author: PETERS, J. GENOVESE, J.,

text:
    John D. JEANE, Jr., et al. v. BYRD REGIONAL HOSPITAL, et al.
    No. 10-0867.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    Rehearing Denied April 20, 2011.

      Edmund M. Thomas, A Professional Law Corporation, James C. Stevens, Attorney at Law, Shreveport, LA, for Plaintiffs/Appellants, John D. Jeane, Jr. Nancy Willis.
    Richard L. Weil, Attorney at Law, Bourg, LA, for Defendant/Appellee, Guru P. Ghanta, M.D.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PETERS, J.

_J/The plaintiffs, John D. Jeane, Jr., and Nancy Willis, brought this medical malpractice action against a number of defendants, including Dr. Guru P. Ghanta, to recover damages sustained as a result of the death of their son, Thomas Jaroed Jeane. They now appeal a trial court judgment in favor of Dr. Ghanta dismissing their claims. For the following reasons, we affirm the trial court’s judgment.

DISCUSSION OF THE RECORD

The underlying facts giving rise to this litigation are not in dispute. Sometime in the early hours of August 11, 2002, Thomas Jeroed Jeane was involved in an altercation wherein he sustained a two and one-half centimeter knife wound to the left side of his chest. He was transported by private vehicle to Byrd Regional Hospital in Leesville, Louisiana, and presented himself to the emergency room at 2:25 a.m. that morning. Although his breathing was labored and his blood pressure was sixty-three over fifty-three when he arrived at the emergency room, he was alert and able to walk from a wheelchair to a stretcher after entering the facility.

Dr. Jerry R. Troy, the emergency room physician on duty when Mr. Jeane arrived, preliminarily suspected that Mr. Jeane could be suffering from a pneumothorax, which is the presence of air between the lung and the wall of the chest; a tension pneumothorax, which is a pneumothorax caused by a wound in the chest wall that permits air to enter but prevents its escape; and a cardiac injury. Twenty minutes after Mr. Jeane’s arrival at the emergency room, Dr. Troy ordered a chest x-ray, an electrocardiogram (EKG), lab work, and an IV infusion of saline. As these instructions were being followed, Dr. Troy telephoned Dr. Guru P. Ghanta, a 12general surgeon in private practice in Leesville, and requested that he come to the hospital. This telephone call was placed at 3:00 a.m. At 3:10 a.m., Mr. Je-ane’s blood pressure was sixty-seven over sixty-one.

When Dr. Ghanta arrived at the emergency room at 3:15 a.m., he ordered a second chest x-ray. He testified that he ordered the second x-ray because the first had revealed what appeared to be a normal size heart, and when he first examined Mr. Jeane he observed that the veins in Mr. Jeane’s neck were not swollen. Given these initial findings, he was not sure if Mr. Jeane had sustained a cardiac injury. At 3:24 a.m., Mr. Jeane’s blood pressure was 115 over seventy-four.

This second chest x-ray, which was taken at approximately 3:30 a.m., revealed that a large amount of blood had collected in Mr. Jeane’s chest cavity, but still did not confirm a cardiac injury because Mr. Je-ane’s heart sounds were still normal, and there was no swelling in the neck vein. The second x-ray did confirm, however, Dr. Ghanta’s suspicion that there was active bleeding in the chest from some source. Dr. Ghanta then ordered a CT scan to check for any blood accumulations around the heart. This CT scan began at 3:40 a.m., or almost immediately after the second x-ray, and Dr. Ghanta reviewed it as it was taking place. According to Dr. Ghanta, the results of the CT scan established that Mr. Jeane had sustained a wound to the heart itself, and that the pericardium, which is a sac enclosing the heart, contained blood. After completion of the CT scan, Dr. Ghanta then reviewed the EKG that had been previously performed pursuant to Dr. Troy’s instructions. Dr. Ghanta testified that after reviewing the EKG results, he knew that Mr. Jeane had suffered a small heart attack caused by an injury to a coronary artery.

|sDr. Ghanta testified at trial that the large hole in the left ventricle of Mr. Je-ane’s heart was “killing him immediately,” and that this injury had to be repaired or Mr. Jeane would not survive. Dr. Ghanta said that the injury to the coronary artery could be repaired later, if Mr. Jeane survived the repair to the left ventricle of his heart.

At approximately 3:40 a.m., Dr. Ghanta instructed the nurses to prepare the operating room for surgery. However, when Mr. Jeane returned from having the CT scan performed, his blood pressure had dropped to seventy-one over forty-eight and Dr. Ghanta did not consider him sufficiently stable for surgery. This was at 3:55 a.m., or one hour and thirty minutes after Mr. Jeane presented himself to the hospital.

Ten minutes later, at 4:05 a.m., Mr. Je-ane’s blood pressure had plummeted to forty-five over thirty-three. In an effort to stabilize his patient, Dr. Ghanta ordered a second blood transfusion and sped up the fluids that Mr. Jeane was already receiving. Ten minutes later, when Dr. Ghanta inserted a tube into Mr. Jeane’s chest to drain blood out of his chest cavity, the patient’s blood pressure had bounced back to some degree, being elevated to seventy-four over sixty-one. A third blood transfusion was begun at 4:30 a.m., and which time, Mr. Jeane’s blood pressure had increased to 102 over seventy-five.

Within ten minutes after this third transfusion, Mr. Jeane arrived in the operating room, and Dr. Ghanta immediately made an incision into the left side of his chest cavity and observed that the pericardium was filled with blood. When Dr. Ghanta opened the pericardial sac, he observed a one and one-half inch laceration near the atrioventricular groove on the lateral aspect of the heart. Dr. Ghanta attempted to repair the laceration with sutures, but Mr. Jeane continued to bleed at the | ¿point of the injury. Despite being administered ten additional units of blood, Mr. Jeane did not recover when he went into ventricular fibrillation (rapid, irregular fluttering of the ventricles of the heart in place of normal contractions, resulting in a loss of pulse and blood pressure) a second time. He was pronounced dead at 5:49 a.m.

On March 7, 2006, Mr. Jeane’s parents brought suit against a number of defendants to recover the damages they sustained as a result of their son’s death. At trial, Dr. Ghanta was the sole remaining defendant, and the plaintiffs asserted that Dr. Ghanta’s failure to transfer Mr. Jeane to a hospital with heart bypass capabilities and staffed with a cardiovascular surgeon constituted medical malpractice. Following the two-day bench trial, the trial court rendered judgment in Dr. Ghanta’s favor and dismissed the plaintiffs’ suit against him.

On appeal, Mr. Jeane’s parents assert three assignments of error:

1. The trial court committed legal error in allowing the medical review panel’s comment on causation to be considered in its ruling; this error interdicted the fact finding process causing the facts in the record to be ignored.
2. The trial court committed manifest error in making factual findings unsupported by the record.
3. The trial court erred in its finding that Dr. Ghanta acted within the applicable standard of care in not transferring [Mr. Jeane] to a hospital equipped and staffed to handle [Mr. Jeane’s] problem.

OPINION

Assignment of Error Number One

The plaintiffs’ claims had first been submitted to a medical review panel pursuant to the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41 et seq., and |fithe medical review panel rejected their claims in a December 6, 2005 opinion that reads in pertinent part as follows:

REASONS FOR OPINION

After a careful review of all documents and evidence submitted for our review, and for the reasons espoused below, we find that the actions of the defendants herein, Bryd [sic] Regional Hospital, Correct Care, Inc. (Dr. Jerry R. Troy), Dr. Glen D. Hurlston, and Dr. Guru P. Ghanta, did not constitute a deviation from the applicable standard of care.
The patient herein, Thomas Jeane, a twenty (20) year old, white male, presented to the Emergency Room of Byrd Regional Hospital, at 0225, on August 11, 2002, with a stab wound to his left chest. He was met by the triage team and evaluated by defendant, Dr. Jerry Troy, an emergency medicine physician. The patient’s, vital signs were: blood pressure, 63/53; pulse, 217; respirations per minute, 24; temperature, 95.4; and oxygen saturation, 87%. The patient described his pain as 8 out of 10. The patient was awake, responsive, and ambulating.
The stab wound to his left chest was cleaned and a dressing applied. A chest x-ray revealed some haziness of the left chest, but no significant pneumothorax. At 0245, an EKG and chest x-ray were performed. Thereafter, defendant, Dr. Guru Ghanta, a general surgeon, was consulted, and a CT scan ordered.
At 0340, the CT scan was performed, demonstrating that the stab wound extended into the patient’s heart. An immediate thoracotomy was advised. Defendant, Dr. Ghanta, inserted a left chest tube while the patient was still in the emergency room, and, at 0440, the patient was transferred to the operating room for surgery. Defendant, Dr. Glen Hurlston, was the anesthesiologist on the case, and administered the anesthesia for the procedure.
The thoracotomy revealed that the patient’s pericardium was full of blood. When the pericardial sac was opened, the surgeon noted a one and one-half (1½) inch long laceration near the atriov-entricular groove on the lateral aspect of the heart. During the procedure, the patient went into ventricular fibrillation and was resuscitated. The patient went into ventricular fibrillation once again, but never recovered, and was pronounced dead almost three and one-half (3½) hours after his appearance at the emergency room, at 0549.
The claimant herein complains of generalized failure on the part of all defendants to timely and properly evaluate and treat the patient. Contrary to such assertions, the panel finds that the patient was timely Rtriaged, appropriate steps were taken to identify the extent of the injury, emergency surgery was initiated, but the damage to the patient’s heart was significant enough to render all attempts to save him fruitless. The emergency room physician, the hospital personnel, the anesthesiologist, and the surgeon were faced with an individual who had sustained a life-ending wound, and performed heroically in an attempt to save his life. There was no inordinate delay at any stage of the treatment. The patient’s blood pressure had been properly elevated prior to surgery. The wound sustained by the patient was near the atrioventicular groove, and involved both left anterior descending and circumflex coronary arteries. Lastly, the patient would not have survived a transfer to Shreveport or another facility, and the decision not to transfer was appropriate.

