Jason Pellegrin VS Louisiana Heart Hospital, L.L.C., Lisa Delgado, Francisco Butler, Brad Stringer, Kerry Trosclair, Herb Collins, Christopher Smith and John Doe
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NOT DESIGNATED FOR PULICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 2174 JASON PELLEGRIN VERSUS LOUISIANA HEART HOSPITAL L LISA DELGADO FRANCISCO C BUTLER BRAD STRINGER KERRY TROSCLAIR HERB COLLINS CHRISTOPHER SMITH AND JOHN DOE Judgment Rendered May b 2011 I Appealed from the Twenty Second Judicial District Court In and for the Parish of St Tammany Gi r State of Louisiana Suit number 2006 15194 Honorable Reginald T Badeaux III Presiding James P Desonier Counsel for Plaintiff2nd Appellant Jason Pellegrin Mandeville LA Counsel for Intervenor 1 st Appellant Louisiana Patient Compensation Baton s David C Bolton William C Rowe Jr Rouge LA Fund and Louisiana s Patient Compensation Fund Oversight Board on behalf of the nominal defendant Louisiana Heart Hospital L C BEFORE PARRO GUIDRY AND HUGHES JJ GUIDRY J In this medical malpractice action the Louisiana Patient Compensation Fund s and the Louisiana Patient Compensation Fund Oversight Board PCF appeal from s a judgment of the trial court casting the PCF with all court costs including costs for depositions used at trial and expert witness fees in the underlying proceeding Plaintiff Jason Pellegrin also appeals from the trial court judgment which failed to s award any damages for future medical expenses future pain and suffering and loss of enjoyment of life For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On October 6 2004 Pellegrin underwent a lumbar diskectomy at Louisiana Heart Hospital LHH in Lacombe Louisiana Prior to the surgery a Foley catheter was inserted through Pellegrin penis up to his bladder and was inflated s After completion of the surgery and while being moved by LHH staff from the operating table to a gurney the fully inflated Foley catheter came out through Pellegrin penis s Thereafter Pellegrin filed a request for review of his malpractice claim with the Division of Administration which forwarded it to the PCF A medical review panel was convened and rendered an opinion finding that there was no evidence that LHH breached the applicable standard of care On October 16 2006 Pellegrin filed suit against LHH in the twenty second judicial district court claiming that he suffered severe and permanent damages as a result of the negligence of LHH and seeking damages for past present and future physical pain and suffering and mental anguish past continuing and future medical expenses future disability and loss or impairment of life pleasures s After reaching an agreement with LHH to settle all claims against it Pellegrin filed a petition for damages for court approval of agreed upon settlement and for demand for payment from the PCF In his petition Pellegrin asserted that he and 2 LHH had agreed to settle all claims against LHH reserving all rights to proceed against the PCF to recover damages in excess of the statutorily mandated credit and subject to LHH remaining in the litigation as a nominal defendant Pellegrin also stated that he was demanding an amount in excess of the agreedupon settlement for a complete and final release of his claim and pursuant to La R 40 was S 1299 C 44 making a demand upon the PCF for payment of an amount in excess of the PCF s statutorily mandated credit of 100 due to the fault of LHH a qualified health 000 care provider Pellegrin submitted that he and the PCF had been unable to agree on the amount to be paid by the PCF and requested that the court determine the amount of Pellegrin damages as to LHH in excess of 100 s 000 On April 27 2009 the PCF filed a motion and order for intervention for the purpose of requesting a trial by jury A jury trial was conducted on October 27 and 28 2009 at the conclusion of which the jury returned a verdict in favor of Pellegrin finding that LHH had breached the standard of care and that the breach had caused 95 628 damages to Pellegrin The jury awarded 31 in past medical expenses and 00 500 52 in past and present pain and suffering However the jury awarded 0 for future medical expenses 0 for future pain and suffering and 0 for loss of enjoyment of life Accordingly Pellegrin total damage award was 84 s 95 128 On December 16 2009 Pellegrin filed a motion for judgment notwithstanding the verdict andor motion for new trial The PCF also filed a motion to tax costs on an offer of judgment asserting that it had made an offer of judgment pursuant to La P C art 970 which was received by Pellegrin on July 16 2009 and that this offer was exclusive of any costs interest and attorney fees that may be awarded s The trial court held a hearing on these two motions on January 12 2010 On that same date the trial court signed a judgment in conformity with the jury verdict s By handwritten notation dated January 19 2010 the court added to the January 12 3 judgment that all costs of court including all depositions used at trial as well as expert witness fees were to be paid by the PCF On February 8 2010 the trial court signed a judgment denying Pellegrin motion for JNOV