Moolekamp v. Rubin

531 So. 2d 1124, 1988 WL 94902
CourtLouisiana Court of Appeal
DecidedSeptember 16, 1988
Docket88-CA 0048
StatusPublished
Cited by21 cases

This text of 531 So. 2d 1124 (Moolekamp v. Rubin) 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
Moolekamp v. Rubin, 531 So. 2d 1124, 1988 WL 94902 (La. Ct. App. 1988).

Opinion

531 So.2d 1124 (1988)

Lillian C. MOOLEKAMP and Claude Moolekamp
v.
Dr. Richard L. RUBIN, et al.

No. 88-CA 0048.

Court of Appeal of Louisiana, Fourth Circuit.

September 16, 1988.

*1125 Stephen T. Wimberly of Hall, Lentini, Mouledoux & Wimberly, Metairie, for appellants.

Roy A. Raspanti, New Orleans, for appellees.

Before BYRNES, CIACCIO and LOBRANO, JJ.

CIACCIO, Judge.

In this medical malpractice case defendant, the Patient's Compensation Fund, La. R.S. 40:1299.44, appeals a judgment awarding plaintiff an additional $150,000.00 above the $100,000.00 paid by the insurer of her qualified health care provider, Richard L. Rubin, M.D. The district court also ordered the Fund to pay interest calculated on the total recovery of $250,000.00 plus $1,730.00 for medical expenses, and $300.00 in expert witness fees. We affirm.

Defendant assigns two errors to the action of the district court. First, defendant takes issue with the district court ruling on defendant's motion in limine concerning plaintiff's burden of proof at trial. Second, defendant complains that the award is excessive.

In November 1983 plaintiff, Lillian Moolekamp, underwent surgery for cataract removal and lens implantation on her right eye. Richard L. Rubin, M.D. performed the surgery. During the operation an expulsive hemorrhage occurred, resulting in permanent loss of vision in Mrs. Moolekamp's right eye.

Pursuant to La.R.S. 40:1299.41-.48, Mrs. Moolekamp filed a complaint with the State Commissioner of Insurance. A medical review panel concluded that Dr. Rubin failed to conform to the appropriate standard of care and that his substandard performance was a cause of Mrs. Moolekamp's damages.

Mrs. Moolekamp sued Dr. Rubin for damages caused by his medical malpractice. Dr. Rubin's insurer, Louisiana Medical Mutual Insurance Company, agreed to settle its liability on plaintiff's claim and paid plaintiff its coverage limit of $100,000.00. Seeking additional compensation for her damages, plaintiff amended her petition to add the Patient's Compensation Fund as a defendant.

Prior to the hearing on plaintiff's demand for payment from the Fund, the Fund filed a motion in limine seeking a declaration of plaintiff's burden of proof on her demand. La.R.S. 40:1299.44C(5) provides that when

determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars....

Interpreting this provision in the context of this case the district judge ruled as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the negligence of Dr. Richard L. Rubin is admitted and established.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the liability of Dr. Richard L. Rubin for the loss of the right eye by plaintiff, LILLIAN C. MOOLEKAMP is admitted and established;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiffs will, therefore, not have to prove the causal relationship between the loss of the right eye of LILLIAN C. MOOLEKAMP and the negligence of Dr. Richard L. Rubin;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the liability of Dr. Richard L. Rubin for the "loss of (LILLIAN C. MOOLEKAMP's) health, which said loss of health has resulted in her being an invalid since her *1126 cataract operation of November 1983" is not admitted or established;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiffs LILLIAN C. MOOLEKAMP and CLAUDE MOOLEKAMP will, therefore, be required to prove the causal relationship between the "loss of (LILLIAN C. MOOLEKAMP's) health, which said loss of health has resulted in her being an invalid since her cataract operation of November 1983" and the negligence of Dr. Richard L. Rubin.

From this ruling, plaintiffs applied to this court for review. Defendants neither opposed nor responded to plaintiffs' application. This court refused to exercise its supervisory jurisdiction, and a subsequent application to the Supreme Court was denied by that Court.

After hearing evidence on plaintiff's damages and considering her demand for additional compensation to be paid from the Fund, the district court ordered the Fund to pay additional compensation as set out in the first paragraph of this opinion.

In Louisiana when someone, by his act, his negligence, his imprudence, or his want of skill, causes damage to another, an obligation arises for him by whose fault the damage happened to repair the damage. La.C.C.Arts. 2315 and 2316. Thus, the elements of a cause of action under Articles 2315 and 2316 are fault, causation, and damage. Buckley v. Exxon Corporation, 390 So.2d 512 (La.1980). Fault is a broad concept, embracing all conduct falling below a proper standard. Weiland v. King, 281 So.2d 688 (La.1973); see Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971).

