text:
    Alfred DRIGGERS, Jr., Plaintiff-Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY and Mr. and Mrs. T. O. Thrash, Defendants-Appellees.
    No. 12937.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.
    Writ Refused Oct. 29, 1976.

      Hal V. Lyons, Shreveport, and Holloway, Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Brittain & Williams by Jack O. Brittain, Natchitoches, and John M. Stewart, Arcadia, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

This action arises out of an almost head-on, two-car collision in which plaintiff received severe injuries resulting in paraplegia. Plaintiff, driver of one of the automobiles, appeals from a judgment of the district court rejecting his demands for damages against the other driver, her husband, and her liability insurance company. For the reasons expressed in this opinion, we affirm the judgment of the district court.

Plaintiff is Alfred Driggers, Jr., a 32 year old ironworker at the time of the accident. Defendants are Lucille Prisco Thrash, a 47 year old mother of three, her husband Terrah O. Thrash, and Southern Farm Bureau Casualty Insurance Company.

The accident happened on August 5, 1969, at 4:15 p. m. on Louisiana State Highway 154 approximately 2.8 miles west of Ringgold in Bienville Parish. Louisiana Highway 154 runs generally east and west, is a two-lane asphalt highway approximately 22 feet in width, and has a painted center line. The area of impact was at a relatively straight and level point at the bottom of two hills, one rising to the east and one to the west. The weather was clear, dry and hot.

Immediately prior to the accident, plaintiff was driving his 1969 two-door Volkswagen sedan in an easterly direction on the way to his home in Ringgold from Shreveport where his automobile had been serviced. Defendant, Mrs. Thrash, was driving her 1965 Buick sedan in a westerly direction on the way from her home to pick peas at a friend’s pea patch in the area. There was no other traffic in the immediate vicinity. The only witnesses to the accident were plaintiff and defendant.

Plaintiff’s and defendant’s versions of how the accident happened are in sharp conflict. Plaintiff testified he topped the hill at a speed of approximately 60 m. p. h., the existing speed limit at the time. He saw the Buick with at least its front end in and blocking his lane of travel as if making a u-turn maneuver. He lightly applied his brakes in an effort to stop and continued down his eastbound lane, but was unable to stop and struck the Buick in his lane of travel.

Defendant testified she was traveling westerly when she saw the Volkswagen come over the hill in her lane of travel. The Volkswagen came down the hill at a rapid rate of speed on her side of the road, getting off onto or partially onto the north shoulder. She slowed down, pulled over as close as she could get to the center line, stopped, closed her eyes and began to pray. The Volkswagen collided with her Buick in her lane of travel. She did not see the actual impact.

The great preponderance of the physical evidence as described by several witnesses who arrived at the scene shortly after the accident and as evidenced by photographs in the record strongly supports defendant’s version of the accident.

Among the first persons to arrive at the scene of the accident were Ernest D. Hig-ginbotham, Chief of Police of Ringgold, George Henry Sherman, Jr., a Methodist minister who formerly worked as an insurance adjuster, and Clayton Pullig, a highway department truck driver. Trooper First Class Dick Thomas of the Louisiana State Police investigated the accident.

These witnesses established that after the collision the Thrash Buick was headed in a westerly direction, with the front end of the car all or partially across the center line at an angle and the remainder of the car in the westbound lane. The Driggers Volkswagen was in the ditch on the north side of the road against a sweetgum tree, approximately 63 feet north and east of the apparent area of impact.

It was established that plaintiff was thrown out of his automobile and came to rest on the pavement in the westbound lane to the right or north of the Buick.

The trooper and the other witnesses observed dirt and debris to the right or north of the Buick in the westbound lane. There were gouge marks in the asphalt pavement under the front end of the Buick near the center line of the highway, and pieces of asphalt on a part of the underside at the right front of the Buick which had dropped down after impact. The gouge marks ran from right or north of the center line to slightly left or south of the center line. There was a white line made by battery acid which spilled from the Buick’s battery, located at the right front of the car, extending from the right side of the westbound lane over to near the center line.

Damage to the Volkswagen was to the left front and damage to the Buick was to the right front.

The trooper testified he observed and measured 68 feet of skid marks made by the Volkswagen in the westbound lane leading to the point of impact. He established the point of impact as being in the westbound lane of travel.

The trooper testified there was so much traffic around the scene by the time he got there he could not locate or identify tire tracks or marks on the shoulder of the road. The other witne. ¿es, however, looked carefully and observed distinct, fresh tire tracks made by a small car on the north shoulder, extending to a point near the area of impact, at which point the tracks led back into the westbound lane of travel. At least two of the witnesses observed tire tracks on the sticky or “bleeding” asphalt near the top of the hill crossing the westbound lane and going onto the shoulder and then leading easterly down the hill to the area of impact as described above. The witnesses observed a culvert sign on the north side of the highway west of the area of impact which had been knocked down.

As would be expected, there were some discrepancies and inconsistencies in the testimony of the witnesses who observed the scene. For example, the trooper did not see the gouge marks, which were seen by other witnesses and were later photographed and examined by expert witnesses. Also, the trooper reported the Buick traveled 27 feet westerly and northerly after the impact, which would be impossible under any conceivable version of how the accident occurred. Nevertheless, the testimony of the witnesses is generally consistent, providing information about the physical evidence which, in turn, paints a fairly clear picture of how the accident happened —consistent in general with Mrs. Thrash’s version.

Two well-qualified accident reconstruction experts testified — one for plaintiff and one for defendants. Plaintiff’s witness, Ray Herd, Director of the Northwest Louisiana Criminology Laboratory, made one visit to the scene of the accident, examined photographs of the vehicles, and listened to the testimony of some of the witnesses at trial. Herd analyzed the angle of the force applied to each vehicle when they collided as revealed by the damages shown by the photographs. He was of the opinion it would have been difficult or impossible for the Volkswagen, traveling at a rapid rate of speed on the north shoulder, to have returned to the westbound lane of travel and to have struck the Buick in the manner and at the angle indicated by the damage to the vehicles. He was of the opinion the damage to the vehicles was consistent with plaintiff’s version of the accident. Beyond these opinions, Herd never was asked nor did he express any definite conclusions as to how the accident happened. His investigation was rather limited and his testimony was basically limited to an analysis of the damage to the vehicles and the angle of force applied to them at impact.

Defendant’s witness, Dr. William Tonn, an engineer from Houston, made a more thorough investigation of the scene of the accident, making tests, measurements, and the like. He correlated all available information, including testimony of the witnesses at trial. His opinion was that the accident happened much as described by Mrs. Thrash. As the Driggers Volkswagen came over the hill it drifted into the left or westbound lane, got off on the shoulder, proceeded down the hill at a rapid rate of speed, and came back onto the highway partially out of control, moving in a “crabbing” manner. The left front of the Volkswagen struck the right front of the Buick, which was stopped or almost stopped in the westbound lane.

Dr. Tonn’s reconstruction of the accident is persuasive and is consistent with the independent evaluation of the evidence by this court and the district court. Virtually all of the factors mentioned in the review of the evidence above strongly support a finding that the collision took place in Mrs. Thrash’s westbound lane after the Driggers automobile traveled down the hill easterly in the westbound lane, on the north shoulder, and back onto the westbound lane.

In written reasons for judgment, the trial court found as a fact that Drig-gers, for some reason known only to him, drove his vehicle into the lane of travel occupied by the Thrash vehicle and, in some manner, the left front of the Driggers automobile struck the right front of the Thrash vehicle. The trial court concluded “[t]he Thrash vehicle was in its proper lane of travel at the time of the accident, or, if it were partially into the other lane of travel, it was there because the Drig-gers’ vehicle was approaching in the Thrash lane of travel or was knocked into the Driggers’ lane by the collision itself.” Our review leads us to the conclusion the trial court’s findings are eminently correct.

Plaintiff’s primary contention on appeal is that the accident happened as described by plaintiff and that Mrs. Thrash was negligent in attempting a left turn or u-turn into plaintiff’s lane of travel on the highway. Plaintiff argues that the collision took place in Driggers’ lane of travel, creating a presumption of negligence on the part of defendant. Our finding of fact, to the contrary, is that the collision took place in Mrs. Thrash’s proper westbound lane of travel. She did not attempt a u-turn or otherwise cross over into or block plaintiff’s eastbound lane of travel, except to a very small extent either immediately prior to impact or after impact.

The accident was not caused by any negligence on the part of defendant, but was caused by plaintiff’s own negligence in allowing his vehicle to proceed down the wrong or westbound lane and shoulder and failing to keep his vehicle under proper control.

