Shortess v. Touro Infirmary

535 So. 2d 446, 1988 La. App. LEXIS 1835, 1988 WL 94906
CourtLouisiana Court of Appeal
DecidedSeptember 16, 1988
DocketNo. CA-6658
StatusPublished

This text of 535 So. 2d 446 (Shortess 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
Shortess v. Touro Infirmary, 535 So. 2d 446, 1988 La. App. LEXIS 1835, 1988 WL 94906 (La. Ct. App. 1988).

Opinions

CIACCIO, Judge.

The Louisiana Supreme Court reversed a judgment of this court which had dismissed plaintiffs’ suit on an exception of prescription. Shortess v. Touro, 508 So.2d 938 (La.App., 4th Cir.1987) writ granted 513 So.2d 1198 (La., 1987), rev. 520 So.2d 389 (La.1988). The case was remanded for our review of the jury’s award of damages. Shortess v. Touro, supra. We have reviewed the award and it is affirmed.

On remand the plaintiffs argue that the jury award was inadequate and should be increased. They urge this court to make an “independent review of the record without according any deference to the jury verdict” because the jury verdict was tainted by an erroneous jury instruction.

[448]*448Defendants, Touro Infirmary, The Blood Center of Southeast Louisiana, Inc. and their insurers contend the jury award is excessive and should be reduced.

On November 26, 1980 plaintiff, Marna Shortess underwent a surgical procedure at Touro Infirmary in which her spine was fused and a Harrington Rod was inserted to correct severe scoliosis. During surgery she was given five units of packed red blood cells which were contaminated with a hepatitis virus, causing Mrs. Shortess to contract chronic non-A/non-B hepatitis.

Plaintiffs argue that an erroneous instruction caused the jury to render a compromise verdict. In particular, plaintiffs allege that the following instruction was in error:

“If you find that the blood in question contained hepatitis virus, you must assume the blood bank knew this and you must next determine whether this blood was unreasonably dangerous to the patient.” (Vol. IV, pp. 172, 173) (Emphasis Supplied)

According to plaintiffs this instruction was erroneous because in DeBattista v. Argonaut Ins. Co., 403 So.2d 26 (La., 1981) the court found “as a matter of law that blood contaminated with hepatitis virus is defective, i.e., unreasonably dangerous to normal use.”

The plaintiffs also allege that the jury interrogatories on this issue further served to confuse the jury. The interrogatories were as follows:

We, the Jury, find as follows:
1. Do you find that the blood administered to Mrs. Shortess was contaminated with a hepatitis virus:
“Yes” yes or no
If you answer # 1 “no”, stop here; otherwise continue.
2. Did the presence of the hepatitis virus render the blood defective, in other words, unreasonably dangerous?
yes or no
If # 2 is answered “no”, stop here; otherwise continue.
3.Did Mrs. Shortess contract hepatitis as a result of the blood transfusion:
yes or no
If #3 is answered “no”, stop here; if “yes” continue.
»je jfc # tfc * #

Plaintiffs conclude that the jury compromised its verdict and rendered a smaller damage award because they felt the blood bank did not know that its blood was contaminated, but they also felt Mrs. Shortess was injured by the blood and should be compensated.

In support of their position that this Court should disregard the jury verdict and make an independent review of the record, plaintiffs rely upon two Louisiana Supreme Court cases. McLean v. Hunter, 495 So.2d 1298 (La., 1986); Suhor v. Gusse, 388 So.2d 755 (La., 1980).

In the McLean case supra, the Louisiana Supreme Court held that an independent review of the record was required because the trial court had erred in excluding essential evidence concerning the standard of care in a medical malpractice case.

In the Suhor case supra, the Court held that where a jury instruction regarding damages was erroneous an independent evaluation of the damages due plaintiff should be made.

We disagree with plaintiffs reasoning on this issue and the applicability of the cited cases.

First, we find nothing in the record to support plaintiffs’ allegation that the jury compromised its damage award as a result of an allegedly erroneous instruction.

