text:
    Brandi BILLEAUDEAU, et al. v. OPELOUSAS GENERAL HOSPITAL AUTHORITY, et al.
    CA 17-735, CA 17-736
    Court of Appeal of Louisiana, Third Circuit.
    February 7, 2018
   Kara Hadican Samuels, Tiffany A. Morales, Kara Hadican Samuels & Associates, L.L.C., 4004 Canal St. New Orleans, LA, 70119, (504) 558-9478, COUNSEL FOR PLAINTIFFS-APPELLANTS: Brandi Billeaudeau, Joseph Billeaudeau, Veronica Billeaudeau

Jennifer L. Thornton, Christian S. Chaney, Stanley, Reuter, Ross, Thornton & Alford, L.L.C., 909 Poydras, Suite 2500, New Orleans, LA, 70112, (504) 523-1580, COUNSEL FOR PLAINTIFFS-APPELLANTS: Joseph Billeaudeau, Veronica Billeaudeau, Brandi Billeaudeau

Joseph L. McReynolds, John Jerry Glas, Karen P. Holland, Deutsch, Kerrigan & Stiles, L.L.P., 755 Magazine St. New Orleans, LA, 70130-3672, (504) 581-5141, COUNSEL FOR DEFENDANT-APPELLEE: Opelousas General Hospital Authority

Nicholas Gachassin, III, Brandon M. Rhodes, Gary J. Delahoussaye, Gachassin Law Firm, L.L.C., P. O. Box 80369, Lafayette, LA, 70598-0369, (337) 235-4576, COUNSEL FOR DEFENDANT-APPELLEE: Opelousas General Hospital Authority

J. Gregory Vidrine, Mahtook & LaFleur, P. O. Box 617, Ville Platte, LA, 70586, (337) 363-6211, COUNSEL FOR DEFENDANT-APPELLEE: Opelousas General Hospital Authority Jacob E. Favaron, Allen & Gooch

P. O. Box 81129, Lafayette, LA, 70598-1129, (337) 291-1000, COUNSEL FOR DEFENDANTS-APPELLEES: Dr. Kondilo Skirlis-Zavala, Louisiana Patients' Compensation Fund, Opelousas General Hospital

George P. Hebbler, Jr., Thomas M. Young, Frances I. Mcginnis, Hebbler & Giordano, L.L.C., 3501 N. Causeway Blvd, # 400, Metairie, LA, 70002, (504) 833-8007, COUNSEL FOR DEFENDANT-APPELLEE: Nautilus Ins. Co.

Court composed of Billy H. Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.

PERRET, Judge.

Veronica and Joseph Billeaudeau, individually and on behalf of Brandi Billeaudeau (collectively "Plaintiffs"), appeal a trial court judgment that granted Opelousas General Hospital Authority's (hereinafter, "OGH") and Nautilus Insurance Company's (collectively "Defendants") Motion for Partial Summary Judgment finding that the Louisiana Governmental Claims Act is controlling with respect to Plaintiffs' claim of negligent credentialing. Plaintiffs also appeal the trial court's judgment that denied their Motion to Declare La.R.S. 13:5102(B)(1) unconstitutional. For the following reasons, we affirm the July 5, 2017 trial court judgment.

FACTS:

The underlying facts of this case were discussed previously in Billeaudeau v. Opelousas Gen. Hosp. , 16-846, pp. 2-3 (La. 10/19/16), 218 So.3d 513, 514-15 (footnotes omitted), as follows:

