Opinion
No. 01-3770, Section "N"(2)
October 21, 2002
ORDER AND REASONS
Before the Court is Louisiana Patients' Compensation Fund's ("LPCF") Motion for Reconsideration, which this Court GRANTS, and thus recalls and vacates its prior order granting the plaintiff's Motion for Summary Judgment. However, for reasons detailed below, the Court GRANTS the plaintiff's Motion for Summary Judgment on the merits, there being no material issue of fact as to plaintiff's proof of causation of damages far in excess of the $500,000.00 statutory cap plus medicals.
Lest there be any mistake regarding this Court's judgment being on the merits, the Court recalls and vacates its prior order, which additionally indicated that the previous ruling was on the merits. The Court specifically stated therein that, in any event, it otherwise appeared from a review of the pleadings and the summary judgment record that the plaintiff was entitled to the relief requested as a matter of law. This Motion for Reconsideration is considered along with LPCF's Memorandum in Opposition, which was not available previously. See Order Granting Summary Judgment entered October 1, 2002 [Rec. Doc. No. 27].
I. Standard of Review
"Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Kee v. City of Rowlett, Texas, 247 F.3d 206, 210 (5th Cir.) (internal quotation marks omitted), cert. denied, 122 S.Ct. 210 (2001). "The moving party bears the burden of showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 210. If the moving party meets this burden, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. "A dispute over a material fact is a genuine issue for trial." Id. "A dispute over a material fact is genuine if the evidence is such that a jury reasonably could return a verdict for the nonmoving party." Kee, 247 F.3d at 210 (internal quotations omitted). "The substantive law determines which facts are material." Id. at 211. In determining whether summary judgment is appropriate, all of the evidence introduced and all of the factual inferences from the evidence are viewed in a light most favorable to the party opposing the motion and all reasonable doubts about the facts should be resolved in favor of the nonmoving party. Boston Old Colony Ins. v. Tiner Associates Inc., 288 F.3d 222, 227 (5th Cir. 2002).
With respect to issues on which the movant carries the ultimate burden of persuasion, evidence must be adduced supporting each element of the defense and demonstrating the lack of any genuine issue of material fact with regard thereto. See Rushing v. Kansas City So. Ry. Co., 185 F.3d 496, 505 (5th Cir.), cert. denied, 528 U.S. 1160 (2000). A genuine issue of material fact exists if the record, taken as a whole, could lead a rational trier of fact to find for the non-moving party. Geoscan, Inc. of Texas v. Geotrace Techs., Inc., 226 F.3d 387, 390 (5th Cir. 2000).
II. Discussion
Discovery is complete in this case except with respect of the amount of reimbursement owed concerning Medicare's bills. See Plaintiff's Exhibit "11" in globo). Aside from verification of the precise amount of reimbursement owed Medicare, there is no material issue of fact upon review of the entirety of the summary judgment record in this case. It is uncontroverted that Dr. William Quinlan's medical negligence in extracting the plaintiff's tooth caused the infection that destroyed most of the bone in his jaw, necessitated eight surgeries over the period of two years to repair the consequent damages, and resulted in medical bills well in excess of $433,000.
Plaintiff's Exhibit "9" presents a summary of medical bills totaling $433,118.74. It is not controverted that $305,421.64 of those medical expenses were paid by plaintiff's private insurance or remain unpaid.
The only issue before the Court on summary judgment is causation as to damages in excess of the $100,000.00 paid by Dr. Quinlan plus medicals. In Graham v. Willis-Knighton Medical Center, 699 So.2d 372 (La. 1997), the Louisiana Supreme Court held that while payment of $100,000.00 in settlement establishes proof of liability and damages of at least $100,000.00, at trial the plaintiff bears the burden of proving that the admitted malpractice caused damages in excess of that sum. In the case at bar, the plaintiff has carried his burden of proof on summary judgment.
