Mitter v. Touro Infirmary

874 So. 2d 265, 2004 WL 943535
CourtLouisiana Court of Appeal
DecidedApril 21, 2004
Docket2003-CA-1608
StatusPublished
Cited by5 cases

This text of 874 So. 2d 265 (Mitter v. Touro Infirmary) 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
Mitter v. Touro Infirmary, 874 So. 2d 265, 2004 WL 943535 (La. Ct. App. 2004).

Opinion

874 So.2d 265 (2004)

Annie Mae I. MITTER
v.
TOURO INFIRMARY.

No. 2003-CA-1608.

Court of Appeal of Louisiana, Fourth Circuit.

April 21, 2004.
Rehearing Denied June 15, 2004.

*267 Charles A. Kronlage, Jr., Kronlage & Kronlage, APLC, New Orleans, LA, for Plaintiff/Appellant, Annie Mae I. Mitter.

Paul B. Deal, Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendant/Appellee, Touro Infirmary.

(Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).

LEON A. CANNIZZARO, JR., Judge.

In this medical malpractice case, the plaintiff, Annie Mae Mitter, appeals from two judgments of the trial court rendered in her favor; the first judgment awarded her damages of $1,500.00 for pain and suffering in addition to costs and legal interest and the second judgment awarded her expert witness fees of $1,000.00. The defendant, Touro Infirmary, answers the appeal.

FACTS AND PROCEDURAL HISTORY

Ms. Mitter, seventy-nine years of age, underwent arthroscopic surgery to replace her left knee at Touro Infirmary in June 1998. Dr. J. Gregory Kinnett, an orthopedic surgeon and Touro staff physician, performed the surgery. Four months later, in October 1998, Ms. Mitter underwent a second left knee arthroplasty by Dr. Kinnett at Touro.

Ms. Mitter filed a medical malpractice complaint pursuant to the Louisiana Medical Malpractice Act[1]. In her complaint, she asserted that Touro's non-physician employees committed three separate acts of medical malpractice during her two hospitalizations. Specifically, she complained that three days after her first knee surgery, while a nurse and nurse's aide were helping her get into a wheelchair, the nurse dropped the removable, metal leg and foot rest of the wheelchair onto her left knee. She further alleged that several days later, while undergoing physical therapy in Touro's rehabilitation unit, Sidney Stone, a physical therapy assistant, used excessive force to push her leg back, causing her knee to "pop." These two acts, Ms. Mitter alleged, caused the rupture of the medial (internal) collateral ligament in her left knee, which resulted in her having to *268 undergo the second operation. The third act of alleged medical malpractice occurred following the second surgery when a nurse improperly set the chronic passive motion (CPM) machine[2] during therapy, causing Ms. Mitter intense pain.

A medical review panel was convened to hear the claims. The panel, consisting of three orthopedic surgeons and an attorney-chairman, unanimously concluded that Touro did not breach the applicable standard of care. The panel gave the following reasons:

1. The patient was seen by numerous physicians shortly after the incidents and none of the doctors failed to meet the applicable standard of care.
2. There [was] no offer of contradictory statements that the incidents happened.

Ms. Mitter then filed suit against Touro. Following a judge trial, the trial court found that Ms. Mitter failed to prove by a preponderance of the evidence that Touro's employee breached the applicable standard of care by improperly setting the CPM machine during therapy after her second surgery or that Mr. Stone breached the applicable standard of care by applying excessive force during physical therapy following the first surgery. However, the trial court did find that a Touro nurse breached the applicable standard of care by dropping the wheelchair foot and leg rest on Ms. Mitter's left knee, causing her intense pain. Nonetheless, the court concluded that Ms. Mitter failed to prove that either the dropped foot and leg rest incident or Mr. Stone's actions caused her to have to undergo the second knee operation. In accord with her findings, the trial court awarded Ms. Mitter $1,500.00 in damages for her pain and suffering as a result of the nurse's negligence.

Thereafter, Ms. Mitter filed a motion to tax Dr. Kinnett's expert witness fee as costs against Touro. The trial court granted the motion but limited Dr. Kinnett's expert witness fee to $1,000.00.

ASSIGNMENTS OF ERROR

On appeal, Ms. Mitter raises the following three assignments of error: 1) the trial court erred, as a matter of law, in requiring her to prove with "reasonable certainty" that the nurse's dropping of the foot and leg rest on her left knee contributed to her having to undergo the second left knee operation; 2) the trial court abused her discretion in awarding only $1,500.00 in damages for pain and suffering as a result of the nurse's negligence; and 3) the trial court abused her discretion in limiting Dr. Kinnett's total expert witness fee to $1,000.00.

In answering the appeal, Touro argues that the evidence in the record does not support an award for pain and suffering, as Ms. Mitter's medical records do not indicate that the alleged wheelchair foot and leg rest incident ever occurred or that Ms. Mitter sustained any additional injury as a result of it. Touro also argues that the trial court abused her discretion in assessing all costs of the proceedings against it, as it successfully defended all but one of Ms. Mitter's claims.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). In Mart v. Hill, 505 So.2d 1120, *269 1127 (La.1987), the Louisiana Supreme Court reiterated the two-part test for the reversal of a fact finder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous.

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La. 1992). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

APPLICABLE LAW AND DISCUSSION

Negligence and Fault

A hospital is responsible for the negligence of its nurses under the respondeat superior doctrine. In re Triss, XXXX-XXXX, XXXX-XXXX, p. 13 (La.App. 4 Cir. 6/5/02), 820 So.2d 1204, 1212. Nurses, including licensed practical nurses, are defined as qualified health care providers under La. R.S. 40:1299.41(A)(1). Thus, in a medical malpractice case, the plaintiff must establish the standard of care applicable to the nurse, a violation by the nurse of that standard of care, and a causal connection between the nurse's alleged negligence and the plaintiff's injuries resulting therefrom. See Pfiffner v. Correa, 94-0924, p. 8 (La.10/17/94), 643 So.2d 1228, 1233.

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Bluebook (online)
874 So. 2d 265, 2004 WL 943535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitter-v-touro-infirmary-lactapp-2004.