Duane Wood and Torrie Wood VS Dr. Shawn Humphries and Lady of the Sea General Hospital
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 2161 DUANE WOOD AND TORRIE WOOD VERSUS DR SHAWN HUMPHRIES AND LAD Y O F THE SEA GENERAL HOSPITAL On Appeal from the 17th Judicial District Court Parish of Lafourche Louisiana Docket No 107 Division B 009 Honorable Jerome J Barbera III Judge Presiding James A Marchand Jr Tipton St Philip III Attorneys for Elisia Shofstahl Plaintiffs Appellees Frank E Duane Wood and Torrie Wood Covington LA Barry J Boudreaux Attorneys for Defendant Appellant Schoonenberg Boudreaux Henderson Reilly Houma LA John D Dr Shawn Humphries William C Rowe Jr Attorneys for David C Bolton Intervenor Appellant Rowe Law Firm Louisiana Patient Compensation Fund s Baton Rouge LA and Louisiana Patient Compensation s Fund Oversight Board BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J Judgment J ti 9 CC J C GCL a i h v v1 f jC S 3SG rendered jL OCT 9 2012 PARRO J In this medical malpractice case the appellants Dr Shawn Humphries and the Louisiana Patient Compensation Fund and Louisiana Patient Compensation Fund s s Oversight Board collectively the Board through the defendants Dr Humphries and Lady of the Sea General Hospital appeal the trial court entry of a judgment s notwithstanding the jury verdict and its conditional grant of a motion for a new trial in s favor of the plaintiffs Duane and Torrie Wood For the following reasons we reverse that judgment and reinstate the jury verdict together with the judgment of April 13 s 2011 rendered in accordance with the jury verdict s FACTUAL AND PROCEDURAL BACKGROUND Duane and Torrie Wood filed a petition against Dr Shawn Humphries and Lady of the Sea General Hospital LOSGH located in Lafourche Parish alleging that they breached the applicable standard of care in their emergency room treatment of Mr Wood on March 30 2005 resulting in serious and permanent damage to him as the result of a major stroke After extensive discovery the case was tried to a jury on March 30 and 31 2011 and April 1 4 and 5 2011 The first question on the special J ury interrogatories asked whether the jury found by a preponderance of the evidence that the plaintiffs had proved the standard of care applicable to Dr Humphries and LOSGH regarding the medical care provided to Mr Wood The jury response as to both defendants was No On April 13 2011 the court signed a judgment in accordance with the jury verdict dismissing the suit with prejudice The plaintiffs filed a motion for judgment notwithstanding the verdict JNOV and a motion for a new trial After a hearing on May 31 2011 the court granted the motion for JNOV and rendered judgment in favor of Mr Wood in the amount of 675 580 5 and in favor of Mrs Wood for 150 plus judicial interest on both 000 awards from November 3 2005 until paid and all court costs The judgment also ordered the defendants to pay expert fees in the amount of 12 000 The court allocated 90 fault to Dr Humphries and 10 fault to LOSGH To comply with the 2 medical malpractice cap on damages in LSAR 40 the total amount of S 1299 1 B 42 damages awarded was reduced to 500 plus legal interest and costs exclusive of 000 future medical care and related benefits as provided in LSAR 40 S 1299 43 The motion for new trial was also conditionally granted in favor of the plaintiffs in accordance with LSAC art 1811 and 2 for the same reasons that P C 1 C supported the trial court grant of the JNOV The judgment was signed June 20 2011 s The Board became involved in the appeal as a matter of law because the court had granted the JNOV and awarded damages above the statutory cap of 100 for 000 qualified health care providers as provided in LSAR 40 The plaintiffs S 1299 2 B 42 dismissed their claims against LOSGH with full reservation of their claims against the Board Dr Humphries and the Board filed suspensive appeals of the judgment The Board assigns as error the trial court reversal of the jury verdict and s s granting of the JNOV based on the court allegedly faulty interpretation of the Medical s Malpractice Act and LSAC art 1811 and the court award of damages P C s Dr Humphries assigns as error the trial court granting of the JNOV claiming the evidence s introduced by the plaintiffs through their experts regarding the applicable standard of care was contradicted by the defendants experts making the jury verdict a s reasonable one She also assigns as error the trial court failure to give great s deference to the jury conclusion and its conditional grant of a new trial s ANALYSIS The plaintiffs burden in a medical malpractice case against a physician is to prove by a preponderance of the evidence the three elements set forth in LSAR S A 2794 9 which states in pertinent part A In a malpractice action based on the negligence of a physician the plaintiff shall have the burden of proving S 1261 licensed under R 37 et seq care 1 The degree of knowledge or skill possessed or the degree of ordinarily exercised by 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 As a result of this dismissal we will address the standard of care in this case only as it applies to Dr Humphries 3 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 