Plaintiff next contends that any negligence on his part is excused under the sudden emergency doctrine, plaintiff being confronted with a sudden emergency when the Thrash vehicle crossed over into his lane of travel. As previously stated, our finding is that the Thrash vehicle did not cross over into plaintiff’s lane of travel. Plaintiff was not confronted with a sudden emergency except that created by his own negligence and is, therefore, not entitled to the protection of this doctrine. Dane v. Canal Insurance Company, 240 La. 1038, 126 So.2d 355 (1960) and Clayton W. Posey v. Commercial Union Insurance Company, 332 So.2d 909 (La.App. 2d Cir. 1976).

Plaintiff argues alternatively that defendant had the last clear chance to avoid the accident, which she did not do, and is therefore liable. Plaintiff contends that when defendant observed plaintiff proceeding down the hill in her lane of travel and on the shoulder, she could have and should have taken evasive action to avoid the accident by driving to the left-hand side of the road.

It was defendant who was confronted with a sudden emergency created by the actions of plaintiff. Her failure to exercise perfect judgment under the circumstances is excusable. Furthermore, the action she took under the circumstances was reasonable. She slowed down and stopped or almost stopped. She drove left to or slightly across the center line, leaving the possibility open for plaintiff to continue on by her on the shoulder to her right or to return to his proper lane. She was entitled to presume, as a matter of law and as a matter of judgment, that the other vehicle would return to its proper lane of travel. Adams v. Dairyland County Mutual Insurance Company, 240 So.2d 762 (La.App. 2d Cir. 1970). There being no negligence shown on defendant’s part, the last clear chance doctrine is not applicable to the circumstances of this case and affords plaintiff no relief. Anders v. Eagle Motor Lines, incorporated, 292 So.2d 855 (La.App. 2d Cir. 1974) and Kemp v. Kennedy, 283 So.2d 773 (La.App. 1st Cir. 1973).

The accident and its serious consequences to plaintiff are tragic and unfortunate. The law provides redress, however, only for damages caused by the fault of another. The evidence in this case establishes that the defendant was not at fault and, consequently, neither defendant nor her liability insurance company are responsible for the plaintiff’s damages.

For the reasons assigned, the judgment of the district court is affirmed at plaintiff-appellant’s costs.

Affirmed.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    The FIDELITY AND CASUALTY COMPANY OF NEW YORK et al., Plaintiffs-Appellees, v. Evelyn Diffey MASTERS et al., Defendants-Appellants.
    No. 12936.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.
    Writ Refused Oct. 27, 1976.

      Bice & Wiley by Jim Wiley, Winnfield, for defendants-appellants Nellie Ann Madison and Evelyn Diffey Masters.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendants-appellants William Lonnie Masters and Donna Pearl Masters, for appellants.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for ap-pellees.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

The constitutional question in this workmen’s compensation proceeding is whether the conclusive statutory presumption of dependency accorded minor children living with an injured employee denies equal protection to other, minor children not living with him.

William L. Masters was killed while performing work in the course of his employment with Rex Drilling Company, Inc. on June 22, 1969. This proceeding was brought by Rex and its compensation insurer, Fidelity and Casualty Company of New York, against several persons claiming to be entitled to benefits under the workmen’s compensation statute as dependents of the deceased. Rex and Fidelity deny that any of the parties named as defendants are conclusively presumed under the statute to be a dependent, and that none of these persons were actually dependent upon the deceased at the time of' his death.

Responsive pleadings were filed on behalf of the multiple defendants requesting recognition of their entitlement to benefits under the statute.

The trial court concluded that none of the defendants were dependent upon the deceased employee within the purview of the compensation statute, and rendered judgment rejecting their demands against Rex and Fidelity.

The only defendants who have appealed are William Lonnie Masters and Donna Pearl Masters. They are children of deceased who were born of his marriage with Evelyn Diffey. After termination of this marriage by divorce in 1960, appellants remained in the custody of their mother. Neither of the appellants resided in the household with the deceased at the time of his death. Evelyn Diffey did not obtain an order requiring Masters to pay child support in the divorce decree. No voluntary payment was made by him of an amount which could be considered to provide even partial support for appellants prior to his accidental death.

The applicable provisions of the workmen’s compensation statute in effect at the time of Masters’ death are in pertinent part as follows:

Section 1251
The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee : * * *
(3) A child under the age of eighteen years . . . upon the parent with whom he is living at the time of the injury of the parent.
Section 1252
In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death; .

The jurisprudence requires proof that the deceased employee was actually contributing to the support of a child where dependency can not be presumed and a legal or moral obligation owed to the child is not sufficient. Haynes v. Loffland Brothers Co., 215 La. 280, 40 So.2d 243 (1949); Griffitts v. Tiger Well Service, Inc., 226 So.2d 175 (La.App. 3rd Cir. 1969).

Appellants contend that as children living with the injured employee are granted a conclusive presumption of dependency by Section 1251, they should be accorded this same right under the equal protection clause of the 14th Amendment to the United States Constitution.' They, therefore, contend they are entitled to death benefits provided by the statute even though actual dependency on Masters may not have been established.

There have been no prior Louisiana or Federal Court decisions which have ruled on the constitutional issue presented. Appellants have cited and rely on two Federal decisions, Lalonde v. Associated Pipeline Contractors, Inc., et al, 496 F.2d 1175 (5th Cir. 1974), and Weber v. Aetna, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

In Lalonde, the Fifth Circuit of the United States Court of Appeals affirmed the ruling of the district court that a legal obligation to pay support was not sufficient to entitle the claimant to benefits under the Louisiana Compensation Statute. The appellate court remanded the case for consideration by the trial court of the possible violation of the equal protection clause by the state’s policy of allowing a child who was actually receiving support to recover benefits, while denying recovery to a child who was only morally and legally entitled to receive support. This case was settled prior to reaching a decision on the constitutional issue. It does not constitute a precedent for the 14th Amendment question presented here.

In Weber, the United States Supreme Court found that to deny workmen’s compensation benefits to dependent unacknowledged illegitimate children while granting benefits to dependent acknowledged illegitimate * children violated the equal protection clause of the 14th Amendment.

The court in Weber reaffirmed the test applied in a prior decision that a classification by a state statute bear some rational relationship to a legitimate state purpose to have validity under the equal protection clause. Levy v. Louisiana, 391 U.S. 68, 20 L.Ed.2d 436, 88 S.Ct. 1509 (1968).

The basic purpose of the Louisiana Workmen’s Compensation Statute is to provide a minimum amount of financial aid to an injured employee or to persons dependent upon him for support following an industrial accident.

The State has a legitimate purpose in limiting the benefits of the statute in case of death to the family relations who are actually dependent upon the deceased employee for support. This is in keeping with the purpose of the statute.

The presumption of dependency provided by Section 1251 does not offend the equal protection clause by establishing favored classes of children, but merely relieves children residing in the home with the deceased employee from furnishing proof of actual dependency which is apparent. It is reasonable to assume that children under 18 years of age living with a parent who is employed are actually being supported by the parent. This provision serves a legitimate state interest, and under the reasoning of Weber does not violate the 14th Amendment.

The judgment appealed is affirmed. Costs of this appeal are assessed to appellants.


author: HALL, Judge.

text:
    Theda Kay PARKER and Narvel Parker, Plaintiffs-Appellants-Appellees, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Defendants-Appellants-Appellees.
    No. 12947.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.

    Writ Refused Oct. 27, 1976.

      Shaw & Shaw by W. M. Shaw, Homer, for plaintiffs-appellants appellees, Theda Kay Parker and Narvel Parker.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, C. Sherburne Sentell, Jr., Minden, for defendants-appellants appellees, Minden Sanitarium, Inc. and Firemen’s Ins. Co., of Newark, N. J.
    Campbell, Campbell & Johnson by James M. Johnson, Minden, for defendants-ap-pellees, Dr. James Robert Kemmerly, Dr. Charles D. Hancock, Jr. and St. Paul Fire & Marine Ins. Co.
    Adams & Reese by Richard C. Baldwin, New Orleans, for Dr. James Robert Kem-merly and Dr. Charles D. Hancock, Jr.
    Before PRICE, HALL and JONES, JJ.

       Bolin and Marvin, JJ., recused.

   HALL, Judge.

This is a suit for damages by a husband and wife based upon alleged malpractice by their obstetrician and the employees of a hospital in connection with the delivery of their third child by induction of labor md in connection with treatment of the wife for complications following the birth of the child.

The suit was filed in December, 1972, by Mrs. Theda Kay Parker and her husband Narvel Parker, who lived in Minden, Louisiana. Named as defendants were (1) Dr. James Robert Kemmerly, a Minden obstetrics and gynecology specialist who delivered the child and treated Mrs. Parker; (2) Dr. Charles Hancock, Jr., a Min-den physician who assisted Dr. Kemmerly in surgery performed on Mrs. Parker following delivery of the child; (3) St. Paul Fire & Marine Insurance Company, the liability insurer of the two physicians; (4) The Minden Sanitarium, Inc., owner of the hospital where the delivery and treatment took place; (5) Benny Salter, a laboratory technician employed by the hospital; and (6) Firemen’s Insurance Company of Newark, New Jersey, the liability insurer of the hospital and Salter.