In their first assignment of error, the plaintiffs argue that the trial court erred in admitting the medical review panel opinion into evidence and that this error requires this court to undergo a de novo review of the trial court’s decision. Specifically, the plaintiffs assert that the last paragraph quoted above should have been excluded “as it relates to causation.”

In considering this argument, we first note that La.R.S. 40:1299.47(H) provides in part that “[a]ny report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law.” (Emphasis added.) However, this court has held that admissibility of the medical review panel opinion under La.R.S. 40:1299.47(H) “presupposes the validity of the opinion itself.” Whittington v. Savoy, 05-1169, p. 3 (La.App. 3 Cir. 5/31/06), 931 So.2d 1198, 1201. See also, McGlothlin v. Christus St. Patrick Hosp., 10-278 (La.App. 3 Cir. 11/17/10), 50 So.3d 967.

With regard to the authority of the medical review panel, La.R.S. 40:1299.47(G) provides:

|7The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions, which shall be in writing and signed by the panelists, together with written reasons for their conclusions:
(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
(2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
(3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.
(4) When Paragraph (1) of this subsection is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.

The plaintiffs seem to argue that only when the medical malpractice panel concludes that there was a breach of the appropriate standard of care should it comment further — and even then only to the extent required by La.R.S. 40:1299.47(G)(4). We do not find that the statute should be read in such a restrictive manner. In fact such an interpretation ignores the clear language of the initial paragraph of La.R.S. 40:1299.47(G), which provides that the opinion is to include “written reasons for [the medical review panel’s] conclusions.”

In this case, the medical review panel’s written reasons constitute nothing more than an appropriate explanation of how it reached its decision that Dr. Ghanta’s actions did not breach any applicable standard of care. Additionally, neither the holding in Whittington nor that in McGlothlin supports the plaintiffs’ position. In | Reach of those cases, the report was rendered inadmissible because the panel attempted to resolve questions of material fact not requiring expert opinion. Such action on the part of the medical malpractice panel is clearly prohibited by La.R.S. 40:1299.47(G)(3).

Because we find no merit in this assignment of error, we will review the trial court judgment under the manifest error standard of review. Curtis v. Columbia Doctors’ Hosp. of Opelousas, 03-916 (La.App. 3 Cir. 12/17/03), 862 So.2d 1125.

Assignments of Error Number Two and Three

The plaintiffs’ final two assignments relate to the factual correctness of the judgment itself and will be considered together. In their second assignment of error, the plaintiffs assert that the trial court reached factual findings in its reasons for judgment not supported by the record. Specifically, they argue that the following findings of fact are not supported by the record:

1. The trial court erred when it said it “finds of great significance in the analysis of this case the medical records of Jeane’s vital signs,” and referred to Jobj^s fluctuating blood pressure readings and what it considered was a narrowing of the times between blood transfusions.
2. The trial court erred when it concluded that Joby would have died within 15 to 30 minutes had he not been taken into surgery, relying upon the testimony of Dr. Ivatury.
3. The trial court erred when it concluded that “Clearly, the evidence indicates that Jeane would have expired prior to reaching another hospital,” which it noted was from 45 minutes to 1 hour away.

In their third assignment of error, they assert that the trial court erred in finding that Dr. Ghanta did not violate the appropriate standard of care when he failed to transfer Mr. Jeane to a hospital better equipped to handle his particular injury.

The trial court’s written reasons for judgment read in part as follows:

InThe plaintiffs assert that Dr. Ghanta failed to comply with the appropriate standard of care by not transferring Je-ane to a hospital in either Alexandria or Shreveport with Level I emergency room capability to perform by-pass heart surgery.
The Court heard the testimony of three doctors on behalf of the plaintiffs. They were Dr. Michael G. Futrell, a cardiologist, Dr. Francis C. Evans, a general surgeon, and Dr. Mark M. Met-tauer, a cardiovascular surgeon. The last two testified through depositions which were offered by counsel. Defense counsel objected to the qualifications of both witnesses. The Court finds each witness qualified as tendered and overrules defense counsel’s objection.
The defendant’s case was the testimony of Dr. Ghanta and Dr. Rao R. Ivatu-ry, a general surgeon and critical care physician.
The thrust of the plaintiffs expert witnesses was that Jeane had stabilized sufficiently and should have been transferred where hearVlung by-pass surgery, which was the only chance of survival for Jeane, would have been possible rather than keep him at Byrd Hospital which did not have by-pass equipment.
The Court notes that the three plaintiffs expert witnesses differed as to when he stabilized enough to transfer. Dr. Futrell and Dr. Evans felt that as the blood pressure stabilized with each transfusion, Jeane could have been transferred after the third transfusion and still survived the transfer. Dr. Met-tauer stated that Dr. Troy should have ordered a transfer and to call in Dr. Ghanta was actually unnecessary. Nevertheless, each testified that the records of Jeane’s blood pressure and pulse rate showed that Jeane was stable as late as the third transfusion at 4:30 A.M. when his vital signs appeared in the normal range.
To the contrary, Dr. Ghanta and Dr. Ivatury stated that they believed that Jeane was never stable enough to transfer and that surgery was the only option. They both testified that the records of Jeane’s vital statistics support the belief that he was very quickly headed towards death.
The medical review panel unanimously reached the conclusion that Dr. Ghanta did not deviate below the standard of care. They believed the victim had a life-ending wound and the actions of the medical staff and doctors was appropriate and that transfer was not a realistic option.
The Court finds of great significance in the analysis of this case the medical records of Jeane’s vital signs. Those records show a greatly fluctuating blood pressure and pulse rate from the time Jeane arrived to | inthe time he was taken to surgery. Part of the reason for the initial stabilization was the cardiac tamponade. However, at 3:55 A.M., Je-ane’s signs had dropped dangerously low and so a blood transfusion was given. That had the effect of bringing his vital signs back to a normal range. However, soon the vital signs dropped very low again and at 4:20 A.M., another transfusion was given. Again, that brought his vital signs up to normal range for a brief time. A third transfusion was needed again at 4:30 A.M. The Court notes that the time between the first two transfusions was twenty-five minutes. The time between the second and third transfusions was ten minutes.
The above records clearly show to this Court that the cardiac tamponade was not stabilizing Jeane, but rather the infusion of blood and liquids was and that the time necessary between transfusions was rapidly decreasing. Dr. Ivatury opined that Jeane would .have died within fifteen to thirty minutes if not brought into surgery. The Court finds that the record of vital signs of Jeane support Dr. Ivatury’s opinion.
This Court finds the opinions of the three experts of the plaintiffs are not supported by the medical records. Each of them stated that Jeane could have survived a transfer that would have taken a minimum of forty-five minutes to one hour. Clearly, the evidence indicates that Jeane would have expired pri- or to reaching another hospital. Dr. Ghanta’s actions were all that could be done.
The Court finds that the plaintiffs failed to prove that Dr. Ghanta deviated below the applicable standard of care. The claim by plaintiffs is dismissed.

Both of these assignments of error address the trial court’s factual findings based on the expert evidence presented in support of, and in opposition to, the plaintiffs’ claims of medical malpractice. To establish their claims for medical malpractice, the plaintiffs had the burden of proving, by a preponderance of the evidence: (1) the standard of care applicable to Dr. Ghanta; (2) that Dr. Ghanta breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La.R.S. 9:2794.

In attempting to meet their burden of proof, the plaintiffs provided the trial court with the testimony of three expert witnesses: Dr. Mitchell G. Futrell, a | nShreveport, Louisiana cardiologist; Dr. Francis C. Evans, a Palm Coast, Florida general surgeon; and Dr. Mark M. Met-tauer, a Houston, Texas cardiac, vascular, and thoracic surgeon. In addition to the medical review panel opinion and his own testimony, Dr. Ghanta provided the trial court with the testimony of Dr. Rao R. Ivatury, a Richmond, Virginia trauma and critical care surgeon.

Dr. Mitchell G. Futrell Testimony

Dr. Futrell testified that Byrd Regional Hospital had policies and procedures in place, dating from November of 1986, which specifically addressed Dr. Ghanta’s professional obligations to Mr. Jeane. He pointed out that the hospital’s Policy and Procedure Manual stated that “patients requiring care not available at [Byrd Regional Hospital] are transferred by ground healthcare transportation or helicopter after acceptance by a physician in another facility and upon physician’s order,” and that Dr. Ghanta breached the standard of care he owed to Mr. Jeane when he did not transfer him to another hospital. Dr. Fut-rell explained that Byrd Regional Hospital did not have cardiac bypass equipment, which is “absolutely necessary” to treat a patient who has an injury to a coronary artery.

According to Dr. Futrell, the 2:55 a.m. EKG ordered by Dr. Troy revealed that Mr. Jeane had suffered a mild cardial infarction, or heart attack, and that the variation in blood pressure was consistent with shock and was one sign of cardiac tampo-nade. Dr. Futrell explained that cardiac tamponade occurs when the heart is being constricted by blood in the pericardium to the point that the patient’s blood pressure is dropping and the patient is in shock. Dr. Futrell agreed with Dr. Ghanta’s 112diagnosis that Mr. Jeane had an injury to the left ventricle and to some part of the coronary artery.