2 within the involved medical specialty 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 These elements can be summarized in the context of this case as requiring Mr and Mrs Wood to prove 1 the standard of care applicable to Dr Humphries in her practice as an emergency room physician 2 Dr Humphries breach of that standard of care and 3 the causal relationship between that breach and the injuries sustained by Mr and Mrs Wood The jury verdict in this case was that the plaintiffs failed to prove the standard of care applicable to Dr Humphries Obviously if that standard of care is not known it is impossible to determine whether it was breached Therefore the jury s answer to this question required the court to enter judgment dismissing the plaintiffs case Judgment Notwithstanding the Verdict A NOV is a procedural device authorized by LSAC art 1811 by which the P C trial court may modify the jury findings to correct an erroneous jury verdict Article s 1811 states in pertinent part A 1 Not later than seven days exclusive of legal holidays after the clerk has mailed or the sheriff has served the notice of judgment under Article 1913 a party may move for a judgment notwithstanding the verdict 2 A motion for a new trial may be joined with this motion or a new trial may be prayed for in the alternative B If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or render a judgment notwithstanding the verdict C 1 If the motion for a judgment notwithstanding the verdict is granted the court shall also rule on the motion for a new trial if any by determining whether it should be granted if the judgment is thereafter vacated or reversed and shall specify the grounds for granting or denying the motion for a new trial If the 4 motion for a new trial is thus conditionally granted the order thereon does not affect the finality of the judgment 2 If the motion for a new trial has been conditionally granted and the judgment is reversed on appeal the new trial shall proceed unless the appellate court orders otherwise Article 1811 does not set out the criteria to be used when deciding a motion for JNOV However the Louisiana Supreme Court has established the standard to be used in determining whether a NOV is legally called for stating JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions not merely when there is a preponderance of evidence for the mover The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair minded persons in the exercise of impartial judgment might reach different conclusions In making this determination the trial court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non moving party This rigorous standard is based upon the principle that w there is a hen jury the jury is the trier of fact Citations omitted Joseph v Broussard Rice Mill Inc 00 0628 La 10 772 So 94 99 00 30 2d In a case such as this the trial court must first determine whether the facts and inferences point so strongly and overwhelmingly in favor of the plaintiffs that reasonable jurors could not arrive at a contrary verdict Stated simply if reasonable persons could have arrived at the same verdict given the evidence presented to the jury then a NOV is improper Cavalier v State t Dep of Transp Dev 08 0561 La App 1st Cir 9 994 So 635 644 08 12 2d An appellate court reviewing a trial court grant of a JNOV employs the same s criteria used by the trial court in deciding whether to grant the motion State Dept of Transp See Smith v Dev 041317 La 3 899 So 516 525 05 11 2d In other words the appellate court must determine whether the facts and inferences adduced at trial point so overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary finding of fact Id If the answer is in the affirmative then the appellate court must affirm the grant of the JNOV Id However if the appellate court determines that reasonable minds could differ on that finding then the trial court erred 5 in granting the NOV and the jury verdict should be reinstated Id Therefore our initial inquiry is whether the evidence at trial so overwhelmingly supported the plaintiffs on the standard of care issue that reasonable jurors could not have concluded that the plaintiffs had failed to establish the standard of care applicable to Dr Humphries treatment of Mr Wood If so then the trial court was correct in granting the NOV However if reasonable jurors in the exercise of impartial judgment might conclude from the evidence that the plaintiffs had failed to establish the applicable standard of care then the trial court erred in granting the motion and the s jury verdict should be reinstated See Gutierrez v Louisiana t Dep of TransD Dev 111774 La App 1st Cir 3 92 So 380 386 To make this determination 12 23 3d this court must examine all the trial evidence provided by the medical experts for both parties concerning the applicable standard of care Dr Craig Kennedy board certified in family practice and emergency medicine was the first expert witness called by the plaintiffs he testified as a medical doctor with a specialty in emergency room medicine He stated that in emergency medicine the physician must know how to recognize the signs and symptoms of a stroke He said that if he suspected