Opinion
NUMBER 2015 CA 1173
06-03-2016
MARGAREE HANEY v. DR. JANET E. LEWIS
Leonard Cardenas, III Baton Rouge, LA Attorney for Appellee Plaintiff - Margaree Haney Janie Languirand Coles Garrett S. Callaway Jonathan E. Thomas Baton Rouge, LA Attorneys for Appellants Defendants - Janet E. Lewis, M.D. and Louisiana Medical Mutual Insurance Company William C. Rowe, Jr. Joseph S. Manning Baton Rouge, LA Attorneys for Appellant Louisiana Patient's Compensation Fund and Louisiana Patient's Compensation Fund Oversight Board
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 596837 Honorable Janice Clark, Judge Leonard Cardenas, III
Baton Rouge, LA Attorney for Appellee
Plaintiff - Margaree Haney Janie Languirand Coles
Garrett S. Callaway
Jonathan E. Thomas
Baton Rouge, LA Attorneys for Appellants
Defendants - Janet E. Lewis, M.D.
and Louisiana Medical Mutual
Insurance Company William C. Rowe, Jr.
Joseph S. Manning
Baton Rouge, LA Attorneys for Appellant
Louisiana Patient's Compensation
Fund and Louisiana Patient's
Compensation Fund Oversight Board BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
The defendants, Dr. Janet E. Lewis and her insurer, Louisiana Medical Mutual Insurance Company ("LAMMICO") and the statutory intervenor, the Louisiana Patient's Compensation Fund and the Louisiana Patient's Compensation Fund Oversight Board (collectively, "PCF") appeal a judgment rendered in accordance with a jury verdict and a judgment granting judgment notwithstanding the verdict ("JNOV") and taxing defendants with costs, which were rendered in favor of the plaintiff, Margaree Haney. For the reasons that follow, we affirm the judgment rendered in accordance with the jury verdict; we affirm that part of the judgment granting JNOV; and we amend the judgment of the trial court taxing costs against the defendants, and as amended, that part of the judgment is affirmed.
See former La. R.S. 40:1299.44, which was re-designated La. R.S. 40:1231.4 pursuant to H.C.R. No. 84 of the 2015 Regular Session, effective June 2, 2015.
I. FACTUAL AND PROCEDURAL HISTORY
A . Prior Factual and Procedural History
The factual and procedural history of this case is set forth in more detail in this Court's prior opinions in this matter, Haney v. Lewis, 2013-2053 (La. App. 1st Cir. 9/8/14) (unpublished), writs denied, 2014-2087, 2089 (La. 11/26/14), 152 So.3d 907, 908 ("Haney (I)") and Haney v. Lewis, 2014-0935 (La. App. 1st Cir. 12/23/14) (unpublished), writ denied, 2015-0085 (La. 4/2/15), 163 So.3d 797 ("Haney (II)"). Essentially, on the morning of March 24, 2008, Dr. Lewis, performed a total knee replacement surgery on Mrs. Haney's left knee at Greater Baton Rouge Surgical Hospital ("BRSH"). The surgery began at approximately 9:00 a.m. and concluded around 10:00 a.m. Haney (I), 2013-2053 at p. 2.
After the surgery was complete and while they were still in the operating room, Dr. Lewis discovered that Mrs. Haney did not have a pulse in one of the main arteries of her left foot, which indicated a blood flow problem. Around 10:37 a.m., Mrs. Haney was moved to a recovery room, with Dr. Lewis at her bedside, where Dr. Lewis continued to attempt to locate the pulse and warm up the foot in the hopes of restoring blood flow. Dr. Lewis called Dr. Sam, a vascular surgeon, and explained the situation. Dr. Sam told Dr. Lewis to immediately transfer Mrs. Haney to the Baton Rouge General Hospital ("BR General"), which was the closest facility with the services needed to provide care for Mrs. Haney. Haney (I), 2013-2053 at pp. 2 and 10.
Dr. Lewis wrote the orders to transfer Mrs. Haney to the BR General at 10:40 a.m. and ordered a stat arterial blood flow study be done at that facility. At 11:50 a.m., at Dr. Lewis's request, a call was placed to the BR General, and it was reported that Mrs. Haney's name was on their board and they were still working to get a bed for Mrs. Haney. At 12:00 p.m., Kristan Smith, the head nurse at BRSH, telephoned the BR General, requested status on the bed, and stated that she would try to get the arterial study done at BRSH while waiting for the bed at BR General. A technician from the vascular lab performed the arterial study at 12:55 p.m. Haney (I), 2013-2053 at pp. 2-3 and 11.
Dr. Sam spoke to Dr. Lewis a second time after the initial consultation for a status update on where Mrs. Haney was in the transportation process. Mrs. Haney was eventually picked up by ambulance from BRSH at 2:10 p.m., and she arrived at BR General at 2:45 p.m. Mrs. Haney was admitted to the BR General at 3:00 p.m., and at 3:40 p.m., she was taken to a special procedures unit where Dr. Sam performed a blood flow study to determine whether he could restore blood flow without having to perform surgery. Dr. Sam discovered that was not possible, and Mrs. Haney required surgery. Mrs. Haney arrived in the operating room at 5:56 p.m., where surgery was performed by Dr. Sam to repair her popliteal artery, which, undisputedly, had been injured during the knee replacement surgery. Due to the injury to Mrs. Haney's popliteal artery during the knee replacement surgery, or because of the lapse of time between the injury and the surgical repair to restore blood flow to Mrs. Haney's leg, or a combination of both, Mrs. Haney developed "foot drop," a permanent neurological injury to her left extremity. Haney (I), 2013-2053 at pp. 3 and 11-12.
On November 18, 2010, Mrs. Haney filed a medical malpractice lawsuit against Dr. Lewis and later added Dr. Lewis's insurer, LAMMICO, as a defendant. Mrs. Haney alleged that Dr. Lewis breached the standard of care and was negligent in the performance of her total knee replacement surgery, during which Dr. Lewis admittedly injured the popliteal artery in her leg. Mrs. Haney further alleged that Dr. Lewis breached the standard of care and maintenance by failing to get her to a vascular surgeon to repair the injured artery within the appropriate window of time to prevent the nerve damage she ultimately suffered. Following a three-day jury trial, the jury returned a verdict finding that Dr. Lewis was not negligent in her treatment of Mrs. Haney. The trial court entered judgment in accordance with the jury verdict on May 17, 2013, and dismissed Mrs. Haney's lawsuit, with prejudice, at her costs. Haney (I), 2013-2053 at pp. 4-5.
