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Adeola v. Kemmerly6/21/2002
The defendant-appellant, Louisiana Patient's Compensation Fund (LPCF), appeals a judgment rendered in accordance with a jury verdict awarding damages to plaintiff-appellee, Fadeka Joyce Adeola, a minor child. LPCF alleges the trial court erred in qualifying an expert and not allowing the proper cross-examination of the expert in the presence of the jury, thereby preventing the jury from having a basis for evaluating credibility, and resulting in an exorbitant damage award. For the following reasons, we vacate and remand for a new trial.
FACTS
On March 28, 1996, the nine-month-old plaintiff was taken by her mother for a well-baby checkup at her pediatrician's office. The pediatrician, Dr. Shawn M. Kemmerly, ordered routine blood work, which was drawn from plaintiff's left forearm. Three days later, plaintiff was favoring her left arm, so her mother again took plaintiff to see Dr. Kemmerly. Dr. Kemmerly diagnosed a sprained left wrist. Plaintiff's problems persisted with swelling, pain and fever. She was referred to an orthopedic surgeon, Dr. Niels J. Linschoten, and a pediatric orthopedic specialist, Dr. Michael A. Frierson. Plaintiff was eventually diagnosed with a staphylococcus aureus bacterial infection of an unknown origin, and was hospitalized. The infection was surgically drained, but the infection had already begun to invade plaintiff's radius bone resulting in a severe bone infection, osteomyelitis. The infection caused a complete resorption (i.e., disappearance) of the center portion of the radius bone, resulting in a club-hand deformity in plaintiff's left forearm and hand.
When plaintiff was two-and-a-half years old, she was referred by her new pediatrician to another pediatric orthopedic surgeon, Dr. Stephen D. Heinrich. Dr. Heinrich surgically reconstructed plaintiff's left forearm. A donor bone (allograft) was placed where plaintiff's radius bone was originally located, and it was attached with multiple hardware. It was necessary to reposition and realign the ulna bone as well. The reconstruction resulted in a two-and-a-half-inch shortening of plaintiff's left arm. Approximately nine months after the reconstructive surgery, plaintiff suffered a fracture in the allograft bone and had to undergo further surgery to stabilize the reconstructed radius. This surgery involved another bone graft, this time from plaintiff's hip (the iliac crest bone). After approximately three years of inpatient and outpatient treatments, surgeries, casts, physical therapy, and pain, plaintiff's injured arm healed. However, plaintiff was left with a weaker, shorter, severely scarred arm, in addition to permanent limitations on her activities and movements.
Plaintiff filed a complaint and malpractice suit against the Ochsner Clinic and the physicians initially involved in her treatment, Drs. Kemmerly, Linschoten and Frierson. She claimed negligence for misdiagnosis and mistreatment of the serious bone infection. She later amended her petition to name LPCF as an additional defendant. A Medical Review Panel unanimously concluded that the defendants failed to comply with the appropriate standard of care, and plaintiff entered into a settlement with Ochsner Clinic and its physicians whereby the defendants agreed to pay plaintiff the statutory maximum of $100,000 in exchange for their release. Plaintiff reserved her rights against LPCF pursuant to the Medical Malpractice Act and proceeded to trial. The quantum issue was tried before a jury on March 20 and 21, 2001. The jury returned a verdict in favor of plaintiff, awarding $46,916.66 for past medical expenses, $453,083.34 for general damages, and $250,000 for future medical expenses, totaling $750,000, plus interest and costs. LPCF
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