that a patient might be having a stroke he had to transfer that patient to a medical center with more technology more testing capability and more specialists to determine if there was a stroke or not Whether working in a small or large facility the emergency room physician has the same duty to the patient to rule out the most lifethreatening thing first and get the patient into the hands where he needs to be Dr Kennedy said the standard of care for an emergency room doctor or nurse was no different in Louisiana than it was anywhere else in the country That standard included the identification of a stroke diagnosis and treatment or transfer Asked specifically about the standard of care for an emergency room physician in the treatment and diagnosis of a patient with a suspected stroke he said Well the standard of care being that which a reasonable and prudent physician would do under same or similar circumstances is number one to have the proper index what we call index of suspicion for a stroke You don diagnose what you don think of You have to have it t t 6 on your list of possibility So number one you have to be able to look at any constellation of sign and symptoms and if there any suggestion s that a stroke may be a possibility then of course the doctor has to have that on their list of possibilities We call that differential diagnosis So the standard of care requires an emergency physician who is presented with a patient with suspected stroke to have stroke on their differential diagnosis Standard of care requires an emergent a rapid fingerstick blood sugar If you suspect a stroke in a patient you have to get it a finger stick because a low blood sugar can cause strokelike symptoms So you always check the blood sugar before you send a patient to the CT scan But the next step is you get a stat CT scan Standard of care requires in the suspected stroke get a blood count You get clotting tests to get an EKG You You get chemistry panel You check sodium potassium Check kidney function And then you get cardiac enzymes Dr Kennedy then stated that the LOSGH medical records reflected that the only diagnostic test performed on Mr Wood was the CT scan and opined that the failure to perform additional diagnostic testing was a breach of the standard of care by Dr Humphries as was her failure to have an adequate suspicion for a stroke so she would take the correct action He also stated that if the patient meets the criteria for a stroke the emergency room physician should administer a clot buster medication within an hour Dr Kennedy said that given the symptoms of hypertension headache and visual problems that Mr Wood was experiencing when he went to the emergency room his case was screaming stroke He discussed Tintinalli Emergency Medicine an s authoritative text for emergency medicine practitioners and concluded that it supported his opinion that the defendants had breached the standard of care in their treatment of Mr Wood The next expert witness to testify for the plaintiffs was Dr Lanny Jay Turkewitz a neurologist with 32 years of practice Currently practicing at Baptist Hospital in Nashville Tennessee he had been director of the stroke program at Charity Hospital in New Orleans before Hurricane Katrina Dr Turkewitz had practiced at two of the hospitals where Mr Wood was treated following his stroke i St Charles Parish e Hospital and St Anne General Hospital in 7 Lafourche Parish He remembered Mr s Wood case very well because it was a difficult stroke case and Mr Wood did not do well Shown an MRI scan of Mr Wood from 2007 Dr Turkewitz pointed out the brain tissue that had died and said that the size of the stroke would have been less if Mr s Wood blood pressure had been maintained He said that especially in hypertensive patients like Mr Wood it was important to maintain the blood pressure and not lower it at all because even a small drop in blood pressure could be significant in a stroke situation He also stated that if Dr Humphries had simply covered and uncovered each eye she would have realized that Mr Wood peripheral vision deficit was in the right s quadrant of both eyes which ophthalmologic condition meant it was a problem in the brain not an Dr Turkewitz first saw Mr Wood about six p on March m 30 2005 at St Anne General Hospital eleven hours after he had been discharged from the LOSGH emergency room He believed Mr Wood was already experiencing a stroke when seen by Dr Humphries at LOSGH but her failure to conduct certain tests or to do them correctly led her to misdiagnose his condition By the time Dr Turkewitz saw Mr Wood that evening he was exhibiting all of the classic signs of a full blown stroke that had begun hours earlier Dr Richard Sobel an emergency physician for 30 years also testified on behalf of the plaintiffs He defined emergency medicine as the science of the initial evaluation and stabilization of patients at the emergency department In his opinion the care provided to Mr Wood at LOSGH did not comply with the standard of care that was reasonable under the circumstances of Mr Wood presentation to the emergency room s of LOSGH that day including the patient examination and workup the approach to the differential diagnosis