Prior to filing suit, a medical review panel was convened to evaluate Mrs. Haney's malpractice claim against Dr. Lewis, since she was a qualified healthcare provider for the purpose of the Medical Malpractice Act. The medical review panel concluded that there was no deviation from the appropriate standard of medical care by Dr. Lewis. In so doing, the panel found that consent was proper for the procedure, observed that arterial injury was a known potential complication of the procedure, and found that Dr. Lewis discussed this with Mrs. Haney when obtaining her consent. The panel further noted that when Mrs. Haney arrived in the recovery room, the lack of pulse in her extremity was noted by Dr. Lewis, and the panel concluded that the appropriate referrals and consults were timely made to address this complication. Haney (I), 2013-2053 at p. 3.
Subsequently, Mrs. Haney filed a motion for a JNOV, a motion for a conditional new trial, or alternatively, a new trial. On July 29, 2013, the trial court held a hearing on the motions. During the hearing, the trial court found that different triers of fact could have reasonably come to different conclusions with respect to Dr. Lewis's conduct during the surgery. However, the trial court granted the JNOV on the issue of Dr. Lewis's subsequent care and management of Mrs. Haney and limited the JNOV to the care and management of Mrs. Haney as regards to her "belated transport" and "belated surgery." On October 2, 2013, the trial court awarded damages in favor of Mrs. Haney and conditionally granted Mrs. Haney's motion for new trial in the event that the JNOV was reversed on appeal. The trial court's ruling stated that the motion for a new trial was conditionally granted for the reasons enumerated in the granting of the JNOV and because: (1) the verdict was contrary to the law and evidence and jury confusion prevented impartial and fair administration of justice, (2) good grounds existed to grant a new trial to prevent a miscarriage of justice, and (3) "the five or six hours of inexcusable delay in obtaining medical intervention at the [ BR ] General with Dr. Sam [was] unreasonable under the circumstances." Haney (I), 2013-2053 at pp. 5-6.
On October 10, 2013, the trial court signed a judgment granting, in part, Mrs. Haney's motion for JNOV, setting aside and vacating the jury verdict and the judgment for defendants, and entering judgment in favor of Mrs. Haney. The judgment awarded damages to Mrs. Haney and conditionally granted the motion for new trial. On October 18, 2013, the trial court signed an amended judgment incorporating all of the rulings from the October 10, 2013 judgment, and entering judgment against the defendants in the amount of $100,000.00 and against the PCF in the amount of $578,574.36. Both judgments were silent as to costs. Haney (I), 2013-2053 at pp. 6-7; Haney (II), 2014-0935 at p. 2.
The defendants appealed the October 2, 10, and 18, 2013 judgments. Haney (I), 2013-2053 at p. 7. On September 8, 2014, this Court reversed the JNOV, reinstated the jury verdict, reversed the damage awards, and affirmed the judgment conditionally granting the new trial. We remanded the case to the trial court for further proceedings consistent with our opinion in Haney (I). See Haney (I), 2013-2053 at pp. 17-18, 20, and 24. Mrs. Haney and the defendants filed writs with the Louisiana Supreme Court, both of which were denied. See Haney v. Lewis, 2014-2087, 2089 (La. 11/26/14), 152 So.3d 907, 908.
Previously, while the above appeal was pending, Mrs. Haney filed a motion to tax costs. Following a hearing on December 2, 2013, the trial court entered judgment taxing specific costs against the defendants, including, but not limited to filing fees to the district court clerk of court in the amount of $1,307.50. The defendants suspensively appealed that judgment, and this Court affirmed the award of costs in favor of Mrs. Haney. Haney (II), 2014-0935 at pp. 3, 5.
B . Current Factual and Procedural History
Following our remand in Haney (I), on February 19, 2015, Mrs. Haney filed a motion in limine seeking a pre-trial evidentiary ruling with respect to testimony interpreting the word "bed," which appeared in the nurses' notes concerning the efforts to transfer Mrs. Haney to the BR General. Essentially, Mrs. Haney sought a ruling that would prohibit the defendants or any defense witness from attempting to give any "speculative" and "unintended" meaning to the term "bed." After a hearing on March 12, 2015, the trial court granted the motion in limine. In addition, the trial court further ruled that "the trial would proceed in accordance with trial practice and would not be a limited trial."
The record before us does not contain a judgment with respect to these two rulings by the trial court. However, these two rulings are set forth in the trial court's minutes on March 12, 2015. In addition, we note that the defendants filed two supervisory writ applications in response to these two rulings by the trial court, both of which were denied by this Court. See Haney v. Lewis, 2015-0451 (La. App. 1st Cir. 3/20/15) (unpublished writ action) and Haney v. Lewis, 2015-0452 (La. App. 1st Cir. 3/20/15) (unpublished writ action).
This matter then proceeded to a jury trial on March 25, 26, 27, and 30, 2015. The jury rendered judgment in favor of Mrs. Haney, finding that Dr. Lewis was negligent in her treatment of Mrs. Haney, that Mrs. Haney suffered injury as a result of the negligence of Dr. Lewis, and awarded Mrs. Haney damages in the total amount of $475,000.00. Specifically, the jury awarded Mrs. Haney $75,000.00 in medical expenses; $100,000.00 in physical pain and suffering; $50,000.00 in mental/emotional pain and suffering; $0.00 for loss of enjoyment of life; and $250,000.00 for disability. A judgment in accordance with the jury verdict was signed by the trial court on April 23, 2015.
This judgment further ordered "that in accordance with [former La. R.S.] 40:1299[, et seq.], all damages in excess of $100,000.00 plus judicial interest [was] the legal responsibility of and [were] to be paid by the [PCF]." See footnote 1. Thus, judgment was rendered in favor of Mrs. Haney and against Dr. Lewis and LAMMICO in the amount of $100,000.00, plus legal interest from the date of demand, and in favor of Mrs. Haney and against the PCF in the amount of $375,000.00, plus legal interest from the date of demand.
On April 15, 2015, Mrs. Haney filed a motion to tax costs, seeking that the defendants be cast with certain expenses and costs incurred by her in connection with the trial. In this motion, Mrs. Haney sought to recover not only specific costs incurred for the second trial, but also filing fees paid to the district court clerk of court that preceded the second trial, which were apparently omitted from her first motion to tax costs. In addition, on April 16, 2015, Mrs. Haney filed a motion for JNOV and additur, or alternatively for a new trial, on the issue of past medical expenses awarded by the jury, seeking therein to increase the jury's award of past medical expenses from $75,000.00 to $235,777.61.