On June 20, 2010, Brandi, a woman thirty-four years of age with Down syndrome, was taken to OGH by her parents, Veronica and Joseph Billeaudeau, after she collapsed at home. Upon arrival at the ED, Dr. Zavala diagnosed Brandi with focal motor seizure. Dr. Zavala ordered the administration of anti-seizure medication and a CT scan, which was reported as normal.
The Billeaudeaus disagreed with the doctor's diagnosis. Thinking their daughter had suffered a stroke, they asked that Brandi be given tPA (t-plasminogen activator), a treatment for stroke victims. However, according to plaintiffs' allegations, Dr. Zavala informed them their daughter was not a candidate for tPA. The Billeaudeaus then requested Brandi be transferred to Our Lady of Lourdes (OLOL) in Lafayette. Dr. Zavala arranged for Brandi's transfer to OLOL, where she was given tPA over four hours after she suffered what was ultimately determined to be a stroke. Brandi survived the stroke but unfortunately suffered severe, irreversible brain damage.
Veronica, individually and as Brandi's curatrix, along with Joseph pursued a claim under the LMMA [Louisiana Medical Malpractice Act] and brought suit against OGH, among other defendants, specifically alleging:
Defendant, Opelousas General Hospital, is liable unto Petitioners because Ms. Billeaudeau's injuries and damages, which will be specified hereinafter, were proximately and legally caused by the fault, including negligence, of Opelousas General Hospital and its officers, agents, employees, and those for whom it is legally responsible, including the following negligent acts of omission and commission, among others, which may be shown during the trial:
a. Failure to develop and/or implement adequate policies and procedures to competently address stroke and/or administration of tPA;
b. Failure to distribute its written stroke and/or tPA protocol to Dr. Kondilo Skirlis-Zavala, a physician working in the hospital's emergency department;
c. Failure to ensure that Dr. Zavala had reviewed and accepted the hospital's written stroke and/or tPA protocol;
d. Failure to supervise Dr. Zavala, a physician working in Opelousas General's emergency department; and
e. Negligent credentialing of Dr. Zavala.
Thereafter, plaintiffs filed a motion for partial summary judgment asking the District Court to declare their claim against OGH for negligent credentialing was not subject to the terms of the LMMA, including the cap on damages found in La. Rev. Stat. § 40:1231.2(B)(1).

The trial court granted Plaintiffs' Motion for Partial Summary Judgment finding that negligent credentialing was not covered by the Louisiana Medical Malpractice Act ("LMMA"). This court and the Louisiana Supreme Court affirmed the trial court's judgment, finding that Plaintiffs' negligent credentialing claim sounds in general negligence and does not fall within the provision of the LMMA.

On March 15, 2017, OGH filed a Motion for Partial Summary Judgment on the Applicability of the Louisiana Government Claims Act and Rule to Show Cause, arguing the following legal elements, in pertinent part:

1. The claim against OGHA [OGH] for negligent credentialing is not covered by the Louisiana Medical Malpractice Act. ( Billeaudeau v. Opelousas General Hospital Authority, et al , 218 So.3d 513 (La. 2016) ).
2. Hospital Service Districts, including St. Landry Parish Hospital Service District No. 2, are political subdivisions of the state. ( LSA-R.S. 46:1064(A) ; LSA-R.S. 56:1072(2)(b); Bertrand v. Sandoz , 255 So.2d 754, 755 (La. 1971) ).
3. The Opelousas General Hospital Authority is a public trust established to finance, construct, operate, manage and administer hospital and ancillary facilities for St. Landry Parish Hospital Service District No. 2. ( Bertrand v. Sandoz , 255 So.2d 754, 762 (La. 1971) ; Exhibit A, attachments 2, 3, 4, and 5).
4. The Opelousas General Hospital Authority is a "political subdivision" of the State as that term is defined by LSA-R.S. 13:5102(B)(1).
5. The Louisiana Governmental Claims Act, LSA-R.S. 13:5101 et seq., in general, and Section 5106 concerning limitation of liability, in particular, will apply to the plaintiffs' claim of negligent credentialing.
6. Both the claims of the primary plaintiff, Brandi Billeaudeau, and the derivative claims of her parents with respect to negligent credentialing are subject to the single statutory cap on damages established by LSA-R.S. 13:5106....

