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Posey v. Singletary9/28/2001
ended to ameliorate or justify the malpractice and entitled them to a mistrial.
The court on its own motion, or on the motion of any party, after hearing, may grant a mistrial. La. C.C.P. art. 1631(C). A mistrial may be declared because of a circumstance that indicates to the court that justice may not be done if the trial is allowed to continue. The trial court is vested with discretion on the decision to grant or deny a motion for mistrial. Griggs v. Riverland Medical Center, 98-256 (La. App. 3d Cir. 10/14/98), 722 So. 2d 15 writ denied, 99-0385 (La. 5/28/99), 735 So. 2d 622. The trial court did not err in refusing plaintiffs' motion for mistrial.
During questioning by plaintiffs' counsel, Dr. Waterfallen gave substantially similar testimony. The witness explained that, in removing an ovary, there was a risk of cutting a ureter and that gynecologists think about that "all the time." Dr. Waterfallen stated that in a whole career, no matter how good the surgeon was, it was not unusual to hit a ureter. Under the circumstance of this case, the trial court's refusal to grant the mistrial was not an abuse of discretion.
Introduction of Deposition
According to the plaintiffs, the trial court conditioned the reading of Dr. Hallbridge's deposition to the jury on the defendant's being permitted to call to the witness stand members of the medical review panel. The plaintiffs admit in brief that this conditional decision by the trial court was made off the record. The transcript shows that the plaintiffs' counsel informed the court that he was going to read the deposition of Dr. Hallbridge to the jury. After determining the length of the deposition, the trial court explained to the jury about the use of depositions for witnesses who were unavailable. Then the trial court directed the jury take a break and recessed court. When the trial resumed, the plaintiffs' attorney called another witness and continued with the proceeding without further reference to the deposition.
The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164. This court will not consider matters outside the appellate record. The defendants correctly note in brief that there is nothing in the record that shows plaintiffs attempted to offer the deposition. There is not a ruling by the trial court denying its admission or an objection by the plaintiffs. The assignment of error has no basis in the record.
DECREE
For the foregoing reasons, the judgment of the trial court is amended to increase the award for Mrs. Posey's past pain and suffering by $50,000 to a total award of $100,000, for Mr. Posey's award for loss of consortium by $1000 to a total award of $1500 and for plaintiffs' award for past medical expenses by $6,558.93 to a total award of $66,558.93. In all other respects, the judgment is affirmed.
AMENDED, AND AS AMENDED, AFFIRMED.
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