Pursuant to a judgment signed on June 17, 2015, the trial court granted Mrs. Haney's motion for JNOV and increased the jury's award of past medical expenses to the total sum of $235,777.61. In addition, the trial court granted Mrs. Haney's motion to tax costs and cast the defendants with specific costs, including but not limited to, all clerk of court costs incurred by Mrs. Haney since the inception of this suit (less any amounts previously paid by the defendants), expert witness fees, copy costs of certified medical records, and deposition and trial video expenses for expert witnesses.
Both the defendants, Dr. Lewis and her insurer, LAMMICO, and the intervernor, the PCF, have suspensively appealed the April 23, 2015 judgment in accordance with the jury verdict and the June 17, 2015 judgment granting Mrs. Haney's motion for JNOV and taxing the defendants with costs.
ASSIGNMENTS OF ERROR
On appeal, Dr. Lewis and LAMMICO urge seven assignments of error, and the PCF urges six assignments of error. Collectively, these assignments of error are as follows:
(1) The trial court abused its discretion when it ruled that the new trial would not be limited to the issue of "the care and management of the patient as regards to the related transport of the latest surgery."
(2) The trial court abused its discretion and manifestly erred in granting the plaintiff's motion in limine to prohibit or exclude the defendants or any defense witness from offering testimony relating to the meaning of the word "bed."
(3) The trial court's procedure for voir dire and jury selection was erroneous, contrary to the method dictated by La. C.C.P. art. 1766(B), and deprived the defendants of at least one peremptory challenge.
(4) The trial court abused its discretion in allowing the plaintiff to cross-examine the defendant doctor about another unrelated patient, who also developed complications after a knee replacement surgery, because the line of questioning was both irrelevant and overly prejudicial.
(5) The trial court's jury instructions misled the jury to the extent that it was prevented from administering justice and the trial court manifestly erred in failing to give a requested jury instruction and to inform the parties of the instructions it intended to give to the jury within a reasonable time prior to the time the parties presented their arguments to the jury.
(6) The trial court abused its discretion in granting the plaintiff's motion for JNOV/additur and setting aside the jury's award of past medical expenses.
(7) The trial court abused its discretion in granting the plaintiff's motion to tax costs.
II. LAW AND DISCUSSION
A . Scope of the New Trial
(Dr. Lewis and LAMMICO's Assignment of Error Number 1)
As previously set forth, after the first jury verdict was rendered in this case, the plaintiff filed a motion for JNOV and for conditional new trial, or alternatively for a new trial. The trial court granted the JNOV solely on the issue of Dr. Lewis's post-surgical care of Mrs. Haney—the "belated transport" and "belated surgery"—and not on the allegation that Dr. Lewis had performed the knee replacement surgery negligently. Haney (I), 2013-2053 at pp. 6 and 9. The trial court subsequently granted Mrs. Haney a conditional new trial for the reasons enumerated in granting the JNOV and because the verdict was contrary to the law and evidence and jury confusion prevented impartial and fair administration of justice; good grounds existed to grant a new trial to prevent a miscarriage of justice; and "the five or six hours of inexcusable delay in obtaining medical intervention at the [ BR ] General with Dr. Sam [was] unreasonable under the circumstances." Haney (I), 2013-2053 at pp. 6 and 22. This Court reversed the JNOV, reinstated the jury verdict, affirmed the trial court's ruling that conditionally granted the plaintiff a new trial, and remanded the matter to the trial court. Haney (I), 2013-2053 at pp. 18 and 24. On remand, the trial court's minutes reflect that it ordered that the new trial of this matter "would proceed in accordance with trial practice and would not be a limited trial."
On appeal, the defendants contend that the trial court abused its discretion in allowing a full new trial because that ruling was contrary to its reasons for granting the JNOV and the conditional new trial. They argue that the new trial of this matter should have been limited to the specific aspects of Mrs. Haney's medical treatment that were the grounds for the issuance of the JNOV and conditional new trial—i.e., Dr. Lewis's post-surgical care of Mrs. Haney—and that the new trial should not have included the issue of whether Dr. Lewis had performed the knee replacement surgery negligently.
Louisiana Code of Civil Procedure article 1971 allows a new trial to be granted as "to all or any of the parties and on all or part of the issues, or for reargument only." Furthermore, implicit in the authority granted to the trial court pursuant to La. C.C.P. art. 1971 is the power to define and limit the scope of the new trial. Capitol Nursing Home, Inc. v. Nixon, 99-0378 (La. App. 1st Cir 3/31/00), 764 So.2d 1016, 1019, writ denied, 2000-1234 (La. 6/16/00), 765 So.2d 336. A trial court has virtually unlimited discretion to grant a new trial when it is convinced that a miscarriage of justice has resulted, and, unless an abuse of discretion can be demonstrated, a trial court's action in granting or denying a new trial on discretionary grounds will not be reversed. Id.
In Haney (I) 2013-2053 at p. 24, we found no abuse of the trial court's great discretion in conditionally granting the motion for new trial on the basis of jury confusion. We noted that the jury heard evidence that a popliteal artery injury was a known risk of total knee replacement surgery and that the jurors sought to obtain the consent form signed by Mrs. Haney because they wanted to know whether the vascular risks of the surgery were set forth on that form and whether they were explained to Mrs. Haney. We also noted that it was apparent to the trial court, during its discussions with the jury, that the jury was confused on the liability issue, and that the trial court ultimately concluded that this jury confusion could have contributed to the jury's decision to absolve Dr. Lewis of any liability under the circumstances of the case. Accordingly, we affirmed the trial court's ruling. Further, because this Court upheld the trial court's granting of the new trial on discretionary grounds, we did not address the peremptory grounds on which the trial court's grant of the motion for a conditional new trial was based.
From our review of the record, and as set forth in our decision in Haney (I), we note that the trial court clearly stated in her ruling that the conditional new trial was being granted not only for the same reasons it granted the JNOV (the delay in obtaining medical intervention to repair Mrs. Haney's damaged popliteal artery), but it was also being granted for several other reasons, one of which was jury confusion on the issue of liability. Based on this finding, we cannot say that the trial court abused its vast discretion in allowing the scope of the new trial to include all aspects of Dr. Lewis's liability and in declining to limit the scope of the new trial to Dr. Lewis's post-surgical care of Mrs. Haney. Accordingly, we find no merit to this assignment of error.