denying the PCF motion s s to tax costs and ordering that the PCF be cast with all of Pellegrin costs including s but not limited to expert witness fees and depositions used at trial Pellegrin and the PCF now separately appeal from the January 2010 judgment DISCUSSION Future Damages Pellegrin asserts on appeal that the jury erred in failing to award damages for future medical expenses future pain and suffering and loss of enjoyment of life and that the trial court erred in denying the JNOV Future medical expenses as special damages must be established with some degree of certainty and a plaintiff must demonstrate that such expenditures will more probably than not be incurred as a result of the injury Menard v Lafayette Insurance Company 09 1869 pp 12 13 La 3 31 So 3d 996 1006 The 10 16 proper standard for determining whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence that the future medical expenses will be medically necessary Menard 09 1869 at p 13 31 So 3d at 1006 Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost Harvin v ANPAC Louisiana Insurance Co 06 204 p 12 La App 5th Cir 10 944 So 2d 648 655 writ denied 062729 06 17 La 1 948 So 2d 134 Credibility determinations are for the trier of fact even 07 8 as to the evaluation of expert testimony Green v KMart Coma 03 2495 p 5 La 04 25 5 874 So 2d 838 843 A trier of fact may accept or reject in whole or in part the uncontradicted opinions expressed by an expert M See Harris v State ex rel Department of Transportation and Development 07 1566 p 25 La App 1 st Cir 08 10 11 997 So 2d 849 866 writ denied 08 2886 La 2 999 So 2d 785 09 6 In reviewing a jury factual conclusions with regard to special damages an s appellate court must satisfy a twostep process based on the record as a whole in there must be no reasonable factual basis order to modify or reverse the judgment for the jury conclusion and the finding must be clearly wrong See Menard 09 s 1869 at p 14 31 So 3d at 1007 This test requires a reviewing court to do more than simply review the record for some evidence that supports or controverts the jury s findings The court must review the entire record to determine whether the jury s finding was clearly wrong or manifestly erroneous The issue to be resolved on review is not whether the jury was right or wrong but whether the jury fact finding s conclusion was a reasonable one Menard 091869 at pp 1415 31 So 3d at 1007 From our review of the record we find no manifest error in the jury s determination that Pellegrin failed to establish that he was entitled to future medical expenses s Pellegrin treating urologist Dr Neil Baum testified that when the catheter was removed from Pellegrin with the balloon inflated Pellegrin urethra s was traumatized leaving him with a subsequent stricture or scarring According to Dr Baum the problem of the stricture may be recurrent and Pellegrin may have future symptoms that may require the urethra to be stretched or dilated in order to facilitate the flow of urine from his bladder to the outside of his body Later in his testimony Dr Baum stated that Pellegrin will at least need to be seen by a urologist on an ongoing basis probably once or twice a year that he should have urinary flow rates and a bladder ultrasound examination and if appropriate he would require dilation of his urethra to improve his flow of urine Dr Baum opined that Pellegrin is likely to have a lifelong need of urologic care probably once or twice a year and it will probably never go away However Dr Baum acknowledged that as Pellegrin 5 approached age fifty he will have the normal enlargement of his prostate that most middle aged men have and related natural prostate problems which would be unrelated to the stricture Further Dr Baum stated that he did not treat Pellegrin for complaints of erectile dysfunction because the cause of the dysfunction was not physiological but rather was psychological However Dr Baum did provide Pellegrin with a prescription and some samples for Cialis Dr Baum stated that he last saw Pellegrin in June 2007 at which time Dr Baum recommended that Pellegrin follow up with him in three months for a urine flow rate and bladder ultrasound However Pellegrin has not returned to see him since the June 2007 visit Dr David Murdock Pellegrin treating psychiatrist also testified at trial Dr s Murdock stated he first saw Pellegrin in April 2006 at which time he diagnosed Pellegrin with post traumatic stress disorder PTSD and major depressive disorder However Dr Murdock stated that he did not diagnose Pellegrin with nor treat Pellegrin for erectile dysfunction Dr Murdock noted that at the time of trial s Pellegrin symptoms for PTSD had improved and that he was currently not experiencing any symptoms Dr Murdock recommended antidepressants for treating s Pellegrin depression disorder and had prescribed Lexapro Dr Murdock said the medication helps control the symptoms of depression but does not cure depression Dr Murdock also recommended weekly psychotherapy sessions According to Dr Murdock the symptoms of PTSD and depression tend to wax and wane but can affect someone for the rest of their life Particularly with PTSD a person