In opposition to the Motion for Partial Judgment, Plaintiffs argue that OGH is a public trust and not a political subdivision; thus, the limitations on liability that are available to political subdivisions are not applicable to their claims. Plaintiffs maintain that "(1) OGH has not identified itself as a political subdivision in this case or in any Answer filed with the Clerk of Court of St. Landry Parish; and (2) OGH has already prayed for and paid for a jury trial." Further, Plaintiffs argue that OGH's position that it is entitled to the protections of La.R.S. 13:5106 because it is a "political subdivision" is inconsistent in that the "public trust was created precisely so that the St. Landry Parish taxpayers would not be financially burdened by the hospital, which is why they no longer have to approve the hospital's financing decisions." Plaintiffs further allege that "[i]nterpreting a public trust to be a political subdivision under § 13:5102 and 5106 would also be inconsistent with provisions in the Public Trust Act and OGH's own Trust Indenture concerning liability and the payment of liabilities."

Plaintiffs also filed a Motion to Declare La.R.S. 13:5102(B)(1) unconstitutional. Plaintiffs argue that La.R.S. 13:5102(B)(1) is unconstitutional "as vague, overbroad, and/or violative of Plaintiffs' right to due process of law, right to access to the Courts, right to trial by jury, right to equal protection, and any and all other rights therein guaranteed."

In response to Plaintiffs' opposition, OGH submitted the following facts to establish that there are no genuine issues of fact (emphasis in original):

1. Pursuant to an ordinance dated July 6, 1963, the St. Landry Parish Police Jury created Hospital Service District No. 2 of the Parish of St. Landry, State of Louisiana, (referred to herein as "District") wherein the District "shall constitute a public corporation and political subdivision of the state and shall have all the powers and privileges granted by the state constitution and state statutes to such subdivisions, including the authority to incur debt, to issue bonds and to levy taxes." (Exhibit B;
Bertrand v. Sandoz , 255 So.2d 754, 758-59 (La. 1971) ).
2. The District's hospital opened on May 27, 1957. By 1970, the hospital had experienced rapid growth and was in need of expansion and renovation and, as a result, the District formulated a plan for modernization and expansion to be funded in part by a proposed bond issue
by the District in the amount of $1,600,000.00. ( Bertrand v. Sandoz , 255 So.2d 754, 756-57 (La. 1971) ).
3. The bond proposal was defeated by the voters on January 12, 1971; due to the critical need for improving the hospital, the District decided to utilize the recently enacted Public Trust Act, Act 135 of 1970 ( La. R.S. 9:2341 -2347), which authorized the creation of an express trust, with a public body as the beneficiary, to finance public projects from self-generated revenue. ( Bertrand v. Sandoz , 255 So.2d 754, 757 (La. 1971) ).
4. On April 6, 1971, the public trust named "Opelousas General Hospital Authority" ("OGHA") was created by the District pursuant by [sic] a Trust Indenture to "finance, operate, construct, lease, rent, manage and administer hospital facilities and facilities ancillary and related thereto, and for the public purposes hereinafter set forth as a public instrumentality of the state or a subdivision or agency thereof," wherein the District is the beneficiary, as amended September 25, 1986, May 15, 1991, and July 30, 1991. (Exhibit C, attachments 1, 2, 3, and 4).
5. On December 13, 1971, the Louisiana Supreme Court, in response to a suit filed contesting the validity of the OGHA, held "that the public trust designated as Opelousas General Hospital Authority is valid and may issue revenue bonds without an election by a majority of the taxpayers of the district." ( Bertrand v. Sandoz , 255 So.2d 754, 764 (La. 1971) ).
6. On January 25, 1972, the District entered into an "Agreement of Lease" with OGHA whereby the District leases the land and hospital building to OGHA so that OGHA can operate the hospital, as amended February 15, 1973, December 1, 1975, and June 1, 1990 (Exhibit D, attachments 1, 2, 3, and 4).
7. On May 24, 1972, the Internal Revenue Service issued rulings finding that:
a. The $1,600,000.00 in revenue bonds issued by OGHA bear interest which is exempt from Federal income taxation as prescribed in Section 103(a)(1) of the Internal Revenue Code of 1954; and
b. The income earned by OGHA, as a result of the operation of the hospital, is not subject to federal income taxation. (Exhibit E).
8. On January 22, 2004, OGHA filed a "Certificate of Registration of Assumed Business Name" providing that OGHA would do business as "Opelousas General Health System". (Exhibit F).
9. OGHA is a public trust established to finance, construct, operate, manage and administer hospital and ancillary facilities wherein Hospital Service District No. 2 of St. Landry Parish, a political subdivision of the State of Louisiana, is the beneficiary.
10. OGHA is a "political subdivision" of the State as that term is defined by LSA-R.S. 13:5102(B)(1) . Therefore, the Louisiana Governmental Claims Act, LSA-R.S. 13:5101 et seq., in general, and Section 5106 concerning limitation of liability, in particular, will apply to the plaintiffs' claim of negligent credentialing.

