Simon v. Smith

470 So. 2d 941
CourtLouisiana Court of Appeal
DecidedMay 15, 1985
Docket84-432
StatusPublished
Cited by9 cases

This text of 470 So. 2d 941 (Simon v. Smith) 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
Simon v. Smith, 470 So. 2d 941 (La. Ct. App. 1985).

Opinion

470 So.2d 941 (1985)

Virgil A. SIMON, Plaintiff-Appellee,
v.
Dr. Curt H. SMITH, et al., Defendants,
St. Francis Cabrini Hospital of Alexandria, Louisiana, Defendant-Appellant.

No. 84-432.

Court of Appeal of Louisiana, Third Circuit.

May 15, 1985.
Rehearing Denied June 27, 1985.

*942 Wilkinson and Carmody, Arthur Carmody, Shreveport, for defendant-appellant.

Molony, Nolan, North & Riess, Bruce A. North, Metairie, for plaintiff-appellee.

Before DOMENGEAUX, DOUCET and YELVERTON, JJ.

DOMENGEAUX, Judge.

This appeal arises from a jury verdict in favor of the plaintiff and against the appellant in a medical malpractice suit. By original and amended petitions, Virgil Simon sued: his surgeon, Dr. Smith; the McArthur Surgical Clinic, the partnership in which Dr. Smith practiced; Dr. Godley, an internist; the Freedman Clinic in which Dr. Godley practiced; Dr. Buckley, and Dr. Alexander, radiologists, and their professional corporation; and St. Francis Cabrini Hospital (Cabrini). All defendants, save Cabrini, settled with Mr. Simon.[1] The jury found Dr. Smith and Cabrini jointly liable and awarded a judgment of $750,000.00. Cabrini has appealed; the appellees[2] have answered the appeal.

*943 The facts of the case can be summarized as follows: In 1976 Virgil Simon was forced to retire from his position as a painter at the Pinecrest State School. He was suffering from acute angina. As of the date of his retirement, Mr. Simon began receiving a 100% disability pension. In 1977 he underwent double bypass heart surgery. For a 5-6 week period in the fall of 1978, Mr. Simon worked part-time driving a truck. However, he was forced to cease this employment due to his ill health. Mr. Simon was surgically treated for an aortic aneurysm on November 1, 1978. Ten days later his gallbladder ruptured.

It was during the emergency surgery on the gallbladder by Dr. Smith that a laparotomy pad was mistakenly left in Mr. Simon's abdomen. Cabrini's surgical nurses, who were responsible for keeping an accurate count of the number of surgical gauze pads used during the operation, failed in their "sponge count". In other words, the nurses mistakenly verified that each lap pad used in the wound had been retracted from it.

Before Mr. Simon was discharged following the gallbladder surgery, a T-Tube cholangiogram was performed by Radiologist Buckley. The purpose of such an x-ray is to determine if the patient's bile is flowing properly. The test results were favorable and a memo to that effect was forwarded to the surgeon, Dr. Smith. Although a lap pad is not always visible in an x-ray, the radiopaque strip attached thereto is. The sole purpose of this strip is to make the lap pad visible on an x-ray should one be left in the body cavity. Dr. Buckley failed to report the existence of a foreign body although the x-ray clearly showed the radiopaque strip on the pad. Uncontradicted testimony at trial explained the lap pad on the x-ray could just as easily have been part of a bandage on top of or beneath the patient as inside him. However, it was also established at trial that omitting mention of a visible foreign object in the patient's body cavity was not good reporting procedure.

On December 24, 1978, Mr. Simon was admitted to Cabrini complaining of pain in his abdomen. Dr. Smith viewed the x-rays and noticed the foreign object, assuming it to be a piece of penrose drain mistakenly left in the wound following the gallbladder surgery. Mr. Simon was not immediately told of the foreign material locked in him and was treated for hepatitis and released.

After several more visits with Dr. Smith, Mr. Simon on his own initiative applied for and was admitted to the Ochner Foundation Hospital in April of 1979. The lap pad was immediately identified and removed from the stomach wall into which it had melted. Dr. Simon continued to return to Ochner for regular follow-up treatment.

Following surgery to remove the lap pad, Mr. Simon fell prey to several other medical ailments. Mr. Simon was hospitalized in 1980 for vascular problems; in 1981 he suffered a broken rib; in 1982 he was again hospitalized for angina and infection in his fingers, and later that year he was admitted to St. Luke's Hospital in Houston for treatment of vascular problems. At various times following the removal of the lap pad, Mr. Simon also suffered from pneumonia, a hernia, jaundice, and a severe skin rash. While few of these problems were directly related to the damage caused by the lap pad it is assumed that Mr. Simon's physical stamina was weakened by that unfortunate occurrence.

After trial on the merits, the jury awarded the plaintiff $300,000.00 in general damages and $450,000.00 in special damages. Because the jury found both Dr. Smith and Cabrini responsible for the damages to Mr. Simon, and in view of the fact that Dr. Smith had previously settled with the plaintiff, the trial judge cast the defendant Cabrini in judgment for $375,000.00, or one-half of the jury's total award. From this *944 verdict Cabrini has appealed citing five assignments of error. The appellees have answered the appeal citing two additional errors. We will deal with each in turn.

Defendant-appellant contests the use of normal life expectancy tables as applied to this plaintiff, the manner of computing and the lack of proof of future medical expenses, and the existence of any lost wages, past or future. Because the jury gave one global award for past and future medical expenses and lost earnings, we are unable to determine what part of their award should be allocated to particular damages. Therefore, we are required to view the first three of the appellant's assignments together in reviewing any one of the special damage awards.

In their brief, appellees set forth their maximum special damages, a total of $603,283.12, as follows: $153,283.75 in past medical expenses testified to by the deceased plaintiff's wife; $355,040.37 in future medical expenses computed using an average of medical expenses in the six months preceding trial projected over a 13.5 year life expectancy taken from actuarial tables; and $94,959.00 in lost wages from the date of the gallbladder surgery projected through Mr. Simon's statistical age of retirement.

We turn first to the issue of lost earnings. In 1976 Mr. Simon retired on a 100% disability pension. His employer provided any retired employee the opportunity to return to work if done within five years of retirement. Appellees contend Mr. Simon would have returned to his former employment absent the lap pad episode. This contention is arguable considering Mr. Simon's inability to continue part-time work as a truck driver and his medical history apart from the damage caused by the lap pad. At any rate, we find that an award of lost earnings, past or future, would result in unjust enrichment. In other words, Mr. Simon would have received a salary if he had returned to work or the same amount in pension if he did not. To require the appellant to pay for lost earnings would effectively compensate twice for a single inability to work. Therefore, the appellees are not entitled to an award for lost earnings.

Secondly we address the awards for medical expenses. As to past medical expenses, the parties stipulated that at least $93,500.00 had been incurred by Mr. Simon before the date of trial. However, Mrs. Simon was uncontradicted in her testimony relating $153,283.75 in medical bills to the problems caused by the lap pad. We hold that appellees have proven their total of $153,283.75 in past medical expenses.

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Bluebook (online)
470 So. 2d 941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-smith-lactapp-1985.