The case was tried in March, 1975, before a jury which awarded $20,000 to Mrs. Parker and $30,000 to Mr. Parker against the hospital and its insurer and rejected plaintiffs’ claims against all other defendants. Plaintiffs, the hospital and the hospital’s insurer appealed.

On appeal, plaintiffs acknowledge they have no claim against Dr. Hancock as no fault on his part was proved and further acknowledge they have no claim against Salter who discharged the claim in bankruptcy proceedings. Plaintiffs seek an increase in the awards and seek to have Dr. Kemmerly and his insurer held in solido with the hospital and its insurer. The hospital and its insurer urge that Mr. Parker is not entitled to any award and that the award in favor of Mrs. Parker is excessive.

The Facts

Upon learning of the pregnancy of Mrs. Parker, plaintiffs consulted with and employed Dr. Kemmerly to provide prenatal care and delivery of the baby. Dr. Kem-merly and Mrs. Parker calculated that the estimated time of arrival of the baby in the natural course of events would be January 24-26, 1972.

The Parkers already had two children ages six and two. Plaintiff was in labor six hours after her “water broke” when she gave birth to her first child. She was in labor three hours when she gave birth to her second child which was delivered by Dr. Kemmerly. In connection with the delivery of her second child, Dr. Kemmerly performed an amniotomy for the purpose of inducing labor. The term amniotomy simply means an artificial breaking 'by the doctor, using some type of instrument, of the membranes or “bag of waters”. Following the breaking of membranes, the water leaves the uterus and a hormone “oxytocin” commences to secrete and labor follows naturally. Labor was induced in connection with the delivery of the second child primarily for the convenience of Mrs. Parker and her husband who were living in Texas at the time. There were no complications whatsoever.

During Mrs. Parker’s third pregnancy she visited Dr. Kemmerly regularly and there were no unusual complications. Dr. Kemmerly and Mrs. Parker discussed inducing labor and it was agreed that the delivery would be done in the same manner as with the second child. Examination by Dr. Kemmerly revealed that some dilation of the cervix had occurred in December and on January 6, 1972 there was further dilation. On this date Dr. Kemmerly and Mrs. Parker selected January 14 as the date for inducing labor to bring about the birth of the baby. On January 14, Mrs. Parker checked into the sanitarium about mid-day and the amniotomy was performed in the early part of the afternoon. Approximately two and one-half hours later, at approximately 5 :00 p. m., Mrs. Parker gave birth to a healthy six pound baby boy, the delivery up to that point being without any complications.

After delivery of the child and the delivery or expelling of the after-birth, Dr. Kemmerly observed an excessive amount of bleeding from the vagina, apparently due to a failure of the uterus to contract. In the usual or normal situation, following the expulsion of the placenta, the uterus contracts closing blood vessels or sinuses in the muscular wall of the uterus and stopping the flow of blood. When the uterus fails to contract (uterine atony), the result is postpartum hemorrhage or excessive bleeding.

Dr. Kemmerly performed some exterior massage of the uterus, which is a normal procedure in connection with deliveries to encourage the uterus to contract. This massage is performed by placing the hand on the mother’s abdomen and maneuvering it in such a fashion as to massage the uterus. When the bleeding continued Dr. Kemmerly carefully examined Mrs. Parker to be certain there were no tears or lacerations in the uterus itself or any injury at the entry to the vagina where stitches were placed following birth. The doctor found none of these situations to exist and commenced the administration of a synthetic oxytocin hormone known as pitocin. In a further effort to cause the uterus to contract, Dr. Kemmerly performed bimanual compression of the uterus by placing one hand on the uterus through the vagina and massaging it against the other hand on the abdomen. The use of the drug and various massaging methods were ineffective and Mrs. Parker continued to hemorrhage.

Dr. Kemmerly then made the decision, in order to prevent Mrs. Parker from bleeding to death, to perform an emergency hysterectomy and remove the uterus. This decision was made about 6:00 p. m. in the afternoon. Dr. Kemmerly called for the appropriate staff and made the necessary arrangements for performing the operation. He advised Mr. Parker of the situation and Mr. Parker told the doctor to do what was needed. Mrs. Parker was removed from the delivery room into the operating room. A blood transfusion was commenced while Mrs. Parker was still in the delivery room and continued after she was moved to the operating room. There were two 500 cc. units of blood available at the time of the commencement of the initial transfusion. Mrs. Parker had O-positive blood and both of the available units were properly matched to be used for her transfusion.

Present in the operating room were Dr. Kemmerly, Dr. Hancock, who happened to be in the hospital and volunteered to assist, Mrs. T. L. Slay, an anesthetist, Mrs. Edna Gantt, surgical nurse, and Mrs. Estelle Amason, circulating nurse. The three ladies were all employees of the hospital. Also present was a Mrs. Shaw, a nurse at the hospital who was a friend of Mrs. Parker, but who performed no duties in connection with the operation.

Shortly before the operation was commenced Dr. Kemmerly ordered an additional two units of blood to be obtained from the 'hospital blood laboratory which was under the control of Benny Salter, a laboratory technician employed by the hospital.

The operation was commenced. While it was in progress, Mrs. Edna Shirley, a nurses’ aide employed by the hospital whose duties were primarily related to the care of babies in the nursery, went to the hospital laboratory for the purpose of giving blood for Mrs. Parker. Mrs. Shirley was handed two 500 cc. units of blood along with lab slips by Salter. She understood Salter to instruct her to carry them to the operating room. Salter testified he instructed her to carry them to the second floor where they were to be given to another patient, a Mrs. Spruell. In any event, Mrs. Shirley carried the blood to a room adjoining the operating room where she was met by Mrs. Amason, the circulating nurse. Mrs. Amason and Mrs. Shirley checked the numbers of the blood containers against the numbers on the lab slips, found them to correspond, and concluded it was the correct blood for Mrs. Parker. They failed to observe that Mrs. Spruell’s name and room number were on the slips and that Mrs. Parker’s name and room number were not. The blood brought by Mrs. Shirley to the operating room was A-positive which is incompatible with Mrs. Parker’s O-positive blood.

The three people in the operating room who functioned immediately in the operating field were Dr. Kemmerly, Dr. Hancock and the surgical nurse, Mrs. Gantt. All three of these persons were scrubbed or carefully washed and germ free. The circulating nurse, Mrs. Amason, functioned outside of the operating field and was not scrubbed. Mrs. Slay, the anesthetist, functioned at the patient’s head outside of the operating field and was not scrubbed. The evidence is that it would be improper for anyone scrubbed to participate in any way with the checking of the blood or the commencement of the transfusion. Dr. Kem-merly was operating deep in the patient’s pelvis at the time the blood was delivered to the operating room.

Either Mrs. Amason or Mrs. Slay placed the units of blood brought by Mrs. Shirley on the I.V. pole and commenced the transfusion of the blood into Mrs. Parker. Mrs. Parker received one full 500 cc. unit of the A-positive blood and approximately 100 cc.’s of the second unit before the error that Mrs. Parker was being infused with incompatible blood was discovered.

The laboratory technician, Salter, received an inquiry about the blood from Mrs. Spruell’s room arid immediately realized there was a probability the blood intended for her had gone to the operating room. Salter rushed to the operating room and advised Dr. Kemmerly that Mrs. Parker was being given the wrong type blood. The transfusion was immediately stopped and Salter took the remaining portion of the unit of A-positive blood to Mrs. Spruell’s room and it was apparently thereafter administered to her.

Dr. Kemmerly immediately ordered more of the proper O-positive blood for Mrs. Parker and it was obtained and the transfusion resumed. The doctor also immediately began to give Mrs. Parker other necessary liquids for the purpose of diluting the incompatible blood in Mrs. Parker’s system and making available sufficient liquid in order that the incompatible blood would be excreted from her body through her kidneys and bladder in her urine. He was assisted in this by Dr. Gary Daniels, who came to the operating room while surgery was in progress and who made “cut-downs” in Mrs. Parker’s ankles where infusion tubes were inserted.

The principal treatment of a person who has received incompatible blood is the giving of large volumes of correctly matched blood and other medical liquids in order that ample liquids are in the body to provide a place for the incompatible blood to be broken down by bodily processes and eventually leave the body through the kidneys and bladder. One of the greatest dangers from receiving incompatible blood is damage to the kidneys.

Thereafter the hysterectomy proceeded and was completed without any further complications. During the operation Mrs. Parker maintained an adequate urine flow which was assisted and measured by a Foley catheter which was inserted prior to surgery.

After surgery, Dr. Kemmerly had the first of several telephone consultations with Dr. Michael Ellis, pathologist at Bossier General Hospital and consultant pathologist for The Minden Sanitarium. Dr. Ellis agreed and approved the treatment administered by Dr. Kemmerly in connection with the transfusion reaction.