After a hearing, the trial court signed a judgment on July 5, 2017, that granted Defendants' Motion for Partial Summary Judgment on the Applicability of the Louisiana Governmental Claims Act and found that " LSA-R.S. 13:5101, et seq. , in general, and LSA-R.S. 13:5106 concerning limitation of tort liability, in particular, are controlling with respect to the Plaintiffs' claims of negligent credentialing." The trial court also denied Plaintiffs' Motion to Declare La. R.S. 13:5102(B)(1) unconstitutional.

During the hearing on June 12, 2017, the trial court provided the following reasons for its finding that OGH is a political subdivision, and its denial of Plaintiffs' motion seeking to declare La.R.S. 13:5102(B)(1) unconstitutional:

I do find, or I did note that upon the termination of the trust that the property reverts back to the beneficiary of the trust which is Hospital Service District No. 2 of St. Landry Parish. And it's only leased to them, which means that ownership-at least part of it-ownership remains with the Hospital Service District and not the trust ....
I think it's a question of law. And a motion for summary judgment based on the interpretation of statutes and, in particular, Louisiana Revised Statute 13:5102(B) [,] which defines political subdivision, under subpart (1), or (B)(1), [as] ["]any parish, municipality, special district,
schoolboard [sic], sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these and ... other public or governmental body of any kind which is not a state agency.["] I'm going to find that the hospital, both the trust and the-as you argued, the-if you diagram it you have the State gave the authority to the police jury, the police jury created the hospital service district, the hospital service district then essentially created the trust and the property is still owned in part by the hospital service district, will revert back to the hospital service district upon the termination of the trust. I think under a clear reading of Revised Statute 13:5102(B)(1) that both would be political subdivisions.
....
[I]t's very difficult to declare a statute unconstitutional. They're presumed to be constitutional and valid. Again, I understand, and I assume that the arguments can be made, that there are no other cases that specifically deal with the applicability of the statute to a public trust that is essentially the funding arm or mechanism of a hospital service district, but there have been numerous other political subdivisions that have urged the protections or the limitations of liability of the statute and I don't think it's ever been held unconstitutional in any of those other cases. But I'm going to deny the motion for summary judgment seeking to declare 13:5102(B)(1) unconstitutional.

Plaintiffs now appeal this final judgment. On appeal, Plaintiffs allege the following three assignments of error: (1) the trial court erred in concluding that OGH, a public trust, meets the statutory definition of "political subdivision" contained in La.R.S. 13:5102(B)(1) ; (2) the trial court erred in holding that the public trust is a "political subdivision;" and (3) in the alternative, the trial court erred in determining that La.R.S. 13:5102(B)(1) is constitutional as applied to their case.

STANDARD OF REVIEW:

An appellate court reviews a trial court's granting of a motion for summary judgment de novo. Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06), 950 So.2d 544. Under this standard of review, the appellate court uses the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id.