Dr. Futrell testified that repairing a stab wound to the heart that involves the coronary arteries without using bypass equipment is an impossible task, and that had Mr. Jeane been treated at a level-one trauma facility by a cardiovascular surgeon with the proper equipment, his chance of survival would have been ninety percent. Dr. Futrell noted that two hospitals in Alexandria, Louisiana, were qualified to properly treat Mr. Jeane, as was the LSU Medical School in Shreveport, Louisiana. He suggested that, based on his research, transportation by airvac to Alexandria would take approximately twenty-five minutes in clear weather, and transportation by airvac to Shreveport under the same conditions would take approximately forty-five to fifty minutes. Ground emergency services, according to Dr. Futrell, would take forty-five minutes to Alexandria and between one and one-half hours and two hours to Shreveport. Dr. Futrell could not testify that either a helicopter or a ground ambulance was available in the early morning hours of August 11, 2002.

With regard to Mr. Jeane’s ability to withstand any transfer to another facility, Dr. Futrell testified the patient was sufficiently stable to transport after he began receiving some fluids. He pointed to Mr. Jeane’s 115 over seventy-four blood pressure at 3:24 a.m. and suggested that he was “certainly stable” at that point, and that “he was stable from that point throughout the remainder of his hospitalization.” In his opinion, it should have taken no more than ten minutes to prepare Mr. Jeane for transfer to another hospital. Dr. Futrell further testified that everything that was being done for Mr. Jeane at Byrd Regional Hospital — giving blood, giving fluids, and monitoring the patient— could have been done in an ambulance during transfer.

| iSThe deciding point, according to Dr. Futrell, should have been when Dr. Ghan-ta had access to the EKG results. Failure to transport at that point was, according to Dr. Futrell, a deviation from the applicable standard of care. Additionally, Dr. Futrell concluded that if Dr. Ghanta did not realize that the stab wound was to the heart at this point, and that it involved the left ventricle, he deviated from the applicable standard of care in taking no steps to have the EKG analyzed further. On the other hand, if he did appreciate the fact that Mr. Jeane suffered from a left ventricle injury, Dr. Ghanta breached the applicable standard of care by operating on Mr. Jeane in that he lacked the appropriate training and surgical skills to attempt to repair the coronary artery.

Dr. Francis Evans’ Testimony

Dr. Evans agreed that the standard of care applicable to Dr. Ghanta required that seriously ill patients be transferred to trauma centers whenever possible. In Mr. Jeane’s situation, according to Dr. Evans, the standard of care required that Dr. Ghanta at least consider transferring Mr. Jeane to a trauma center. However, Dr. Evans also testified that he was surprised Mr. Jeane survived for two hours with a knife wound which severed major coronary arteries and lacerated his heart. But for the fact that a clot formed in the pericardial sac after it was penetrated by the knife, Dr. Evans reasoned, Mr. Jeane’s bleeding would have been out of control and he would never have reached the hospital.

Dr. Evans testified that the CT scan confirmed the diagnosis of a cardiac tam-ponade and that typically a general surgeon would put a patient on bypass before opening and operating on the heart in such a situation. He further opined that with [14cardiopulmonary bypass surgery Mr. Je-ane more probably than not would have survived.

Although Dr. Evans concluded that Mr. Jeane “was unstable the entire time he was in the emergency room,” he believed the patient would have survived the transfer to Alexandria. He explained that Mr. Jeane needed blood and fluids, and those could have been given in an ambulance en route. Dr. Evans’ principal complaint with Dr. Ghanta’s actions was that Dr. Ghanta did not inquire about a transfer at any time during his treatment of Mr. Jeane. He considered this to be a breach of the standard of care.

Dr. Mark M. Mettauer’s Testimony

Dr. Mettauer testified that Mr. Jeane should have been transferred within the first thirty minutes after his arrival at Byrd Regional Hospital. He suggested that when first called, Dr. Ghanta breached the applicable standard of care by not telling Dr. Troy to stabilize Mr. Jeane and ship him to another hospital. Further, Dr. Mettauer opined, when Dr. Ghanta arrived at the hospital, he should have realized that Mr. Jeane needed to be transferred. In Dr. Mettauer’s opinion, at the time Dr. Ghanta arrived on the scene, Mr. Jeane’s probability of survival was significant if he were properly treated. Despite his suggestions concerning immediate transfer, however, Dr. Mettauer acknowledged that the applicable standard of care required that the treating physician must first determine whether a patient is stable for a transfer before transferring him to another hospital. Still, Dr. Mettauer explained that one must assume that the patient has a cardiac injury, and that the patient could be 1^resuscitated in the ambulance. For Mr. Jeane’s suspected problem, he was stable enough to ship out.

According to Dr. Mettauer, Dr. Ghanta also breached the applicable standard of care after surgery began. Dr. Mettauer testified that when Dr. Ghanta opened Mr. Jeane up and saw a cardiac injury, Dr. Ghanta should have closed him up immediately and transferred him.

Dr. Guru P. Ghanta’s Testimony

Dr. Ghanta acknowledged that he did not comply with the hospital’s policy concerning transportation of a person requiring care not available at Byrd Regional Hospital. According to the doctor, he considered transferring Mr. Jeane to Shreveport but was unable to make the telephone call to find a facility that would accept Mr. Jeane because he was too busy stabilizing the patient. In his experience, transfer to a Shreveport facility required a minimum of two hours, and he did not feel the patient was sufficiently stable for such a transfer, given that fact that his blood pressure was continuously fluctuating. Dr. Ghanta also said that Mr. Jeane would not have survived a transfer, that he would have died ten minutes out of the hospital because the clot in the pericardium would have dislodged and Mr. Jeane would have bled to death. Dr. Ghanta testified that he made the final decision not to transfer Mr. Jeane shortly before he opted for surgery, when Mr. Jeane’s blood pressure was sixty systolic, which meant that he was “crashing.” Dr. Ghanta said that he decided to operate on Mr. Jeane at that point in an effort to save him from certain death.

Dr. Ghanta testified that after reviewing the CT scan results in conjunction with the first EKG, he was aware that the coronary arteries might have been injured by the 11fiknife wound Mr. Jeane sustained. Additionally, Dr. Ghanta agreed that coronary artery injuries must be repaired on bypass and that a coronary artery injury was something that would require the expertise of a cardiovascular surgeon and could not be repaired at Byrd Regional Hospital. However, in his opinion, that would have to wait for repair of the more pressing life-threatening injury to the ventricular chamber.

Dr. Rao R. Ivatury Testimony

Dr. Ivatury testified that when a patient presents himself with an injury to the heart, the first requirement of the applicable standard of care is to control the lacerr ation from the ventricle. Only when that laceration is under control can the doctor make arrangements for repair of the coronary arteries. Dr. Ivatury testified that although Mr. Jeane should have been transferred to a facility that could have repaired the coronary arteries, the main injury was the injury to the left ventricle of the heart. According to Dr. Ivatury, a trauma surgeon is expected to determine what treatment will give a patient the best chance to survive his injury, and in the case of Mr. Jeane, the immediate threat to his life was the bleeding from the laceration to the left ventricle and the ensuing cardiac tamponade, not the coronary artery injury.

Dr. Ivatury acknowledged that if Dr. Ghanta had been aware that there was a likelihood of an injury to a coronary artery, he should have known that he could not repair that injury. However, Dr. Iva-tury stated that statistics would support a belief that a stab wound similar to the one suffered by Mr. Jeane would more likely injure only the ventricle, and not the coronary vessels. Further, Dr. Ivatury testified that even if the treating surgeon had diagnosed an injury to the coronary artery, if the patient were too unstable to transfer then the appropriate treatment would have been 117to attempt to repair the wound in the left ventricle, hoping that the diagnosis of coronary artery injury was wrong.

Dr. Ivatury testified that Mr. Jeane was actively bleeding from the stab wound to his heart into the fibrous sac around his heart. Dr. Ivatury explained that this sac can only accommodate about seventy-five to a hundred cubic centimeters of blood; and, as the blood begins to accumulate, the patient’s cardiac output suffers, and his blood pressure will begin dropping. Dr. Ivatury testified that this dropping blood pressure is very easy to counteract initially, by giving fluid and blood, but that this increases the bleeding and therefore the pressure around the heart, creating a “vicious circle.” Dr. Ivatury testified that he has seen at least fifty to a hundred patients with this problem in the last thirty years, and that the patients look good until there is a “point of no return” when they have a precipitous drop in blood pressure, causing a cardiac arrest and death. Dr. Ivatury testified that had Dr. Ghanta not intervened and operated on Mr. Jeane, he would certainly have died within fifteen to twenty minutes; and that when Dr. Ghan-ta decided to operate Mr. Jeane had at best fifteen to twenty minutes to live.

Dr. Ivatury testified that before a patient can be transferred to another facility, he must be stable for transfer, and that Mr. Jeane was not ever stable enough to transfer. He based this opinion on the medical records showing that Mr. Jeane’s blood pressure was fluctuating, going up when Mr. Jeane received a transfusion of fluids or blood and then coming down again. Dr. Ivatury further testified that Dr. |1sGhanta’s decision that Mr. Jeane would most likely die en route if he transferred him to another facility was correct.

Dr. Ivatury said that Dr. Ghanta did not do anything that contributed to Mr. Je-ane’s death and that everything Dr. Ghan-ta did was appropriate for the circumstances. According to Dr. Ivatury, Dr. Ghanta did consider a transfer and properly ruled it out. Thus, Dr. Ghanta met the standard of care for a trauma surgeon.

