Samuel v. Baton Rouge Gen. Med. Center

798 So. 2d 126, 2000 WL 1476606
CourtLouisiana Court of Appeal
DecidedOctober 2, 2000
Docket99 CA 1148
StatusPublished
Cited by21 cases

This text of 798 So. 2d 126 (Samuel v. Baton Rouge Gen. Med. 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
Samuel v. Baton Rouge Gen. Med. Center, 798 So. 2d 126, 2000 WL 1476606 (La. Ct. App. 2000).

Opinion

798 So.2d 126 (2000)

Joyce T. SAMUEL, Tiffany Samuel, and Bridgette Samuel
v.
BATON ROUGE GENERAL MEDICAL CENTER, Terry R. Jones, M.D., John D. Frusha, M.D., and Vascular Surgery Associates of Baton Rouge, Inc.

No. 99 CA 1148.

Court of Appeal of Louisiana, First Circuit.

October 2, 2000.

*127 Benjamin P. Mouton, Baton Rouge, for Plaintiffs-Appellees/Appellants Joyce T. Samuel, Tiffany Samuel, and Bridgette Samuel.

*128 James P. Doré, Baton Rouge, for Defendants -Appellants/Appellees Terry R. Jones, M.D. and Vascular Surgery Associates of Baton Rouge, Inc.

W. Luther "Bill" Wilson, Baton Rouge, for Defendants-Appellants/Appellees The Louisiana Patients' Compensation Fund and Patients' Compensation Fund Oversight Board.

Before: PARRO, GUIDRY, and GANUCHEAU, JJ.[1]

PARRO, Judge.

The plaintiffs challenge the trial court's damage awards in this medical malpractice case. For the following reasons, we affirm the awards and dismiss defendants' appeal.

FACTUAL AND PROCEDURAL BACKGROUND

This malpractice litigation was bifurcated. The issue of liability was tried first, and the trial court determined that Terry R. Jones, M.D., a vascular surgeon, was fifty percent at fault in the wrongful death of Alfred Samuel. The liability determination was appealed to this court, and the trial court's judgment was affirmed on February 18, 2000. Samuel v. Baton Rouge Gen. Medical Ctr., 98-1669 (La. App. 1st Cir.2/18/00), 757 So.2d 43, writs denied, 00-1314, 00-1329 (La.6/23/00), 765 So.2d 1044, 1046.[2]

In a judgment rendered on September 23, 1998, and signed on November 2, 1998, the trial court awarded the following damages: (1) Joyce T. Samuel was awarded $150,000 for the wrongful death of her husband; (2) Joyce T. Samuel was awarded $5,000 in general damages on her Louisiana Civil Code article 2315.6 claim for "bystander" damages; (3) Tiffany Samuel was awarded $75,000 in general damages for the wrongful death of her father; (4) Bridgette Samuel was awarded $75,000 in general damages for the wrongful death of her father; and (5) Joyce T. Samuel was awarded $26,911 in special damages for her economic loss claim. The plaintiffs' claim for damages for the pre-death suffering of Alfred Samuel (the survival action) was denied. All damages were to be reduced in accordance with the court's assessment of fifty percent fault to the deceased.

Pursuant to a motion for new trial by the plaintiffs, a new trial was granted in part, and a new judgment was rendered awarding Joyce T. Samuel additional special damages in the amount of $6,204.48 for funeral expenses and additional general damages on her Article 2315.6 claim, increasing the award to $15,000.00. In a separate judgment, the court also set costs in connection with the plaintiffs' rule to tax costs.

In their appellate brief in this appeal, the original defendants re-urged issues of liability that were disposed of in the previous appeal. These defendants, however, subsequently filed a joint motion with plaintiffs, the Louisiana Patients' Compensation Fund (the Fund), and the Patients' Compensation Fund Oversight Board (the Board), requesting the dismissal of defendants' appeal and the substitution of the Fund and the Board as defendants in the plaintiffs' appeal.

Plaintiffs appeal the damage awards. They contend that the failure of the trial court to award damages for Mr. Samuel's pre-death suffering was error. They also *129 aver that the special damages award and the awards for expert fees were too low. As to all three issues raised by the plaintiffs in this appeal, the defendants assert that there was no error by the trial court.

JOINT MOTION FOR PARTIAL DISMISSAL AND SUBSTITUTION

On July 27, 2000, plaintiffs, original defendants, the Fund, and the Board filed a joint motion requesting that the original defendants, Terry R. Jones, M.D. and Vascular Surgery Associates of Baton Rouge, Inc., be dismissed from the suit as having paid and satisfied in full the judgment against them in favor of plaintiffs, and requesting that the Fund and the Board be substituted as defendants from whom plaintiffs would have the right to collect any and all additional amounts due. This court referred the motion to the merits on July 31, 2000. Because the issues of liability have been previously resolved by a final judgment, and finding that Terry R. Jones, M.D., and Vascular Surgery Associates of Baton Rouge, Inc., have satisfied the judgment against them in full, we dismiss those parties from the suit and substitute the Fund and the Board as defendants. The joint motion to dismiss the appeal of Dr. Jones and Vascular Surgery Associates of Baton Rouge, Inc., is granted, reserving to them any rights they may have to proceed against the Fund and the Board for reimbursement of any and all costs they have paid to the plaintiffs in satisfaction of all judgments.