"[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). As stated in La.Code Civ.P. art. 966 (D)(1) :

[I]f the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

DISCUSSION:

In this case, we are to determine whether OGH falls within the statutory definition of a "political subdivision" contained in La.R.S. 13:5102(B)(1), and if so, whether this statute is constitutional. Our decision is premised on the fact that "the Legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject." M.J. Farms, Ltd. v. Exxon Mobil Corp. , 07-2371, p. 13 (La. 7/1/08), 998 So.2d 16, 27, amended on reh'g (9/19/08). Thus, this court will interpret the legislative language "on the assumption the Legislature was aware of existing statutes, well established principles of statutory construction and with knowledge of the effect of their acts and a purpose in view." Id. As the Louisiana Supreme Court stated in Duckworth v. La. Farm Bureau Mut. Ins. Co. , 11-2835, p. 12 (La. 11/2/12), 125 So.3d 1057, 1064 :

In Louisiana, as in other civil law jurisdictions, legislation is superior to any other source of law. See , La. C.C. art. 1 ; Doerr v. Mobil Oil Corp. , 00-0947, p. 13 (La. 12/19/00), 774 So.2d 119, 128. Therefore, as the solemn expression of the legislative will, if an enactment provides a solution to a particular situation, then no jurisprudence, usage, equity or doctrine can prevail over the legislation. See La. C.C. arts. 2 and 3. It is only when a particular situation is not covered by legislation that a solution can be sought elsewhere. La. C.C. art. 4.
The judiciary's role in the civil law, first and foremost, is not to legislate from the bench, but to interpret the legislative will and apply statutory pronouncements to specific cases. Albert Tate, Jr., Techniques of Judicial Interpretation in Louisiana , 22 La.L.Rev. 727, 728 (1962) ("The Louisiana judge must, as stated, find primarily in legislative enactments the legal principles to be applied in deciding the case before him."). Interpretation of the legislative will is accomplished through the rules of statutory construction. Pursuant to these rules, the interpretation of a legislative enactment begins with the language of the law itself. In re Succession of Faget , 10-0188, p. 8 (La. 11/30/10), 53 So.3d 414, 420 ; Touchard v. Williams , 617 So.2d 885, 888 (La.1993). When a law is clear and unambiguous and its application does not lead to absurd consequences, the law must be applied as written, and no further interpretation may be made in search of the legislative intent. La. C.C. art. 9 ; La. R.S. 1:4. Unequivocal provisions are not subject to judicial construction and should be applied by giving the words their generally prevailing meaning. La. C.C. art. 11 ; La. R.S. 1:3 ; Oubre v. Louisiana Citizens Fair Plan , 11-0097, p. 12 (La. 12/16/11), 79 So.3d 987, 997. Further, laws on the same subject matter are to be interpreted in reference to each other. La. C.C. art. 13.

We will now examine the instant case with these considerations in mind.

The Louisiana Constitution Article 12, § 10 (C) "grants the legislature the power to enact legislation to limit or set out the conditions of the State's liability." Fulmer v. State, Dep't of Wildlife & Fisheries , 10-2779, p. 7 (La. 7/1/11), 68 So.3d 499, 504. Specifically, in 1995, La.Const. art. 12 § 10 (C) was amended to read, in pertinent part:

[T]he legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered.

The Louisiana Governmental Claims Act, found at La.R.S. 13:5101 et seq. , applies:

to any suit ... for injury to person ... against the state, a state agency ... or a political subdivision of the state, as defined herein, or against an officer or employee of a political subdivision arising out of the discharge of his official duties or within the course and scope of his employment.

La.R.S. 13:5101(B). Louisiana Revised Statutes 13:5102(B)(1) defines a "political subdivision" as "[a]ny parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency." Louisiana Revised Statutes 13:5106 establishes a $500,000.00 cap on general damage awards against all public entities, and provides the legislature's reasons for limiting the liability of the state, as follows:

(1) That judgments against public entities have exceeded ability to pay on current basis.
(2) That the public fisc is threatened by these judgments to the extent that the general health, safety, and welfare of the citizenry may be threatened.
(3) That the limitations set forth in this Section are needed to curb the trend of governmental liability abuses, to balance an individual's claim against the needs of the public interests and the common good of the whole society, and to avoid overburdening Louisiana's economy and its taxpaying citizens with even more new and/or increased taxes than are already needed for essential programs.
(4) That the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the constitution.