Applicable Standard of Care

As is reflected by the summary of the various experts’ testimony, the experts concluded that more than one standard of care was at issue in this litigation. However, on appeal, the plaintiffs question only whether the trial court erred in concluding that Dr. Ghanta did not violate the applicable standard of care in not transferring Mr. Jeane “to a hospital equipped and staffed to handle his problem.”

Analysis of Standard of Care Violation

Whether a health care provider’s conduct falls below the applicable standard of care is a factual determination that is subject to the manifest error standard of review. Curtis, 862 So.2d 1125. Our review of the trial court’s factual findings must be conducted in accordance our supreme court’s guidance that, “[i]f the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). In undertaking this review, we must not | ^substitute our own factual findings for that of the trier of fact, and the evidence must be viewed in the light most favorable to the party who prevailed before the trier of fact-here, Dr. Ghanta. Thibodeaux v. Jurgelsky, 04-2004 (La.3/11/05), 898 So.2d 299, writ denied, 04-2126 (La.6/17/05), 904 So.2d 707. Also, “[wjhere there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, reversal is required when this court finds that the trial court’s verdict was clearly without evidentiary support, or clearly wrong based on the evidence. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099 (La.7/5/94), 639 So.2d 216.

As we appreciate the testimony of all the physicians, none would suggest that the Byrd Regional Hospital hospital policy lacks any flexibility whatsoever. The policy itself requires acceptance by a physician at another facility and presupposes that it is in the best interest of the patient to be transferred. That is to say, before transfer the patient should be sufficiently stable to withstand the trip. The testimony is clearly in conflict on this latter requirement. Drs. Futrell, Evans, and Mettauer were all of the opinion that Mr. Jeane was sufficiently stable to transfer, while the members of the medical review panel and Drs. Ghanta and Ivatury were all of the opinion that Mr. Jeane was never sufficiently stable to survive the transfer. Furthermore, while the physicians testifying for the plaintiffs placed their emphasis on Dr. Ghanta’s failure to transfer Mr. Jeane, Dr. Ivatury pointed out that the first requirement of the transfer standard of care is that the treating physician control the |2nbleeding from the laceration of the ventricle. Failure to gain control of this immediately life-threatening aspect of Mr. Jeane’s injury would make transfer a vain and useless act. While Drs. Futrell, Evans, and Mettauer suggested that Mr. Jeane could continue to receive life supporting fluids and blood during the transfer, none addressed Dr. Ivatury’s point that the continuous transfusions were contributing to a downward spiraling “vicious circle” because of the pressure being placed on the heart by infusion of the additional blood. Absent implementation of the drainage tube inserted by Dr. Ghan-ta, the pressure would continue to build.

It is obvious from the trial court’s reasons for judgment that it accepted Dr. Ghanta’s reasoning for not transferring Mr. Jeane and that it accorded Dr. Ivatu-ry’s testimony more weight than that of the other medical experts on this issue. “The determination of an expert’s credibility is also a factual question subject to the manifestly erroneous/clearly wrong standard of review.” Martin v. E. Jefferson Gen. Hosp., 582 So.2d 1272, 1277 (La.1991). Viewing the evidence in the light most favorable to Dr. Ghanta, and recognizing that there may be two permissible views of the evidence, we cannot not substitute our own factual findings for those of the trial court. We cannot say that the trial court was clearly wrong in its factual determinations. Thus, we find no merit in the plaintiffs’ second assignment of error.

Applying the same review criteria to the plaintiffs’ remaining assignment of error, we find no manifest error in the trial court’s determination that Dr. Ghanta’s treatment of Mr. Jeane did not violate the applicable standard of care. Thus, we find no merit in this assignment of error as well.

I ^DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects. We assess all costs of this appeal to the plaintiffs, John D. Jeane, Jr. and Nancy Willis.

AFFIRMED.

GENOVESE, J., dissents and assigns reasons.

GENOVESE, J.,

dissents and assigns the following reasons.

_JjIn this medical malpractice case, the majority finds no manifest error in the trial court’s determination that Dr. Ghanta did not violate the applicable standard of care in his treatment of Mr. Jeane. I disagree.

It is undisputed that Dr. Ghanta knowingly violated the hospital’s transfer policy. Mr. Jeane presented himself to Byrd Regional Hospital (Byrd Hospital) with a one-inch, V-shaped stab wound to his heart. According to the transfer policy at Byrd Hospital, patients requiring care not available at that hospital are to be transferred after acceptance by a physician at another facility upon the physician’s order. It is likewise undisputed that Byrd Hospital had no cardiovascular surgeon on its staff and had no bypass equipment. Dr. Ghan-ta admitted that he did not follow this policy in connection with Mr. Jeane’s treatment. The time entries in the hospital records are well-documented and likewise not in dispute. Mr. Jeane was brought to Byrd Hospital at 2:25 a.m. After notification by the emergency room physician, Dr. Ghanta arrived at the hospital at 3:15 a.m. Dr. Ghanta instructed the nurses to prepare the operating room for surgery at 3:40 a.m., yet he did not perform surgery until after 4:30 a.m. Mr. Jeane died at 5:49 a.m. There was a time lapse of over two hours from admission to surgery. It took Dr. Ghanta over an hour to decide to implement surgery — all the while Mr. Je-ane could and should have been transferred, [2but was not.

It is noteworthy that Mr. Jeane was not in persistent acute distress. In fact, the record indicates that Mr. Jeane was responding to treatment and was still awake and alert at 4:30 a.m., after having arrived at the hospital over two hours earlier. There was plenty of time and patient stability to effectuate a transfer to a cardiovascular facility — but that was not done.

Mr. Jeane suffered a stab wound to the heart. Dr. Ghanta is a general surgeon, not a cardiovascular surgeon. It is undisputed that Dr. Ghanta knew that Byrd Hospital had no cardiovascular surgeons and no bypass equipment to adequately care for an injury of this nature. Yet, Dr. Ghanta persisted in violating hospital policy in not transferring Mr. Jeane to the nearest hospital with cardiac care capabilities. Plaintiffs’ experts testified that had Dr. Ghanta timely effectuated the transfer, Mr. Jeane would have had a ninety percent chance of survival.

Dr. Ghanta’s efforts were both noble and well-intentioned; however, he breached the applicable standard of care by violating hospital transfer policy and by implementing sophisticated cardiovascular treatment without being a cardiovascular surgeon at a hospital not equipped for such treatment. In my view, the trial court’s decision was manifestly erroneous and renders Byrd Hospital’s transfer policy meaningless.

I would reverse the trial court, find that Dr. Ghanta violated the applicable standard of care relative to Mr. Jeane, and award appropriate damages.

      . The plaintiffs also brought suit against Byrd Regional Hospital; Correct Care, Inc.; Dr. Jerry R. Troy; and LAMMICO, who insured Correct Care and Dr. Troy. However, these other four defendants were dismissed before trial and are not parties to this appeal.

      . This issue was the subject of a motion in limine filed by the plaintiffs before trial that was rejected by the trial court.

      . One of Dr. Ivatury's expert qualifications presented to the trial court was the fact that he is the author of The Textbook of Penetrating Trauma, which he stated is the only textbook devoted to penetrating trauma and which focuses on injuries similar to the one suffered by Mr. Jeane.

      . We note that it was more than thirty minutes before Dr. Ghanta was called to the hospital.

      . Dr. Mettauer testified that the CT scan was indisputable evidence that Mr. Jeane had a cardiac injury.

      .He never considered Alexandria as an alternative because he did not think either hospital in Alexandria had a trauma center.

      . As we have previously noted, Dr. Ghanta testified that after reviewing the EKG results he knew Mr. Jeane had suffered a small heart attack caused by an injury to a coronary artery.

      . The Byrd Regional Hospital records establish the following blood pressure readings were taken between the time Mr. Jeane arrived at the hospital and the beginning of surgery: 2:31 a.m.-sixty-three over fifty-three; 2:48 a.m.-sixty-eight over fifty; 3:08 a.m.-fifty-two over forty-two; 3:10 a.m.-sixty-seven over sixty-one; 3:24 a.m.-l 15 over seventy-four; 3:25 a.m.-l 13 over seventy-two; 3:49 a.m.seventy over thirty-nine; 3:55 a.m.-seventy-one over forty-eight; 4:05 a.m.-forty-five over thirty-three; 4:07 a.m.-l 01 over thirty-eight; 4:10 a.m.-fifty-seven over forty-two; 4:13 a.m.-seventy-six over fifty-seven; 4:15 a.m.seventy-four over sixty-one; 4:20 a.m.-seventy-five over sixty-five; 4:21 a.m.-l 07 over sixty-six; 4:23 a.m.-l 02 over seventy-eight; 4:25 a.m.-ninety-six over eighty-two; and 4:30 a.m.-l 02 over seventy-five. The records reflect a notation of "NO READING” at 3:40 a.m. This corresponds to the time of the CT scan.

      . We also note, however, that Dr. Evans was surprised that Mr. Jeane survived the initial trip to the hospital. According to Dr. Evans, the blood clot that formed in the pericardial sac prevented Mr. Jeane from bleeding to death internally almost immediately after being stabbed. Additionally, Dr. Mettauer seemed to place more emphasis on Dr. Troy’s failure to transfer Mr. Jeane immediately after he presented himself to the emergency room than on Dr. Ghanta’s actions.

