Vappie v. Maumus

36 So. 3d 1123, 2009 La.App. 4 Cir. 1038, 2010 La. App. LEXIS 713
CourtLouisiana Court of Appeal
DecidedMay 12, 2010
DocketNo. 2009-CA-1038
StatusPublished

This text of 36 So. 3d 1123 (Vappie v. Maumus) 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
Vappie v. Maumus, 36 So. 3d 1123, 2009 La.App. 4 Cir. 1038, 2010 La. App. LEXIS 713 (La. Ct. App. 2010).

Opinion

TERRI F. LOVE, Judge.

| .¿This appeal arises from injuries sustained as a result of alleged medical malpractice resulting in avascular necrosis and bilateral hip replacement. We find that the jury did not commit manifest error and affirm. However, we find that the trial court erred by awarding damages for future pain and suffering and reverse.

[1125]*1125 FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Juliette Vappie learned that she was suffering from a miscarriage in August 1996. After becoming upset about the miscarriage, Mrs. Vappie began to experience urticaria.1 After taking Benadryl, Mrs. Vappie telephoned her doctor for an appointment, but he was unavailable. However, Dr. Marianne Maumus was able to see Mrs. Vappie. James Vappie, Mrs. Vappie’s husband, drove Mrs. Vappie to see Dr. Maumus. After meeting with Mrs. Vappie, Dr. Maumus concluded that Mrs. Vappie was suffering from urticaria and prescribed Vistaril and prednisone. Mrs. Vappie took approximately twenty seven of the forty prescribed prednisone pills. In April 1997, Mrs. Vappie was diagnosed with bilateral avascular necrosis2 (“AVN”). As a result, Mrs. Vappie underwent a left hip replacement surgery in November 1997, and a right hip replacement surgery in December 2003.

Mrs. Vappie filed a complaint against Dr. Maumus alleging that the AVN was 13steroid induced. However, the medical review panel (“MRP”) found that Dr. Mau-mus did not fail to meet the applicable standard of care by prescribing predni-sone. Accordingly, Mr. and Mrs. Vappie then filed a petition for damages against Dr. Maumus and the Louisiana Patient’s Compensation Fund (“LPCF”).

Following a jury trial, the jury returned a verdict in favor of Mr. and Mrs. Vappie and attributed seventy-five percent of fault for Mrs. Vappie’s injuries to Dr. Maumus. The jury also awarded damages as follows:

Past medical expenses $111,444.32
Lost wages $30,726.56
Pain and suffering $250,000
Loss of enjoyment of life $100,000
Future medical expenses $150,000
Loss of consortium (Mr. Vappie) $50,000
Total $692,170.88

Considering Mrs. Vappie’s percentage of fault, the jury awarded $519,128.16 from Dr. Maumus and the LPCF. Both Dr. Maumus and Mr. and Mrs. Vappie filed motions for a judgment notwithstanding the verdict prior to the trial court entering the above judgment on the jury’s verdict. After a hearing on the motions, the trial court denied Dr. Maumus’ JNOV and granted Mr. and Mrs. Vappie’s JNOV. The trial court adjusted the fault allocation to attribute one hundred percent of the fault to Dr. Maumus and awarded $250,000 for future pain and suffering.

The LPCF then filed a petition for intervention seeking to participate in Dr. Mau-mus’ appeal. Dr. Maumus and the LPCF then filed a suspensive appeal, which was granted, and the trial court stated that neither party had to post a bond. However, following a motion to amend the order for appeal, the trial court ordered Dr. Maumus to post a bond and this appeal followed.

STANDARD OF REVIEW

Appellate courts review findings of fact by the jury using the manifestly ^erroneous or clearly wrong standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). As the reviewing court, we must determine if the factfinder’s conclusion was reasonable. Murphy v. City of New Orleans, 09-0567, p. 3 (La.App. 4 Cir. 11/12/09), 25 So.3d 956, 959. “[Wjhere two permissible views of the evidence exist, the factfinder’s choice between them cannot be clearly wrong.” Id. If this Court finds that there is a conflict in the testimony presented to the factfinder, then “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own eval[1126]*1126uations and inferences are as reasonable.” Rosell, 549 So.2d at 844. In regards to conclusions based on witness credibility, “only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Id.

The appellate court can find manifest error when “documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story.” Id. at 844-45. “But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Id. at 845.

MEDICAL MALPRACTICE

Dr. Maumus and the LPCF assert that the trial court committed manifest error by entering a judgment on the jury’s verdict, which found that Dr. Maumus committed malpractice and breached the standard of care and that prednisone caused Mrs. Yappie’s AVN.

“A physician is required to exercise that degree of skill ordinarily employed under similar circumstances by others in the profession and to use reasonable care, | r,diligence, and judgment.” Cascio v. Downing, 06-0570, pp. 4-5 (La.App. 4 Cir. 4/4/07), 957 So.2d 795, 799. In Louisiana medical malpractice actions the plaintiff must prove:

(1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La. R.S. 9:2794. Expert testimony is utilized to assist in proving these elements. Brown v. Tulane Med. Ctr. Hosp. and Clinic, 04-0688, p. 5 (La.App. 4 Cir. 5/9/07), 958 So.2d 87, 90. “Where medical experts express differing views, judgments and opinions, great deference is given to the fact-finder’s determinations” and will not be reversed unless no reasonable factual basis for them exists. Cascio, 06-0570, p. 5, 957 So.2d at 799. “Whether alleged malpractice constitutes negligence is a question for the jury.” Gamino v. Lakeside Hosp., 94-727, p. 15 (La.App. 5 Cir. 2/15/95), 652 So.2d 36, 42.

Medical Review Panel

The MRP found that Dr. Maumus did not fail to meet the applicable standard of care for the following reasons:

1.

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Related

Gamino v. Lakeside Hosp.
652 So. 2d 36 (Louisiana Court of Appeal, 1995)
Murphy v. City of New Orleans
25 So. 3d 956 (Louisiana Court of Appeal, 2009)
Torrejon v. Mobil Oil Co.
876 So. 2d 877 (Louisiana Court of Appeal, 2004)
Cascio v. Downing
957 So. 2d 795 (Louisiana Court of Appeal, 2007)
Anderson v. New Orleans Public Service, Inc.
583 So. 2d 829 (Supreme Court of Louisiana, 1991)
Davis v. Wal-Mart Stores, Inc.
774 So. 2d 84 (Supreme Court of Louisiana, 2000)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Brown v. TULANE MED. CENTER HOS. AND CLINIC
958 So. 2d 87 (Louisiana Court of Appeal, 2007)
Verret v. Carline
634 So. 2d 37 (Louisiana Court of Appeal, 1994)

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Bluebook (online)
36 So. 3d 1123, 2009 La.App. 4 Cir. 1038, 2010 La. App. LEXIS 713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vappie-v-maumus-lactapp-2010.