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Hanks v. Seale6/17/2005
intiff has the burden of proving that the admitted malpractice caused damages in excess of $100,000.00. Moreover, the PCF may argue and present evidence before the trier of fact that victim or third-party fault caused, in whole or in part, the excess damages sought. [Cites omitted.] . . .
Further, even if these tests are considered the standard, there is not a shred of evidence that failure to perform these tests caused damage to the plaintiffs; to the contrary, all of the testimony, except that of Dr. Silverman who could only say he was unsure on the matter, established that none of the conditions sought to be detected by these tests existed in this case. . . .
Moreover, plaintiffs put on no evidence to establish a causal link between the alleged surgical deficiencies and Mr. Hanks' subsequent complications. . . .
With regard to the PCF's challenges to liability, the overwhelming evidence in the record establishes that plaintiffs failed to prove the applicable standards of care pertaining to the preoperative, operative and post-operative care rendered to Mr. Hanks by Drs. Seale and Ledet.
Even assuming these standards were proved, plaintiffs failed to establish a breach of these standards by Drs. Seale and Ledet or a causal link of any such breach to the complications suffered by Mr. Hanks.
While La. C.C.P. art. 2129 provides that " n assignment of errors in not necessary in any appeal," the courts of appeal and this Court have specific rules governing the contents of writ applications. Rule 1-3 of the Uniform Rules-Louisiana Courts of Appeal, entitled Scope of Review, provides:
The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by LSA-Const. Art. 5, § 10(B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.
Likewise, La. Sup. Ct. R. X, §1(b), requires that " he application for writs shall address, in concise fashion, why the case is appropriate for review under the considerations stated in subsection (a) above." As further provided in civil cases, La. Sup. Ct. Rule X, § 3(3) requires the applicant to submit assignments of error and " n argument of each assignment of error on the facts and law, addressing particularly why the case is appropriate for review under the considerations stated in Section 1(a) of this rule." This rule allows for the best use of our judicial function in developing Louisiana jurisprudence. Boudreaux v. State, Dept. Of Transp. and Development, 01-1329 (La. 2/26/02), 815 So. 2d 7, 10 (finding that the DOTD abandoned arguments made in its assignments of error but which it chose not to brief). "Correlatively, if this Court is to sharpen the focus on those issues most worthy of consideration and hasten the decisional process, it is imperative that we not be blind sided after we grant a writ application with questions which did not appear in the application for a writ of certiorari." Id. at pp. 10-11.
This is hardly a case where this Court or the court of appeal was blindsided with an issue after the writ was granted or where a party failed to address an issue in a writ application or appellate brief. A fair reading of the PCF's assignment of error to the court of appeal in its appellate brief and to this Court in its writ application, that the jury committed manifest error "in finding that plaintiffs established the applicable standards of care" and "assuming the standards of care were proved, in finding that Drs. Seale and L
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