of the patient and the discharge from the emergency room with a referral to an ophthalmologist He said that based on Mr Wood symptoms when he s arrived at the emergency room Dr Humphries should have had stroke as number one on her differential diagnosis list In fact he said stroke was really the only working diagnosis that the emergency physician should have been dealing with as an emergency medical condition He stated there were an array of tests that were required in the 8 workup of a stroke reiterating the types of tests described by Dr Kennedy Dr Sobel called it a whole huge database that we emergency physicians are expected to do under the standard of care when we suspecting a stroke He said a crucial test was re the cover and uncover test of both eyes called visual field testing by confrontation The standard of care required Dr Humphries to do this exam properly and document it fully It also required that she consult a neurologist to determine the proper treatment Dr Sobel stated that umber None a stroke should have been diagnosed period An ER doctor should not have had to rely on anybody else to make the diagnosis of a stroke or a suspected stroke It should have been found by a good neurological exam careful consideration of the history of the patient and his risk factors Dr Sobel said that a thorough exam would have revealed that t patient is his predestined to be a transfer to another facility with the ability to provide the necessary treatment Dr Scott Sondes a physiatrist provided expert testimony for the plaintiffs as a medical doctor with a specialty in physical medicine rehabilitative medicine and emergency room care He agreed with the opinions expressed by the other doctors whose testimony preceded his and stated If we look at this scenario we have a patient who has high blood pressure They have a headache and they have vision changes They take their blood pressure medicine the headache goes away The vision changes improved Then they come back with more vision changes and a worse headache I don need anything else to say that I want to get a t neurologist for this patient The first physician to testify on behalf of the defendants as an expert in emergency room medical care and treatment was Dr Luis Camero who served on the Board of directors of the two most recognized institutions in the world in emergency medicine The American College of Emergency Physicians and The American Academy of Emergency Physicians Dr Camero explained that the duties and responsibilities of emergency medicine doctors required each of them to be a jack of all trades He said emergency room doctors need to be able to evaluate whatever pops through our door and sometimes treat it sometimes admit to the hospital sometimes refer to the 9 appropriate facility and other times curtail lifethreatening emergencies They must also make sure that patients have followup and know what they are supposed to do when they leave the emergency department Dr Camero was a member of the Medical Review Panel that evaluated the care given to Mr Wood by Dr Humphries and LOSGH the three member panel unanimously agreed that neither of the defendants had breached the standard of care for emergency medicine in treating Mr Wood He said that he believed Dr Humphries went above and beyond the call of duty and standard of care by personally arranging a follow up appointment with an ophthalmologist doing a very thorough physical exam and providing immaculate documentation including the pertinent positives and negatives during her examination of Mr Wood He stated that Dr Humphries notations on Mr s Wood medical record indicated that she had performed a bilateral examination and found that only one eye was affected by a visual defect He also said that he found it reasonable that Dr Humphries had put an eye problem high on her differential diagnosis while putting ischemic stroke low on the differential because of the lack of focal neurological deficits in the findings based on a very very thorough physical exam Dr Camero agreed that the tests discussed by the plaintiffs experts and the medical reference book by Tintinalli described the standard of care if the fullcourt press is going on because someone having a stroke However s not all of those tests help the physician diagnose a stroke For instance while an EKG was stated as a component of the standard of care due to the possibility of atrial fibrillation the EKG was not the only way to make that diagnosis which could be determined clinically If the physician listened to the heart and heard a very regular rhythm that was sufficient to determine that there was no irregularity and an EKG would not be called for Dr Camero stated that many of the tests described as part of the standard of care were applicable only if a stroke were strongly suspected if a stroke were just remotely suspected the emergency room doctor should do a very good physical exam and a CT scan as was done in this case He said that having done those tests and having concluded that Mr Wood was not having a stroke Dr 10 Humphries did not breach the standard of care by discharging him with the instructions given Dr Richard McConnell a board certified emergency physician