      . None of the physicians who testified addressed whether the ambulance crew could do anything more than administer fluids and, therefore, did not testify whether they could adequately control the fluids through the drainage tube.


source: Caselaw Access Project

author: PAINTER, Judge. GENOVESE, J.,

license: Public Domain

text:
    SCOFIELD, GERARD, SINGLETARY & POHORELSKY, L.L.C. v. Thomas BARR, IV.
    No. 10-1347.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      Thomas Barr, IV, Attorney at Law, Sag Harbor, NY, Thomas Barr, IV/Appellant Pro Se.
    Kevin P. Fontenot, Scofield, Gerard, Singletary & Pohorelsky, L.L.C., Lake Charles, LA, for Plaintiff/Appellee, Sco-field, Gerard, Singletary & Pohorelsky, L.L.C.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| iPlaintiff, the law firm of Scofield, Gerard, Singletary, and Pohorelsky, L.L.C. (The Scofield Firm), filed suit against Defendant, Thomas Barr, IV (Barr), to recover unpaid legal fees. The trial court granted summary judgment in favor of Plaintiff, and Defendant appealed. Plaintiff filed an answer to the appeal, seeking damages for frivolous appeal and additional attorney’s fees. For the following reasons, we affirm the trial court’s judgment and decline to award any damages for frivolous appeal or additional attorney’s fees.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, Barr retained the Scofield Firm to represent him and his company, Thomas Barr IV Louisiana Properties General, LLC, relative to several legal disputes arising out of his business dealings in Louisiana. Barr had been a client of the Scofield Firm since 2006. Barr, himself an attorney licensed to practice law in Louisiana, is a resident of the State of New York. Phillip DeVilbiss, a partner in the Scofield Firm, was the attorney primarily responsible for Barr’s files. In February 2009, Barr and DeVilbiss had a dispute over whether certain correspondence should be sent out under Barr’s own signature. Unable to resolve the conflict, Barr signed written consents to DeVilbiss’s withdrawal from five separate matters, and Ban' was enrolled as the sole counsel of record. While the parties dispute the circumstances surrounding the withdrawal, with the Scofield Firm asserting that it was at the instruction of Barr and with Barr asserting that it was unexpected, it is undisputed that Barr signed multiple consents to withdraw.

At the time the Scofield Firm’s representation of Barr was discontinued, there was an alleged balance of $16,665.57 in outstanding legal fees. On June 9, 2009, the Scofield firm sent a demand letter to Barr for payment of the fees. No payment was made. The Scofield Firm then filed suit against Barr in July 2009. In response, Barr filed an exception of lack of personal jurisdiction which was denied by the trial court. Barr then filed an answer in which he alleged, as affirmative defenses, that the amount allegedly owed was erroneous since “Plaintiff failed to adequately render the | ¡.services for which [it] had been retained” and that the Scofield Firm was not entitled to an award of attorney’s fees because the underlying claim on open account was invalid. The Scofield Firm then filed a motion for summary judgment supported by the following evidence: (1) the affidavit of Phillip DeVilbiss identifying the invoices and confirming the amount of unpaid legal fees and the amount of legal fees incurred by the Sco-field Firm in the prosecution of this matter, (2) copies of all unpaid invoices, (3) copies of engagement letters signed by Devilbiss and Barr, (4) copies of written consents to withdraw signed by Barr, and (5) a copy of the demand letter sent to Barr. In opposition, Barr filed his own affidavit alleging that the withdrawal by the Scofield Firm was unexpected, without adequate warning, and arbitrary and capricious. The trial court granted the motion for summary judgment in favor of the Scofield Firm in the full amount of $16,665.57 and awarded attorney’s fees in the amount of $15,000.00, plus judicial interest from the date of judgment and all costs of the proceedings. Barr now appeals, alleging that summary judgment is improper because the Scofield Firm “failed to meet its initial evidentiary burden of establishing the accuracy of the underlying account in its open account claim,” that his affidavit established the existence of genuine issues of material fact, and that the award of attorney’s fees was improper. The Scofield Firm has answered the appeal alleging that the appeal is frivolous and seeking additional attorney’s fees incurred in the defense of this appeal as well as damages for frivolous appeal. For the following reasons, we affirm the trial court’s grant of summary judgment and the award of attorney’s fees in favor of the Scofield Firm. However, we decline to find that this appeal is frivolous and do not make any award for damages or award any additional sums for attorney’s fees incurred in defense of this appeal.

DISCUSSION

It is well settled that we review the trial court’s grant of a motion for summary judgment de novo under the same criteria that governed the trial court’s consideration of whether summary judgment is appropriate. Chrysler Fin. Co., L.L.C. v. Gene Ducote Auto., LLC, 04-1223 (La.App. 5 Cir. 3/1/05), 900 So.2d 119. Moreover, La.Code Civ.P. art. 966 provides that a motion for summary judgment is properly granted only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.”

In Metal Coatings, LLC v. Petroquip Energy Services, LP, 06-1108, p. 4 (La.App. 3 Cir. 11/21/07), 970 So.2d 695, 698, we stated:

In order to prevail in a suit on an open account, the creditor must first prove the account by showing that the record of the account was kept in the course of business and by introducing evidence regarding its accuracy. Once a prima facie case has been established by the creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove the debtor is entitled to certain credits. Jacobs Chiropractic Clinic v. Holloway, 589 So.2d 31 (La.App. 1 Cir.1991).

Louisiana Code of Civil Procedure Article 966 provides that the moving party on a summary judgment bears the burden of proving that there are no genuine issues of material fact. Once that pri-ma facie showing is made, the burden then shifts to the nonmoving party to rebut it. Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323. In support of its motion for summary judgment, the Scofield Firm submitted: (1) the affidavit of Phillip DeVilbiss identifying the invoices and confirming the amount of unpaid legal fees and the amount of legal fees incurred by the Scofield Firm in the prosecution of this matter, (2) copies of all unpaid invoices, (3) copies of engagement letters signed by DeVilbiss and Barr, (4) copies of written consents to withdraw signed by Barr, and (5) a copy of the demand letter sent to Barr. Barr submitted only his own self-serving affidavit. We have reviewed the record and are satisfied that Barr has raised no genuine issue of material fact regarding the amount owed. Nor has Barr filed any reconventional demand or asserted any affirmative defenses that raises any genuine issues of material fact that would defeat summary judgment. Therefore, we reach the same conclusion as the court below, that there are no genuine issues of material fact and that the Scofield Firm is entitled to judgment as a matter of law.

An award of reasonable attorney fees to the successful plaintiff in a suit on an open account is authorized by La.R.S. 9:2781. It is clear that the amount of attorney’s 14fees awarded is left to the sound discretion of the trial court. On appeal, we should not disturb the amount of attorney’s fees awarded absent a showing of abuse of discretion. Metro. Reporters, Inc. v. Avery, 95-504 (La.App. 5 Cir. 11/28/95), 665 So.2d 547. Several factors, including the ultimate result obtained, the nature of the case, the amount of time and skill involved and the ability of the party liable to pay, are to be considered in determining the reasonableness of the amount of attorney’s fees awarded. Id. We find no abuse of discretion in the trial court’s award of $15,000 in attorney fees.

Finally, we consider the Scofield Firm’s claim for frivolous appeal damages and additional attorney’s fees. In Sigler v. Grace Offshore Co., 95-357, p. 6 (La.App. 3 Cir. 10/4/95), 663 So.2d 212, 215, this court quoted Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739, 741 (La.App. 1 Cir.1977), as follows:

[Louisiana Code of Civil Procedure] Article 2164 authorizes a claim for damages for frivolous appeal, but its provisions are penal in nature and must be strictly construed. Appeals are favored, and the imposition of penalties for a frivolous appeal will not be granted unless they are clearly due. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks merit.

While Barr’s appeal lacks merit, we find that he did believe in the position he asserted. As this was a devolutive appeal rather than a suspensive appeal, it cannot be said that the appeal was taken solely for delay. Accordingly, we deny the Sco-field Firm’s request for damages for frivolous appeal and additional attorney’s fees.

DECREE

For all of the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of the Scofield Firm for $16,665.57 for the unpaid invoices and $15,000.00 in attorney’s fees. We do not find that this appeal was frivolous and therefore decline to award any damages for frivolous appeal or additional attorney’s fees. All costs of the appeal are assessed to Defendant/Appellant, Thomas Barr IV.

AFFIRMED.

GENOVESE, J., concurs in part, dissents in part, and assigns written reasons.

GENOVESE, J.,

concurs in part, dissents in part, and assigns the following reasons.

| tThis is a collection suit on open account wherein the trial court granted Plaintiffs motion for summary judgment and awarded Plaintiff $16,665.57 plus legal interest and costs for unpaid legal work performed by Plaintiff for its legal representation of Defendant. The trial court also awarded $15,000.00 in attorney fees to Plaintiff for its legal work performed in this collection suit. Defendant appealed, and Plaintiff answered the appeal, seeking damages for frivolous appeal and also additional attorney fees for work done on appeal. The majority affirms the trial court in all respects and denies damages for frivolous appeal and does not award Plaintiff attorney fees for work done on appeal.