Mrs. Parker required several more blood transfusions that night. She did not go into shock. She was treated with large amounts of intravenous fluids to keep her. urine flow in excess of a certain level. During surgery and during the postoperative period, Mrs. Parker received a total of twelve or thirteen units of blood. Tests were made postoperatively which indicated no kidney damage.

On Monday night following the delivery and surgery on Friday, Dr. Kemmerly told Mr. Parker for the first time about the transfusion episode.

On January 20, Dr. Kemmerly had a telephone consultation with Dr. James Johnson, assistant professor of medicine and chief of the section of nephrology at LSU School of Medicine in Shreveport. Dr. Johnson examined the patient on January 22, reviewed the tests previously made, and made an additional test which revealed no evidence of renal or kidney damage and no anticipated future renal problems.

Mrs. Parker’s postoperative course was complicated by an episode of pulmonary edema and bronchopneumonia which responded rapidly to treatment. She ran a fever which responded slowly but progressively to antibiotic therapy. Mrs. Parker and her child were discharged from the hospital on January 27, thirteen days after delivery and surgery.

After Mrs. Parker went home she ran some fever and had some pain and discomfort and needed help with the housework for a brief period of time. She soon resumed normal activities and thereafter had no significant medical problems related to her hospitalization except possibly cystitis. In March, 1972, about two months after her hospitalization, Mrs. Parker was examined by Dr. Kemmerly, complaining of blood in the urine and back pain. Her condition was diagnosed as cystitis. In July, 1973, more than a year later she was examined by Dr. John Berry, a Shreveport urologist. At this time she was complaining of blood in the urine and frequency of urination. Dr. Berry diagnosed her condition as hemorrhagic cystitis.

In November, 1973, Mrs. Parker was treated for mononucleosis by Dr. John W. Wilson, Jr. and was hospitalized in Bossier General Hospital. During this hospitalization Mrs. Parker was given further tests to determine if she was having any problems with her kidneys and the tests indicated no kidney problems.

In February and March, 1975, shortly before trial, Mrs. Parker was examined by Dr. H. M. Yearwood, a Shreveport urologist. Dr. Yearwood diagnosed her problem at that time as a low-grade chronic cystitis.

During the summer of 1972, Mrs. Parker had several teeth pulled.

Following Mrs. Parker’s recuperation from her surgery in the spring of 1972, she became very religious, participating in many church activities and engaging in religious discussions. Prior to the surgery, the Parkers attended church regularly on Sunday but their interest in church activities intensified after her hospitalization. Mr. Parker became superintendent of the church school. Mrs. Parker described this period, which lasted about a year, as a happy period in their married life.

In about the summer of 1973, more than a year after the surgery, Mrs. Parker became disenchanted with her church activity and also with her husband. She began to go places with younger female friends and, unknown to Mr. Parker, began to frequent nightclubs on “The Strip” in Bossier City while he was away from home. Eventually, Mrs. Parker insisted on a separation from him which subsequently resulted in a judicial separation, following which there was a reconciliation for a short period of time, and thereafter a divorce. At the time of trial Mrs. Parker was married to a Mr. Lee.

Between the time of her separation from Mr. Parker and her second marriage, Mrs. Parker lived in several apartment complexes in the Shreveport-Bossier area with her three children. She worked at several different office jobs. She dated numerous men, some married and some single, had an active night life and issued numerous worthless checks. She was eventually charged with and pled guilty to the crime of issuing worthless checks. In the summer of 1974, Mrs. Parker was examined by Dr. James Phillips, a Shreveport psychiatrist, who found she suffered from depression in her then situation relating back to long-standing conflicts with her mother and to her unhappy marriage. Mrs. Parker attended several group therapy sessions. The hospital incident was not mentioned by Mrs. Parker to Dr. Phillips and was mentioned only once casually at a group therapy session.

When the Parkers’ marriage broke up, Mr. Parker found himself in financial difficulty because of his wife’s inattention to paying bills and later because of his efforts to cover her bad checks and otherwise help her financially. Mr. Parker moved, changed jobs, and eventually Mrs. Parker voluntarily gave custody of the three children to him. At the time of trial, Mr. Parker was working for the Webster Parish School system, had not remarried, and had the three children with him.

Alleged Negligence of Dr. Kemmerly

Plaintiffs contend Dr. Kemmerly was negligent (1) in employing elective inducement of labor, that is, inducing labor for convenience rather than for medical reasons ; (2) in failing to advise plaintiffs of the dangers of elective induction of labor and hence failing to obtain plaintiffs’ informed consent to this procedure; (3) in failing to administer the most important conservative treatment for postpartum hemorrhage; (4) in failing to check the blood which was given to Mrs. Parker by mistake; (5) in giving Mrs. Parker the wrong medication and failing to give her the right medication after discovering that she had been given incompatible blood; and (6) in failing to timely consult a proper medical specialist about treatment of the blood transfusion reaction.

Dr. Kemmerly’s actions and his liability or nonliability in this case are to be measured by the standards enumerated in the landmark case of Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953):

“A physician, surgeon or dentist, according to the jurisprudence of this court and of the Louisiana Courts of Appeal, is not required to exercise the highest degree of skill and care possible. As a general rule it is his duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case.”

Plaintiffs’ case rests primarily on the testimony of Dr. Harvey L. Jorgenson, a 66 year old physician from Miami, Florida. Dr. Jorgenson is a general practitioner and surgeon with no special education or training in obstetrics, gynecology or internal medicine. He did general practice for about twenty years in Wisconsin and in 1951 moved to Miami where he has practiced since that time. He delivered many babies while in general practice in Wisconsin but has only delivered one baby since 1951. He was obtained as a witness through a Miami based operation known as Expertise Institute. Cases are sent to Dr. Jorgenson by the Institute for his review and advice. He had prepared between fifty and one hundred reports for the Institute and had testified in between ten and twenty cases involving medical problems. Dr. Jorgenson never examined Mrs. Parker. His testimony was based on an examination of the records relating to her case and, of course, on his knowledge and experience.

Dr. Jorgenson was of the opinion that induction of labor should not be practiced in the absence of medical or surgical reasons therefor. His principal objection to the use of induction of labor in Mrs. Parker’s case was that he found no reason in the record to explain why the induction was carried out. Dr. Jorgenson testified there was a controversy in the medical profession over elective induction of labor, that is, induction of labor for convenience without medical or surgical reasons therefor. Dr. Jorgenson testified that postpartum hemorrhage is one of the possible complications of elective induction of labor. He did not express an opinion that the postpartum hemorrhage in Mrs. Parker’s case was actually caused by the induction of labor.

Dr. Kemmerly, a well-educated and trained board-certified specialist in obstetrics and gynecology with many years experience, explained in his testimony that his decision to induce labor was based upon medical reasons. Mrs. Parker’s first child was delivered six hours after labor commenced and her second child three hours after labor commenced. The indication from these previous experiences was that the third pregnancy would be terminated by an even shorter period of labor. The risk involved in delivering a baby at home before the patient could reach a hospital are obvious. Likewise, the advantages of having the mother in the hospital when labor commences are obvious. Dr. Kem-merly also took into account the fact that he was told Mr. Parker became extremely excitable when Mrs. Parker’s water broke at home during her first pregnancy. He also took into account the previous delivery by induction of labor which was successful and without complications. Dr. Kem-merly’s explanation of the medical reasons for inducement of labor totally satisfy Dr. Jorgenson’s inquiry as to the reason for inducing labor in this particular case. The procedure was employed for sound and logical medical reasons.

Dr. Kemmerly considered there was no increased or added risk to a mother when labor is induced by amniotomy at a time when she is at term and factors indicate a readiness to deliver. A patient is considered ripe or ready to deliver if (1) the patient is within a period of less than two weeks of the estimated arrival date; (2) it is determined by measurement that the baby is large enough; (3) there is dilation of the cervix; (4) the baby’s head is well down in the pelvis; and (5) the water bag or membrane bag is pushed down in the mouth of the cervix. All of these factors were in existence at the time Mrs. Parker was hospitalized and labor induced.

Testifying in support of Dr. Kemmerly were Dr. Milton S. Richardson, Dr. Gary Lynn Daniels, Dr. John Hill and Dr. McIntyre Bridges, all physicians practicing in Minden, Louisiana, and all with extensive experience in the delivery of babies. Also testifying on behalf of Dr. Kemmerly were Dr. Gary Brooks, assistant professor in obstetrics-gynecology at LSU Medical School in Shreveport and Dr. Oscar Lee Berry, Jr., a Shreveport specialist in obstetrics and gynecology. All concurred with Dr. Kem-merly concerning the advisability of inducing labor in Mrs. Parker’s situation. All concurred in Dr. Kemmerly’s opinion there is no increased danger to the patient as a result of induction of labor by amniotomy where the “ripeness” factors are present as was the situation with Mrs. Parker. All testified they reviewed the hospital records and Dr. Kemmerly’s records in connection with the delivery of Mrs. Parker’s baby and found his work exemplary and that he was guilty of no wrongdoing whatsoever in his inducement of labor and the delivery of her third child. Although some of the medical witnesses practiced inducement of labor more than others, the clear thrust of their collective testimony was that inducement of labor by amniotomy under the circumstances existing in this case is a common, widely-practiced procedure in this locality and, indeed, nationwide.