who also participated in the medical review panel pertaining to this case testified for the defense as a medical doctor with a specialty in emergency room medicine He reiterated the panel opinion and his own opinion that neither of the defendants breached the standard of care Specifically he said that given Mr Wood history of headaches and a recent s severe headache gradually resolving apresenting like this there are multiple nyone diagnoses that should be considered You have immediately two reasons why he could be having headaches again which were migraines and not taking his blood pressure medicine exam the He stated that Dr Humphries had performed a complete physical which was normal with the exception of the loss of vision in the right eye and headache Based on the emergency room records he concluded that Dr Humphries had correctly performed a confrontational exam which revealed only a moderate disturbance in the right eye at the right side This test further reduced the possibility of a stroke which would show an area of blindness in the same visual field of both eyes rather than a visual defect in only one eye The normal CT scan further reduced the possibility of bleeding tumor or stroke Based on the patient history and physical exam he believed that Dr Humphries ultimate clinical impression of headache rule out migraine versus secondary to uncontrolled high blood pressure and a right peripheral visual field deficit was a reasonable impression that met the standard of care Dr McConnell said various approaches to Mr Wood further s treatment would have met the standard of care including the approach taken by Dr Humphries Dr McConnell said several times that Tintinalli smedical reference book did not establish the applicable standard of care for emergency room physicians explaining Emergency medicine textbooks are not authoritative They are written for the purpose of being in the hands of practicing emergency doctors to be used to assist them in making decisions in managing the patients in the ER They are not written for the purpose of establishing standard of care 11 This is not standard of care The textbook is not standard of care These are suggestions for treating physicians re They not written to be the standard of care He said the standard of care was what a reasonable physician like himself practicing emergency medicine would do in a similar situation for the particular patient that is being evaluated Dr McConnell was questioned about certain of the recommendations in an article in Stroke a journal published by the American Heart Association and agreed that this article discussed General Supportive Care in the Treatment of Acute Complications of Stroke which established the standard of care for treatment of a stroke after a diagnosis has been made However it did not establish the standard of care for diagnosing stroke in every case Dr McConnell said that in this case with this particular patient this history this physical exam and the results of the eye examination it was not necessary to do cardio monitoring and lab work as the Stroke article and Tintinalli stextbook might otherwise recommend In ruling on the NOV the trial court stated I think the jury made a mistake in this case I think the jury was confused between standard of care and burden of proof I think the jury made a mistake I think the jury I mean nobody disputed what the standard of care is in this case None of the doctors none of the people on the witness stand had anything different to say about what the standard of care was I mean they couldn They couldn say that with t t a straight face from the witness stand The standard of care when a person walks into an emergency room complaining of visual defects and a headache that woke him up at whatever time three two three o in the morning and about what clock you do with that person is what this case was all about and all of the doctors that testified talked about what happened and whether they thought what the testimony of Camero and McConnell was about was whether or not Dr Humphries did what she was supposed to do with what was presented to her So there was no dispute about the standard of care So did the plaintiff scarry their burden of proof I think they did I think the plaintiff sproved even through the testimony of Camero and McConnell what the standard of care was So I don think there any t s that no reasonable juror question of course the law doesn talk about t a confused juror but a reasonable juror should have been able to comprehend that the standard of care was not the issue in this case And they couldn get to that point t In this case I think the jury made a mistake 12 I think that the inferences and the facts are overwhelmingly in favor of the plaintiff son the point of whether the plaintiff scarried their burden of proof on the standard of care So the NOV is granted to that point After reviewing the testimony of the medical experts in this case we are forced to disagree with the trial court conclusion that no reasonable juror could conclude that s the plaintiffs had failed to establish the standard of care applicable to Dr Humphries Although the experts were in agreement about certain factors making