McPherson v. Lake Area Medical Center5/24/2000
pp. 1 Cir. 9/27/96), 681 So.2d 63, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997).... " he doctrine is discretionary and should not be applied where it would effectuate an obvious injustice or where the former appellate decision was clearly erroneous." Trans Louisiana Gas Co. v. Louisiana Ins. Guar. Ass'n, 96-1477 (La.App. 1 Cir. 5/9/97), 693 So.2d 893, 896.
Ducote v. City of Alexandria, 97-947, p. 3 (La.App. 3 Cir. 2/4/98), 706 So.2d 673, 674-675, writ not considered, 98-1048 (La.5/29/98), 719 So.2d 1275. Moreover, the doctrine applies with equal force to writ decisions as it does to judgments rendered at the conclusion of the appellate process. See First Federal Savings & Loan of Warner Robins, Georgia v. Disiere, 542 So.2d 11 (La.App. 4 Cir.), writ denied, 548 So.2d 311 (La.1989). Schultz v. Doyle, 98-1113, p. 5-6 (La.App. 3 Cir. 2/3/99), 727 So.2d 691, 693-94.
For the following reasons, we now hold that our decision on the writ application is the law of the case. These very same issues were litigated by LPCF before this court last year in Bridgers v. Southwest Louisiana Hosp. Ass'n., 99-520 (La.App. 3 Cir 11/3/99); 746 So.2d 731, writ denied, 99-3402 (La. 2/18/2000); ___ So.2d ___. That case also involved the admission of liability via a settlement, evidentiary rulings and the award of damages in excess of the $100,000.00 settlement.
The Bridgers filed a number of pretrial motions, including motions to exclude the testimony of various expert witnesses, as well as the opinion of the medical review panel.
The case was tried before a jury November 2-5, 1998. The jury returned a unanimous verdict in favor of Mr. and Ms. Bridgers and against the LPCF. It found that, as a result of Dr. Vines' malpractice, Ms. Bridgers had been deprived of a seventy-five percent chance of recovery from GBS, and awarded her $767,500.00 in general damages, $666,704.55 in past medical expenses, and $2,693,835.00 in future medical expenses and related benefits. The jury awarded Mr. Bridgers $112,000.00 for loss of consortium. The LPCF appeals, assigning seven errors. The assigned errors can be grouped into two categories: 1) the exclusion of evidence by the trial court; and 2) causation and damages.
LAW AND DISCUSSION
Excluded Evidence
All of the LPCF's assignments of error regarding the exclusion of evidence arise from the pre-trial evidentiary rulings made by the trial court. The LPCF argues that the rulings were erroneous. Specifically, it argues that the medical review panel opinion, the testimony of the medical review panel members, Drs. Gerald Mouton, Joseph O'Donnell and Stephen Snatic, and the testimony of Drs. Charles Knight, Richard Matis, David Morrill, Charles White, Fayez Shamieh, Yadolla Harati, and Randolph Evans were wrongfully excluded from evidence. . . . . In making the rulings on the admissibility of evidence on the issues of liability, the trial court considered the overall scheme of the Medical Malpractice Act, including La.R.S. 40:1299.44(C)(5), and the recent line of jurisprudence on this issue ending with Graham v. Willis-Knighton Medical Center, 97-188 (La. 9/9/97); 699 So.2d 365.
La.R.S. 40:1299.44(C)(5) provides, in part:
In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.
In Stuka v. Fleming,
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