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Posey v. Singletary9/28/2001
., 27,702 (La. App. 2d Cir. 12/6/95), 665 So. 2d 1252.
Plaintiffs state that the trial court did not instruct the jury properly on causation because plaintiffs only had to prove damages, not causation. Alternatively, they argued that the trial court failed to adequately instruct the jury on the issue of causation. The plaintiffs sought to have the trial court give the jury multiple special instructions including ones on causation; aggravation of pre-existing condition; pre-existing injuries; pre-existing condition and causation; and subsequent mal-treatment. Plaintiffs also objected that the trial court did not mention the LPCF in the instructions.
The Preliminary Jury Charge included the following:
In a civil case, such as this, the plaintiffs must prove each essential element of the case by a preponderance of the evidence. That simply means that taking the evidence as a whole, the facts have been established as more probable than not. In this particular case, the issue of fault or negligence has been admitted. The only issue you will have to decide is what injury resulted from that fault or negligence, and the amount of damages to be awarded.
The Concluding Civil Jury Charge read to the jury before its deliberations began stated, in part:
In this case, Dr. Singletary has admitted that he breached the standard of care owed to Pamela Posey and that she suffered harm as a result of the breach. It is now your responsibility to determine the extent of that harm and the amount of damages which will fairly and adequately compensate the plaintiffs for that harm.
The plaintiffs have the burden of proving the extent of the harm and the amount of damages by a preponderance of the evidence. This simply means that taking the evidence as a whole, the facts have been established as more probable than not.
A party should not prevail simply because they have a greater number of witnesses. Any award of damages in this case should be equal to the injury received. The plaintiffs have the duty to act reasonably in mitigating their damages to the extent possible. The defendant is responsible for all of the natural and probable consequences of Dr. Singletary's breach.
The foregoing jury charges clearly set out that Dr. Singletary admitted breaching the standard of care and that harm resulted to the plaintiffs from his breach. Plaintiffs' complaints that causation instructions were inadequate are meritless.
Alternatively, the plaintiffs contended that the trial court should have informed the jury (1) the defendant takes the victim as he finds her, (2) if a plaintiff is healthy before the harm, then the injury relates back and (3) plaintiff is entitled to recover for aggravation of a pre-existing condition. Plaintiffs' alternative theories were that Mrs. Posey was healthy before the 1993 surgery or that she sustained an aggravation of a pre-existing condition. Contradictory evidence was presented about Mrs. Posey's health prior to Dr. Singletary's 1993 surgery in which he admittedly harmed her ureter and caused her damages. The jury heard from Mrs. Posey, Mr. Posey, her mother and her sister that her health was good with her only pain being normal menstrual discomfort. Dr. Singletary testified, and his records reflected, that he diagnosed Mrs. Posey with PAD as early as 1989 when he performed surgery to relieve her pain. He continued to note PAD along with anxiety for which he treated her. In 1989 the record shows that she was hospitalized for depression. In 1993 Dr. Singletary again performed surgery to relieve her abdominal and pelvic pain during which the malpractice occurred.
Dr. Norwood testified that
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