Thibodeaux v. Donnell

189 So. 3d 469, 2015 La.App. 1 Cir. 0503, 2016 La. App. LEXIS 383, 2016 WL 742951
CourtLouisiana Court of Appeal
DecidedFebruary 24, 2016
DocketNo. 2015 CA 0503
StatusPublished
Cited by6 cases

This text of 189 So. 3d 469 (Thibodeaux v. Donnell) 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
Thibodeaux v. Donnell, 189 So. 3d 469, 2015 La.App. 1 Cir. 0503, 2016 La. App. LEXIS 383, 2016 WL 742951 (La. Ct. App. 2016).

Opinion

McDonald, j.

| ?In this appeal, plaintiffs in a medical malpractice suit appeal from a judgment awarding medical expenses but no general damages. We reverse the judgment in part and render.

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, 37-year-old Kimberly Thibo-deaux became pregnant with her fourth child and saw Dr. James Donnell as her obstetrician-gynecologist. In mid-November, at about 29 weeks pregnant, Mrs. Thibodeaux was hospitalized for four days at Terrebonne General Medical Center (TGMC) in Houma, Louisiana, for vaginal bleeding secondary to placenta previa. On November 18, upon Dr. Donnell’s referral, she consulted Dr. Douglas M. Montgomery, a maternal/fetal medicine specialist who handled high risk pregnancies. He recommended rest, limited activity, and delivery of Mrs. Thibodeaux’s child at 36-37 weeks gestation, depending on follow-up testing. The next day, November 19, Mrs. Thibodeaux returned to TGMC with renewed vaginal bleeding and contractions. In the early morning hours of November 20, Dr. Donnell delivered Gabrielle Thibo-deaux, a baby girl, via cesarean section, and her care was transferred to an attending neonatologist.

After the baby’s delivery, Dr. Donnell was unable to remove the placenta from Mrs. Thibodeaux’s lower uterine segment and encountered vigorous bleeding. He decided to perform an emergency hysterectomy, which entailed removal of Mrs. Thibodeaux’s uterus and cervix. After completing the hysterectomy, Dr. Donnell discovered a large laceration to Mrs. Thi-bodeaux’s bladder, which he noted as about eight inches. He considered a uro-logic consultation due to the size of the laceration, but upon further consideration, he ended up repairing it himself. After completing the surgery, Dr. Donnell ordered a post-operative intravenous pyelo-gram (IVP) to determine if the bladder repair was successful. While waiting for these results, Mrs. Thibodeaux had extreme abdominal pain and was producing little urine. About three to four hours after the cesarean section/hysterectomy, the IVP revealed that Dr. Donnell’s bladder repair sutures were obstructing Mrs. Thibodeaux’s ureters, the tubes that drain urine from the kidney into the bladder.

|sDr. Donnell then consulted Dr. Robert Alexander, a urologist, who performed a cystoscopy and confirmed that Mrs. Thibo-deaux’s ureters were indeed obstructed by Dr. Donnell’s sutures. Around midday on November 20, Dr. Alexander reopened Mrs. Thibodeaux’s abdomen, removed Dr. Donnell’s bladder sutures, freeing the ureters, and re-repaired the bladder laceration, which included the removal of dead tissue. Dr. Alexander also inserted a su-prapubic catheter in Mrs. Thibodeaux’s bladder and stents into her ureters to facilitate urine drainage from the kidneys to the bladder. Mrs. Thibodeaux remained hospitalized until November 25.

Mrs. Thibodeaux followed up with Dr. Alexander within the weeks after her bladder repair, undergoing separate procedures to remove the suprapubic tube and [473]*473ureteral stents. Although her bladder healed, she continued to see Dr. Alexander for three years with irritative bladder symptoms, including urinary frequency every 30-60 minutes, urgency, urine leakage, painful urination (dysuria), painful sexual intercourse (dyspareunia), urination during sexual intercourse, excessive nighttime urination (nocturia), and abdominal pain with spasms. In late April 2004, about five months after the incident, Dr. Alexander performed a cystoscopy on Mrs. Thibo-deaux and unsuccessfully attempted to distend her bladder. He determined ■ her bladder had a capacity of only 300-350 cubic centimeters (ccs), less than the average bladder capacity of 400-500 ccs for a person of Mrs. Thibodeaux’s size. He diagnosed her with interstitial cystitis, also known as painful bladder syndrome, and prescribed medications, none of which relieved Mrs. Thibodeaux’s symptoms. She continued to have considerable bladder problems, and she last saw Dr. Alexander in September 2007, when he performed another cystoscopy and again unsuccessfully attempted to distend her bladder, which he determined then had a “very small capacity” of only 250 ccs. According to Dr. Alexander, Mrs. Thibodeaux’s diminished bladder capacity is a permanent condition.