The testimony of the witnesses was further to the effect that there was no relationship between the induction of labor and the postpartum hemorrhage which occurred in this instance.

The evidence shows that the cause of postpartum hemorrhage resulting from uterine atony is unknown, although it may most often be related to overstimulation of the uterus. The record in this case, including the testimony of Dr. Jorgenson, contains no support for a finding that the postpartum hemorrhage was caused by or related to the inducement of labor by amniotomy.

Plaintiffs assert that Dr. Kemmerly is guilty of malpractice for the additional reason that while they consented to the induction of labor their consent was not an informed consent because they were not advised and were unaware of the danger of a postpartum hemorrhage as an added risk.

Louisiana law recognizes the informed consent doctrine. Not only must a patient consent to an operation but such consent must be an informed consent. A physician has a duty to disclose material facts reasonably necessary to allow the patient to form the basis of an intelligent consent. Goodwin v. Aetna Casualty &. Surety Company, 294 So.2d 618 (La.App. 4th Cir. 1974). It is not incumbent upon an attending physician to advise a patient as to every conceivable possibility and eventuality that may stem from that physician’s treatment. If the possibility is one that can reasonably be anticipated and' falls within the expertise of the treating physician, then the treating physician should so inform his patient. Delaune v. Davis, 316 So.2d 7 (La.App. 1st Cir. 1975). Consent is not properly given if the operation involves risks and results not contemplated or explained to the patient. Rogers v. Lumbermens Mutual Casualty Company, 119 So.2d 649 (La.App. 2d Cir. 1960). A physician’s failure to disclose a possible danger is not a breach of duty on his part in the absence of a showing that the patient’s consent would have been withheld if the patient had been informed of the danger. Goodwin v. Aetna Casualty & Surety Company, supra; Zachary v. St. Paul Fire & Marine Ins. Co., 249 So.2d 273 (La.App. 1st Cir. 1971).

There was no breach of duty on the part of Dr. Kemmerly in failing to advise plaintiffs of the risk of postpartum hemorrhage because there was no added or additional risk of postpartum hemorrhage created by the performance of an amni-otomy. Postpartum hemorrhage is a risk or possibility in the delivery of a baby under any circumstances. Inducing labor by amniotomy under the circumstances present in this case created no additional risk and there was no duty on the part of Dr. Kem-merly to discuss the possibility with his patient. Further, as previously noted, there is no evidence linking the postpartum hemorrhage to the amniotomy.

Plaintiffs’ next charge is that Dr. Kemmerly did not administer the most important conservative treatment to stop the postpartum hemorrhage, that is, bimanual compression of the uterus. All of the medical evidence is to the effect that among the conservative treatment procedures which should be given a patient who is suffering from postpartum hemorrhage are bimanual compression of the uterus, administration of a synthetic oxytocin drug and careful examination of the uterus for tears and lacerations. Dr. Kemmerly’s testimony and the record of the treatment given Mrs. Parker establish that he performed all of these conservative methods in an attempt to stop the excessive bleeding. Plaintiffs’ contention that the medical records were falsified and altered at a later date to include mention of the bimanual compression is not at all persuasive. In spite of the proper conservative procedures skillfully employed by Dr. Kem-merly, the hemorrhage continued and he had no alternative but to perform an emergency hysterectomy to save the patient’s life. The several doctors testifying on behalf of Dr. Kemmerly all agreed that he took the proper conservative measures and that he made the correct decision when he proceeded to perform the hysterectomy in order to stop the hemorrhage!.

Plaintiffs next contend that Dr. Kemmerly was negligent in failing to check the blood brought into the operating room before it was transfused into Mrs. Parker and that he is responsible for the negligence of the nurses under the “Captain of the Ship” doctrine.

At the time the blood was brought into the operating room, Dr. Kemmerly was operating deep within the pelvis of the patient. The medical evidence is positive that it would have been entirely improper for him to divert his attention from the operation to check the units of blood to determine if it was the correct type. Such action on his part would have interfered with the progress of the operation and would have required him to go outside of the sterile operating field. It was entirely proper for him to continue with the operation and for him to rely upon the employees of the sanitarium, the nurses, to check and be certain that the blood was of the proper type for Mrs. Parker. There was no negligence on the part of Dr. Kemmerly in failing to check the units of blood and he is not responsible for the error of the hospital employees, unless as contended by plaintiffs, he is responsible under the “Captain of the Ship” theory.

In Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969), the Supreme Court held that while it. is the general rule that the surgeon is in charge of all personnel during the performance of the operation, the borrowed servant doctrine does not apply in the instance of operations performed under modern techniques requiring team performance where the nurses and other personnel assisting in the operating room are not at all times under the immediate supervision and control of the operating surgeon. This holding is applicable to the instant case. While Dr. Kemmerly had the right to direct the nurses in attendance in the operating room, the nurses in checking the units of blood and in commencing the transfusion were not responding to the operating surgeon’s exclusive control and were not under his immediate supervision and control in conducting that particular procedure. Dr. Kem-merly is not responsible for the negligence of the hospital personnel in this case.

Plaintiffs’ next allegation of malpractice is that Dr. Kemmerly, after discovering Mrs. Parker had been administered incompatible blood, compounded the error by giving her the wrong medication and failing to give the right medication.

The treatment provided by Dr. Kemmerly following the discovery of the fact that Mrs. Parker received approximately 600 cc.’s of incompatible blood was generally the immediate transfusion of correct O-positive blood into Mrs. Parker along with large volumes of liquids to assist Mrs. Parker’s body in the expulsion of the incompatible blood through her kidneys and urinary tract. Dr. Kemmerly further administered drugs for the treatment of this problem including cortisone, alkaline, loridine and garamycin. In connection with the infusions, Dr. Kemmerly had Dr. Daniels make the necessary cuts on Mrs. Parker’s ankles to facilitate the introduction of the liquids. A Foley catheter was used, apparently for the dual purpose of assisting Mrs. Parker in disposing of urine following her hysterectomy and for the purpose of maintaining an adequate measurement of the urine output which must be maintained at a high level in order to speedily dispose of the incompatible blood in order to avoid damage to the kidneys and other organs of the body.

Dr. Jorgenson disagreed with this method of treatment on the theory that so much fluid superhydrates the patient and puts water in the lungs and places an increased load on the heart. He recommended the use of diuretic mannitol and lasix to increase kidney function in lieu of the use of so much liquid.

The physicians who testified on behalf of Dr. Kemmerly all agreed with the treatment performed by him for the incompatible blood problem and agreed that the use of mannitol and lasix was not called for or necessary in this case because Mrs. Parker maintained a sufficient urinary output.

The fact that Mrs. Parker received no damage to the kidneys or other vital organs as a result of having received the mismatched blood is in itself proof that she received proper treatment for the problem. The testimony of plaintiffs’ general medical witness who is not an expert in the field of transfusion reactions is in opposition to the testimony of the several well-qualified physicians testifying on behalf of defendant and under such circumstances, the opinion of plaintiffs’ witness cannot be accepted.

Plaintiffs contend that Dr. Kem-merly was negligent in failing to consult an internal medicine specialist until several days after the occurrence.

Drs. Hancock and Daniels were present and assisting during the crisis. Dr. Kem-merly consulted by telephone with the sanitarium’s pathologist on the evening of the incident. He consulted with Dr. Johnson several days later. The doctors with whom he consulted concurred in Dr. Kem-merly’s treatment of the blood condition. Other physicians who reviewed the record at later dates agreed that Dr. Kemmerly’s treatment of the problem was entirely adequate and proper. The problem was within the sphere of Dr. Kemmerly’s own training and expertise. It is not shown that consultation with an internal medicine specialist would have resulted in any different or additional treatment or that any such treatment would have been more beneficial than what was done.

The treatment administered by Dr. Kem-merly was within the area of his expertise and was proper. He obtained adequate consultation with other physicians under the circumstances. There was no need for further and additional consultations with other specialists. Dr. Kemmerly was not guilty of negligence or malpractice in this respect.

This court concludes, as did the jury, that Dr. Kemmerly was not at fault in any respect and is not liable to plaintiffs. In his treatment of Mrs. Parker, the doctor exercised the degree of skill ordinarily employed under similar circumstances by the members of his profession in good standing in the same community or locality, and used reasonable care and diligence, along with his best judgment, in the application of his skill to the case. In fact, Dr. Kemmerly’s treatment, judgment and skill, when confronted with life-endangering emergencies to which he had in no way contributed, was exemplary and resulted in saving the patient’s life with little or no serious medical aftereffects.

