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Richardson v. State12/9/1998
the same. She also testified that he never got out of the wheelchair on that visit.
Mr. Richardson filed suit against the State alleging Huey P. Long Hospital was negligent in the treatment administered to him for the gunshot wound to his leg, and that as a result of the negligence a fracture of his right femur went undetected, and he suffered a distal 1/3 transverse femur fracture with posterior displacement of the distal fragment on August 22, 1992.
The State of Louisiana answered the petition and demanded a trial by jury, pursuant to a 1993 amendment to La. R.S. 13:5105. An order for trial by jury was signed by the presiding Judge. However, plaintiff then filed a motion to strike the injury , which was granted. An application for supervisory writs filed by the State with this court was denied, and the matter was tried before the trial court on August 7, 1997.
LAW
Right to a Jury Trial
On appeal, the State's first assignment of error is that the trial court erred in striking the jury trial and that this matter should be remanded to the trial court for a jury trial. Mr. Richardson filed his claim under the medical malpractice act on August 5, 1993, requesting that his claim be presented to a medical review panel. La. R.S. 13:5105 was amended in 1993 to grant the right to trial by jury to the State of Louisiana and all of its subdivisions; the amendment became effective January 1, 1994. Mr. Richardson filed this lawsuit on July 25, 1995.
In Boone v. State of Louisiana, Through Department of Health and Hospitals, 97-321 (La. App. 3 Cir. 3/6/98); 709 So.2d 300, this court determined that it is the lawsuit filed after the Conclusion of the medical review panel, and not the claim filed under the medical malpractice act requesting a medical review panel, that determines whether the 1993 amendment to La. R.S. 13:5105 is applicable. The filing of the claim for the medical review panel is not equivalent to filing suit. In Boone, as in this case, the plaintiff filed his claim for review prior to January 1, 1994, however, he did not file his lawsuit until July, 1995. We held the trial court erred in denying the State a trial by jury. Accordingly, the trial court committed reversible error when it failed to grant the State a trial by jury as requested.
The State argues that, because of the trial court's error in denying it a trial by jury, we must remand the matter for trial by jury. However, in Gonzales v. Xerox Corp., 320 So.2d 163 (La. 1975), the supreme court held that when a trial court committed reversible legal error and the entire record is before the appellate court, the appellate court is required to review the case de novo and render a judgment on the merits. In Citgo Petroleum Corp. v. Yeargin, Inc., 95-1574 (La. App. 3 Cir. 2/19/97); 690 So.2d 154, this court determined two defendants' requests for trial by jury on all issues was wrongfully denied when the trial court refused to allow the issue of insurance coverage to be decided by the jury. The judgment of the trial court was reversed, and the matter was remanded for a trial by jury. The supreme court granted writs and remanded the matter to us to decide the matter on the record. For these reasons, we will decide this matter on the record before us.
Liability
Medical malpractice actions are governed by La. R.S. 9:2794. The plaintiff in a medical malpractice action must prove:
"(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or loca
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