I agree with the majority in affirming the trial court’s award of $16,665.57 plus legal interest and costs. I also agree with the majority denying damages for frivolous appeal. However, I disagree with the majority in affirming the trial court award of $15,000.00 in attorney fees on a $16,665.57 collection suit. Though I realize some extra work was needed and performed in the prosecution of this collection suit, including an additional court appearance to defeat Defendant’s questionable exception of lack of personal jurisdiction, this was not an overly cumbersome, time-consuming, and complicated legal matter. In my view, the record neither supports nor [^warrants such a substantial award of attorney fees in a collection case such as this. Louisiana Revised Statutes 9:2781 permits an award of “reasonable attorney fees” for the prosecution and collection of such a claim. Understanding full well that an attorney fee award should be left to the sound discretion of the trial court and should not be disturbed absent a showing of an abuse of discretion, in my view such an award constitutes a slight abuse of discretion, and it should be reduced to $7,500.00. I likewise disagree with the majority in not awarding any attorney fees to Plaintiff for work done on appeal. Though I agree with the majority in denying damages for frivolous appeal, counsel for Plaintiff on appeal unquestionably and unequivocally had to spend time and resources (1) in reviewing the record in order to prepare for Defendant’s appeal, (2) in preparing an answer to appeal, (3) in preparing an appellate court brief, and (4) in appearing and orally arguing Plaintiffs position before this court. On the one hand, the majority affirms a $15,000.00 attorney fee in a $16,665.57 collection suit; yet, on the other hand, and quite incongruously, it denies Plaintiff attorney fees for work done on appeal. I disagree and would award Plaintiff $3,000.00 for work done on appeal.


author:
DREW, J.
      STEWART, J.,

text:
    Heather MATLOCK, Plaintiff-Appellee v. CITY OF SHREVEPORT, Defendant-Appellant.
    No. 45,920-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 11, 2011.

      Law Offices of Ronald F. Lattier, by Ronald Forrest Lattier, Curtis Ray Joseph, Jr., Shreveport, for Appellant.
    Rice & Kendig, by J. Marshall Rice, Shreveport, for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   DREW, J.

laThe apportionment of 100% fault against the City of Shreveport and the amount of the general damages are the issues in the City’s appeal in this trip and fall case. A teacher and assistant softball coach for Shreveport’s Turner Middle School, Heather Matlock fell as she was approaching the gate to a set of baseball fields at Cargill Park on October 24, 2005. While carrying softball equipment as she spoke with her team and a hearing impaired volunteer coach about the game, Matlock twisted her ankle in a hole or depression in the sidewalk and fell to her hands and knees.

In severe pain, Matlock went by ambulance to the emergency room at Willis-Knighton Pierremont Hospital. Personnel there x-rayed, treated, and released Mat-lock, who went home with an air splint for her left ankle, crutches and pain medication. In addition, she was instructed to follow up with her orthopedic doctor, who diagnosed an avulsion fracture of her left ankle and treated her with a boot cast and medication. The orthopedist also referred Matlock to physical therapy to assist in her recovery.

Matlock alleged that the fall injured her left ankle and foot, both knees and her right hand and forearm. Following the bench trial, the trial court rejected a portion of plaintiffs demands, finding that Matlock failed to present sufficient evidence that her right knee problems and 2008 anterior cruciate ligament surgery were caused by the 2005 fall. After determining that the City was 100% at fault for the defective sidewalk, the trial court awarded Matlock special damages of $4,896.79, lost wages of $1,078.79, and general damages at $75,000.00.

IsThe City of Shreveport appealed the judgment assessing it with 100% of the fault for plaintiffs fall on a sidewalk defect. The City asserted the depression was obvious and easily avoidable had Mat-lock been looking where she was walking. Additionally, the City argued that the general damages were excessive. For the following reasons, the judgment is amended and, as amended, affirmed.

TESTIMONY AT TRIAL

Milton A. McGraw

A retired Shreveport Parks and Recreation (SPAR) employee, McGraw testified he was Youth Sports Coordinator on the day of Matlock’s fall and was Interim Division Manager for SPAR when deposed in this matter in June 2007. McGraw stated that, to his knowledge, there was not a policy or procedure in place to inspect the parks at the time of the accident. While formal inspections were not conducted, repairs were made when the ball field crews reported any problem to their supervisor. The maintenance department then made any repairs.

The hole or depression in the sidewalk was at the entrance to ballparks six through ten. Sometime after Matlock’s mishap, the sidewalk was repaired for approximately $50 with a bag of Quikrete or asphalt. McGraw estimated 5,000 to 10,-000 people a year used that particular entrance at Cargill. He had no knowledge of anyone else falling at that location. McGraw did not consider the depression unreasonably dangerous because anyone paying reasonable attention would recognize the defect. He acknowledged that the depression as shown in the photos in evidence had probably been there several years.

Heather Matlock McFarland, plaintiff

14Approximately 15 girls from grades six, seven and eight at Turner Middle School comprised the softball team, which traveled by school bus to the park. After exiting the bus and meeting their volunteer assistant coach at the parking lot, the students and coaches all carried equipment bags as they walked on the sidewalk from the parking lot toward the gate to their assigned ball field. Surrounded by the students, Matlock said she talked to the girls and encouraged them about the upcoming game. Matlock stated her left ankle rolled out from under her in the hole in front of the entrance. She twisted toward the left and hit her right knee on the ground and the back of her head on a car parked near the pathway.

Matlock’s left ankle was in severe pain and swollen. Her foot was purple from the bottom of her ankle bone into her toes. She could not move her left foot. Matlock was very upset and in pain in the ambulance, so emergency room personnel gave her something to calm her. Her right knee had a gash in the bend, which swelled and created a bump on the top part of her kneecap. The doctor did not want to stitch it because it was in the bend. Her hands were scratched up. X-rays revealed no fractures and Matlock was discharged with an air splint, crutches, and pain medication along with instructions to see her orthopedic doctor.

Concerning her medical history, Matlock testified she injured her right knee in 1994 but continued to be active until she injured her knee in 2003 playing softball. Dr. Gordon Mead operated on her right knee in 2003 to repair a torn meniscus. Mat-lock acknowledged she had right knee instability and a problem with right anterior cruciate ligament in 2003. Thereafter, she wore a brace for sporting events and was not troubled by her knee when she played sports.

|fiOn the day following her fall, Matlock saw Dr. Mead, who observed marked swelling in her left ankle along with abrasions on both hands and her right forearm. Dr. Mead placed her in a CAM walker (removable brace or cast to stabilize the ankle and aid healing). On a subsequent visit, x-rays revealed an avulsion fracture. Dr. Mead also referred Matlock to physical therapy for her ankle injury. She complained about right knee on her third visit. Unable to kneel or to put weight on her left ankle after the fall, Matlock described bruises on her hands and blisters under her arms resulting from the crutches.

.Matlock saw Dr. Mead from October 2005 until January 4, 2006, when he discharged her to return to work at her request. She was never able to return to coaching. Matlock stated she received worker’s compensation benefits from the time of her fall in October 2005 until her discharge in January 2006.

Matlock characterized the physical therapy sessions for her ankle as painful and testified the therapist rotated her ankle so painfully that she screamed. She followed his instructions to do exercises at home with rubber bands he provided. Following completion of her therapy sessions, Mat-lock requested more therapy but testified she was denied by the comp carrier. In his deposition, Dr. Mead corroborated that Matlock had requested more physical therapy sessions.

In contrast to the physical therapist, whose testimony is noted below, Matlock said she attended every 2005 therapy session except one, which she rescheduled due to vomiting. Matlock was unaware, until her attorney informed her, that the therapist had discharged her for noncompliance. | ñMatlock emphatically denied failing to make effort and exaggerating pain complaints.

When she returned to teaching after being discharged at her own request in early January 2006, Matlock’s principal accommodated her weakened and painful ankle condition by assigning her to tutoring small groups of 4th graders. This eliminated her working with very physical 6th graders with whom she was at risk of being knocked down. This assignment also allowed Matlock to sit while instructing her students. Her ankle continued to swell and hurt, particularly at the end of the day or after periods of significant activity.

Stating she had been very athletic all her life, she began sports as a young child and played team sports in high school, college and after college. Since the fall, she can no longer participate in team sports or biking. She also is unable to get down on the floor with her students, something she liked to do before her fall.

Cheyenne Rogers

Matlock’s roommate and volunteer assistant coach, Rogers met the school bus transporting the team at the park. She walked downhill on the sidewalk from the parking lot to the gate with Matlock and their players. Like Matlock, Rogers stated she was carrying a large equipment bag. She saw Matlock fall when she turned her ankle in the hole in the sidewalk. Rogers testified that because she is deaf, she could not phone 911 but another person did so.

She met Matlock at the hospital where Matlock’s primary complaints concerned the significant pain in her left ankle for which she was given an |7air splint, crutches and pain medicine. With instructions to elevate the ankle and use ice, Matlock was discharged with the admonition to see her own doctor. Matlock also had á gash on her knee. The women later discovered dried blood from a cut on Matlock’s head.

With assistance of a neighbor, Rogers helped Matlock up the stairs and into their apartment, where she had a difficult first night due to her pain. In the days after the fall, Rogers helped Matlock with almost all aspects of her personal care because Matlock was unable to get in and out of the bath, to cook or do laundry. Her activities were very limited and she could no longer play ball or bike.

Rogers took Matlock to all her physical therapy sessions and assisted at the sessions. The therapist taught Matlock how to stretch and rotate the ankle and instructed Rogers in how to give ankle massages and to assist Matlock in doing exercise with large rubber bands. The therapy was very tough and painful but Matlock followed the therapist’s instructions including alternating hot and cold soaks and putting weight on the ankle to strengthen it. On cross-examination, Rogers stated that Matlock went to all the therapy sessions she was supposed to attend, some eight or ten. Rogers knew that because she made all the appointments and transported Matlock. Rogers did not know how many sessions were prescribed but disagreed that Matlock was discharged for “no shows.”

