Hammock v. LSUMC

772 So. 2d 306, 2000 WL 1634291
CourtLouisiana Court of Appeal
DecidedNovember 1, 2000
Docket34,086-CA
StatusPublished
Cited by16 cases

This text of 772 So. 2d 306 (Hammock v. LSUMC) 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
Hammock v. LSUMC, 772 So. 2d 306, 2000 WL 1634291 (La. Ct. App. 2000).

Opinion

772 So.2d 306 (2000)

Vonda HAMMOCK on behalf of her minor child, Alexis THOMPSON, Plaintiff-Appellee,
v.
LOUISIANA STATE UNIVERSITY MEDICAL CENTER IN SHREVEPORT, et al., Defendant-Appellant.

No. 34,086-CA.

Court of Appeal of Louisiana, Second Circuit.

November 1, 2000.

*309 Casten & Pearce by Claude W. Bookter, Jr., Shreveport, Counsel for Appellant.

W. James Singleton, Sam L. Jenkins, Jr., Shreveport, Counsel for Appellee.

Before NORRIS, C.J., and WILLIAMS and KOSTELKA, JJ.

NORRIS, Chief Judge.

Louisiana State University Medical Center (LSUMC) appeals the quantum of an award to Vonda Hammock, on behalf of Alexis Thompson, for the mis-diagnosis and delay in treatment of a Monteggia fracture. We affirm.

Facts

On October 26, 1996, while unsupervised, four-year-old Alexis fell when she climbed onto a chair in an attempt to get a balloon. Vonda Hammock, Alexis' mother, heard a commotion and found Alexis on the floor beside the overturned chair. Vonda took Alexis to North Caddo Medical Center in Vivian where x-rays were taken. Alexis' arm was placed in a tourniquet and Vonda was told to take her to LSUMC to see an orthopedic surgeon. Vonda transported Alexis to the emergency room of LSUMC, where Dr. Danese x-rayed her arm, diagnosed her with a "greenstick" fracture and put a cast on her arm. Over the next few months, Alexis had several more x-rays done and had to have her arm reset and recast. According to Vonda, Alexis went to two to three appointments a month from October until December.

On January 8, 1997, Vonda received a call from a Dr. Craig who informed her that he had looked at previous x-rays and discovered that Alexis had a Monteggia fracture, a fracture of the radius resulting in a radial dislocation, which had thus far gone undiscovered. Dr. Craig scheduled an appointment for Alexis the next day and told Vonda that Alexis would have to undergo emergency surgery or risk losing her arm. Alexis underwent surgery on January 16, at which time two pins were put in her arm to hold the radial head down in an attempt to keep it in the socket. Alexis underwent a second surgery on February 6, when an additional three pins were placed in her arm. On March 20, Alexis underwent a third surgery when three of the pins were removed; two were imbedded in the bone. When the remaining pins started giving Alexis trouble, Vonda took her to Dr. Don Burt who, on June 10, removed them.

Vonda, on behalf of Alexis, filed suit against LSUMC for the mis-diagnosis of the Monteggia fracture. LSUMC stipulated that the standard of reasonable care was breached in failing to treat the dislocation of the radial head and waived the use of the Medical Review Panel. The case went to trial on the issue of quantum. Prior to trial, LSUMC filed a motion in limine seeking to exclude any evidence of lost earning capacity arguing that due to Alexis' age it was too speculative. The trial court denied the motion and this court denied LSUMC's writ challenging that ruling. After trial, the judge awarded Alexis general damages in the amount of $160,000, and special damages of $150,000 for loss of earning capacity, $8,500 for future surgery, and medical expenses not contested on appeal. Additionally, the trial court designated expert fees of $700 for Dr. Don Burt, Dr. Luvonia Caperson, Lenora Maatouk and $1,500 for Dr. Douglas W. McKay to be taxed as costs payable by LSUMC. LSUMC appeals the awards for general damages, loss of earning capacity, future medical expenses, and expert fees.

Law and Analysis: General Damages

LSUMC argues that the award of $160,000 in general damages is excessive and an abuse of the trial court's discretion.

The trial court has much discretion in the assessment of damages in tort cases. La. C.C.P. 2324.1. 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. An appellate court may disturb a damage award only when the record clearly *310 reveals that the trial court abused its discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Hae Woo 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). Only after an articulated analysis of the facts discloses an abuse of discretion is examination of prior awards in similar cases proper; an abusively low award is raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is reduced to the highest amount the trier of fact could have reasonably awarded. Powell v. RTA, 96-0715 (La.6/18/97), 695 So.2d 1326; Dixon v. Tillman, 29,483 (La.App.2d Cir.5/7/97), 694 So.2d 585, writ denied, 97-1430 (La.9/19/97), 701 So.2d 174. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact; likewise, to determine if an award is inadequate, the evidence must be viewed in the light most favorable to the defendant. Manuel v. State Farm Mut. Auto. Co., 30,765 (La.App.2d Cir.8/19/98), 717 So.2d 277.

According to the medical records, Alexis underwent four separate surgeries, two to place pins in her arm and two to remove the pins. The first surgery was on an emergency basis due to the imminent danger of her losing her arm. The second surgery was done because the radial head was still out of the socket. The third and fourth surgeries were done because Alexis was suffering discomfort from the pins in her arm. After the third surgery, Vonda was informed by Dr. Hollister's clinic that the last two pins were embedded, as such they could not remove them without chiseling the bone and possibly causing additional problems. Despite the assurance that the last two pins would not cause Alexis problems, these pins later caused her discomfort and had to be removed. Despite all these efforts and surgeries, the radial head is still not in place.

Dr. McKay testified that another surgery might get the radial head back in place, but there was a high risk of losing even more motion; there was no guarantee or even a good percentage of a positive result. Consequently, he suggested waiting until Alexis was 15 or 16 years of age where there was a better chance of getting the radial head back in place and getting back more motion.

Dr. McKay testified that Alexis lost 20° of flexion in her arm. Additionally, she lost 50° supination and 70° of pronation of the wrist. Dr. McKay evaluated Alexis as having a 16% impairment of the upper extremity and a 10% impairment of the whole body. He did state that given her youth she would be able to adapt; however, this would not be the result of any increased range of motion in her elbow.

Vonda testified that Alexis likes to ride her bike, swing, swim, and play baseball. She did note that Alexis has difficulty in playing baseball because she cannot hold the bat. She further testified that Alexis has difficulty eating because she cannot properly twist her arm to get a utensil to her mouth. Vonda stated that Alexis has lost her confidence and that other children often ask about her arm because of the ugly scar on it. Additionally, Vonda expressed concern about Alexis' opportunity to do things such as cheer, be on the dance line, and play softball in high school due to her impairment and the likelihood of her having to undergo another surgery during that time.

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772 So. 2d 306, 2000 WL 1634291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammock-v-lsumc-lactapp-2000.