Johnson v. LSU Medical Center

867 So. 2d 884, 2004 WL 384893
CourtLouisiana Court of Appeal
DecidedMarch 3, 2004
Docket38,204-CA
StatusPublished
Cited by4 cases

This text of 867 So. 2d 884 (Johnson v. LSU Medical Center) 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. LSU Medical Center, 867 So. 2d 884, 2004 WL 384893 (La. Ct. App. 2004).

Opinion

867 So.2d 884 (2004)

Linda JOHNSON, et vir., Plaintiff-Appellee,
v.
LSU MEDICAL CENTER, et al., Defendant-Appellant.

No. 38,204-CA.

Court of Appeal of Louisiana, Second Circuit.

March 3, 2004.

*885 Claude W. Bookter, Jr., Special Assistant Attorney General, for Appellant.

Sutton & Sutton, by Bobby D. Sutton, Sr., Shreveport, for Appellee.

Before GASKINS, CARAWAY and DREW, JJ.

GASKINS, J.

The defendant, Louisiana State University Medical Center (LSUMC), appeals that portion of the trial court judgment which awarded lost future wages and earning capacity to the plaintiff, Linda Johnson. For the following reasons, we affirm.

*886 FACTS

Mrs. Johnson was employed as the office manager for an ophthalmologist, Dr. Alan Richards. In late 2000 and early 2001, she developed a severe inflammation in her left eye that did not respond to treatment by Dr. Richards or Dr. Charles Lyon, another ophthalmologist practicing in the building. Dr. Richards referred Mrs. Johnson to Dr. James P. Ganley at LSUMC. In an attempt to treat her condition, Dr. Ganley injected a substance into Mrs. Johnson's eye. The substance was improperly injected beneath the retina and into the vitreous of the eye, causing the retina to detach. Realizing his error, Dr. Ganley contacted Dr. Lyon, who performed emergency surgery that afternoon. He was able to save the eye, but the damage to the retina was permanent and Mrs. Johnson lost the sight in that eye.

Mrs. Johnson claimed that she recuperated from the surgery for six weeks, while performing some work at home. She then returned to work for Dr. Richards for several months. She claimed that she had trouble keeping up with her duties.

A bookkeeping error on her part came to light that had been ongoing for some time prior her injury. Apparently Mrs. Johnson had been double-posting Medicaid payments to Dr. Richards' checking account for about two years. When the discrepancy was discovered, the account was overdrawn by $30,000 to $35,000. Also, Dr. Richards testified that Mrs. Johnson was not getting along with other members of the office staff. Dr. Richards demoted Mrs. Johnson and assigned her to work only part-time, without fringe benefits. Mrs. Johnson resigned, drew unemployment compensation for awhile, and later obtained part-time employment as a music librarian at her church.

In addition to the loss of vision in her eye, Mrs. Johnson suffered an aggravation of her fibromyalgia. She claimed that, as a result of her injury, she became depressed and required treatment and medication. She asserted that she is not able to work as she did before, that she is no longer as physically active, that she has sleep disturbances, and that she worries constantly about injury and loss of vision in her right eye.

A medical review panel was convened and determined that LSUMC did not deviate below the applicable standard of care. On April 9, 2002, Mrs. Johnson filed a petition for damages, claiming a permanent partial disability; lost earning capacity; lost employment capacity; loss of past, present and future wages; past, present, and future pain and suffering; and permanent emotional suffering. Her husband asserted a claim for loss of consortium.

On January 13, 2003, LSUMC entered a stipulation of liability, recognizing that Mrs. Johnson was given an injection for treatment of iritis that resulted in the loss of vision in the eye. LSUMC admitted that the standard of reasonable care was breached by failing to properly administer the injection and the breach was the sole and proximate cause of loss of vision in the left eye. The issue of the amount of damages remained contested.

Following a bench trial on February 24-25, 2003, the trial court made the following award of damages to Mrs. Johnson:

Past, present and future pain and
suffering                             $300,000.00
Past lost wages                          2,400.00
Present and future lost wages and
earning capacity[1]                 841,345.00
Medical expenses                        45,892.05

*887 Mr. Johnson was awarded $30,000 for loss of consortium and expert witness fees were granted. The total award was subject to the statutory cap of $500,000 under La. R.S. 40:1299.42. LSUMC appealed.

LOST FUTURE WAGES AND EARNING CAPACITY

LSUMC claims that the trial court erred in awarding future lost wages and earning capacity to Mrs. Johnson. This argument is without merit.

Legal Principles

Lost earning capacity is loss of a person's potential and is not necessarily determined by actual loss. Gorton v. Ouachita Parish Police Jury, 35,432 (La. App.2d Cir.4/3/02), 814 So.2d 95, writs denied, XXXX-XXXX (La.8/30/02), 823 So.2d 950; XXXX-XXXX (La.8/30/02), 823 So.2d 952. The plaintiff need not be working or even in a certain profession to recover such an award. What is being compensated is the plaintiff's lost ability to earn a certain amount and she may recover such damages even though she may never have seen fit to take advantage of that capacity. Brandao v. Wal-Mart Stores, Inc., 35,368 (La.App.2d Cir.12/19/01), 803 So.2d 1039,

writ denied, XXXX-XXXX (La.3/9/01), 786 So.2d 735.

To ascertain whether a personal injury plaintiff should recover for lost earning capacity, the trial court should consider whether and how much the plaintiff's current condition disadvantages her in the work force. Among the factors to be considered are her physical condition before and after her injury, her age and life expectancy, the amount the plaintiff probably would have earned had she not been injured, and the probability that she would have continued to earn wages for the balance of her life. Lost income awards are speculative and cannot be calculated with absolute certainty. Therefore, the trial court is given broad discretion in setting an award for lost earning capacity. However, there must be a factual basis in the record. Gorton v. Ouachita Parish Police Jury, supra.

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.

An appellate court may not set aside a trial court's factual findings unless they are manifestly erroneous or clearly wrong. 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. In addition, the appellate court must decide if the trial court's conclusions were reasonable. *888 Even when the reviewing court may conclude that its own evaluations are more reasonable than the trial court's the appellate court should not substitute its judgment for that of the trial court. Lewis v. State, Department of Transportation and Development, 94-2370 (La.4/21/95), 654 So.2d 311; Gorton v.

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Bluebook (online)
867 So. 2d 884, 2004 WL 384893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-lsu-medical-center-lactapp-2004.