The Court will not reiterate the details of the nightmare endured by the plaintiff from 1997 to 2001, during most of which time he could not eat solid foods The Court simply refers to and incorporates by reference the plaintiff's memorandum in support of his motion for summary judgment at pp. 6 through 21. The summary provided in the factual background is amply supported by the summary judgment record which consists of the plaintiff's medical bills ( i.e., Plaintiff's Exhibit "9" in globo), the opinion of the Medical Review Panel, the deposition of the plaintiff Needham Barnes, and excerpts of the depositions of Dr. Richard A. Spector, Dr. Stephen Metzinger, and Dr. Scott Greenberg. Mr. Barnes survived the ordeal, but with large disfiguring marks on his face and elsewhere, and with his left jaw noticeably collapsed. Despite the pain and suffering, eight surgeries, the extraction of all of his teeth, isolation and unemployment for the duration of his lengthy recuperation period, the plaintiff is presently working and appears to have no long term physical disability. Future medicals include a doctor visit once a year and a CAT scan at least once every two years, and medical monitoring of the ORN area required because of the possibility of future complications.
Payment of $100,000.00 to a medical malpractice victim by one qualified health care provider (or the provider's insurer) triggers the admission-of-liability provision of Louisiana's Medical Malpractice Act, LA. REV. STAT. ANN. § 40:1299.44(C)(5) (West Supp. 2002). Thereafter, the only contested issue remaining thereafter between the victim and the Patient's Compensation Fund is the amount of the victim's damages in excess of the amount already paid. In Graham v. Willis-Knighton Medical Center, 699 So.2d 365 (1997), the Louisiana Supreme Court interpreted the statutory admission-of-liability provision as follows:
We now conclude that the legislative intent of "liability" in Section 1299.44 C(5) was that the payment of $100,000 in settlement establishes proof of liability for the malpractice and for damages of at least $100,000 resulting from the malpractice, which is a very significant benefit to the medical malpractice victim. However, at trial against the Fund, the plaintiff has the burden of proving that the admitted malpractice caused damages in excess of $100,000.Id. at 372. See also Conner v. Stelly, 807 So.2d 827 (La. 2002)( per curiam) (noting that the PCF should be allowed to present evidence that the victim or third-party fault partly caused the damages). Under Louisiana law, the defendant bears the burden of proving contributory negligence/comparative fault by a preponderance of the evidence. See Hano v. Louisiana Department of Transportation and Development, 529 So.2d 796 (La.App. 1st Cir. 1987) (noting that a defendant who relies on contributory negligence as a defense bears the burden of proving plaintiffs negligence and that such negligence was a contributory cause).
The summary judgment record in this case is uncontroverted that: (1) Dr. Quinlan's negligence was a cause-in-fact of the plaintiff's injuries; (2) the plaintiff's injuries were seriously if not horrendously debilitating throughout his four-year recovery period; (3) the plaintiff suffered a severe amount pain, endured multiple surgeries, and is permanently and prominently disfigured; (4) plaintiff lost four years of income amounting to no less than $132,000 plus past and future physical and mental suffering well in excess of the statutory cap of $500,000, and which added together amount to well-over $632,000; (5) the cost of past medical care subject to reimbursement and caused by the medical malpractice amounts to the sum of $310,748.44; and (6) plaintiff is entitled to the cost of future medical care sufficient to cover the expense of yearly follow-up visits, a CATSCAN at least once every two years, and to monitor for complications which may arise from the ORN. Additionally, there is no material issue of fact and as a matter of law the plaintiff is entitled to costs of the proceeding plus judicial interest from date of judicial demand (September 17, 1998) until paid.
Considering the $500,000.00 medical malpractice cap on general damages and that the PCF is entitled to a credit for the $100,000 paid by Dr. Quinlan, insofar as general damages are concerned judgment regarding that item of damages may issue for no more that $400,000.
There is no material issue of fact as to the issue of comparative fault; there is a complete failure of proof as to victim-fault. Contributory negligence on the part of the victim is an affirmative defense upon which the Fund bears the burden of proof. Assuming without deciding that there was some negligence on the part of the plaintiff, the Fund has failed to present any competent evidence that any such negligence was a contributing cause. Accordingly, there is no material issue of fact as to the issue of article 2323 comparative fault, on account of the complete failure of proof of victim-fault and causation.
The Court, however, reserves that portion of the case concerning Medicare's bills and reimbursement of same until the Medicare can clarify the amount owed. Accordingly and for all of the foregoing reasons,
IT IS ORDERED that the plaintiff's Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that the counsel for the plaintiff and the defendant shall jointly submit a proposed form of judgment consistent with the foregoing order and shall do so on or before Monday, October 28, 2002.
The Court here reminds the parties that this case remains scheduled for a pretrial conference on November 7, 2002 with a trial scheduled shortly thereafter, unless and until judgment is executed dispositive of the case in its entirety.