By January of 2006, Matlock still had ankle weakness and was cautious for fear of re-injury. She could not climb ladders or do weight-bearing activities. Matlock returned to teaching but could not resume coaching. From January of 2006 until July of 2008, Rogers assisted Matlock a couple of times a week with massages to keep her ankle from stiffening Rand with exercises. At the time of trial, Rogers testified that Matlock could not squat without help and waddled when she walked, since her left ankle and her right knee remained weak.

Before the 2005 fall, Matlock was very active in basketball and softball both as a coach and as a member of various teams, including a female football league. In addition, she was an avid bike rider and bowler. At trial, Matlock was limited to walking on smooth surfaces but could do nothing strenuous and no contact sports, since she feared being re-injured. Rogers explained that Matlock saw no doctors between January 2006 and July 2008 because she did not have health insurance during that period.

Lacy Williams

A team member and 7th grader on the day of the accident, Williams testified that after being dropped off by the school bus, the team and their coaches walked to the field on the sidewalk. Although near, she did not recall where she was in relation to Matlock but heard her fall and say her ankle was hurt. She recalled that Matlock did not return as coach that year. She also felt that Matlock, who was carrying equipment, could have seen the hole had she been looking.

Rob Kenney

The physical therapist to whom Dr. Mead referred Matlock for treatment testified by deposition. At her initial visit, Matlock wore the CAM walker and used crutches. The evaluation revealed a significant left ankle sprain with swelling and limited range of motion. In addition, Mat-lock was 19apprehensive about moving the joint. Matlock reported her pain to be 8 to 10 on a 10-point scale.

Kenny stated he recommended 3 sessions a week for 4 to 6 weeks and set both short- and long-term goals for the therapy. While Matlock met the short-term goals, she stopped coming after 7 sessions in November.

Kenny ultimately discharged her for noncompliance by missing sessions and noted in his report to Dr. Mead that Mat-lock exhibited poor effort secondary to exaggerated complaints of pain which he described as symptom magnification. Explaining that “by no means implies intent,” Kenny said that physical, cultural and psychological factors and other little understood reasons can result in symptom magnification which can mean that the results of therapy are less predicable and can lead to incomplete recovery. Because Matlock was sensitive to superficial touch, he concluded she had symptom magnification. However, he also did not dispute the existence of her injury. During the course of her treatment, she wore the CAM walker on every visit but by the last visit was using only the CAM walker without other aids such as crutches or cane.

Dr. Gordon Mead

In his deposition, Dr. Mead stated he initially saw Matlock on October 25, 2005, and treated her until he discharged her to return to work at her request on January 4, 2006. At the first visit, Matlock had marked swelling in her ankle along with abrasions on her knees and right forearm. He ordered the CAM walker for Matlock to stabilize the ankle and aid healing. Subsequently, she developed problems with her right knee which he stated were external and not within the joint itself. Ail of his treatment was related to the October 24, 2005, fall and he saw no indication of exaggerated |insymptoms, noting that the recovery progress was reasonable. Dr. Mead characterized this sprain as a 6 to 7 with 10 being the worst sprain. The doctor also noted that Matlock requested additional physical therapy sessions.

REASONS FOR JUDGMENT

The district court issued written reasons, concluding as follows with respect to liability:

1. The hole was at least 1½ inches deep, 51 inches long and 18 inches wide (P. exh. 3). The hole is a marked, abrupt change in the walkway, which is the only entrance into Cargill ballpark. There was no warning or marking of this change in elevation.
2. The hole was a defective condition which presented an unreasonable risk of harm, the cost of which to repair was extremely inexpensive and feasible.
3. Matlock was acting as a reasonable person at the time she fell. It was reasonably foreseeable that a coach would carry the team’s equipment, would talk to her team while approaching the field, and would talk to her colleague while approaching the field.

The trial court observed that the law requires a person to act reasonably and prudently, and not to walk as if trudging through a minefield. Additionally, the assistant coach is hearing-impaired, which required Matlock to maintain eye and face contact while they walked and talked. The City through its agent had actual knowledge of the sidewalk depression at least a year before the accident, and a reasonable opportunity to remedy the defect, but failed to do so. The ankle injury was caused by the fall at Cargill. Therefore, the trial court found the City liable for the accident and concluded it was inappropriate to assess any fault to Matlock.

Matlock’s ankle injury, as avulsion fracture, was painful and debilitating. The doctor described it as a 6-7 on a pain scale of 10 and |nprescribed pain medicine and physical therapy. For two months, Mat-lock used crutches and a CAM walker and needed help with daily activities. Dr. Mead testified Matlock’s 2005-2006 treatment by him was related to the fall at Cargill.

Noting that Matlock and the physical therapist had a difficult relationship, the trial court observed the therapy treatment was painful. Although the therapist stated Matlock was noncompliant, the trial court pointed out the therapy treatment bill totaled $1,880.69. Observing that Matlock had a good relationship with a subsequent therapist for an unrelated 2008 knee surgery, the trial court rejected the assertion that Matlock failed to mitigate her damages.

The trial court also relied upon the functional capacity evaluation placed into evidence. That physical therapist found Mat-lock had decreased left ankle strength and range of motion, with painful palpation of the left lateral ankle. Finding she could continue teaching, the therapist found that Matlock reported a very unstable left ankle that made a return to the classroom more likely than a return to coaching.

The trial court accepted that Matlock had pain and difficulty toward the end of her teaching day. Previously active and athletic, Matlock was encumbered with a left ankle injury that amounted to a permanent functional disability.

Judge Crichton awarded special damages of $4,896.79 and lost wages of $1,078.79. Additionally, the trial court set general damages at $75,000. Finding insufficient proof that Matlock’s knee injury and subsequent 2008 surgery on her ACL resulted from her fall at Cargill, Judge Crichton decided that Matlock had not carried her burden of proof on that aspect of her claim. 112The denial of Matlock’s claim for the ACL injury and other injuries is not at issue in this appeal. Likewise, the special damages are not before this court.

DISCUSSION

The presence of the significant pothole in the sidewalk was undisputed. Matlock stepped into the hole, inverted her ankle, twisted it, and fell, landing on her hands and knees. Photographs and testimony in the record established, and the trial court found, that the hole was at least 1½ inches deep, 51 inches long and 18 inches wide. The trial court observed that the hole was a marked, abrupt change in the walkway and located at the entrance into a set of ball fields at Cargill Park. There was no warning or marking of this change in elevation.

According to the City, this particular “depression” in the sidewalk cannot be considered as presenting an unreasonable risk of harm, because this dangerous condition was patently obvious and easily avoidable. Because Matlock failed to exercise reasonable care, she was responsible for her fall and her action against the City should have been dismissed by the trial court.

Citing Boddie v. State, 27,313 (La.App.2d Cir.9/27/95), 661 So.2d 617, the City acknowledged its duty to maintain the sidewalk in a reasonably safe condition, but contended that Matlock had a duty to see what should have been seen. While a pedestrian is not required to look for hidden dangers, she must observe her course to see if her pathway is clear. A pedestrian is not expected to look down constantly while walking, but must see obstructions which would be discovered by a reasonably prudent person. Just because a pedestrian falls does not elevate a condition to an | ^unreasonably dangerous defect. The imperfection must present an unreasonable risk of harm. Boddie, supra.

The City’s reliance upon Boddie, supra, is misplaced. The court assessed the state with 100% of the fault in Boddie’s fall. While there was evidence of other persons having fallen on the somewhat elevated metal drain cover on the sidewalk on the grounds of the State Office Building in Shreveport, Boddie’s mishap occurred during dry conditions with nothing obstructing her view and no indications she was being hasty. The metal drain cover was elevated enough to be hazardous and was not so apparent as to be easily observable. The state had actual notice of the condition and failed to remedy it. Although the state argued that the clearly visible drain cover was a somewhat different color from the sidewalk and that thousands of people traversed the sidewalk annually without mishap or injury, the court found that the drain cover was an unreasonably dangerous defect and that Boddie was not at fault. The court assessed all the fault on the state. Boddie, supra.

Matlock fell on what several witnesses described as a beautiful day which was dry. Personnel for the City acknowledged they knew about the hole in the sidewalk for at least a year, although no action was taken to remedy it. After Matlock’s fall, the defect was repaired with a sack of Quikrete or asphalt at a cost estimated by McGraw to be approximately $50.

This broken sidewalk provided access to a set of the ball fields at the park. It was certainly foreseeable and reasonable to anticipate that a coach arriving with her team would carry equipment and talk to her charges and fellow coaches. As noted by the trial court, Matlock’s circumstances were made more complex by the fact that the volunteer assistant coach described | uherself as deaf, which apparently required that the women maintain eye contact and face to face interaction as they spoke to one another.

Allocation of Fault

In Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, a driver ran off the road onto a rutted, very narrow shoulder which dropped off into a swamp. When she reentered the highway, the driver lost control and struck another car. The court resolved a split in the appellate circuits and set out the correct procedure for an appellate court to review and to adjust, if necessary, the allocation of percentages of fault. Noting the large amount of uncertainty in apportioning fault, the appellate court must first make the ultimate judgment call as to whether a given trier of fact abused its great discretion in assessing fault. Coco v. Winston Industries, 341 So.2d 332 (La.1977).

Only if its review of the record shows that the trier of fact abused its great discretion may an appellate court adjust the allocation of fault. The reallocation can only be to the extent of lowering it (or raising it) to the highest (or lowest) point reasonably within the discretion afforded the court. It is never appropriate for an appellate court to simply decide what it considers to be an appropriate award based upon the evidence. Clement v. Frey, supra.