The Award of Damages to Mrs. Parker

Mrs. Parker is entitled to an adequate award against the hospital and its insurer for the damages she sustained as a result of the negligence of the hospital’s employees in giving her the incompatible blood. The jury awarded Mrs. Parker $20,000.

Plaintiff argues that the award is inadequate. Plaintiff contends that the transfusion error and the treatment therefor caused her serious and permanent physical injuries. She points to the transfusion reaction itself, her critical condition in the hospital, the development of pneumonia and continued fever and aches and pains during the period of her hospitalization and recuperation. She further claims serious and permanent damage to her kidneys and that her generally poor health and various medical problems since the surgery were all caused from the transfusion problem. In addition to the physical injuries Mrs. Parker seeks damages for the psychological, emotional and social losses she claims to have suffered as a result of the hospital’s negligence. Her claim is that the blood transfusion incident caused an emotional breakdown which resulted in a divorce between herself and her husband, the loss of all the property which they were acquiring prior to this incident, the complete loss of her normal lifestyle, the adoption of an antisocial lifestyle which ultimately resulted in her conviction for issuing worthless checks, and finally, a nervous collapse necessitating psychiatric treatment and group therapy.

On the other hand, the hospital and its insurer contend that the blood transfusion error caused Mrs. Parker no damage or loss other than the immediate consequences at the time of the incident and shortly thereafter during recuperation. Defendants argue that Mrs. Parker suffered no serious or permanent physical injury and that her subsequent medical and emotional problems are entirely unrelated to the incident in the hospital.

There is no evidence that Mrs. Parker suffered any damage to the kidneys or other organs of her body as a result of the transfusion reaction. The tests performed at the time and subsequently all indicate no damage to the kidneys. Although damage to the kidneys is one of the primary dangers of a transfusion reaction, the evidence in this case is that there was no such damage. Dr. Jorgenson suggested that a biopsy should be performed as a further test to determine whether there was kidney damage but all of the other doctors were of the opinion a biopsy was unnecessary and the tests already performed were entirely adequate. The fact that she had no kidney problems between the time of the incident and the time of trial is further proof that there was no kidney damage.

The evidence is that Mrs. Parker’s other medical problems subsequent to the incident such as mononucleosis and loss of teeth are entirely unrelated to the receiving of incompatible blood, with the possible exception of her chronic cystitis.

There is no indication in the record that Mrs. Parker had ever been troubled with cystitis prior to the delivery of her third child. Generally, cystitis is defined as an inflammation in the urinary system including the bladder and urethra. Cystitis is generally caused by a bacterial infection. Mrs. Parker’s cystitis has no relationship whatsoever to the mismatched blood. It was established, however, that the use of a catheter can cause cystitis and it was recognized in the medical testimony that the use of the catheter in this instance could have some relationship with Mrs. Parker’s chronic cystitis.

The record establishes it was necessary to use the catheter in connection with the treatment of Mrs. Parker for the blood transfusion reaction. The record also establishes, however, that the catheter was already in use in connection with the hysterectomy. The evidence indicates that the catheter was probably used for a longer period of time because of treatment of the blood transfusion reaction. The use of the catheter in connection with the treatment of the blood transfusion reaction could be a contributing cause of Mrs. Parker’s cystitis and could reasonably be considered in the assessment of damages to be awarded.

In regard to the pneumonia Mrs. Parker developed while in the hospital following the hysterectomy and the fever she ran during that time, the evidence is that bronchopneumonia is a commonplace occurrence for patients who receive general anesthesia in connection with surgery. The same holds true for fever. It would be difficult to relate these matters directly to the blood transfusion reaction and treatment, but it seems reasonable to conclude that the blood problem and treatment contributed to her overall weakened and critical condition and pain and suffering while in the hospital and during her recuperative period.

The evidence does not in any way justify a finding of causal relationship between the blood transfusion incident and Mrs. Parker’s subsequent emotional problems, divorce, and other activities. It is significant that for a period of approximately one year after the delivery of the child until her separation from her husband, the Park-ers were extremely happy. Mrs. Parker testified they were happier than they had ever been during that time. The fact that Mrs. Parker’s religious interests intensified during this period does not demonstrate a harmful emotional effect from the hospital incident. The hospital incident is entirely remote from the personality changes that seemed to manifest themselves some year and one-half later. Assuming that her conduct of leaving her husband, dating numerous men, writing hot checks, frequenting disreputable places and subsequently surrendering her children to her husband were due to personality disorders, there is no basis for connecting these disorders with the blood transfusion problem. Mrs. Parker’s psychiatrist, Dr. Phillips, specifically expressed the opinion that there was no relationship between her hospitalization and her psychological problems, which he related to entirely different sources.

Mrs. Parker suffered a significant traumatic experience, physically and mentally, by reason of the blood transfusion error. The experience undoubtedly caused her significant physical and mental pain and suffering during her hospitalization and for a period of time thereafter, particularly until it was well established that she would have no aftereffects. Fortunately, primarily through the competence of her treating physician, Dr. Kemmerly, Mrs. Parker suffered no permanent damage or aftereffects, other than possibly the cystitis which may be related to the surgery and the blood transfusion problem.

Mrs. Parker is entitled to a substantial award against the hospital but our conclusion is that the award of $20,000 by the jury under the circumstances is excessive and amounts to an abuse of the jury’s discretion, particularly in view of the very short period of time in which it can be said she suffered by reason of the receiving of mismatched blood. It is our judgment that the award to Mrs. Parker should be reduced to the sum of $10,000.

■The Award to Mr. Parker

The jury awarded Mr. Parker $30,000. Plaintiff contends the amount of the award is inadequate to compensate Mr. Parker for his mental anguish and suffering over his wife’s plight, and for the destruction of his marriage, loss of his home and car and family life. Plaintiff contends the hospital was under a contractual duty to Mr. Parker to provide proper medical services to his wife and having breached that duty is responsible for the damages resulting from the breach of contract. Defendants contend Mr. Parker is not entitled to any award under the well-established principle that a person is not entitled to damages for mental anguish and suffering arising out of injuries to another person.

The law is clear that Mr. Parker would be entitled to recover any medical or other expenses incurred by him, or by the community of acquets and gains, relating to the blood transfusion incident, the treatment therefor, or the consequences thereof. The record does not establish any such special damages. The hospital never sent Mr. Parker a bill for the hospitalization, although its attorneys did write the Parkers a letter concerning the bill on one occasion. In any event, the bill was never paid and the hospital agrees the bill is prescribed and uncollectible. No charge was made by Dr. Kemmerly other than his regular charge for prenatal care and delivery. In brief, plaintiff makes the broad-brush statement that the record is full of medical bills, but no specific medical expenses or amounts are mentioned. The evidence does not support an award for special damages such as medical expenses related to the blood transfusion incident.

The law is equally clear that Mr. Parker is not entitled to recover in tort for his mental pain, suffering and anguish brought about by his wife’s injuries resulting from the hospital’s fault. Sperier v. Ott, 116 La. 1087, 41 So. 323 (1906); Hickman v. Parish of East Baton Rouge, 314 So.2d 486 (La.App. 1st Cir. 1975) writ refused; Cambrice v. Fern Supply Co., 285 So.2d 863 (La.App. 4th Cir. 1973); Newman v. City of Baton Rouge, 260 So.2d 52 (La.App. 1st Cir. 1972) writ refused; Sabatier v. Travelers Insurance Co., 184 So.2d 594 (La.App. 4th Cir. 1966); Duet v. Cheramie, 176 So.2d 667 (La.App. 1st Cir. 1965); Johnston v. Fidelity National Bank, 152 So.2d 327 (La.App. 1st Cir. 1963); Vinet v. Checker Cab Co., 140 So.2d 252 (La.App. 4th Cir. 1962) cert. denied; Covey v. Marquette Casualty Co., 84 So.2d 217 (La.App. Orl. Cir. 1955); Alston v. Cooley, 5 La.App. 623 (1927).

Plaintiff contends, however, that the foregoing rule applies only to suits in tort, and that Mr. Parker’s action is one for breach of a direct contractual obligation owed to him by the hospital. Plaintiff contends he is entitled to recover all of his damages, including mental anguish and suffering, caused by the hospital’s breach of its contract.

It is plaintiff’s contention that when Mrs. Parker was admitted to the hospital and Mr. Parker signed a form agreeing to be responsible for payment, a contractual relationship between the hospital and him was created. It is argued that an implied obligation of the hospital under the contract was to render proper medical services to Mrs. Parker, which obligation the hospital breached.