DAMAGES

Survival Action

In a survival action, certain beneficiaries of the deceased have the right to recover the damages for injuries that the deceased suffered and would have been entitled to recover from the tortfeasor, had the deceased lived. LSA-C.C. art. 2315.1; McNeely v. Ford Motor Co., Inc., 98-2139 (La.App. 1st Cir.12/28/99), 763 So.2d 659, 666, writ denied, 00-0780 (La.4/28/00), 760 So.2d 1182. A trial court may award damages for pain and suffering in a survival action where there is the smallest amount of evidence of pain, however brief, on the part of the deceased, based on his actions or otherwise; factors to be considered in assessing quantum for pain and suffering are the severity and the duration thereof. Gibson v. State, through Dep't of Transp. & Dev., 95-1418 (La.App. 1st Cir.4/4/96), 674 So.2d 996, 1005-06, writs denied, 96-1862, 96-1895, 96-1902 (La.10/25/96), 681 So.2d 373 and 374. Much discretion is left to the judge or jury in the assessment of general damages. LSA-C.C. art. 2324.1; Metrejean ex rel. Metrejean v. Prudential Ins. Co., 98-2170 (La.App. 1st Cir.11/5/99), 761 So.2d 1, 9. In reviewing an award of general damages, the court of appeal must determine whether the trier of fact has abused its discretion in making the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

The survival action permits recovery only for damages actually suffered by the deceased from the time of injury to the moment of death, including pain and suffering, loss of earnings, and any other damages sustained before death. Ly v. State, through Dep't of Public Safety and Corrections, 633 So.2d 197 (La.App. 1st Cir.11/24/93), writ denied, 93-3134 (La.2/25/94), 634 So.2d 835. Where there is no indication that a decedent consciously suffered, an award for pre-death pain and suffering should be denied. Pierre v. Lallie Kemp Charity Hosp., 515 So.2d 614, 619 (La.App. 1st Cir.), writ denied, 515 So.2d 1111 (La.1987).

*130 The question of whether the decedent actually suffered is a factual issue. See, e.g., Pierre, 515 So.2d 614; Chausse v. Southland Corp., 400 So.2d 1199 (La.App. lst Cir.), writs denied, 404 So.2d 278, 497, and 498 (La.1981). The appellate court's review of factual findings is governed by the manifest error—clearly wrong standard.

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

Related

Warner v. Talos E R T L L C
W.D. Louisiana, 2022
Doty v. Goauto Ins. Co.
251 So. 3d 706 (Louisiana Court of Appeal, 2018)
Butler v. Louisiana Mutual Medical Insurance Co.
195 So. 3d 570 (Louisiana Court of Appeal, 2016)
Maldonado v. Kiewit Louisiana Co.
152 So. 3d 909 (Louisiana Court of Appeal, 2014)
Trahan v. Trahan
43 So. 3d 218 (Louisiana Court of Appeal, 2010)
Suprun v. Louisiana Farm Bureau Mutual Insurance
40 So. 3d 261 (Louisiana Court of Appeal, 2010)
Buffman Inc. v. Lafayette Insurance Co.
36 So. 3d 1004 (Louisiana Court of Appeal, 2010)
Rauch-Milliken International, Inc. v. Halprin
30 So. 3d 879 (Louisiana Court of Appeal, 2009)
Cavalier v. STATE, EX REL. DEPT. OF TRANSP. AND DEV.
994 So. 2d 635 (Louisiana Court of Appeal, 2008)
Cavalier v. State ex rel. Department of Transportation & Development
994 So. 2d 635 (Louisiana Court of Appeal, 2008)
Gauthier v. Wilson
927 So. 2d 383 (Louisiana Court of Appeal, 2005)
Wingfield v. State ex rel. Department of Transportation & Development
879 So. 2d 766 (Louisiana Court of Appeal, 2004)
Wopara v. STATE EMPLOYEES'GROUP BEN. PROG.
859 So. 2d 67 (Louisiana Court of Appeal, 2003)
Sacco v. Allred
845 So. 2d 528 (Louisiana Court of Appeal, 2003)
Aaron v. Bailey
817 So. 2d 240 (Louisiana Court of Appeal, 2002)
Degruise v. Houma Courier Newspaper Corp.
815 So. 2d 1074 (Louisiana Court of Appeal, 2002)
Strain v. Indiana Lumberman's Mutual Insurance Co.
818 So. 2d 144 (Louisiana Court of Appeal, 2002)
Etcher v. Neumann
806 So. 2d 826 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
798 So. 2d 126, 2000 WL 1476606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samuel-v-baton-rouge-gen-med-center-lactapp-2000.