Mrs. Thibodeaux and her husband, Todd, filed a request for medical review in November 2004, but for reasons not apparent the medical review panel expired before an opinion was issued. In October 2006, Mr. and Mrs. Thibodeaux filed this medical malpractice suit against Dr. Donnell, individually, and on behalf of their child, Gabrielle. 14The trial court dismissed the- suit as prescribed, but this Court later reversed, finding that the suit was timely filed. Thibodeaux v. Donnell, 07-1845 (LaApp. 1 Cir. 9/12/08), 994 So.2d 612. The Supreme Court affirmed this Court’s decision; Thibodeaux v. Donnell, 08-2436 (La.5/5/09), 9 So.3d 120.

The matter proceeded to a four-day jury trial in May 2014, which concluded with a jury verdict in favor of the Thibodeauxs, finding that Dr. Donnell had indeed breached the applicable standard of care in his treatment of Mrs. Thibodeaux and that his breach caused injury to her. But, the jury only awarded $60,000 for Mrs. Thibo-deaux’s medical expenses and awarded no general damages. On May 29, 2014, the trial court signed a judgment conforming to the jury verdict. Later, by judgment signed August 20, 2014, the trial court denied the Thibodeauxs’ and Dr. Donnell’s motions for judgments, notwithstanding the verdict and taxed costs against Dr. Donnell for $22,574.05. The Thibodeauxs then filed this appeal.

TIMELINESS' OF APPEAL

After the appeal was lodged, this Court issued a rule to show cause order indicating that the parties’ motions for JNOV- appeared to have been untimely filed, rendering the Thibodeauxs’ appeal also .untimely. The trial court later ordered that the appellate record be supplemented with documents showing that the motions for JNOV had been timely fax-filed; these fax-filed documents had not been included in the record originally sent to this Court. We allowed the supplementation, maintained the appeal, and reserved decision on the timeliness of the appeal for this panel. Thibodeaux v. Donnell, 15-0503 (La.App. 1 Cir. 9/21/15) (unpublished action).

Determining the timeliness of this appeal requires consideration of the delay for filing a motion for JNOV; the impact that delay has on the timely filing of a devolu-tive appeal; and the rules that must be satisfied to claim the fax-filing date of a motion as the official filing date. A devol-[474]*474utive appeal may be taken within 60 days of the date of mailing of the notice of the court’s .refusal to grant a timely-filed motion for. JNOV. See LSA-C.C.P. art. 2087. A motion for JNOV is timely if it has been filed not later than seven days, exclusive of legal holidays, after the clerk has mailed the notice of judgment. See LSA-C.C.P. art. 1811.

|fiThe pertinent dates .and deadlines for determining the timeliness of.this devolu-tive appeal are:

• 6/02/14 Notice of May 29th judgment mailed
• 6/11/14 Dr. Donnell fax-fíles JNOV motion
• 6/11/14 Thibodeauxs fax-file JNOV motion
• 6/11/14 Deadline for filing a motion for JNOV
• 6/13/14 Dr. Donnell files original JNOV motion and pays filing fees
• 6/16/14 Thibodeauxs file original JNOV motion and pay filing fees

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Related

Thibodeaux v. Donnell
220 So. 3d 862 (Louisiana Court of Appeal, 2017)
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209 So. 3d 534 (Supreme Court of Florida, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
189 So. 3d 469, 2015 La.App. 1 Cir. 0503, 2016 La. App. LEXIS 383, 2016 WL 742951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibodeaux-v-donnell-lactapp-2016.