La.R.S. 13:5106(E).

The Louisiana Supreme Court recently provided a historical overview of the Louisiana Governmental Claims Act in Fecke v. Bd. of Supervisors of Louisiana State Univ. , 15-1806, 15-1807, pp. 8-9 (La. 9/23/16), 217 So.3d 237, 244-45, modified on reh'g sub nom. Fecke v. Bd. of Supervisors of Louisiana State Univ. & Agric. & Mech. Coll., 15-1806, 15-1807 (La. 10/19/16), 218 So.3d 1 (footnotes omitted) (alteration in original), and stated, in pertinent part:

The Louisiana Governmental Claims Act was adopted in 1975 pursuant to an amendment to the Louisiana Constitution giving constitutional status to the proscription against sovereign immunity from substantive tort liability. The Act establishes procedural rules that apply to any suit in contract or for injury to person or property against the state, a state agency, or a political subdivision of the state. See La. Rev. Stat. 13:5101(B). When enacted, La. Rev. Stat. 13:5106 provided the lone limitation that "[n]o suit against the state, state agency or political subdivision shall be instituted in any court other than a Louisiana state court." In 1985, the Legislature amended La. Rev. Stat. 13:5106 to expand the limitations on suits against the state and political subdivisions. The 1985 revision placed a limit of $500,000.00 on general damages assessed against the state in personal injury and wrongful death actions; provided for the recovery of
medical care and related benefits, loss of earnings and/or support, loss of future earnings or support; defined the terms "medical care and related benefits," "loss of earnings," "loss of support," "loss of future earnings" and "loss of future support"; and enunciated the legislative findings and purposes of the statute. See La. Rev. Stat. 13:5106(B), (C), (D) and (E).
In 1993, this Court declared La. Rev. Stat. 13:5106(B)(1) unconstitutional, holding the $500,000.00 cap on general damages in a personal injury suit against the State contravened the proscription against sovereign immunity from tort liability provided for in Louisiana Const. 1974 article XII, § 10 (A). Chamberlain v. State Through Dept. of Transp. and Development , 624 So.2d 874, 881 (La. 1993). In response, the Legislature proposed an amendment to Louisiana Const. 1974 article XII, § 10 (C), to allow the legislature to "limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages." The amendment was approved by the voters on October 21, 1995, and went into effect November 23, 1995, allowing a cap on general damages against the State to be reinstated. In anticipation, the Legislature amended La. Rev. Stat. 13:5106"in accordance with and based upon the legislative authority provided for in the proposed constitutional amendment to Article XII, Section 10 of the Constitution of Louisiana." See Digest , 1995 House Bill No. 1936. The 1995 amendments to La. Rev. Stat. 13:5106(B) increased the maximum liability of the State for general damages in wrongful death cases at $750,000.00.
In an effort at tort reform, the Legislature in 1996 amended La. Rev. Stat. 13:5106(B) to limit general damages in suits against the state, a state agency, or political subdivision for personal injury or wrongful death to $500,000.00....
In 2004, this Court held the $500,000.00 cap on damages for a wrongful death action under La. Rev. Stat. 13:5106(B)(2) applied to each individual plaintiff, instead of each death victim. Lockett v. State, Department of Transportation , 2003-1767 (La. 2/25/04), 869 So.2d 87. The Legislature responded, amending La. R.S. 13:5106(B)(1) and (2) to limit the total liability of the state and political subdivisions for personal injury or wrongful death of any one person, including all claims and derivative claims, to $500,000.00 regardless of the
number of suits filed or claims made for the personal injury or wrongful death of that person. More recently, the Legislature amended La. Rev. Stat. 13:5106, adding subsection F, to preclude the application of La. Rev. 13:5106 to claims arising under La. Rev. Stats. 40:1299.3917, the Malpractice Liability for State Services Act.

