Hargroder v. Unkel

888 So. 2d 953, 2004 WL 2414281
CourtLouisiana Court of Appeal
DecidedOctober 29, 2004
Docket39,009-CA
StatusPublished
Cited by9 cases

This text of 888 So. 2d 953 (Hargroder v. Unkel) 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
Hargroder v. Unkel, 888 So. 2d 953, 2004 WL 2414281 (La. Ct. App. 2004).

Opinion

888 So.2d 953 (2004)

Howard HARGRODER, Plaintiff-Appellee
v.
Dr. Steven UNKEL, et al., Defendants-Appellants.

No. 39,009-CA.

Court of Appeal of Louisiana, Second Circuit.

October 29, 2004.

*955 Hudson, Potts & Bernstein, L.L.P., by Gordon L. James, Monroe, for Appellant, Dr. Steven P. Unkel.

Sera H. Russell, III, Lafayette, for Appellee.

Before GASKINS, PEATROSS and LOLLEY, JJ.

GASKINS, J.

The defendant, Dr. Steven P. Unkel, appeals a jury verdict awarding $150,000 to the plaintiff, Dr. Howard Hargroder, for the loss of a chance of a better outcome arising from a stroke. For the following reasons, we affirm in part and amend in part the trial court judgment.

FACTS

The plaintiff, a resident of Eunice, Louisiana, is a veterinarian. He was employed as a relief inspector for the United States Department of Agriculture, traveling throughout several states to fill in for inspectors who were on leave. On June 30, 1998, while working at the ConAgra plant in Farmerville, Louisiana, the plaintiff became ill. He left work and went to the cabin he and his wife were renting while in the area. Around 9:30 p.m., the plaintiff's wife took him to the emergency room of Union General Hospital (Union General). He stated that he had been vomiting all day, was dizzy, and had numbness in his left extremities.

*956 At that time, Union General did not have a full-time emergency room physician. Doctors with privileges at the hospital were on call at the emergency room on a rotating basis. On the evening the plaintiff sought treatment, Dr. Unkel was on call. The plaintiff was examined by the emergency room nurse. The plaintiff said that he told the nurse that he thought he was having a stroke.

Dr. Hargroder is diabetic. Both his blood sugar and blood pressure were elevated. His hand grips were equal bilaterally. The nurse telephoned Dr. Unkel who ordered an EKG and a cardiac enzyme study. Dr. Unkel did not come to the hospital, but ordered tests to rule out a heart attack. The plaintiff was diagnosed with viral enteritis, a stomach malady that was circulating in the community. Dr. Unkel ordered that the plaintiff be given medication for nausea. The plaintiff slept briefly, and was discharged at 11:25 p.m.

Dr. Hargroder continued to be nauseated. Around 4:00-5:00 a.m. the next morning, July 1, 1998, Mrs. Hargroder called the emergency room and took the plaintiff back around 6:00 a.m. Dr. Unkel came to the emergency room. He found the plaintiff's blood pressure and blood sugar were still elevated and performed a neurological exam which he claims was normal. Dr. Unkel did not think that the plaintiff was having a stroke. He attributed the numbness in the plaintiff's left hand to diabetic neuropathy. The plaintiff was discharged from the emergency room.

The plaintiff continued to be sick and on July 3, 1998, the Hargroders decided to return to Eunice. Mrs. Hargroder stopped at the emergency room of Savoy Medical Center in Mamou, Louisiana. The plaintiff was seen by Dr. Oscar Rodriguez, who ordered a CT scan and an MRI. Both tests were normal, but Dr. Rodriguez determined that Dr. Hargroder had suffered a stroke.

The plaintiff was admitted to the hospital and was treated with heparin, a blood thinner. His symptoms began to improve. He then underwent rehabilitation and was discharged on July 21, 1998.

In August 1998, Dr. Hargroder sustained broken ribs in a fall from a ladder while trimming trees. The defendant contends that the plaintiff's return to work was delayed by a cruise to Alaska. Dr. Hargroder retired in 2000. He claimed to have continued weakness in his left side and stated that he retired because he could not do what needed to be done.

Dr. Hargroder filed a medical malpractice suit against Dr. Unkel and Union General, claiming damages for Dr. Unkel's failure to diagnose and treat the stroke. On November 16, 2000, a medical review panel found that Union General did not deviate below the applicable standard of care. The panel found that Dr. Unkel deviated from the accepted standard of care, but the deviation did not affect the outcome of the patient's care. Members of the medical review panel included Drs. David A. Yarbrough, Brian Harris, and Kenneth E. McDonald, III, who testified at trial.

On April 4, 2002, the trial court granted a motion for summary judgment filed by Union General, dismissing the plaintiff's claims against it. The plaintiff proceeded to jury trial against Dr. Unkel. At the close of the defendant's case, the trial court granted a directed verdict against Dr. Unkel finding that he breached the applicable standard of care. The jury awarded Dr. Hargroder $150,000 in damages for failure to diagnose and treat his stroke.

Dr. Unkel filed motions for judgment notwithstanding the verdict and for new trial, arguing that the plaintiff did not *957 establish a loss of a better outcome due to the delay in the diagnosis. These motions were denied by the trial court.

The defendant appealed, arguing that the jury erred in making an award for loss of a chance of a better outcome when the medical testimony established that there was no treatment available for a better outcome and that the outcome obtained was excellent. He also alleged that the jury erred in making an award for loss of a better outcome which involved only a loss of a chance for supportive care, which did not affect the ultimate outcome, and which involved a good result.

LEGAL PRINCIPLES

An appellate court may not set aside a trial court's factual findings unless they are manifestly erroneous or clearly wrong. Henderson v. Nissan Motor Corporation, 2003-606 (La.2/6/04), 869 So.2d 62. For reversal on appeal, the appellate court must find: (1) a reasonable factual basis does not exist in the record for the factual findings of the trial court; and (2) the record establishes that the factual findings are clearly wrong and manifestly erroneous. The appellate court must do more than look at the record for evidence which supports or discredits the trial court's findings. The reviewing court must review the entire record to determine whether the trial court's findings were clearly wrong or manifestly erroneous. Johnson v. LSU Medical Center, 38,204 (La.App.2d Cir.3/3/04), 867 So.2d 884, writ denied, XXXX-XXXX (La.6/4/04), 876 So.2d 88.

Credibility determinations, including the evaluation of expert testimony, are factual issues to be resolved by the trier of fact. Where the testimony conflicts, the fact finder's reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed upon review, even where the appellate court may feel that its own evaluations and inferences are more reasonable than those of the jury. Quinn v. Wal-Mart Stores, Inc., 34,280 (La.App.2d Cir.12/6/00), 774 So.2d 1093, writ denied, XXXX-XXXX (La.3/9/01), 786 So.2d 735.

In the determination of general damages, 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. La. C.C. art. 2324.1. 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. The primary considerations in the assessment of damages are the severity and duration of the injured party's pain and suffering.

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Cite This Page — Counsel Stack

Bluebook (online)
888 So. 2d 953, 2004 WL 2414281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hargroder-v-unkel-lactapp-2004.