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Hoffman v. East Jefferson General Hospital12/13/2000
shaped instrument in which the bulk of its weight and density is not in the neck of the instrument but rather at its base. It was the base of this instrument which rested against the plaintiff's buttocks during the procedure. It was also the base part of the weighted speculum which would have retained the highest degree of heat for the longest period once it was removed from the autoclave and subsequent saline solution. The failure of Dr. Kennedy and those employees of East Jefferson Hospital to ascertain that the instrument was indeed too hot and had not sufficiently cooled to be inserted into and up against the patient's buttocks clearly falls below the degree and level of skill and care that should have been exercised during the procedure. Dr. Kennedy, as well as the surgical staff assisting him, failed to use reasonable care and diligence, and also failed to use their best judgment in not allowing the instrument to cool sufficiently. No one checked to see if in fact the speculum was thoroughly cooled. Although there was some testimony that the burns could have possibly resulted from an electrical malfunction, a reaction to a betadyne (sic) solution, or even bedsores, the evidence clearly indicates that the overly hot weighted speculum caused the patient's injuries.
It is clear from those reasons that the trial court made factual findings consistent with the testimony offered at trial and ultimately found East Jefferson negligent in its treatment of this patient.
In the final assignment of error, East Jefferson argues alternatively that if it is found to be liable, the trial court erred in failing to apportion fault between the two defendants. We agree. LSA- C.C.P. art 1917 provides, in pertinent part:
In non-jury cases to recover damages for injury , death or loss, whether or not requested to do so by a party, the court shall make specific findings that shall include those matters to which reference is made in Paragraph C of Article 1812 of this Code.
Two of the matters referenced in LSA-C.C.P. article 1812 Paragraph C are the finding that fault was a legal cause of the injury and the degree of fault expressed in percentage. Here the trial court made the requisite finding that the actions of both East Jefferson and Dr. Kennedy constituted the legal cause of plaintiff's injury. However, the court did not make the requisite finding of the degree of fault.
The trial court's failure to assess percentages of fault is legal error. Boudreaux v. Farmer, 604 So.2d 641, 651 (La.App. 1st Cir. 1992), writ denied, 605 So.2d 1373 & 1374 (La.1992); La. C.C.P. art. 1917; La. C.C.P. art. 1812(C); Turner v. D'Amico, 96-0624 (La.App. 1 Cir. 9/19/97), 701 So.2d 236, 238; writ denied 97-3034, (La. 2/13/98), 709 So.2d 750. Where the Court of Appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Turner v. D'Amico, supra.
We have reviewed the record carefully and have determined that East Jefferson Hospital and Dr. Kennedy are equally at fault in causing the plaintiff's injury . Accordingly, we apportion fifty-percent of the fault to East Jefferson and fifty-percent of the fault to Dr. Kennedy, and we order the judgment amended to reflect such. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are assessed to defendant, East Jefferson Hospital.
AMENDED AND AS AMENDED, AFFIRMED
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