Futch v. Attwood

698 So. 2d 958, 97 La.App. 3 Cir. 259, 1997 La. App. LEXIS 1645, 1997 WL 331017
CourtLouisiana Court of Appeal
DecidedJune 18, 1997
DocketNo. 97-259
StatusPublished
Cited by4 cases

This text of 698 So. 2d 958 (Futch v. Attwood) 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
Futch v. Attwood, 698 So. 2d 958, 97 La.App. 3 Cir. 259, 1997 La. App. LEXIS 1645, 1997 WL 331017 (La. Ct. App. 1997).

Opinion

11 SAUNDERS, Judge.

In this malpractice action, the only issues are quantum and legal interest. Both parties contest the $425,000.00 general damages awarded for a minor decedent’s conscious pain and suffering, and for the mother’s grief, loss of love, affection and consortium. Finally, defendant complains of the assessment of pre-judgment legal interest on the $100,000.00 previously tendered by the tort-feasor. We reverse the contested legal interest award and otherwise affirm.

1 -¿FACTS

The facts leading to this controversy are largely undisputed. This malpractice suit against Dr. Charles R. Attwood and American Legion Hospital was initially filed by appellee, Wanda Futch, seeking damages for the wrongful death and survival action arising from allegedly negligent medical care rendered the decedent, plaintiff’s minor daughter, Lauren Futch. Dr. Attwood, a Crowley pediatrician, had treated Lauren for her diabetes from the time that he first diagnosed it in February 1988, when Lauren was two and a half years old, to when on or about February 29, 1990, some two years later, Lauren died from complications arising from her diabetic Condition-

Following trial on the merits on April 16, 1996, the trial court allocated general damages as follows:

(1) Conscious pain and suffering of Lauren Futch $ 98,000.00
(2) Loss of love, affection and consortium suffered by Wanda Futch $163,500.00
(3) Past, present and future grief and mental anguish suffered by Wanda Futch $163,500.00

Additionally, the trial court granted legal interest on the entire award, including $100,-000.00 that had been tendered previously by Dr. Attwood’s insurer, Insurance Corporation of America, in exchange for which plaintiff dismissed all claims against the hospital in pursuit of her remaining claims for damages only against the Louisiana Patient’s Compensation Fund.

Liability having been conceded, quantum is the only viable issue before us. While Lauren’s survivors argue that more relief is required to make them whole for their and Lauren’s suffering, defendants contend that the trial court’s awards ^constituted an abuse of discretion. Additionally, defendants suggest that the trial court erroneously charged legal interest on sums tendered in settlement prior to trial.

APPELLATE REVIEW OF DAMAGE AWARDS

In Reck v. Stevens, 373 So.2d 498 (La.1979), the supreme court commented upon the appellate review of general damage awards and on the much discretion allotted trial courts. The rule of Reck was perpetuated in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994):

In Reck v. Stevens, 373 So.2d 498 (La.1979), this Court commented on appellate review of general damage awards and on the “much discretion” in fixing damages accorded to trial courts by La.Civ.Code art. 1934(3)(1870). The decision pointed out that the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the ease under consideration.
In Reck, this court disapproved the appellate court’s simply reviewing the medi[960]*960cal evidence and then concluding that the award for those injuries was excessive, without taking into consideration the particular effect of the particular injuries on the particular plaintiff. This court further disapproved of the use of a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular ease. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974).
The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance |4as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Youn, 623 So.2d at 1260-61.1

Initially, defendant complains that the award of $98,000.00 for young Lauren’s conscious pain and suffering is excessive, given that she had been consciously ill for only thirty-six hours or so before lapsing into a coma and during that time apparently did not suffer from any extraordinary degree of pain or discomfort, particularly during the period for which the Phenergan offered her some relief.

Plaintiff opposes this suggestion and notes that young Lauren had endured complications, suffering all the while, worsening over a sixty-two hour period and ultimately resulting in her death. In support of her position, plaintiff highlights certain entries contained in the American Legion Hospital’s charts which clearly evidence a continuous decline in the young girl’s condition, much of which could have led the trial court to have determined that the young girl was aware of .her discomforts.2

Given the evidence presented, we are not in a position to second guess the findings of the trial court who may well have determined, contrary to defendant’s ^assertions, that Lauren had in fact endured extraordinary pain, discomfort and emotional trauma.

Likewise, we find no abuse of discretion on the part of the trial court’s magnitude of relief.

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Bluebook (online)
698 So. 2d 958, 97 La.App. 3 Cir. 259, 1997 La. App. LEXIS 1645, 1997 WL 331017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/futch-v-attwood-lactapp-1997.