The trier of fact is owed some deference in allocating the percentages of fault, which is a factual determination. As with determining quantum, the trier of fact has the benefit of witnessing the entire trial and reviewing the evidence first hand. After finding the apportionment of fault is “clearly wrong,” the appellate court may lower or raise it to the highest or lowest | ispoint respectively while still within the trial court’s discretion. Clement v. Frey, supra.

In Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985), are factors to guide appellate court’s assessment of the highest and lowest reasonable percentages of fault which could have been allocated by the trier of fact:

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct result from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff and considerations in determining the relative fault of the parties. Clement v. Frey, 666 So.2d at. p. 611.

In Clement, supra, the supreme court agreed with the appellate court that the trial court was clearly wrong in assessing 95% of the fault to DOTD due to the dangerous condition of the highway and the very narrow, rutted shoulder and only 5% to the driver who lost control of her vehicle and struck another driver. However, the supreme court reversed the appellate court’s 50/50 split of fault after referring to the deference that must be given to the trier of fact. Applying the foregoing analysis to the facts, the supreme court raised and lowered the allocations of fault to the highest and lowest points within the discretion of the trier of fact, i.e., 75% to DOTD and 25% to the driver.

In the present dispute, we agree with the trial court’s finding that the large pothole-type break in the sidewalk was a dangerous defect constituting an unreasonable risk of harm. The “depression” (the City’s term) was [^located near the entrance via a gate to five ball fields at the park. While visible to someone looking down while walking, it was foreseeable and reasonable that persons approaching the gate would be (1) accompanied by groups of children requiring their attention and (2) burdened with significant amounts of equipment for use in playing or practicing ballgames on the fields.

Had this court been sitting as the trier of fact, our review of the evidence would have resulted in a significantly different allocation of fault than the 100% liability assessed to the City of Shreveport. Although our analysis indicates both the City and Matlock must share in the fault assessment, an appellate court must not simply decide what it considers to be an appropriate award based upon the evidence. The trial court heard the witnesses first hand and reviewed all the evidence. This court owes deference to the trial court’s factual determination of fault allocation and may raise or lower the amounts only to the highest and lowest amounts within its discretion. Clement, supra.

Our first finding is that the learned trial court abused its discretion in assessing Matlock with no responsibility for her fall. Clearly, Matlock was familiar with this location, having visited that area many times without mishap as a player and a coach. Likewise, no direct evidence of others falling at the location was presented. As one of Matlock’s players testified, Matlock could have seen the hole had she been looking.

Nevertheless, Matlock was proceeding reasonably under the circumstances. She was talking with her companions, one of whom was hearing impaired, while carrying equipment. She did not see the dangerous hole in which she rolled her ankle and fell. Matlock was not responsible for 117the unsafe condition of the sidewalk. The City was responsible for maintaining the sidewalk in a safe condition. The City had notice of the large hole for at least a year and probably much longer. The City failed to make the simple and inexpensive repair until sometime after Matlock’s fall.

The assessment of 100% fault to the City was clearly wrong because Mat-lock also had some responsibility for her fall and resulting injury. Computing a reasonable high/low division of fault and giving deference to the trial court’s factual determination, we hold that the City was more responsible for the fall, but no reasonable trier of fact could have found the City more than 75% at fault.

While Matlock was behaving in a reasonable and foreseeable manner when she fell, she could have seen the broken area had she been looking down at that particular time. We accordingly find that Mat-lock was no less than 25% responsible for tripping and falling. It was unreasonable for the trier of fact to have assigned less than 25% of the fault to Matlock.

Quantum

In Howard v. Union Carbide Corp., 2009-2750 (La.10/19/10), 50 So.3d 1251, the court cited the well-settled principle that vast discretion is accorded to the trier of fact in fixing general damage awards. La. C.C. art. 2324.1. Because this discretion is so great, an appellate court should rarely disturb an award of general damages. In reviewing a general damage award, the role of the appellate court is not to determine what it considers to be an appropriate award, but to review the trier of fact’s exercise of discretion.

Like the appellate review of an allocation of fault, the initial inquiry in evaluating a general damages award is whether the trier of fact abused its discretion. While reasonable persons frequently can disagree with the 118quantum of general damages, the monetary award must have a reasonable relationship to the elements of proven damages. Only if the appellate court finds that the trier of fact has abused its “much discretion” in setting the quantum is a resort to prior damages awards appropriate. The reviewing court may adjust the quantum only to highest or lowest point which is reasonably within that discretion. Howard, supra.

On appeal, the City of Shreveport complained that the trial court abused its great discretion in awarding Matlock general damages of $75,000. If the court determined Matlock was entitled to general damages, the City suggested that $15,000 was an appropriate amount, since Matlock required no surgery and sustained no permanent injury.

Following her accident, Matlock was in substantial pain and required assistance for basic self-care. Although she had no major fracture or dislocation in her ankle, the avulsion fracture caused major discomfort as a bad sprain. It is undisputed that treatment for a sprain and an avulsion fracture are the same.

The evidence concerning Matlock’s physical therapy with therapist, Rob Kenny, is very contradictory. Given the diametrically opposed versions about how the physical therapy was terminated, one can only surmise a major breakdown in communication between the physical therapist and his staff with Matlock and her roommate must have occurred. The trial court found Matlock and her roommate credible and rejected the suggestions that Matlock failed to mitigate her damages by lack of participation in her therapy.

The therapist stated that Matlock met her short-term therapy goals but did not return for all the therapy sessions recommended which prolonged her | ^recovery. Matlock and her roommate stated she attended all her therapy sessions except one due to illness. Dr. Mead corroborated that Matlock requested more therapy after the conclusion of the approved therapy-sessions.

Administered 2⅜ years post-accident, the functional capacity evaluation by Physical Therapist Larry Larsen and placed into evidence revealed that her injury caused instability and disability in her left anide. The therapist commented that Matlock’s “very unstable left ankle” made a return to classroom teaching far more likely than a return to coaching because of the need for physical agility and athletic technique required to coach. The report recommended further rehabilitation of the left ankle to increase stability and suggested future surgical intervention to increase stability was likely. The overall conclusion of the test was that Matlock had a moderate disability level.

The record is filled with explanations of the major impact that the injury had on Matlock’s life. At Matlock’s own request, she was discharged from Dr. Mead’s medical care and released to return to teaching in early January 2006. Due to danger of re-injury and pain and swelling at the end of a teaching day, Matlock’s principal accommodated her situation by assigning her to teach small groups of young children while seated. Up until the time of trial, she continued to have pain and swelling and worked at home and with Rogers on exercises and massages to prevent ankle stiffness.

Very athletic from a young age, Matlock participated as a player and coach in many team sports and was very physically active in other leisure activities. The weakness and pain in her ankle make a return to that active Lplifestyle impossible for her. Matlock’s fall permanently altered and worsened the lifestyle she enjoyed prior to her mishap.

Recognizing the trial court’s great discretion in setting general damages and the frequency with which reasonable people can disagree over quantum, we find that, in this matter, the trial court exceeded the amount which reflected a reasonable relationship to the elements of proven damages. Based on its first-hand observation of the witnesses and examination of the evidence, the trial court’s determination is entitled to great deference and may be reduced only to the highest reasonable amount.

Since this young woman’s life has been unquestionably altered as a result of her fall, we amend the general damages award to $50,000, subject to the reduction of 25% of the fault attributable to her in the fall. While very generous, this award is reasonably supported by the evidence demonstrating the continuing impact of her injury and resulting disability on her activities continuing at the time of the trial.

CONCLUSION

The judgment of the trial court is amended to reduce the allocation of fault assessed to the City of Shreveport to 75% and to assess Heather Matlock McFarland, plaintiff, with 25% of the fault in the cause of this fall. In addition, the award for general damages is reduced from $75,000 to $50,000 subject to a 25% reduction reflecting the fault attributable to the plaintiff. Costs of the appellate court in the amount of $171.50 are assessed 75% to the City of Shreveport and 25% to Heather Matlock McFarland.

DECREE

The judgment of the trial court is AMENDED, AND, AS AMENDED, AFFIRMED.

STEWART, J., concurs with written reasons.

STEWART, J.,

concurring.

_jjThe testimony of the plaintiff, Heather Matlock, established that she was not paying attention to where she was walking. Instead, she was carrying a bag of sports equipment and talking to her assistant coach and the young players who were all around her. The record established that, although there had been no other reported incidents, the depression had likely been there for a number of years and was easily remedied after Matlock’s accident. Considering the plaintiffs admitted inattentiveness while walking to the park entrance, I would assess her with fifty percent of the fault and assess fifty percent to the City of Shreveport. Comparative fault applies to claims against a public entity for damages caused by the condition of things in its care and custody. See Ricks v. City of Shreveport, 42,675 (La.App.2d Cir.10/24/07), 968 So.2d 863; Priest v. City Shreveport, 34,841 (La.App.2d Cir.7/11/01), 792 So.2d 80.

Moreover, the record shows that the plaintiff suffered an ankle sprain for which she was treated by Dr. Gordon Mead for a little over two months and attended seven sessions of physical therapy. Dr. Mead’s testimony that Matlock’s sprain was a six or seven on a scale on which 10 is the worst indicates a moderate injury. I would find a general damages award of $25,000 to be the highest point reasonably within the trial court’s discretion.

      . An avulsion fracture occurs when damage to a tendon or ligament pulls off a piece of the bone. The treatment of an avulsion fracture is identical to the treatment for a sprained ankle.

      . The plaintiff married after the accident and before the trial.