can be symptom free for a long period and then experience a triggering event that causes the PTSD to be symptomatic again In his testimony Pellegrin confirmed that he has not seen Dr Baum since June 2007 and indicated that he mainly did not return to Dr Baum because of money Likewise Pellegrin admitted that he had declined weekly psychotherapy sessions for G his depression because of money and because of the effect that it had on his ability to work consistently Pellegrin also admitted that although he was prescribed Cialis for erectile dysfunction and Lexapro for depression he does not take either medication According to Pellegrin he has not taken Cialis since the summer of 2005 and he never really took the Lexapro because he has a family history of substance abuse and he does not want to take medication Further Pellegrin acknowledged that prior to the back surgery and catheter removal he contracted gonorrhea and reported complaints of burning Additionally the medical records indicate that Pellegrin informed Dr Baum that he had been experiencing urinary voiding problems for a year which predates the back surgery Dr Suril Purohit the urologist who treated Pellegrin immediately following the removal of the catheter also testified by deposition nature and extent of Pellegrin injury as minor s Dr Purohit characterized the Dr Purohit stated that he continued to treat Pellegrin from November 2004 to February 2005 In November 2004 Pellegrin urethra appeared to have healed well and Pellegrin did not have s any complaints at that time In February 2005 Pellegrin reported complaints of burning and split stream when he urinated and Dr Purohit performed a cystoscopy to determine the cause of Pellegrin then reported complaints The cystoscopy found s no stricture and the urethra otherwise appeared normal From our review of the evidence as a whole the jury could have reasonably determined that Pellegrin did sustain an injury as a result of the catheter being removed but that such injury was minor and any damage resulting therefrom had resolved by the time of trial Given the uncertainty expressed by Dr Baum as to s Pellegrin future prognosis and need for medical treatment and Pellegrin refusal to s seek further treatment or take prescribed medication we find the jury permissibly weighed the evidence and evaluated the credibility of the witnesses Accordingly I though this court may have weighed the evidence differently we find no manifest error in the jury determination that Pellegrin failed to prove that he was entitled to s future medical expenses Likewise we find no error in the jury determination that Pellegrin is not s entitled to damages for future pain and suffering and loss of enjoyment of life Pain and suffering both physical and mental refers to the pain discomfort inconvenience anguish and emotional trauma that accompanies an injury McGee v A C and S Inc 05 1036 P 5 La 7 933 So 2d 770 775 The factors to be considered 06 10 by the trier of fact in assessing quantum of damages for pain and suffering are severity and duration Thibodeaux v USAA Casualty Insurance Co 93 2238 p 8 La App 1 st Cir 11 647 So 2d 351 357 As noted by the trial court at the 94 10 hearing on Pellegrin motion for JNOV Pellegrin was shy and was not the best s historian as to his past history and did not get across to the jury that he had a great psychic injury Further given that Pellegrin did not complain of continuing pain nor did he seek treatment or take medication for at least two years prior to the date of trial the jury reasonably could have determined that he was not entitled to future general damages for pain and suffering Further damages for loss of enjoyment of life refer to detrimental alterations of the person life or lifestyle or the person inability to participate in activities or s s pleasures of life that were formerly enjoyed prior to the injury Whether or not a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury McGee 05 1036 at P 5 933 So 2d at 775 In the instant case Pellegrin did not offer any testimony that his lifestyle after the accident had been altered other than the fact that he has had problems with erectile dysfunction since his injury According to Pellegrin pain was an issue at first but later the issue became his willingness and 3 E desire to have sexual intercourse Pellegrin stated that before the injury sex in his life was for him and his partner whereas now it was not necessarily for him anymore because of his confidence and pride issues Pellegrin stated that prior to the injury he had sexual relations with his thengirlfriend once a week After the injury he had sex with his girlfriend about once every two weeks and has sex with his current girlfriend about once every three weeks Pellegrin acknowledged that he has not taken any prescription medication for erectile dysfunction though Dr Baum had given him a prescription for Cialis From our review of the record the jury reasonably could have determined that Pellegrin failed to establish that he is unable to engage in activities or pleasures of life that were enjoyed prior to the injury or that he otherwise experienced a detrimental lifestyle change