B . Motion in Limine
(Dr. Lewis and LAMMICO's Assignment of Error Number 2;
PCF's Assignment of Error Number 5)
As set forth above, on remand Mrs. Haney filed a motion in limine seeking to limit defense testimony with respect to the meaning of the word "bed," as used in the nursing notes with respect to the efforts made to transfer Mrs. Haney from BRSH to the BR General for surgery by Dr. Sam. The nurses' notes, which were attached to the motion in limine, specifically refer to their efforts to locate a "bed" at BR General. Through the motion in limine, Mrs. Haney sought to avoid any testimony or reference by the defense or any defense witness as to what the authoring nurse meant, in her notes, when she used the term "bed." Specifically, Mrs. Haney sought a ruling that would prohibit the defendants or any defense witness from attempting to give any "speculative" and "unintended" meaning to the term "bed." After a hearing, the trial court granted the motion in limine.
On appeal, the appellants contend that the trial court abused its discretion in excluding proposed testimony from their experts regarding the word "bed" because the ruling improperly prevented their witnesses from clarifying the meaning of the word "bed, as that term is used in the medical field, which they claim was necessary for the jury to adequately understand and interpret the medical records. Notably, at the trial of this matter, the author of the nurses' notes at issue, Kristan Smith, was questioned by both parties on the contents of her notes, including what she meant by the word "bed."
The trial court has great discretion when considering evidentiary matters such as motions in limine. Heller v. Nobel Insurance Group, 2000-0261 (La. 2/2/00), 753 So.2d 841. Except as otherwise provided by law, all relevant evidence is admissible. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. Whether evidence is relevant is within the discretion of the trial court and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. Hunter v. State ex rel. LSU Medical School, 2005-0311 (La. App. 1st Cir. 3/29/06), 934 So.2d 760, 763, writ denied, 2006-0937 (La. 11/3/06), 940 So.2d 653. Furthermore, although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403; see also La. C.E. art. 607(D)(2).
A trial court's interlocutory rulings on motions in limine, and other evidentiary rulings, are reviewable on appeal subject to the provisions of La. C.C.P. art. 1636. However, the evidence excluded by the trial court below must be available for our appellate review. Tatum v. United Parcel Service, Inc., 2010-1053 (La. App. 5th Cir. 11/15/11), 79 So.3d 1094, 1104, writ denied, 2011- 2783 (La. 2/17/12), 82 So.3d 290. The very purpose of requiring a proffer is to preserve excluded testimony so that the testimony, whatever its nature, is available for appellate review. McLean v. Hunter, 495 So.2d 1298, 1305 (La. 1986). Without a proffer, appellate courts have no way of ascertaining the nature of the excluded testimony. Id. Thus, in order for this court to review evidence excluded by the trial court either in trial or in a motion in limine, the party must comply with La. C.C.P. art. 1636 to preserve the evidence. Tatum, 79 So.3d at 1104. It is well-settled that error may not be predicated upon a ruling that excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by counsel. Tatum, 79 So.3d at 1104-1105; see La. C.E. art. 103(A)(2). In those instances, it is incumbent upon the party who contends his evidence was improperly excluded to make a proffer, and if he fails to do so, he cannot contend that the exclusion of such evidence was erroneous. Tatum, 79 So.3d at 1104-1105.
Louisiana Code of Civil Procedure article 1636(A) provides that "[w]hen the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence."
In this case, although the appellants claim in their brief to this Court that the term "bed" has a different meaning in the medical field than the lay or common meaning of the word, the record before us does not contain a proffer of the substance of any evidence or testimony from a defense witness regarding the meaning of the word "bed" in the medical field and whether that meaning is different than the lay meaning of the term "bed." Since it was incumbent upon the defendants, who contend that such testimonial evidence was improperly excluded, to make a proffer, and since the defendants failed to do so, they cannot now contend that the exclusion of such evidence was error. Accordingly, the trial court's ruling on the motion in limine was not properly preserved for appeal and these assignments of error lack merit.
C . Voir Dire and Jury Selection Process
(Dr. Lewis and LAMMICO's Assignment of Error Number 3;
PCF's Assignment of Error Number 1)
In these assignments of error, the appellants contend that the trial court's voir dire and jury selection process violated La. C.C.P. art. 1766.
La. C.C.P. art. 1766 provides:
A. After a juror has been examined as provided in Article 1763, the court may excuse the juror and if the court does not do so, either party may challenge the juror for cause.
B. If a juror has not been excused for cause, a peremptory challenge may be made by any party. The court shall alternate between the sides when making initial inquiry as to whether any party wishes to exercise a peremptory challenge to that juror.
C. After the entire jury has been accepted and sworn, no party has a right to challenge peremptorily.
D. Peremptory challenges of jurors shall be made and communicated to the court in a side bar conference of the judge, the attorneys conducting the examination and selection of jurors, and the plaintiff or defendant in a case in which the plaintiff or defendant chooses to represent himself. The conference shall be conducted in a manner that only the court, the attorneys, and the plaintiff or defendant in a case in which the plaintiff or defendant chooses to represent himself, are aware of the challenges made until the court announces the challenges without reference to any party or attorney in the case. The side bar conference shall be conducted on the record and out of the presence of the prospective jurors.
The record reflects that the trial court called twenty-two potential jurors. After counsel for both parties conducted voir dire, the trial court instructed the parties' counsel to execute a challenge form wherein they were to list the name and juror number of any juror they wished to challenge, indicate whether that challenge was for cause or peremptory, and then give the forms to the trial court. On the plaintiff's form, one juror was challenged for cause and five jurors were peremptorily challenged. On the defendants' form, one juror was challenged for cause and two jurors were peremptorily challenged. Notably, one of the challenged jurors was challenged peremptorily by both the plaintiff and the defendants. The trial court excused both jurors that the parties had challenged for cause and then excused the remaining six jurors that had been peremptorily challenged by the parties, which left fourteen potential jurors remaining from the first panel. The trial court then accepted and swore in the first twelve potential jurors and dismissed the last two jurors.
