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Posey v. Singletary9/28/2001
From a jury verdict in their favor and the denial of their post-judgment motions, Pamela C. Posey and her husband, Michael D. Posey, appeal in this medical malpractice action. Plaintiffs contend that the damages are inadequate, that the instructions to the jury were improper, and that the trial court erred in denying a mistrial, in refusing the introduction of certain evidence and in failing to grant their motions for new trial, additur and judgment notwithstanding the verdict. For the following reasons, the judgment is amended and, as amended, is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Under La. R.S. 40:1299 et seq, the Poseys sought review of their claim from a medical review panel which was extended several times. In the Poseys' initial petition filed September 17, 1997, the plaintiffs named as defendants Dr. Ben B. Singletary and Dr. William L. Norwood. According to the plaintiffs, the medical review panel's opinion noted that the panel found neither doctor deviated from the applicable standard of care.
The plaintiffs alleged that Dr. Singletary removed Mrs. Posey's ovaries and fallopian tubes on November 22, 1993, at Willis-Knighton Medical Center (WK). During the surgery Dr. Singletary encountered pelvic adhesions, removed the ovaries and noted a 1 cm long tear in her bladder which he closed. According to the plaintiffs, Dr. Singletary did not evaluate her bladder or ureters for additional injury and did not obtain a urology consultation for her bladder. The basis of the plaintiffs' action is that Dr. Singletary cut, injured or otherwise obstructed Mrs. Posey's left ureter (tube connecting kidney to bladder) during the surgery. Mrs. Posey had to wear a catheter and experienced fever, nausea and abdominal swelling during her hospitalization and after her discharge on November 23. The petition alleges she continued to have problems with swelling and fever which became so severe she was taken by ambulance to the hospital and diagnosed with an intestinal blockage. On November 30, Dr. Norwood performed surgery for lysis (separation) of adhesions in the proximal small bowel in the upper abdomen and drained 3,000 cc of fluid from her abdomen. The fluid was cultured, but there was no evaluation of the source of the fluid nor any evaluation of the ureters or bladder. During this second hospitalization Mrs. Posey continued to have abdominal swelling, pain, weakness and insomnia. While very ill, she was released from the hospital on December 6. During December she remained very ill and was seen by Dr. Norwood on several occasions.
According to the petition, on January 10, Dr. Norwood referred her to a urologist who on January 11 diagnosed her left kidney as hydronephrotic and recommended immediate surgery for repair of her kidney. Since the urologist was on the staff of Willis-Knighton where Mrs. Posey did not wish to be hospitalized again, the urologist referred her to Dr. John Berry who admitted her to the Schumpert Medical Center on January 13, 1994.
Plaintiffs allege that three separate surgeries were performed to save her kidney, one of which was the insertion of a nephrostomy tube through her back directly into the kidney. Mrs. Posey had to wear the device for five weeks after her January 14 discharge from the hospital. On February 17, 1994, Dr. Berry performed corrective surgery to repair the ureter. On February 24, 1994, Dr. W. Reid Grimms, a proctologist, performed an incision of a hematoma abscess. The Poseys alleged her left kidney has been draining since December 1994, but she has been left with a permanent reflux.
In the plaintiffs' view, a 1996 surgery performed by Dr. Waterfallen to remove adhesions and repair a hernia was
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