Westmoreland v. Touro Infirmary Hospital

819 So. 2d 1053, 2001 La.App. 4 Cir. 1265, 2002 La. App. LEXIS 1376, 2002 WL 977987
CourtLouisiana Court of Appeal
DecidedMarch 27, 2002
DocketNo. 2001-CA-1265
StatusPublished

This text of 819 So. 2d 1053 (Westmoreland v. Touro Infirmary Hospital) 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
Westmoreland v. Touro Infirmary Hospital, 819 So. 2d 1053, 2001 La.App. 4 Cir. 1265, 2002 La. App. LEXIS 1376, 2002 WL 977987 (La. Ct. App. 2002).

Opinion

JjPLOTKIN, Judge.

Plaintiff-appellant, Kerry Westmore-land, appeals the jury’s award of general damages and the jury’s decision to award nothing for loss of future earnings and earning capacity. The plaintiff claims that the jury abused its discretion in both of these cases. This appeal raises only issues of fact, not issues of law. For the reasons discussed below, we affirm the decision of the trial court.

STATEMENT OF FACTS

This case arises out of an incident which occurred on May 26, 1995, when appellant was admitted to Touro Hospital for gastrointestinal problems. She had been admitted to the emergency room after experiencing dehydration that resulted from vomiting and diarrhea. Plaintiff received an intravenous fluid (IV) to help her get hydrated. When she complained of pain an ice pack was placed on the site of the IV. The nurses did not to properly monitor the plaintiff and this caused the area around the IV to become swollen and painful.

Plaintiff admits to having a variety of medical problems prior to the date of the malpractice. She has been diagnosed with osteoporosis, a weakening of the bones. The plaintiff has also had three shoulder surgeries at different points in her life. She was diagnosed with fibromyalgia, a muscular joint syndrome, in 1987. |gThe plaintiff testified that’she had back problems in the past and said it may be a bulging disk. The plaintiff had tendonitis in her hands due to using the steno machine at her job. She stated that her doctor would give her cortisone injections which would allow her to return to work. However, using the steno machine aggravated her tendonitis.

Westmoreland had worked as a court reporter for sixteen years prior to this incident. She worked for a district judge in the 24th Judicial District Court for the Parish of Jefferson. The plaintiff testified that her hand continued to get worse over time and eventually she was not able to use the stenographers machine. When the pain persisted, the judge she was working for .allowed - her to use a tape recorder to take testimony. However, in December 1997 she took disability retirement due to the notetaking- that she had to do as part of her job.

Plaintiff filed a complaint against Touro for medical malpractice. A Medical Review Panel was assembled to evaluate her case. The Panel found Touro negligent and held that “it is probable that patient suffered reflex sympathetic dystrophy as a result of defendant’s failure to timely intervene.” The trial court approved a $100,000 settlement with Touro before the trial, commenced. According to the Medical Malpractice Act this payment constitutes an admission of liability on the part of Touro. Westmoreland subsequently filed a petition for excess damages against the defendant, The Louisiana Patients’ Compensation Fund (PCF).

The jury rendered a verdict on February 22, 2001 in favor of the plaintiff in the amount of $182,000. The jury awarded $48,038 for the following: past and future physical pain and suffering; physical disability; loss of enjoyment of life; and past and future mental pain and suffering. Westmoreland was awarded $32,664 |3for past and future medical damages and expenses and $101,373 for past loss of earnings. Nothing was awarded for future loss of earnings and loss of earning capacity. A Motion-for a JNOV seeking an increase in the award for general damages and an award for loss of future earnings and earning capacity was denied by the trial court. [1056]*1056A judgment was entered on March 6, 2001 against the PCF in the amount of $82,075 plus interest. This award gave the PCF a $100,000 credit for the payment that had been made by Touro.

General Damages

Plaintiff claims that the general damage award of $48,000 is inadequate. West-moreland claims that $300,000 is the lowest amount the jury could award for the general damages without error. On the day of the malpractice, an IV containing potassium chloride was administered to West-moreland. This caused her hand to become swollen and sensitive. The plaintiff received treatments for her hand which included two different types of nerve blocks. Dr. Joseph Spalitta is the anesthesiologist who treated the plaintiff for reflex sympathetic dystrophy (RSD). One type of block used was a stellate ganglion which involved a needle being inserted below her Adam’s Apple. The other block used was the Bretylium block. In this type plaintiffs arm was wrapped with a rubber strip in order to force the blood out of the arm. The blood was then replaced using an anesthetic.

Dr. Spalitta testified that nerve blocks can be used to test the existence of RSD and that Westmoreland’s response to the blocks confirmed the diagnosis of RSD since there was an arresting condition during the block. However, Dr. Walter Ev-ersmeyer, plaintiffs treating rheumatologist, disagreed with this assessment. Dr. Eversmeyer stated that you don’t have to use a stellate ganglion nerve block as a diagnostic tool. Dr. Spalitta testified that plaintiffs condition is permanent and Uirreversible. According to him, plaintiff may improve but she will never fully recover.

Dr. Jack Winters was another one of plaintiffs treating physicians. Plaintiff had been a patient of Dr. Winters since 1983. Dr. Winters first noted problems with Westmoreland’s right hand as early as 1985. On May 26, 1993, the plaintiff went to Dr. Winters’ clinic but since he was not in the office Dr. Naum Klainer saw Ms. Westmoreland. During this visit Dr. Klainer noted that the patient was having pain in the right wrist. According to Dr. Winters, Dr. Klainer thought that it was a “de Quervain’s type of thing.” There is a tendon that goes from the wrist to the base of the thumb and when it is sore it becomes tendonitis. If this happens for an extended period of time the sheath of it gets so tight and the tendon can’t get through. This is de Quervain’s syndrome. Dr. Winters testified that it would be painful for someone with this syndrome to be a court reporter. Dr. Winters stated that he would have written it down if he thought the plaintiff had RSD. He never made any notation regarding RSD nor did he diagnose Ms. West-moreland as having this syndrome. It was Dr. Winters’ impression that the reason the plaintiff could not work was due to the combination of everything getting to her.

Dr. Edna Doyle was one of plaintiffs treating physicians who testified that the RSD caused deterioration in plaintiffs other hand due to overuse. Dr. Doyle prescribed physical therapy and an electrical nerve stimulator for the plaintiff. Dr. Doyle stated that she has not seen a change in plaintiffs condition and that she continued to see signs of RSD.

Some of Ms. Westmoreland’s friends testified at trial. Shirley Baudoin and Deborah Kelly testified that plaintiffs hand has been swollen and discolored since she was discharged from the hospital. Angela Gerrets, one of plaintiffs former cojworkers5 at the court, also testified as to the swollen nature of the hand and that plaintiffs court reporting caused her pain.

Dr. Sumner was the defense expert in the field of neurology. He did not exam[1057]*1057ine or take a history of the plaintiff. He testified that he does not think that the plaintiff suffered from RSD after 1996. Dr. Sumner felt that since she was getting the nerve blocks she had pain relief as long as she wasn’t working. Dr. Sumner attributed the problems in Ms. Westmore-land’s hand to arthritis, de Quervain’s syndrome, and fibromyalgia.

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819 So. 2d 1053, 2001 La.App. 4 Cir. 1265, 2002 La. App. LEXIS 1376, 2002 WL 977987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westmoreland-v-touro-infirmary-hospital-lactapp-2002.