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Spears v. City of Scott11/2/2005
Dr. Larriviere testified that, if she eventually requires a fusion, there is no guarantee the joint will fuse.
Dr. Larriviere retired, and Dr. Harold Granger became Ms. Spears's treating physician. Ms. Spears first saw Dr. Granger in early 2003. Dr. Granger testified that Ms. Spears continues to have pain in her ring finger, primarily in the middle joint, as well as pain and stiffness in her little finger and wrist. He also testified that she has problems with the top of her ring finger.
Dr. Granger discussed the possibility of a third surgery, a capsular release, to ease the pain in Ms. Spears's finger. However, he testified that he could not guarantee this surgery would relieve her pain and opined there was only a 50% chance it would improve her situation. He also indicated the surgery might actually worsen the tightness in her finger. Dr. Granger related that Ms. Spears had recently shown an interest in the surgery, but her interest in the surgery is greater than his.
Dr. Granger also discussed the possibility of a fusion to relieve the pain in Ms. Spears's finger. In Dr. Granger's opinion, this option is very undesirable, and he testified he would almost prefer amputating the finger through the middle joint to fusing the joint. He further testified that he would only recommend amputation if Ms. Spears's pain was severe and unrelenting. He did not testify that Ms. Spears's pain was of such magnitude.
The trial court awarded Ms. Spears future medical expenses in the amount of $1,000.00 for future office visits in light of her continuing complaints of pain in her finger and wrist. Ms. Spears argues she should have been awarded at least $11,000.00, which is the amount Dr. Granger estimated would be required for to perform a fusion on her finger.
In Veazey v. State Farm Mutual Automobile Insurance Co., 587 So.2d 5, 8 (La.App. 3 Cir.1991) (citations omitted), this court addressed the proof required for an award of future medical expenses, explaining:
Future medical expenses, like any other damages must be established with some degree of certainty. The plaintiff must show that, more probably than not, these expenses will be incurred. Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost. An award for future medical expenses cannot be based on mere speculation of the jury. Much stronger proof, such as medical testimony of the specific expenses to arise, should be required for such an award.
Dr. Granger discussed the possibility of future surgery but did not recommend surgery, and he was uncertain that any of the surgeries he discussed would benefit Ms. Spears. His testimony did not establish that Ms. Spears would more probably than not incur expenses for another surgery. Importantly, Ms. Spears testified that she would only "possibly" consider having additional surgery on her finger if the pain increased. The trial court did not err in awarding Ms. Spears $1,000.00 for future medical treatment.
Ms. Spears also argues that the trial court's refusal to award her past lost wages was error. Damages for past lost wages must be able to be calculated with mathematical certainty from the proof submitted at trial. Such an award is an exception to the much discretion award. Sengsouly v. Allstate Ins. Co., 99-22 (La.App. 3 Cir. 6/9/99), 744 So.2d 649, writ denied, 99-2526 (La.11/19/99), 749 So.2d 677. " he record must provide a factual basis for the award." Myers v. Broussard, 96-1634, p. 17 (La.App. 3 Cir. 5/21/97), 696 So.2d 88, 97.
The trial court concluded that Ms. Spears was voluntarily unemployed and did not award her past lost wages. In rea
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