up the standard of care in this situation they disagreed on many other factors For instance although the medical experts agreed that Mr Wood history and symptoms indicated that he s might be having a stroke when he entered the emergency room they disagreed on whether other diagnoses such as recurrent migraines failure to take his blood pressure medicine or the presence of a detached retina could also reasonably be high on the list of possibilities in the differential diagnosis Some of the experts particularly Drs Kennedy and Sondes stated that the first action that should have been taken in this situation was to consult a neurologist or transfer Mr Wood to a better equipped hospital while others believed such steps were necessary only if the CT scan and other physical tests were consistent in pointing to a stroke as the cause of Mr Wood s symptoms The experts who testified on behalf of Mr and Mrs Wood listed numerous tests such as an EKG and cardio monitoring that they felt were necessary components of the standard of care whenever a stroke was suspected the physicians testifying on behalf of the doctor did not agree that these tests were always needed or that they should have been performed in this case The experts also disagreed on whether it was ever acceptable to discharge a patient when the possibility of a stroke had not been completely eliminated from the differential diagnosis no matter how remote that possibility was after performing various diagnostic tests and observing the patient Given this considerable disagreement among the medical experts a reasonable person could conclude that the plaintiffs had not established the standard of care applicable to Dr Humphries by a preponderance of the evidence presented at trial Therefore we conclude that the court granting of the motion for a NOV constituted legal error and s 13 must be reversed Motion for New Trial Under LSA C art 1811 if the trial court grants a NOV it must also P 1 C rule on whether a new trial should be granted in the event the appellate court vacates or reverses the NOV The trial court must also specify the grounds for the grant or denial of the motion for a new trial The trial court in this case stated that its reasons for granting the new trial were the same as those justifying the entry of the JNOV Therefore the court satisfied the requirements of Article 1811 According to 1 C Article 1811 if the motion for a new trial has been conditionally granted and the 2 C JNOV is reversed on appeal the new trial shall proceed unless the appellate court orders otherwise Therefore we must consider whether the conditional granting of the motion for a new trial was appropriate in this case As provided in LSA C art P 1972 a new trial shall be granted upon contradictory motion where 1 the verdict or judgment appears clearly contrary to the law and evidence 2 important evidence is obtained after trial or 3 the jury was either bribed or behaved improperly These provisions constitute the peremptory grounds for granting a motion for new trial Pursuant to LSAC art 1973 a new P C trial may be granted if there is good ground for it except as otherwise provided by law This article provides the trial court with discretionary authority to grant a new trial The standard of review of a judgment on a motion for new trial whether on peremptory or discretionary grounds is that of abuse of discretion See Magee v Pittman 981164 La App 1st Cir 5 761 So 731 746 writ denied 001694 00 12 2d La 9 768 So 31 602 The breadth of the trial court discretion to order a 00 22 2d s new trial varies with the facts and circumstances of each case Horton v Mayeaux 05 1704 La 5 931 So 338 344 When the trial court grants a new trial based 06 30 2d on Article 1972 mandatory ground of a jury verdict being contrary to the law and the s evidence the appellate court must review the record in view of the specific law or evidence found to conflict with the jury verdict to determine whether the trial court 14 abused its discretion in granting a new trial Martin v Heritage Manor South 00 1023 La 4 784 So 627 637 01 3 2d A motion for new trial requires a less stringent test than a motion for NOV as its determination involves only the issue of a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury Law v State ex rel Dept of Transp Dev 03 1925 La App 1st Cir 11 909 So 1000 1006 writs 04 17 2d denied 04 3154 and 043224 La 4 901 So 1062 Whether to grant a new 05 29 2d trial requires a discretionary balancing of many factors Id In deciding whether to grant a new trial the trial court may evaluate the evidence without favoring either party it may draw its own inferences and conclusions and it may evaluate witness credibility to determine whether the jury erred in giving too much credence to an unreliable witness Joseph 772 So at 104 2d A motion for new trial based solely on the ground of being contrary to the evidence is directed squarely at the accuracy of the s jury factual determinations and must be viewed in that light Thus the jury verdict s should not be set aside if it is supportable by any fair interpretation of the evidence Davis v Wal Mart Stores Inc 00 0445 La 11 774 So 84 93 citing Gibson 00 28 2d v Bossier City