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McPherson v. Lake Area Medical Center5/24/2000
ing physician, Dr. Lusk, as a serious injury. [. . .] Dr. Lusk stated that a blunt injury of this type is mildly painful, but usually not severely painful. See also Moolekamp v. Rubin, 531 So.2d 1124 (La.App. 4 Cir. 1988).
Additionally, in Otnott v. Morgan, 93-684 (La.App. 4 Cir. 3/15/94); 636 So.2d 957, writ denied, 94-1743 (La. 10/28/94); 644 So.2d 650, a case medically on point with this one (plaintiff lost total vision in one eye following surgery), the fourth circuit affirmed a general damage award of $300,000.00 citing the trial judge's reasons for her award: "The loss of vision in one eye was devastating to Mr. Otnott. His work as a police officer as well as his personal and family life were affected. He suffered from anger, depression and humiliation. The Court's general damage award is based on this finding." Id. at p. 7, 961. Although we are not privy to the jury's reasons for its award in this case, we note that Mr. McPherson's loss of vision was no less devastating to his work, family and social lives.
Therefore, for the reasons stated above, we affirm the judgment of the trial court. All costs of this appeal are assessed against Appellant, The Louisiana Patients' Compensation Fund.
AFFIRMED.
AMY, J., dissenting.
I respectfully dissent. In my opinion, the decision to exclude the Medical Review Panel opinion and the testimony of its members was clearly erroneous. As I find the portion of the writ opinion affirming this decision to be clearly erroneous as well, the law of the case doctrine, which is discretionary, should not be applied in this case. Ducote v. City of Alexandria, 97-947 (La.App. 3 Cir. 2/4/98); 706 So.2d 673, writ not considered, 98-1048 (La. 5/29/98).
At issue here is the apparent conflict of two statutory provisions. La.R.S. 40:1299.44(C)(5) provides:
At the hearing the board, the claimant, and the insurer of the health care provider or the self-insured health care provider as the case may be, may introduce relevant evidence to enable the court to determine whether or not the petition should be approved if it is submitted on agreement without objections. If the board, the insurer of the health care provider or the self-insured health care provider as the case may be, and the claimant cannot agree on the amount, if any, to be paid out of the patient's compensation fund, then the court shall determine the amount of claimant's damages, if any, in excess of the amount already paid by the insurer of the health care provider. The court shall determine the amount for which the fund is liable and render a finding and judgment accordingly. 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. (Emphasis added.)
Thus, as explained by this provision, Dr. Lewis' "liability" was established by his settlement of the claim.
In Graham v. Willis-Knighton Medical Center, 97-0188, p. 15 (La. 9/9/97); 699 So.2d 365, 372, the Louisiana Supreme Court explained:
We now conclude that the legislative intent of "liability" in Section 1299.44 C(5) was that the payment of $100,000 in settlement establishes proof of liability for the malpractice and for damages of at least $100,000 resulting from the malpractice, which is a very significant benefit to the medical malpractice victim. However, at trial against the Fund, the plaintiff has the burden of proving that the admitted
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