Accordingly we find no error in the jury failure to award damages s for loss of enjoyment of life Court Costs The PCF appeals the trial court judgment to the extent that the judgment cast s the PCF with all costs of court including the costs for all depositions used at trial and expert witness fees It is well settled that the trial court has great discretion in awarding costs including expert witness fees deposition costs exhibit costs and related expenses Samuel v Baton Rouge General Medical Center 991148 pp 7 8 La App 1st Cir 00 2 10 798 So 2d 126 131 132 The PCF however claims that the trial court abused its discretion in casting the PCF with all costs of court because the PCF made an offer ofjudgment in accordance with La C art 970 P Though Pellegrin did not appeal from the February 8 2010 judgment denying his motion for JNOV he assigned as error the trial court denial of that motion We find based on our s determination of the issues related to future medical expenses future pain and suffering and loss of enjoyment of life that the trial court likewise did not err in failing to grant the JNOV See Belle Pass Terminal Inc v John Inc 921544 92 1545 pp 41 42 La App l st Cir 3 634 So 94 11 2d 466 491 492 writ denied 940906 La 6 638 So 2d 1094 94 17 9 Louisiana Code of Civil Procedure article 970 provides in pertinent part A At any time more than thirty days before the time specified for the trial of the matter without any admission of liability any party may serve upon an adverse party an offer of judgment for the purpose of settling all of the claims between them The offer ofjudgment shall be in writing and state that it is made under this Article specify the total amount of money of the settlement offer and specify whether that amount is inclusive or exclusive of costs interest attorney fees and any other amount which may be awarded pursuant to statute or rule Unless accepted an offer of judgment shall remain confidential between the offeror and offeree If the adverse party within ten days after service serves written notice that the offer is accepted either party may move for judgment on the offer The court shall grant such judgment on the motion of either party C If the final judgment obtained by the plaintiff is at least offeree twenty five percent less than the amount of the offer of judgment made by the defendant offeror or if the final judgment obtained against the defendant offeree is at least twentyfive percent greater than the amount of the offer of judgment made by the plaintiff offeror the offeree must pay the offeror costs exclusive of attorney fees incurred after the offer s was made as fixed by the court E For purposes of comparing the amount of money offered in the offer of judgment to the final judgment obtained which judgment obtained shall take into account any additur or remittitur the final judgment obtained shall not include any amounts attributable to costs interest or attorney fees or to any other amount which may be awarded pursuant to statute or rule unless such amount was expressly included in the offer Article 970 is punitive in nature and its function is to compensate the rejected offeror who is forced to incur greater trial litigation costs that could have been avoided if the offeree had not acted unreasonably in rejecting the offer Held v Aubert 021486 P 4 1 La App 1st Cir 5 845 So 2d 625 636 03 9 On June 15 2009 the PCF forwarded to Pellegrin an offer of judgment pursuant to Article 970 The offer exclusive of any costs interest and attorney s fees that may be awardable represented an amount equal to 5 above the 000 000 100 credit available to the PCF Under the facts of this case Article 970 essentially provides that the plaintiff s offeree postoffer costs must be paid by the defendant offeror whose pretrial offer 17 x is rejected if the final judgment obtained by the plaintiff offeree is not at least twentyfive percent less than the offer See La C art 970 see also Suprun v P C LouisianaFarm Bureau Mutual Insurance Compapy 091555 p 6 La App 1st Cir 10 30 4 40 So 3d 261 266 In the instant case the jury awarded total damages in the amount of 84 This amount represents roughly twenty percent less than 95 128 the PCF offer s Because the damage award is not at least twentyfive percent less than the PCF offer of 5 above the statutory credit of 100 or 105 s 000 000 000 the PCF is not entitled to postoffer costs under La C art 970 See Suprun P C 09 1555 at p 9 40 So 3d at 267 Accordingly having found that the PCF is not entitled to postoffer costs under Article 970 given the fact that Pellegrin was the prevailing party at trial and C considering that the trial court is afforded great discretion in awarding costs we find no abuse of the trial court discretion in casting the PCF with costs of court s including the cost for depositions used at trial and expert witness fees CONCLUSION For the foregoing reasons the judgment of the trial court is affirmed All costs of this appeal are assessed equally to Jason Pellegrin and the Louisiana Patient s Compensation Fund and the Louisiana Patient Compensation Fund Oversight s 3701 AFFIRMED
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