Gen Hosp 594 So 1332 La App 2nd Cir 1991 2d The trial court in this case conditionally granted the new trial on the same grounds on which the NOV was granted namely that the jury made a mistake in concluding that the plaintiffs had not established the standard of care applicable to Dr Humphries by a preponderance of the evidence The trial court found that the evidence establishing the standard of care was so overwhelming that no reasonable juror could have concluded that the plaintiffs had not proved that element of their case Examining the trial court conclusion in the light of the peremptory and discretionary grounds for s granting a motion for new trial it appears that the motion for new trial was granted because the jury verdict was contrary to the evidence presented by Mr and Mrs Wood concerning the standard of care If that were the case LSAC art 1972 would P C mandate the granting of a new trial 15 However this court review of the testimony of all the medical experts led us to s conclude that there was significant disagreement among them as to the applicable standard of care such that a reasonable juror could find that this element of the plaintiffs case had not been established In a number of cases courts have concluded that when a JNOV is reversed based on the appellate court determination that the s s jury verdict was reasonably supported by the evidence presented at trial the alternative request for a new trial should also be denied or reversed on appeal See Trunk v Medical Ctr of Louisiana at New Orleans 040181 La 10 885 So 04 19 2d 534 540 Because we have previously concluded in reversing the JNOV that the s jury verdict was reasonable in light of the evidence presented we find that plaintiff is not entitled to a new trial Davis v Witt 023102 La 7 851 So 1119 1134 03 2 2d When any fair interpretation of the evidence supports the jury verdict the grant of a s new trial must be reversed VaSalle v WalMart Stores Inc 01 0462 La 11 01 28 801 So 331 342 Because we have previously concluded in reversing the NOV 2d that the jury verdict is reasonable in light of the evidence presented we find that s plaintiffs are not entitled to a new trial Yohn v Brandon 01 1896 La App 1st Cir 02 27 9 835 So 580 587 writ denied 02 2592 La 12 831 So 989 As 2d 02 13 2d with the supreme court in VaSalle we have concluded that the jury verdict was s reasonable in light of the evidence presented and therefore the plaintiff was not entitled to a new trial In re Gramercy Plant Explosion at Kaiser 041151 La App 5th Cir 3 927 So 492 502 writ denied 061003 La 6 929 So 06 28 2d 06 14 2d 1271 hen W a JNOV is reversed on determination that the jury verdict was s reasonable in light of the evidence presented the conditional new trial also should be reversed We find such reasoning is applicable to this case In reversing the trial court s grant of a JNOV we determined that the evidence in the record supported the jury s verdict that the plaintiffs had failed to prove the standard of care applicable to the defendants treatment of Mr Wood We further found that the jury verdict was s 16 reasonable given the diverse opinions expressed by the medical experts Thus the s jury verdict was supportable by any fair interpretation of the evidence See Davis 774 So at 93 Therefore Mr and Mrs Wood were not entitled to a new trial on the 2d basis that the jury verdict was contrary to the law and the evidence s Furthermore our review of the record discloses no other grounds peremptory or discretionary which a motion for new trial could have been granted See LSA upon P C arts 1972 and 1973 A conditional grant of a new trial is not to be used to give the losing party a second bite at the apple without facts supporting a miscarriage of justice that would otherwise occur Joseph 772 So at 105 Accordingly we find 2d that the trial court abused its discretion in conditionally granting the plaintiffs motion for a new trial CONCLUSION For all of the above reasons the June 20 2011 judgment of the trial court granting a JNOV in favor of Mr and Mrs Wood and conditionally granting a new trial is hereby reversed and the jury verdict is reinstated together with the April 13 2011 s judgment rendered in accordance with the jury verdict s All costs of this appeal are assessed to Mr and Mrs Wood REVERSED JURY VERDICT REINSTATED JUDGMENT OF APRIL 13 S 2011 REINSTATED 17 STATE OF LOUISIANA DUANE WOOD AND TORRIE WOOD COURT OF APPEAL VERSUS FIRST CIRCUIT DR SHAWN HUMPHRIES AND LADY 2011CA2161 NO OF THE SEA GENERAL HOSPITAL CARTER C concurring J J I do not agree with the jury verdict but I cannot say that the evidence points so strongly in favor of the moving party that reasonable persons could not reach a different conclusion Resolving all reasonable inferences or factual questions in favor of the non moving party I reluctantly agree with the majority opinion that a JNOV in this case was improper under the above standards Further although I do not agree with the jury verdict I agree with the majority opinion that the jury verdict was not unreasonable Therefore Mr and Mrs Wood were not entitled to the trial s judge conditionally granting a new trial
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