Plaintiff cites and relies on Holland v. St. Paul Mercury Insurance Co., 135 So.2d 145 (La.App. 1st Cir. 1961). In Holland, the court held that an exterminating company with which a father-homeowner had contracted for exterminating work owed a separate and direct contractual duty to the homeowner to know the components of its poison and to advise the homeowner as to the nature of the poison within a reasonable time following request for such information. Accordingly, the court held the homeowner had a cause of action in contract as well as in tort against the exterminating company for damages, including mental anguish, under allegations that the exterminating company failed to supply such information when the homeowner thought his child had eaten some of the poison. The court held that the exterminating company’s duty in this regard was not secondary, derivative or dependent upon injury to the child, a third party, but was independent of an alleged tort inflicted on the child.

The Holland case is distinguishable from the instant case in that here the alleged breach of duty to Mr. Parker is a breach of the same duty owed to the patient, Mrs. Parker. The hospital’s duty to Mr. Parker was secondary, derivative and dependent upon its breach of duty and injury to Mrs. Parker, a third party. If there had been no breach of duty owed Mrs. Parker, there would have been no breach of a separate, direct duty owed Mr. Parker.

Although the Holland case is distinguishable, the issue raised by plaintiff is serious and difficult of resolution. Unquestionably, there is a contractual relationship between a hospital, or a physician, and the patient and also a husband or parent who is responsible for payment. Our view of the implied obligation of the hospital or physician to render proper medical service is that it is owed primarily to the patient, not to a third party responsible for payment. No separate and independent contractual duty in this respect is owed to the husband or parent responsible for payment. 'Our holding is that a breach of the duty to furnish proper medical services to a patient by negligent performance of the service does not give rise to a cause of action by a third party responsible for payment to recover the third party’s non-pecuniary damages arising out of the breach of duty by the hospital or physician and consequent injury to the patient.

It follows that Mr. Parker is not entitled to recover nonpecuniary damages for mental anguish and the like arising out of the hospital’s negligent breach of duty, contractual or delictual, owed to Mrs. Parker and her injuries resulting therefrom. The award in favor of Mr. Parker must be set aside.

Decree

For the reasons assigned: (1) the judgment in favor of plaintiff, Mrs. Theda Kay Parker Lee, against defendants, Firemen’s Insurance Company of Newark, New Jersey and The Minden Sanitarium, Inc., in solido, in the amount of $20,000 is reduced to the sum of $10,000, and as amended is affirmed; (2) the judgment in favor of plaintiff, Narvel Parker, against defendants, Firemen’s Insurance Company of Newark, New Jersey and The Minden Sanitarium, Inc., in solido, in the sum of $30,000 is reversed and set aside and judgment is hereby rendered rejecting said plaintiff’s claims against said defendants; and (3) the judgment in favor of defendants, St. Paul Fire & Marine Insurance Company, James Robert Kemmerly, Charles Hancock, Jr. and Benny Salter, rejecting both plaintiffs’ claims against said defendants is affirmed.

Amended in part, reversed in part, affirmed in part.


author: BOLIN, Judge.

text:
    Vaudine Rice SMITH, Plaintiff-Appellee, v. REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 12943.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.

      Hynes & Gueymard by Davis A. Guey-mard, Baton Rouge, for defendant-appellant.
    Bice & Russell by Charles B. Bice, Winnfield, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ-
   BOLIN, Judge.

Plaintiff sued Republic National Life Insurance Company on a health policy for the cost of a hemorrhoid operation. Republic denied liability because plaintiff had made false statements in her insurance application and additionally because she had hemorrhoids before the policy became effective. The lower court held Republic was estopped to deny liability because its agent completed the application form and he also assured plaintiff, before she was hospitalized, that her claim would be paid. We reverse.

The crucial issue is whether an insured may recover the cost of hospitalization under a health insurance policy where the sickness causing the hospitalization manifested itself before the policy became effective.

Plaintiff was the only witness to testify. She said that while she was busily engaged in her duties as a medical receptionist, an agent of defendant approached her about purchasing a health insurance policy. After she agreed to buy the policy, she stated the agent asked her a few questions such as her age, the names and ages of her children, and whether she had undergone any operations within the last year.

The agent filled out the application and plaintiff signed it on June 18, 1969. The agent’s answers indicated plaintiff had never had a rectal disorder. These answers were false. Plaintiff testified she had suffered from hemorrhoids for years and had undergone a hemorrhoidectomy several years before. She still suffered from the ailment and had been advised by her physician to undergo another operation. Plaintiff stated the agent did not ask her any questions about this physical condition. She paid her first premium and was assured by the agent the policy was effective the day she signed the application.

One to two weeks later, plaintiff said she experienced a’ new and different pain in her rectum. She described the pain as though coming from a growth in her rectum. Unable to find such a growth, her physician advised her to enter a hospital for a more complete examination. Before entering the hospital, she talked with the agent again to be sure the insurance would cover her if she entered the hospital. She testified the agent again assured her she was covered.

Plaintiff entered the hospital on July 14, 1969. An examination revealed internal hemorrhoids and an anal fissure but did not reveal a growth. She underwent a successful hemorrhoidectomy and repair of the fissure on July 22, and was discharged from the hospital on July 27.

After leaving the hospital, plaintiff received for the first time, a copy of her insurance policy dated July 18. The policy insures the plaintiff “. . . against losses incurred by the Insured as a result of injuries sustained or sickness contracted by the Insured . . .” The term “sickness” is defined in the policy as “a sickness or disease which first manifests itself while this policy is in force.” Defendant argues plaintiff’s sickness was not covered because it manifested itself prior to the issuance of the policy. Plaintiff argues her sickness stemmed from a new growth in her rectum and not from hemorrhoids.

Plaintiff did not offer any medical testimony to support the existence of a growth. She admitted her physician could not find the growth. The medical records of the hospital show an “admitting diagnosis” of hemorrhoids, a “final diagnosis” of internal hemorrhoids, and the performance of a hemorrhoidectomy. The hospital records also indicate the condition for which plaintiff entered the hospital manifested itself prior to her application for insurance. There is no evidence, other than plaintiff’s own testimony, to show that the condition for which plaintiff entered the hospital was anything other than the hemorrhoids which had plagued her for years and for which she had been advised to undergo surgery only two months prior to her application for insurance.

We find the insurance policy did not cover plaintiff’s sickness because the condition or disease first manifested itself prior to her application for insurance.

The trial court held defendant was es-topped from denying coverage. It reasoned plaintiff relied to her detriment on the representations of defendant’s agent that the policy was in effect and provided coverage.

The general rule in most jurisdictions is that equitable estoppel cannot be used to enlarge or extend coverage beyond that set forth in the policy. See 43 Am-Jur.2d, Insurance, § 1184; 1 A.L.R.3d 1139; Comment, Waiver and Estoppel in Louisiana Insurance Law, 22 La.Law Rev. 202; and Couch on Insurance 2d, § 71:39. Our courts follow this general rule. See Ledoux v. Old Republic Life Insurance Company, 233 So.2d 731 (La.App.3d Cir. 1970), writ refused, and cases cited therein. We hold the representations of the insurance company’s agent cannot be used to extend the insurance coverage beyond that provided in the policy.

Having decided the case on other grounds, we need not decide whether the policy was effective from the date of the application or the date appearing on the policy. The judgment is reversed and plaintiff’s demands are dismissed at her costs.


text:
    James V. WOODEN, Plaintiff-Appellant, v. The HARTFORD INSURANCE COMPANY, Defendant-Appellee.
    No. 12946.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.
    Kidd, Katz & Strickler by Stephen J. Katz, Monroe, for plaintiff-appellant.
    Hudson, Potts & Bernstein by Ben R. Hanchey, Monroe, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff appeals from a judgment of the district court sustaining the defendant insurance company’s peremptory exception of prescription of one year and dismissing plaintiff’s suit for damages for personal injuries arising out of an automobile accident. We affirm the judgment of the district court.

Plaintiff, James V. Wooden, filed suit on March 19, 1975, against defendant, The Hartford Insurance Company, alleging he was injured in an automobile accident which occurred March 16, 1974, caused by the negligence of an employee of defendant’s insured. Plaintiff alleged defendant paid to him $500 in partial settlement of his claim on or about January 27, 1975, but that defendant has not paid any sums for plaintiff’s physical injuries, medical expenses or loss of earnings, for which plaintiff sought recovery of the sum of $50,315.

