Eubanks v. Salmon2/16/2000
CANNELLA, J., DISSENTS WITH REASONS
AFFIRMED
In this medical malpractice action, defendants, Dr. John Salmon, Salmon Chiropractic Clinic and National Chiropractic Mutual Insurance Company, appeal from a Judgment Notwithstanding the Verdict (JNOV), which also conditionally granted plaintiff's Motion for New Trial. The judgment overruled the jury's verdict and awarded damages to plaintiff, Jerry Eubanks for a ruptured cervical disc. For reasons that follow, we affirm.
Mr. Eubanks, a fireman, sought treatment on September 4, 1991 from Dr. Salmon for low back pain which occurred when he helped carry ice chests up some stairs during the Labor Day weekend. The doctor treated Mr. Eubanks with heat, ice, electrical stimulation and manipulation. He also began manipulating plaintiff's neck sometime around September 6, 1991. On September 30, 1991, Mr. Eubanks alleges that Dr. Salmon manipulated his neck, causing immediate pain. Mr. Eubanks connects this incident with the rupture of his cervical disc, which was subsequently discovered. The rupture impinged on a nerve and resulted in a fusion. Following the surgery, he spent three days in the hospital, was off of work for six weeks, and spent six weeks on light duty.
As a result, plaintiff filed a medical malpractice action against defendants. On September 28, 1993, the medical review panel found no breach of the standard of care and no liability. Suit was filed on October 26, 1993. On December 22, 1993, an intervention was filed by Louisiana Health Service Indemnity Company d/b/a Blue Cross/Blue Shield of Louisiana for the recovery of medical payments. A jury trial was held on January 26-28, 1998. The jury found no liability. A judgment dismissing plaintiff's claim was rendered on February 2, 1998. On February 6, 1998, plaintiff filed a motion for JNOV and, alternatively for a new trial. On March 4, 1998, the trial judge granted the motion for JNOV, without ruling on the plaintiff's motion for New Trial. In the JNOV, the trial judge awarded plaintiff $135,000 in general damages and $12,772.76 in medical expenses. The judgment was rendered only against Dr. Salmon. Furthermore, it failed to recognize the intervention.
On March 12, 1998, all of the defendants filed a Motion for New Trial from the JNOV. Defendants asserted that the judgment was manifestly erroneous and that the award was excessive. In addition, defendants contended that it violated the limitations on general damages under the Medical Malpractice Act, and that it failed to award the intervener its medical payments. On March 31, 1998, plaintiff filed a "Motion for Clarification of Judgment." Plaintiff asserted that the judgment failed to include the other two defendants, that it should find joint and several liability among the defendants, and that it failed to include an award for the intervener. On April 6, 1998, the intervener filed a similar motion, entitled "Motion to Modify and/or Amend Judgment" asking for inclusion of its lien in the judgment against defendant. This is marked "Moot" because the trial judge rendered an "amended" judgment on that date pursuant to plaintiff's motion to clarify. In addition, a minute entry on April 6, 1998, indicates that the trial judge denied a Motion for New Trial, (which appears to be the motion filed by defendants on March 12.)
The judgment of April 6 granted the plaintiff's "Motion to Clarify...". It reiterated that the JNOV was granted, reduced plaintiff's award to $100,000 in general damages, reserved plaintiff's right to seek excess damages from the Louisiana Patient's Compensation Fund, and awarded the intervener the sum of $12,772.76.
Defendants filed an appeal from both the A
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