Wiley v. Travelers Insurance Company

300 So. 2d 555
CourtLouisiana Court of Appeal
DecidedNovember 27, 1974
Docket4666
StatusPublished
Cited by29 cases

This text of 300 So. 2d 555 (Wiley v. Travelers Insurance Company) 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
Wiley v. Travelers Insurance Company, 300 So. 2d 555 (La. Ct. App. 1974).

Opinion

300 So.2d 555 (1974)

Don R. WILEY, Jr., Plaintiff-Appellant,
v.
TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.

No. 4666.

Court of Appeal of Louisiana, Third Circuit.

September 11, 1974.
Rehearing Denied October 10, 1974.
Writ Refused November 27, 1974.

*556 Arthur Cobb, Baton Rouge, and William Avery, Jonesville, for plaintiff-appellant.

Provosty & Sadler by Albin A. Provosty, Alexandria, for defendant-appellee.

Before FRUGÉ, CULPEPPER and WATSON, JJ.

WATSON, Judge.

Plaintiff appeals from an adverse jury decision in a medical malpractice case involving an examination of plaintiff before transfer to another hospital for treatment by specialists. The plaintiff is Donald R. Wiley, Jr. and the defendants before the court at the time of trial on the merits were Dr. Richard R. Michel; Marksville General Hospital; St. Paul Fire and Marine Insurance Company, the medical malpractice insurer of Dr. Michel and the liability insurer of the hospital; and William Jackson Brown, the driver of the automobile in which plaintiff was riding at the time of the accident.

Other defendants who had been dismissed prior to trial by reason of settlement were Enick Dauzat, d/b/a Marksville Ambulance Service, Walter Ponthieux, and St. Francis Cabrini Hospital, as well as the liability insurers of these parties.

*557 The jury returned a verdict in the amount of $500,000 in favor of plaintiff and against defendant Brown, the automobile driver, but found in favor of the other defendants. Plaintiff now urges that there was error in several particulars and that the jury verdict should be reversed. Plaintiff especially urges that he should be granted judgment against Dr. Michel on the malpractice theory.

The errors assigned by plaintiff reflect the issues which are before this court on appeal. These may be summarized as follows:

(1) Did the jury err in holding that Dr. Michel was not negligent and not liable for plaintiff's injuries?
(2) Is the award of damages manifestly inadequate?
(3) Was there error in the disclosure to the jury of the details of the settlement with certain parties and in submitting the question of negligence by these parties to the jury?
(4) Did the court err in a comment made concerning the purpose of cross-examination by counsel for plaintiff?
(5) Did the court improperly allow the defense to call three doctors not named in answers to interrogatories propounded to the defendant hospital?

The facts concerning the automobile accident and the subsequent events are relatively simple and relatively undisputed except in certain details which are not decisive of the various issues.

At approximately 7:30 A.M. on December 5, 1971, plaintiff was asleep in the rear seat of an automobile driven by defendant Brown traveling from Crowley, Louisiana to Jonesville, Louisiana on Highway 115.

At a point approximately eight miles south of Marksville, Louisiana, the automobile left the road and wrecked, causing severe injuries to plaintiff consisting chiefly of fractures in the cervical region. An ambulance owned by Enick Dauzat and driven by Walter Ponthieux picked up plaintiff at the scene of the automobile wreck and transported him to Marksville General Hospital. At the Marksville hospital, plaintiff was examined by Dr. Richard R. Michel, a general practitioner who happened to be in the hospital at the time. Dr. Michel diagnosed plaintiff's condition without removing him from the ambulance stretcher and without the benefit of x-rays as a facial laceration, a broken hip and possible fracture of the right arm. He talked by telephone to the mother of plaintiff who was a nurse on duty at a hospital in Jonesville, Louisiana, and, pursuant to their discussion, he ordered plaintiff transferred to St. Francis Cabrini Hospital in Alexandria. Plaintiff, who actually had a broken neck, was then returned to the same ambulance to be taken to Alexandria without any immobilization, sandbagging, or other precautions and without an attendant in the back of the ambulance.

Upon arrival at the Alexandria hospital, the plaintiff was quickly diagnosed as having a broken neck, not a broken hip and a broken arm. He was immediately transferred to Shreveport for neurological care, but, at the time of trial, he was paralyzed from the neck down.

Plaintiff's principal contention is that Dr. Michel was negligent in failing to discover plaintiff's true condition in Marksville and in failing to take proper precautions to guard against aggravation of the injury, the theory being that on the ambulance trip from Marksville to Alexandria, plaintiff suffered an aggravation of his broken neck which resulted in paralysis. Defendants concede that Dr. Michel was wrong in his diagnosis but contend that his examination and diagnosis did not fall below the standard of skill ordinarily employed under similar circumstances by members of his profession in the area and, thus, he is not liable to plaintiff for any *558 injuries resulting from the incorrect diagnosis.

The case was tried to a jury with many witnesses testifying, including doctors who testified on behalf of plaintiff and doctors who testified on behalf of Dr. Michel. As noted above the jury found in favor of plaintiff and against William Jackson Brown in the amount of $500,000. The jury also found in favor of defendants, Marksville General Hospital, Dr. Richard R. Michel and St. Paul Fire and Marine Insurance Company, and against plaintiff. Certain special findings were required of the jury and, in answer to these, the jury found negligence causing the accident and plaintiff's injuries on the part of William Jackson Brown but no negligence by Dr. Michel, the Marksville hospital, the ambulance driver or St. Francis Cabrini Hospital. However, the jury found that Enick Dauzat, the ambulance owner, was guilty of negligence causing plaintiff's injuries. No damages were assessed against Dauzat because he was out of the case at this point.

In this factual setting, we will now consider the various issues raised by plaintiff's specifications of error.

I. Liability of Dr. Michel.

Counsel for plaintiff argues that the verdict of the jury on the issue of Dr. Michel's negligence is against the weight of the evidence. The contention is that this court should weigh the evidence and decide the case differently from the jury. Plaintiff's counsel argues, very eloquently and very vigorously, that, if this court believes plaintiff's evidence to be stronger and more persuasive than defendants' evidence, then the verdict of the jury should be reversed and a judgment entered in favor of plaintiff.

We do not share counsel's analysis of our task in reviewing the case on appeal. Ours is not the primary duty of weighing the evidence, judging the credibility of witnesses or evaluating the strength of the various experts' opinions. On the contrary, these tasks are allotted initially to the triers of fact, here the jury; and the conclusions of the jury as to facts should not be disturbed unless manifestly erroneous. See Hooper v. Wilkinson, 252 So.2d 137 (La.App. 3 Cir. 1971); and Busby v. St. Paul Fire & Marine Insurance Company, 290 So.2d 701 (La.App. 1 Cir. 1974); writ denied, La., 294 So.2d 546. The intermediate appellate court is to examine the record and to review the facts to determine whether there is a reasonable evidentiary basis for the decision by the triers of fact. Dunlap v. Armendariz, 265 So.2d 352 (La.App. 4 Cir.

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300 So. 2d 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiley-v-travelers-insurance-company-lactapp-1974.