Defendant filed a peremptory exception of prescription pleading the prescription of one year provided in LSA-C.C. Art. 3536. Upon trial of the exception, it was established that (1) the accident occurred March 16, 1974; (2) negotiations toward settlement were carried on between an adjuster for the insurance company and plaintiff’s attorney (who was not the same attorney representing plaintiff on appeal, the latter attorney having enrolled as counsel after judgment was rendered in the district court) ; (3) a settlement of plaintiff’s claim for damages to his automobile was reached and the defendant insurance company issued its draft for $500 on December 17, 1974, in full settlement of the property damage claim, which payment was accepted by plaintiff; (4) a settlement of plaintiff’s personal injury claims could not be reached and the adjuster suggested to plaintiff’s attorney that he go ahead and file suit; and (5) suit was filed March 19, 1975. It was stipulated that there was no claim of deception or fraud or anything other than completely fair dealing on the part of defendant and its adjuster at all times.

Plaintiff contended in the trial court and contends on appeal that the running of the one-year prescriptive period provided by LSA-C.C. Art. 3536 was interrupted by the payment made for property damage. Plaintiff contends the payment amounted to a partial payment of the debt owed him and an acknowledgment of his right to recover damages, within the meaning of LSA-C.C. Art. 3520, which provides:

“Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.”

Where the claim has prescribed under the allegations of the petition itself, the burden is then on the plaintiff to show why the claim has not prescribed. Tassin v. Allstate Insurance Company, 310 So.2d 680 (La.App. 4th Cir. 1975) writ refused 313 So.2d 836.

An acknowledgment sufficient to interrupt prescription must be a clear, concise and express recognition of the right which the creditor claims. Article 3520 has reference to those situations where there is an acknowledgment of a liquidated amount such as a note or account, not where the amount is to be negotiated. Tassin, supra. See also 14 Tul.L.Rev. 430 (1940). The acknowledgment must be of a specific debt, and must be couched in clear and certain terms. A debtor cannot acknowledge a debt so as to stop the running of prescription against him without knowing what amount he is acknowledging. Kennard v. Yazoo and M. V. R. Co., 190 So. 188 (La.App. 1st Cir. 1939).

Recognition of the mere existence of a disputed claim is not such an acknowledgment within the contemplation of Article 3520 as will effect an interruption of the running of prescription. The acknowledgment must be accompanied by or coupled with a clear declaration of intent to interrupt the prescription then running. Marathon Insurance Company v. Warner, 244 So.2d 353 (La.App. 2d Cir. 1971).

A compromise settlement and payment pursuant thereto of a part of the damages claimed by an injured party arising out of an offense or quasi offense does not amount to an acknowledgment of the right of the injured party to other damages so as to cause prescription to cease to run under LSA-C.C. Art. 3520 against the party’s action for such other damages. Payment of plaintiff’s property damage claim did not amount to an acknowledgment sufficient to interrupt prescription running against plaintiff’s claim for personal injury damages. There was no intent to interrupt prescription. There was no clear, concise and express recognition of plaintiff’s right to additional damages. The amount of plaintiff’s right, if any, was unliquidated and uncertain.

Plaintiff cites cases holding that a payment made on a promissory note or on an open account constitutes an acknowledgment sufficient to interrupt prescription. The cases are distinguishable in that the amount of the debt owed or the right claimed in such instances is liquidated and certain whereas a claim for personal injury damages arising out of a tort is unliquidat-ed and uncertain.

Plaintiff also analogizes payment of workmen’s compensation benefits, which tolls the running of prescription, to payment of part of his damages in tort. Prescription in workmen’s compensation cases is governed by a particular statute, LSA-R.S. 23:1209, which specifically provides that the one-year prescription established by that statute shall not take effect until the expiration of one year from the time of making the last payment of benefits. Payment of workmen’s compensation benefits is not analogous to partial payment of tort damages for purposes of determining the prescriptive period.

For the reasons assigned, the judgment of the district court sustaining the peremptory exception of prescription and dismissing plaintiff’s action is affirmed at appellant’s costs.

Affirmed.

      . LSA-C.C. Art. 3536. The following actions are also prescribed by one year:
      That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses. * * *
      LSA-C.C. Art. 3537. The prescription mentioned in the preceding article runs:
      * * * And in the other eases from that [day] on which the injurious words, disturbance or damage were sustained. * * *


text:
    Mrs. S. George WOLFE, Plaintiff-Appellee, v. SAFEWAY STORES, INC., Defendant-Appellant.
    No. 12945.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.

      Lunn, Irion, Switzer, Johnson & Salley, by Richard H. Switzer, Shreveport, for defendant-appellant.
    Booth, Lockard, Jack, Pleasant & Le-Sage, by John R. Pleasant, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and JONES, JJ.

       Bolin, J., recused.

   PRICE, Judge.

Plaintiff, Mrs. S. George Wolfe, brought this action against Safeway Stores, Inc. seeking to enforce an alleged agreement to compromise and settle all claims for damages sustained by her in a fall on the premises of defendant in Shreveport, Louisiana on November 13, 1974. Defendant filed an exception of no cause of action asserting that as the compromise agreement sued upon was not in writing, it was, therefore, unenforceable. This exception was overruled by the trial court and after submission of the case on the merits, judgment was rendered for plaintiff in the sum of $700 and costs. From this adverse judgment, defendant has perfected this suspensive appeal. The chronology of events and pertinent facts giving rise to litigation are substantially as follows:

Subsequent to the fall of Mrs. Wolfe on November 13, Mr. Whitfield Jack, an attorney of Shreveport, wrote a letter to defendant dated November 19, 1974, advising them of his representation of plaintiff. Mr. E, Dale LeBlanc of General Adjustment Bureau responded to Jack’s letter on December 10, 1974, which began a negotiation between these parties. By letter of June 9, 1975, Jack proposed a settlement of Mrs. Wolfe’s claims for the sum of $1,725. On June 20, 1975, LeBlanc called by telephone to Jack making a counter offer of $700. On June 23, 1975, Jack wrote plaintiff advising of the counter offer and in a blind post script to LeBlanc advised that he would recommend his client’s acceptance of the offer. On July 1, 1975, Jack wrote LeBlanc advising that the $700 was accepted. On July 16 and 18, 1975, Jack telephoned LeBlanc requesting that the settlement be completed expeditiously. On July 23, 1975 Jack filed suit on behalf of plaintiff against defendant seeking judicial enforcement of the alleged compromise settlement in the sum of $700. Later, on this same date, but subsequent to the filing of the suit, Jack’s office was advised by an employee of General Adjustment Bureau that a settlement draft was on hand in their Shreveport office. Again on July 24, 1975, LeBlanc informed Jack the draft and settlement papers were in his office. By letter of July 28, 1975, Jack advised defendant that he would still accept the $700 settlement offer, dismiss the suit, and assume all costs incurred to date in connection therewith. No further response was made by defendant and this suit was thereafter prosecuted to judgment.

Defendant takes the position that under the foregoing undisputed facts there has been no written agreement of compromise as required by Louisiana Civil Code Article 3071, and therefore, the trial court was in error in awarding judgment for plaintiff. The thrust of defendant’s argument is that all writings tending to show an agreement of compromise had been con-fected were made by plaintiff’s counsel and that there is nothing in writing from defendant signifying an acceptance of the offer.

In his reasons for judgment, the trial court found that the issuance by defendant of the draft with the notation thereon that it was being issued in settlement of plaintiff’s claims was sufficient to constitute a written acceptance by defendant.

Louisiana Civil Code Article 3071 provides as follows:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a law suit, adjust their differences by mutual consent, in the manner which they agree on, in which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must he reduced in writing. [empahsis supplied]

In Senegal v. Delahoussaye, 311 So.2d 58 (La.App. 3rd Cir. 1975), the general rule on the proof necessary to establish a compromise is expressed as follows:

Our jurisprudence is established that a writing evidencing a compromise must be complete in itself, that it must show the intention of the parties to compromise their differences, and that it must he independent of parol testimony to establish its meaning. A writing will not be considered to be a transaction or compromise if the court must receive parol evidence in order to reach that conclusion. [emphasis supplied]

Also see Francois v. Maison Blanche Realty Company, 134 La. 215, 63 So. 880 (1913); Reed v. American Casualty Co., 317 So.2d 648 (La.App. 1st Cir. 1975); Stablier v. Partin, 278 So.2d 537 (La.App. 1st Cir. 1973).

The record shows that at the time of the filing of this suit on July 23, 1975, neither plaintiff nor her attorney had any knowledge that the draft now relied upon by them as a written acceptance had been prepared by defendant and forwarded to its agent, General Adjustment Bureau. The evidence shows this instrument has continued to remain in the possession of defendant’s agent and has never been delivered to plaintiff.

We are of the opinion that the preparation of the draft and accompaning release agreement in anticipation of consummating a tentative settlement proposal without actual delivery of the instruments to the adverse party does not constitute a written acceptance of an offer to compromise or an acknowledgment in writing that such an agreement had been made.

Therefore, the written proof of the agreement is entirely unilateral and is insufficient under the provisions of Article 3071 and the above jurisprudence interpreting this article to establish the compromise agreement sued on.

In accord with the foregoing, the judgment appealed from is reversed and plaintiff’s demands are rejected at her costs.