online)
210 So. 3d 483, 15 La.App. 5 Cir. 450, 2016 La. App. LEXIS 2427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fanguy-v-lexington-insurance-co-lactapp-2016.