Johnson v. Aetna Casualty & Surety Company

575 So. 2d 458, 1991 La. App. LEXIS 202, 1991 WL 12999
CourtLouisiana Court of Appeal
DecidedFebruary 6, 1991
Docket89-825
StatusPublished
Cited by5 cases

This text of 575 So. 2d 458 (Johnson v. Aetna Casualty & Surety Company) 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
Johnson v. Aetna Casualty & Surety Company, 575 So. 2d 458, 1991 La. App. LEXIS 202, 1991 WL 12999 (La. Ct. App. 1991).

Opinion

575 So.2d 458 (1991)

Owen J. JOHNSON, et ux., Plaintiffs-Appellants,
v.
AETNA CASUALTY & SURETY COMPANY, et al., Defendants-Appellees.

No. 89-825.

Court of Appeal of Louisiana, Third Circuit.

February 6, 1991.
Rehearing Denied March 8, 1991.
Writ Denied May 2, 1991.

Broussard, Bolton, Halcomb & Vizzier, Daniel E. Broussard, Jr., Alexandria, for plaintiffs-appellants.

*459 Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Lake Charles, for defendants-appellees.

Before GUIDRY, STOKER and DOUCET, JJ.

STOKER, Judge.

This is an appeal by plaintiffs-appellants, Owen J. Johnson and Helen Johnson, from a judgment notwithstanding the verdict in favor of defendant-appellee, St. Patrick Hospital of Lake Charles. For the reasons discussed below, we reverse the judgment of the trial court and reinstate the jury verdict in favor of Mr. Johnson. We award Mrs. Johnson $3500 in damages for her loss of consortium.

FACTS

The plaintiffs, husband and wife, filed a medical malpractice suit alleging that the plaintiff-husband, Mr. Johnson, suffered a personal injury while hospitalized in the defendant-hospital from February 7 until February 14, 1985 for a surgical operation. During this period of hospitalization one or more catheters were inserted and removed from Mr. Johnson's body. Later a catheter segment was discovered and removed from Mr. Johnson's body. This discovery occurred on or about February 21, 1986, when Mr. Johnson underwent surgery performed by Dr. L.P. Perkins in Sulphur, Louisiana. The dispute in this case involves when and how the catheter segment became lodged in Mr. Johnson's body.

Dr. John R. Enright testified that Mr. Johnson entered the defendant-hospital on February 8, 1985 for a penile implant. After the successful surgical operation, Dr. Enright inserted a straight catheter into Mr. Johnson's body in order to drain urine from the urinary bladder. The nurses' notes reflect that on February 9, 1985 the catheter inserted by Dr. Enright "fell out." The medical testimony does not clearly establish the reason the catheter fell out of Mr. Johnson's body. In any event, Dr. Enright ordered that a new catheter be inserted.

On February 9, 1985, an orderly employed by the defendant-hospital inserted the new catheter. Subsequently, Dr. Enright ordered that the new catheter be removed in preparation for the plaintiff's discharge from the hospital. An orderly removed the catheter in accordance with the doctor's orders on February 10, 1985. On February 11, Mr. Johnson complained of experiencing difficulty in voiding. Dr. Enright testified that as a result of those complaints, he ordered that a Coude catheter be inserted into Mr. Johnson. On February 11, a Coude catheter was inserted by an orderly. No one else was present when the orderlies inserted and removed the various catheters from Mr. Johnson's body.

According to Mr. Johnson's uncontradicted testimony, he had never experienced difficulty or pressure in voiding prior to the February 1985 hospitalization. Further, he testified that he had never been catheterized before the surgical procedure in February 1985. Nevertheless, Mr. Johnson experienced difficulty and discomfort in urination after the insertion and subsequent removal of both the new catheters described above. These complaints continued after the plaintiff's discharge from the hospital, causing him to seek a second opinion from Dr. L.P. Perkins. Thinking Mr. Johnson was experiencing prostate enlargement, Dr. Perkins scheduled surgery for February 1986. During the surgery, Dr. Perkins discovered a six to eight inch piece of catheter tubing resting across a portion of the plaintiff's bladder. At that time Dr. Perkins elected not to proceed with the prostate operation, recognizing that the tubing was the cause of Mr. Johnson's voiding difficulties. Dr. Perkins testified that the removal of the catheter segment and a subsequent antibiotic treatment left the plaintiff with no residual disability.

TRIAL COURT ACTION

The plaintiffs filed suit against St. Patrick Hospital of Lake Charles, the manufacturer of the offending catheter and its insurer. The plaintiffs later dismissed the manufacturer and its insurer. The plaintiffs alleged in their suit that the defendant-hospital's employees failed to adhere *460 to accepted standards of hospital care. After a trial by jury, the jury found the defendant-hospital liable for the injuries sustained by the plaintiffs. The jury awarded the plaintiff-husband $25,600 in damages and awarded the plaintiff-wife $400 for loss of consortium. The defendant-hospital filed a motion for a judgment notwithstanding the verdict directed to the liability question. The plaintiff-wife also filed a similar motion in which she asked for an increase in her award. The trial judge granted the motion of the defendant-hospital, denied the motion of the plaintiff-wife and set aside the verdict of the jury. The plaintiffs appeal these rulings of the trial judge.

ASSIGNMENTS OF ERROR

Plaintiffs-appellants urge six assignments of error which can be summarized as two issues presented on appeal: (1) whether the trial court erred in granting a judgment notwithstanding the verdict in favor of the defendant-hospital; and (2) whether the trial court erred in denying the judgment notwithstanding the verdict of plaintiff, Helen Johnson, on the grounds that the sum awarded to her by the jury constituted an abuse of the jury's discretion in assessing damages.

STANDARD FOR JUDGMENT NOTWITHSTANDING THE VERDICT

The case of Rougeau v. Commercial Union Insurance Company, 432 So.2d 1162 (La.App. 3d Cir.), writ denied, 437 So.2d 1149 (La.1983), sets forth the standard of proof which the trial judge must use in deciding a motion for judgment notwithstanding the verdict under LSA-C.C.P. art. 1811. In that case we stated that:

"We conclude that the standard for determining the propriety of granting a judgment notwithstanding the verdict is the same as used to determine whether a directed verdict should be granted. Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969); Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250 (5th Cir. 1980); Wright and Miller, Federal Practice and Procedure, Volume 9, sec. 2537, page 599.
"In the present case the trial judge correctly adopted the standard to be applied in deciding whether a motion for judgment notwithstanding the verdict should be granted. The court's written reasons reflect its rationale:
"`Louisiana courts adopted the standard for ruling on a motion for a directed verdict applied by the Federal courts. That standard was enunciated by the Third Circuit in Campbell v. Mouton, 373 So.2d 237 (La.1979), which quoted the following language of the U.S. Fifth Circuit Court of Appeal in Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969):
"'"On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence—not just that evidence which supports the non-mover's case— but in the light and with all reasonable inferences most favorable to the party opposed to the motion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Oxley v. Sabine River Authority
663 So. 2d 497 (Louisiana Court of Appeal, 1995)
Broussard v. Meaux
649 So. 2d 661 (Louisiana Court of Appeal, 1994)
Vicknair v. Dimitryadis
640 So. 2d 275 (Louisiana Court of Appeal, 1994)
Lougon v. Era Aviation, Inc.
609 So. 2d 330 (Louisiana Court of Appeal, 1992)
Johnson v. Aetna Casualty & Surety Co.
578 So. 2d 934 (Supreme Court of Louisiana, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
575 So. 2d 458, 1991 La. App. LEXIS 202, 1991 WL 12999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-aetna-casualty-surety-company-lactapp-1991.