Moreover, assuming, for the sake of argument, that the jury instruction was erroneous, such an error would have reasonably given rise to an erroneous verdict on the issue of liability, not damages. As such, this case is factually distinguishable from McLean, supra and Suhor supra. Therefore, we do not make an independent determination of damages, but rather, we review the record to determine whether the jury award constitutes an abuse of its dis[449]*449cretion. Perniciaro v. Brinch, 384 So.2d 392 (La., 1980); Reck v. Stevens, 373 So.2d 498 (La., 1979).

In its second assignment of error plaintiff argues that the jury award of $25,000 to Mrs. Shortess and $10,000 to Mr. Shor-tess is inadequate. The defendants counter that such an award is excessive.

In assessing damages in cases of offense or quasi offense, much discretion is left to the trial court. Perniciaro v. Brinch, supra. Before the appellate court will disturb such an award, the record must clearly reveal that the triers of fact abused their discretion in making the award based upon the particular injuries and their effect upon the particular individual who sustained the injuries. Perniciaro v. Brinch, supra; Reck v. Stevens, supra.

The record reveals the following testimony concerning Mrs. Shortess’ medical condition:

Dr. Salvadore LaRocca, an orthopaedic surgeon, testified that he saw Mrs. Shor-tess on August 25, 1980 at which time she was experiencing pain from a deformity associated with scoliosis and arthritis of the spine. At this time plaintiff was 43 years of age. Dr. LaRocca recommended surgery to correct the spinal curvature resulting from the scoliosis.

On November 26,1980 Dr. LaRocca operated upon Mrs. Shortess to correct her scoliosis. He inserted a Harrington Rod into her spine and took a bone graft from the patient’s pelvis. The surgeon stated that there was considerable bleeding during the operation and five pints of packed red blood cells were transfused into the patient.

Dr. LaRocca also stated that plaintiff experienced a successful recovery from the spinal operation. The fusion healed and the rod remained attached. The patient was fitted with a brace and allowed to walk some 7 days after surgery. She was discharged on December 13,1980 after having spent two weeks in the hospital.

Dr. LaRocca further testified that several months after discharge the plaintiff became jaundiced and was found to be suffering from hepatitis. He characterized her condition as “chronic persistent hepatitis”. He stated that she had abnormal liver functions at least until 1985.

Although he conceded he was not the primary physician responsible for treating plaintiff’s hepatitis, Dr. LaRocca stated that he felt this disease complicated his patient’s treatment and recovery. He testified that because of this condition he could not use the type of medicines he would normally use to treat this patient’s arthritic condition. He also postulated that the fatigue associated with the hepatitis prevented the plaintiff from performing her rehabilitative activities as required.

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

Related

Suhor v. Gusse
388 So. 2d 755 (Supreme Court of Louisiana, 1980)
Shortess v. Touro Infirmary
508 So. 2d 938 (Louisiana Court of Appeal, 1987)
DeBattista v. Argonaut-Southwest Ins. Co.
403 So. 2d 26 (Supreme Court of Louisiana, 1981)
Perniciaro v. Brinch
384 So. 2d 392 (Supreme Court of Louisiana, 1980)
Casey v. Southern Baptist Hosp.
526 So. 2d 1332 (Louisiana Court of Appeal, 1988)
Shortess v. Touro Infirmary
520 So. 2d 389 (Supreme Court of Louisiana, 1988)
Emerson v. Empire Fire & Marine Ins. Co.
393 So. 2d 691 (Supreme Court of Louisiana, 1981)
Coco v. Winston Industries, Inc.
341 So. 2d 332 (Supreme Court of Louisiana, 1977)
McLean v. Hunter
495 So. 2d 1298 (Supreme Court of Louisiana, 1986)
Reck v. Stevens
373 So. 2d 498 (Supreme Court of Louisiana, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
535 So. 2d 446, 1988 La. App. LEXIS 1835, 1988 WL 94906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shortess-v-touro-infirmary-lactapp-1988.