Based on our review of the record, we agree with the appellants that the jury selection process utilized by the trial court failed to comply with La. C.C.P. art. 1766 because the trial court did not alternate between sides with regard to the peremptory challenges to the jurors. However, despite the clearly improper method of jury selection utilized by the trial court, a thorough review of the record shows no objection by the defendants with regard to the method of jury selection prior to the entire jury having been accepted and sworn. See LeBlanc v. Landry, 2008-1643 (La. App. 1st Cir. 6/24/09), 21 So.3d 353, 363, writ denied, 2009-1705 (La. 10/2/09), 18 So.3d 117 (providing that the failure to object to the jury selection process prior to the jury being accepted and sworn precludes the issue from being raised for the first time on appeal).
Although it is apparent from the colloquy between counsel for the defendants and the trial court during the jury selection process that counsel for the defendants asked several questions of the trial court regarding the procedure being utilized because it was not what was "typically" done and that they specifically asked for clarification with respect to what would happen if both sides struck the same juror, the record does not reflect that the defendants objected to the procedure. "In legal proceedings, to object ... is to interpose a declaration to the effect that the particular matter or thing under consideration is not done or admitted with the consent of the party objecting, but is by him considered improper or illegal Black's Law Dictionary, 967 (5th Ed. 1979). Following the trial court's responses to defense counsel's questions and its clarification of the procedure to be used, defense counsel twice stated "okay" and then stated "thank you." We cannot say such responses amounted to an objection or otherwise a declaration that the process being utilized was without their consent or was improper. Accordingly, the appellants, having failed to specifically object to the procedure utilized by the trial court prior to the jury being selected and sworn and setting forth the grounds therefor, are precluded from raising this issue for the first time on appeal.
Furthermore, we note that the record does not reflect that the defendants used all of the peremptory challenges that they were entitled to under La. C.C.P. art. 1764(B). As stated above, the defendants only used two peremptory challenges, including the duplicate peremptory challenge of the same juror by the plaintiff. Since the trial of this matter was by a jury of twelve, La.C.C.P. art. 1764(B) affords the defendants six peremptory challenges. Since the defendants failed to exhaust all of their peremptory challenges, we cannot say that the defendants were prejudiced by the jury selection process utilized by the trial court or that they were otherwise deprived of a fair trial. See generally Kirby v. State ex rel. Louisiana State University Board of Supervisors, 2014-0017 (La. App. 1st Cir. 11/7/14), 174 So.3d 1, 12 and 14 (providing that any improper conduct by a trial judge constitutes reversible error only when a review of the record as a whole reveals the conduct was so prejudicial that the complaining party was deprived of a fair trial and further that the failure of a party to timely object to any impropriety constitutes a waiver of the right to complain of the alleged error on appeal). Therefore, we find no merit to these assignments of error.
D . Scope of Cross Examination of Dr. Lewis
(Dr. Lewis and LAMMICO's Assignment of Error Number 4;
PCF's Assignment of Error Number 6)
In these assignments of error, the appellants contend that the trial court erred in allowing the plaintiff to cross-examine Dr. Lewis about another patient of hers, who suffered from a complication following a total knee replacement surgery performed by Dr. Lewis, wherein Dr. Lewis had to consult with Dr. Sam. The defendants contend that this evidence was irrelevant because the circumstances involving that patient were different and that it constituted inadmissible character evidence of a prior "wrong" or "act" being used to suggest that she acted in conformity therewith. See La. C.E. art. 404(B). Following the defendant's objection, the trial court overruled the objection and allowed the evidence to come in for the purpose of establishing that Dr. Lewis knew Dr. Sam in a professional capacity and that she had his cell phone number because of their professional relationship.
Louisiana Code of Evidence article 611(B) provides that a witness may be cross-examined on any matter relevant to any issue in the case, including credibility. As set forth above, relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence; however, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. See La. C.E. arts 401 and 403. Whether evidence is relevant and admissible is within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. Boudreaux v. Mid-Continent Cas. Co., 2005-2453 (La. App. 1st Cir. 11/3/06), 950 So.2d 839, 845, writ denied, 2006-2775 (La. 1/26/07), 948 So.2d 171. Furthermore, error may not be predicated upon a ruling which admits evidence unless a substantial right of the party is affected; the harmless error analysis applies to erroneous evidentiary rulings on appeal. See La. C.E. art. 103(A); Travis v. Spitale's Bar, Inc., 2012-1366 (La. App. 1st Cir. 8/14/13), 122 So.3d 1118, 1127, writs denied, 2013-2409, 2013-2447 (La. 1/10/14), 130 So.3d 327, 329.
Based on our review of the record, we cannot say that the trial court abused its discretion in determining that this evidence was relevant and admissible. We note that the plaintiff never argued or suggested that Dr. Lewis committed malpractice on the other patient; rather, the testimony at issue came about as a result of the plaintiff questioning Dr. Lewis with respect to her professional relationship with Dr. Sam because she had previously consulted with Dr. Sam when she had a patient that developed complications from a surgical procedure she performed. Hence, the testimony was not evidence of a prior "wrong" or "act" used to suggest that Dr. Lewis acted in conformity therewith. As the trial court noted, this evidence was relevant to establishing why Dr. Lewis chose to consult with Dr. Sam and the extent of their professional relationship. In addition, on further examination, the defendant was provided the opportunity to explain, in detail, what happened with that other patient and how the complications developed by that patient were completely different than the complications developed by the plaintiff.
Furthermore, even if we were to find that the evidence concerning Dr. Lewis's other patient should not have been admitted into evidence, we find the error was harmless. Considering all of the evidence in the record that supports the jury's finding that Dr. Lewis was negligent with respect to Mrs. Haney, we find that the exclusion of the evidence with respect to Dr. Lewis's other patient would not have changed the jury's verdict, and as such, did not result in unfair prejudice to Dr. Lewis. Therefore, we find no merit to these assignments of error.
E . Jury Instructions and Charging the Jury
(Dr. Lewis and LAMMICO's Assignment of Error Number 5;
PCF's Assignment of Error Numbers 2, 3, and 4)
In these assignments of error, the appellants complain that the trial court failed to provide its jury instructions to counsel within a reasonable time and that the jury was improperly instructed because: (1) the trial court failed to give a jury charge that the parties had agreed would be included; (2) the trial court included an instruction, which the appellants claim was neither law nor an applicable legal standard, but was merely dicta from jurisprudence; and (3) the trial court included two instructions in its charges that were not applicable to the facts of this case.