To determine whether liability exists under the facts of a particular case, the Supreme Court adopted a duty-risk approach. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Dixie Drive-It-Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962). The duty-risk approach has been analyzed to require the following inquiries:

(1) Was the conduct complained of a cause-in-fact of the harm?
(2) Was the defendant under a legal duty imposed to protect against the particular risk involved?
(3) Taking into account the dangers created by defendant's conduct, including but not limited to that which actually occurred in the instant case—giving due but not automatically decisive weight to any violation of relevant statute—was the defendant's conduct negligent, substandard, blameworthy?
(4) Was the plaintiff damaged; if so, to what extent?

D.W. Robertson, Reason Versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin & Associates, Inc., 34 La.L.Rev. 1, 20-22 (1973-1974); see also W. L. Crowe, The Anatomy of a Tort—Greenian as Interpreted by Crowe Who Has Been Influenced by Malone—A Primer, 22 Loy.L. Rev. 903 (1976). Thus, the elements of liability translate to causation-in-fact of plaintiff's harm, a legal duty imposed on defendant to protect plaintiff against the risk of the harm which occurred, a breach of that duty, and damage caused by the breach of the duty owed to the plaintiff.

Fault becomes a breach (negligent, substandard or blameworthy performance) of a legal duty owed by defendant to plaintiff to protect plaintiff from the harm which befell him. Causation is split into two inquiries: first, did defendant's behavior, considered without determining fault, in fact contribute to plaintiff's harm; and second, having found fault with defendant, did defendant's breach of his legal duty to plaintiff result in damage to plaintiff. Damage concerns both a recognition of plaintiff's harm as a general proposition that plaintiff has been wronged, as well as determining what specific wrong or injury befell plaintiff because of defendant's fault, his breach of duty.

Plaintiff must allege some harm as part of his effort to state a cause of action. To establish defendant's liability, plaintiff must prove defendant's fault caused him some damage. If plaintiff can prove that *1127

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

Related

Olson v. Toce
222 So. 3d 775 (Louisiana Court of Appeal, 2017)
Laureen Olson v. Paul M. Toce, Jr.
Louisiana Court of Appeal, 2017
Khammash v. Clark
145 So. 3d 246 (Supreme Court of Louisiana, 2014)
Hanks v. Seale
904 So. 2d 662 (Supreme Court of Louisiana, 2005)
Hall v. Brookshire Bros., Ltd.
848 So. 2d 559 (Supreme Court of Louisiana, 2003)
McPherson v. LAKE AREA MEDICAL CENTER
767 So. 2d 102 (Louisiana Court of Appeal, 2000)
Graham v. Burkett
690 So. 2d 883 (Louisiana Court of Appeal, 1997)
Gauthreaux v. Trosclair
676 So. 2d 213 (Louisiana Court of Appeal, 1996)
Pendleton v. Barrett
675 So. 2d 720 (Supreme Court of Louisiana, 1996)
Horil v. Scheinhorn
663 So. 2d 697 (Supreme Court of Louisiana, 1995)
Rey v. St. Paul Fire and Marine Ins. Co.
665 So. 2d 109 (Louisiana Court of Appeal, 1995)
Horil v. Scheinhorn
653 So. 2d 637 (Louisiana Court of Appeal, 1995)
Jones v. St. Francis Cabrini Hospital
638 So. 2d 673 (Louisiana Court of Appeal, 1994)
Cooper v. Sams
628 So. 2d 1181 (Louisiana Court of Appeal, 1993)
Hebert v. ABBEVILLE GENERAL HOSP.
625 So. 2d 566 (Louisiana Court of Appeal, 1993)
McKenzie v. Alton Ochsner Medical Foundation
621 So. 2d 6 (Louisiana Court of Appeal, 1993)
In Re Medical Review Panel Bilello
621 So. 2d 6 (Louisiana Court of Appeal, 1993)
Gonzales v. Bordelon
595 So. 2d 761 (Louisiana Court of Appeal, 1992)
Roberts v. Benoit
574 So. 2d 1256 (Louisiana Court of Appeal, 1991)
In re Medical Review Panel Proceeding of Borne
566 So. 2d 147 (Louisiana Court of Appeal, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
531 So. 2d 1124, 1988 WL 94902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moolekamp-v-rubin-lactapp-1988.