Louisiana Code of Civil Procedure article 1793 provides, in pertinent part, as follows:
A. At the close of the evidence, or such earlier time as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests.
B. The court shall inform the parties of its proposed action on the written requests and shall also inform the parties of the instructions it intends to give the jury at the close of the evidence within a reasonable time prior to their arguments to the jury.
C. A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. ...
The record herein reflects that prior to selecting the jury, the trial court informed counsel that it would be "using the Supreme Court mandatory instructions, which [would] exclude those parts that are clearly not pertinent" and that the parties would need to "confect their combined instructions and verdict form." See La. C.C.P. art. 1793(A). At the close of the evidence and before closing arguments, the trial court conducted a jury charge conference on the record and counsel for defendants specifically acknowledged that the trial court had "provided to [counsel its] general jury charges that include[d] the medical malpractice statute and [proximate] cause." During the charge conference, neither party objected or complained about the timeliness within which those jury charges were provided to counsel. Therefore, based on the statements in the record by defense counsel acknowledging receipt of the jury charges prior to closing arguments, we must conclude that the trial court provided its jury instructions to counsel for both parties within a reasonable time prior to closing arguments to the jury in compliance with La. C.C.P. art. 1793(B).
With regard to the jury charges actually given by the trial court, La. C.C.P. art. 1792(B) requires the trial court to instruct jurors on the law applicable to the cause submitted to them. The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate. Adams v. Rhodia, Inc., 2007-2110 (La. 5/21/08), 983 So.2d 798, 804. Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. Id. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury. Id. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error. Id.
Correlative to the judge's duty to charge the jury as to the law applicable in a case is a responsibility to require that the jury receives only the correct law. Id. However, Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Id. Trial courts are given broad discretion in formulating jury instructions and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. Id. The rule of law requiring an appellate court to exercise great restraint before upsetting a jury verdict is based, in part, on respect for the jury determination rendered by citizens chosen from the community who serve a valuable role in the judicial system. Id. We assume a jury will not disregard its sworn duty and be improperly motivated. Id. We assume a jury will render a decision based on the evidence and the totality of the instructions provided by the judge. Id.
However, when a jury is erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. Id. In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if the charges adequately provide the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its deliberation. Id. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Id.
Determining whether an erroneous jury instruction has been given requires a comparison of the degree of error with the jury instructions as a whole and the circumstances of the case. Id. Because the adequacy of jury instruction must be determined in the light of jury instructions as a whole, when small portions of the instructions are isolated from the context and are erroneous, error is not necessarily prejudicial. Id. at 805. Furthermore, the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Id. Thus, on appellate review of a jury trial, the mere discovery of an error in the judge's instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case. Id.
In this case, the plaintiff's action against Dr. Lewis was based on medical malpractice. Louisiana Revised Statutes 9:2794 sets forth the elements a plaintiff must provide in order to succeed in a malpractice action based on the negligence of a physician. The plaintiff must prove, by a preponderance of the evidence, the standard of care applicable to the physician, a violation of that standard of care by the physician, and a causal connection between the physician's alleged negligence and the plaintiff's injuries resulting therefrom. Pfiffner v. Correa, 94-0924, 94-0992 (La. 10/17/94), 643 So.2d 1228, 1233.
The record reflects that the jury was instructed with regard to numerous aspects of Louisiana law, including but not limited to the plaintiff's burden of proof in this action. Based on these instructions, the jury returned a verdict finding that Dr. Lewis was negligent in her treatment of Mrs. Haney and that Mrs. Haney suffered injury as the result of the negligence of Dr. Lewis. We have thoroughly reviewed the jury charges given to the jury and find that the charges adequately provided correct principles of law and did not mislead the jury to the extent it was prevented from dispensing justice.
We note that at the charge conference, the defendants specifically objected to the following proposed jury charge requested by the plaintiff:
Medical care of a patient in a hospital emanates from joint efforts and teamwork of the hospital's nursing staff and physician. The physician has control over the patient and the methods used to speed recovery. Because of this control, it is the physician's responsibility to direct the nursing staff. The nursing staff and physician must work in concert and be knowledgeable of the facilities, equipment, and services that may be utilized in the treatment and care of the patient. This obligation includes a mutual understanding of the nomenclature used in the particular hospital; this awareness is critical and serves to minimize the chances of confusion or misunderstanding between the physician and the nursing staff regarding the care and treatment of the patient.
This jury instruction ("the joint effort and teamwork instruction") was derived from Beckham v. St. Paul Fire and Marine Insurance Company, 614 So.2d 760, 765 (La. App. 2nd Cir. 1993), which was a medical malpractice action that involved the defendant doctor's failure to monitor the plaintiff's post-surgical care. Although the defendants admit that the charge was derived from the above-cited case, they contend that it is not law or a legal precept, but dicta. Thus, the defendants objected to this jury charge at trial on the basis that it was dicta, and not law or an applicable legal standard. After considering the evidence presented to the jury and the issues involved in this case, the trial court informed the parties that it would include the instruction. See La. C.C.P. art. 1793(B) and (C). The appellants have challenged this ruling on appeal.
Based on our review of the jury charges as a whole, we fail to see how the inclusion of this instruction was improper. The statements contained in the joint effort and teamwork instruction were consistent with the testimony of the nurse, Kristan Smith, the plaintiffs never alleged that the nurses involved in Mrs. Haney's treatment were negligent, and no such defense was argued by the defendants. Notably, the defendants do not argue that this instruction is legally incorrect or not applicable—rather, they simply contend that it is not "law." However, we fail to see how this instruction, in light of all the instructions and evidence of Dr. Lewis's negligence, misled the jury to the extent they were prevented from dispensing justice.
In accordance with La. C.C.P. art. 1793(C), after the jury was charged and retired to deliberate, the defendants objected to the trial court's failure to include the following instruction ("the hindsight instruction"), which the trial court indicated during the charge conference would be included:
The treatment rendered to the patient must be analyzed in light of the facts known to the defendant when the patient was treated and not on the basis of hindsight or what is later learned.
According to the defendants, this jury instruction ("the hindsight instruction") was derived from the Louisiana Practitioner's Personal Injury Deskbook and Personal Injury Jury Charge Treatise, Vol. 2, 2002, citing Moore v. Healthcare Elmwood, Inc., 582 So.2d 871, 878 (La. App. 5th Cir. 1991), and Lindsey v. Michigan Mutual Liability Company, 156 So.2d 313, 316 (La. App. 4th Cir.), writ refused, 245 La. 461, 158 So.2d 612 (1963).
The defendants contend that the hindsight instruction was essential for the jury to evaluate Dr. Lewis's conduct, and that the absence of this instruction rendered the trial court's recitation of the law improper.
Although the trial court's failure to give the hindsight instruction after it indicated that it would was certainly improper, we are not convinced that this instruction was essential to the jury's evaluation of Dr. Lewis's conduct or her treatment of Mrs. Haney. Neither the plaintiff nor the defendant presented any evidence that new information arose after Dr. Lewis's performance of the total knee replacement surgery on Mrs. Haney or in connection with her post-surgical care that Dr. Lewis would have considered in hindsight or that the jury would have considered. To the contrary, the applicable standard of care for a total knee replacement surgery, and any complications that could arise therefrom, would have been known by the defendant prior to performing that surgery rather than in hindsight.
The defendants also objected to the following instructions that were included in the jury charges, which they claimed were not on the jury charges previously provided to them by the trial court:
The record before us does not contain a copy of the jury charges provided to counsel by the trial court such that this court could compare the charges to see whether these two charges were included. Nonetheless, we will address the inclusion of these jury charges. --------
[T]he testimony of the treating physician is accorded more weight than that given by expert physicians who testify for the purpose of expressing an opinion, having reviewed records. [("the treating physician instruction")]and
Coun[sel] may read from a deposition and ask the witness whether what he said or she said in the deposition is different from what is being said now. We allow this to help you evaluate the credibility of the testimony before you. Whether or not the prior statements made by the witness are different from his or her live testimony is entirely for you to decide. [("the credibility instruction")]
The defendants contend that the treating physician instruction, while a correct statement of law, is only applicable to the treating physician's testimony concerning the patients' condition, and not the standard of care. Thus, this instruction was not applicable to the facts of this case. With regard to the credibility instruction, the defendants' objection was that this instruction was not provided to them before it was recited to the jury.
Insofar as the appellants contend that the trial court erred by including the treating physician instruction because it was not applicable under the facts of this case, we fail to see how the inclusion of this instruction could have misled the jury to the extent it was prevented from dispensing justice. From our review of the testimony and evidence, there did not appear to be any meaningful conflict between the opinions of the plaintiff's treating physicians, Dr. Sam and Dr. Linschoten, and the opinions of the defense expert, Dr. Rodriguez, with respect to the standard of care. All three experts agreed that the standard of care required a surgeon performing a total knee replacement to timely assess the lack of blood flow in the leg and to transfer the patient to a vascular surgeon for surgical repair of the injured artery within 4-6 hours of the injury to the artery to avoid irreversible injury and damage to that lower extremity. Furthermore, the trial court specifically instructed the jury that it was required to weigh the testimony of all witnesses, including the expert witnesses.
Lastly, with regard to the credibility instruction, the defendants have failed to articulate any specific objection to this instruction other than to object on the basis that it was not provided to them prior to being recited to the jury. Although it was certainly inappropriate for the trial court to include this instruction without notifying the defendants of its intent to do so, we do find this instruction to be a correct statement of the law and we fail to see how the inclusion of this instruction could be erroneous or misleading to the jury.
Therefore, based on our review of the jury instructions as a whole and the circumstances of this case, we find the trial court's instructions fairly and reasonably pointed out the issues to the jury and provided correct principles of law for the jury to apply to those issues. Accordingly, these assignments of error lack merit.
F . JNOV on Past Medical Expenses
(Dr. Lewis and LAMMICO's Assignment of Error Number 6)
The defendants next contend that the JNOV granted by the trial court, which increased the damages awarded by the jury for past medical expenses from $75,000.00 to $235,777.61, was erroneous and not warranted.
At trial, the parties stipulated to the authenticity and admissibility of Mrs. Haney's medical bills and to the amount of those medical bills; however, they did not stipulate that the medical expenses were incurred as a result of the alleged negligence of Dr. Lewis. The parties also stipulated that the total of those medical bills would be provided to the jury, but that the original bills would not be provided because those bills contained information about collateral source payments. Mrs. Haney's medical bills and expenses were contained in two exhibits: P-21, which pertained to Mrs. Haney's medical expenses associated with her knee replacement surgery from BRSH and reflected total charges in the amount of $46,929.27, and P-23, which pertained to other medical expenses that were listed only by date and medical service provider (BR General, Baton Rouge Orthopedic Clinic (Dr. Linshoten), Neuromedical Center, Baton Rouge Clinic, Earl K. Long Medical Center, Baton Rouge Rehab Hospital, Pinnacle Home Health Care, Superior Home Health, and Vascular Clinic (Dr. Perkowski and Dr. Schellack)) and reflected total medical expenses in the amount of $183,848.34. The plaintiff testified that the total of her medical bills and charges, which were necessary and related to Dr. Lewis's negligence, was $183,848.34 (as detailed in P-23). In addition to the plaintiff's testimony, Dr. Lewis testified regarding BRSH's charges of $48,929.27 (as detailed in P-21), as well as her surgeon's fee of $5,000.00, for the knee replacement. These sums were not contradicted nor challenged by the defendants at trial. Thus, the un-contradicted evidence at trial established that the plaintiff's total past medical expenses were $235,777.61.
The jury, after retiring for deliberations, sent a note to the trial court asking "What documentation do we have to support out of pocket medical expenses." In response, the jury was specifically referred to exhibits P-21 and P-23. The jury ultimately awarded the plaintiff $75,000.00.
According to the minutes of the trial court, in granting the JNOV, the trial court stated that it was "of the opinion that the plaintiff demonstrated by a preponderance of the evidence that she [was] entitled to medicals in the amount that the parties hereto through counsel stipulated in the exhibits as to authenticity and admissibility as well as the testimony of the [plaintiff]. Therefore, the Court grants the JNOV in the uncontradicted and unchallenged amount of $235,777.61."
Louisiana Code of Civil Procedure article 1811 is the authority for a JNOV and provides that a JNOV may be granted on the issue of liability, on the issue of damages, or on both. The standard to be used in determining whether a JNOV has been properly granted has been set forth in our jurisprudence as follows:
A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men 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 men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the 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.Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La. 1991) (citations omitted); Davis v. Wal-Mart Stores, Inc., 2000-0445 (La. 11/28/00), 774 So.2d 84, 89.
In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Davis, 774 So.2d at 89. Thus, this court must determine whether the facts and inferences point so strongly and overwhelmingly in favor of Mrs. Haney that reasonable persons could not arrive a contrary verdict with respect to her past medical expenses.
Considering the testimony in the record, the stipulations of the parties, and the list of medical expenses entered into the record, we find no error in the JNOV granted by the trial court relative to Mrs. Haney's award for past medical expenses. The jury's award of $75,000.00 for past medical expenses did not even compensate Mrs. Haney for the medical expenses that she incurred at BR General ($142,707.98), which, given the jury's finding of negligence by Dr. Lewis, were clearly related to Mrs. Haney's injury. While the appellants argue that the jury must have determined that a portion of the expenses contained in those exhibits were not related to Mrs. Haney's injuries, a review of the exhibits and testimony regarding her past medical expenses provides no reasonable or plausible basis for the jury's award of $75,000.00. The expenses listed in exhibit P-21 clearly reflect medical expenses in the amount of $48,929.27. And, the medical expenses list in exhibit P-23 are listed only by date, medical service provider, and amount; there is no indication of what services were associated with each expense such that the jury could have concluded that some of the expenses were not related to Mrs. Haney's injuries. Furthermore, the question posed from the jury to the trial court relative to Mrs. Haney's "out of pocket" medical expenses overwhelmingly suggests that it reduced the medical expenses to what they believed were her out-of-pocket expenses rather than the full amount of her past medical expenses, as set forth in the testimony and exhibits P-21 and P-23, in violation of the collateral source rule.
Accordingly, we agree with the trial court that the facts and inferences on the issue of Mrs. Haney's past medical expenses point so strongly and overwhelmingly in favor of Mrs. Haney that reasonable persons could not arrive at a contrary verdict with respect to those expenses. The record before us contains no reasonable basis on which the jury could have reduced Mrs. Haney's past medical expenses below the figure provided in the exhibits and testimony at trial. Thus, the JNOV increasing the jury's past medical expense award to Mrs. Haney from $75,000.00 to $235,777.61 was proper. In accord Thrash v. Maerhofer, 99-375 (La. App. 3rd Cir. 11/17/99), 745 So.2d 1238, 1246, writ denied, 99-3578 (La. 2/18/00), 754 So.2d 966 (concluding that JNOV increasing the jury's award of past medical expenses to the amount contained in a summary of medical expenses was warranted, even though the defendants denied that the medical bills were necessary or caused by the negligent medical treatment at issue, because there was no reasonable basis in the record for the jury's award below the figure contained in the summary of medical expenses).
Accordingly, this assignment of error lacks merit.
G . Taxing Costs to Defendants
(Dr. Lewis and LAMMICO's Assignment of Error Number 7)
In this last assignment of error, the defendants contend that the trial court abused its discretion in granting Mrs. Haney's motion to tax costs because the plaintiff was not entitled to the full amount set forth in her motion. As set forth above, while the appeal in Haney (I) was pending, Mrs. Haney filed a motion to tax costs, which the trial court granted. Specifically, in Mrs. Haney's first motion, she sought and was awarded by the trial court, the cost of filing fees to the district court clerk of court in the amount of $1,307.50. The defendants appealed that judgment, and this court affirmed that judgment in Haney (II). There is no dispute that the defendants have paid all amounts sought by the plaintiff and awarded by the trial court in Haney (II).
Following the trial of this matter and the signing of judgment in favor of Mrs. Haney, Mrs. Haney filed another motion to tax costs. In this second motion to tax costs, she sought payment of costs that not only had been incurred for the second trial of this matter, but also the cost of filing fees to the district court clerk of court that preceded the second trial of this matter, which were apparently omitted from her prior motion to tax cost. The trial court granted Mrs. Haney's motion and awarded her costs, including all filing fees incurred by her in this entire proceeding since its inception ($3,533.41), subject to a credit in the amount of $1,307.50 for all sums previously paid by the defendants to Mrs. Haney following the first trial. The defendants contend that Mrs. Haney is only entitled to recover the costs incurred since the filing of her first motion to tax costs, i.e., $1,284.50, and that it was an abuse of the trial court's discretion to award her any costs related to the first trial. We agree.
We recognize that under La. R.S. 13:3666, La. R.S. 13:4533, and La. C.C.P. art. 1920, a trial court has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses and that upon review, a trial court's assessment of costs can be reversed by this court only upon a showing of an abuse of discretion. Suprun v. Louisiana Farm Bureau Mutual Insurance Company, 2009-1555 (La. App. 1st Cir. 4/30/10), 40 So.3d 261, 267. In this case, the defendants paid all costs sought by the plaintiff and awarded by the trial court in Haney (I) and Haney (II). The fact that the plaintiff failed to seek an award for some of the costs/filing fees to which she may have been entitled to following the first trial does not entitle the plaintiff to a "second bite at the apple" by collecting those costs in her second motion to tax costs related to the second trial. To the extent that the trial court allowed Mrs. Haney to do so and taxed costs including such sums, it was an abuse of the trial court's discretion. Accordingly, we amend the judgment of the trial court taxing costs against the defendants to provide that they are taxed with costs/filing fees in the amount of $1,284.50, which are the costs/filing fees incurred by Mrs. Haney since the filing of her first motion to tax costs. As amended, the judgment of the trial court is affirmed.
CONCLUSION
For all of the above and foregoing reasons, the April 23, 2015 judgment in accordance with the jury verdict is affirmed and that part of the June 17, 2015 judgment, which granted Mrs. Haney's motion for JNOV and increased the jury's award of medical expenses from $75,000.00 to the total sum of $235,777.61 is affirmed. That portion of the June 17, 2015 judgment granting Mrs. Haney's motion to tax costs, and casting the defendants with specific costs, is amended to reflect that the defendants be cast with clerk of court filing fees/court costs in the amount of $1,284.50, and as amended that part of the judgment is affirmed.
All costs of this appeal in the amount of $8,401.50 are assessed equally to the appellants/defendants, Dr. Janet E. Lewis and her insurer, Louisiana Medical Mutual Insurance Company and the appellants/intervenors, the Louisiana Patient's Compensation Fund and the Louisiana Patient's Compensation Fund Oversight Board.
APRIL 23, 2015 JUDGMENT IN ACCORDANCE WITH THE JURY VERDICT AFFIRMED; JUNE 17, 2015 JUDGMENT NOTHWITHSTANDING THE VERDICT AFFIRMED; JUNE 17, 2015 JUDGMENT TAXING COSTS AGAINST DEFENDANTS AMENDED, AND AS AMENDED, AFFIRMED.