The record evidences the fact that the Hospital Service District No. 2 of St. Landry was created in 1953 as a political subdivision of the State of Louisiana, pursuant to La.R.S. 46:1064(A), which provides:

The hospital service districts as defined in R.S. 46:1072 are hereby declared to be political subdivisions of the state, and for the purpose of purchasing and acquiring lands and purchasing, acquiring, constructing and maintaining hospitals, nursing homes, physicians and dentists offices, laboratories, and other physical facilities necessary to carry out the purposes of this Chapter. Title to such land and physical facilities shall be in the public. Such districts shall be subdivisions of the state of Louisiana within the meaning of the laws of Louisiana relating to the voting and levy of special maintenance taxes incurring debt and issuing bonds therefor, including particularly but without limitation R.S. 39:504.1, 515-518, 551-571, 575-577, 611-617, 701-706, and 911, and shall be authorized to issue hospital revenue bonds pursuant to R.S. 39:559.1 and 1011-1024, and as otherwise permitted by law. Hospital service districts are hereby further authorized to issue bonds pursuant to the foregoing to refund outstanding bonded indebtedness whether issued by such hospital service district or by another political subdivision of the state on behalf of such hospital service district or in respect of any hospital facilities owned or operated by any such hospital service district.

The record further supports the fact that OGH was created as a "public trust" under the Public Trust Act, Act 135 of 1970, now La.R.S. 9:2341 et seq. , for the benefit of the Hospital Service District No. 2 of St. Landry. The Trust Indenture, signed on April 6, 1971, states the reason for creating the trust, as follows:

ARTICLE 1 CREATION OF TRUST
The undersigned Trustor creates and established a Trust (herein called "The Trust") for the use and benefit
of Hospital Service District No. 2, (herein called the "Beneficiary"), to finance, operate, construct, lease, rent, manage and administer hospital facilities and facilities ancillary and related thereto, and for the public purposes hereinafter set forth as a public instrumentality of the state or a subdivision or agency thereof, under the provision of Act No. 135, 1970, L[a]. R.S. 9:2341, et seq. as amended, Louisiana Revised Statutes 1970, and the Louisiana Trust Code and other statutes of the State of Louisiana, as applicable.

On September 25, 1986, the Trust Indenture was amended to include Article IV, section 4.1, to state "The purpose of the Trust shall constitute authorized public functions or purposes held to be an essential public function conducted in the public interest ...."

According to La.R.S. 9:2341(D), as amended in 1978, (emphasis added), "[a]ll public trusts hereafter created or amended under this Chapter shall constitute public corporations of the beneficiary ... All public trusts created heretofore or hereafter shall be subject to the Public Contracts Law, Public Records Law, Public Meetings Law, Code of Ethics, and the Bond Validation Procedures Law." Although the Public Trust Act was amended in 1976 and 1978 to include, and clarify, section D of La.R.S. 9:2341, the record indicates that the Hospital Service District No. 2 of St. Landry amended its Trust Indenture Instrument on September 25, 1986, May 15, 1991, and again on July 30, 1991, to conform the trust to the amended and re-enacted Public Trust Act. The record also indicates that the Hospital Service District No. 2 of St. Landry leased the land and hospital building to OGH on January 25, 1972, and amended the lease agreements on February 15, 1973, December 1, 1975, and June 1, 1990.

Although Plaintiffs cite to Bertrand v. Sandoz , 260 La. 239, 255 So.2d 754 (1971), for the proposition that the Louisiana Supreme Court confirmed that OGH is a public trust and not a political subdivision, we find this case inapplicable to the facts of this matter because the Louisiana Governmental Claims Act was enacted four years after this supreme court case was decided, and the definition of "political subdivision" used in La.R.S. 13:5102(B)(1) was not at issue in Bertrand.

For these reasons, we agree with the trial court that the 1986 and 1991 amendments to the Hospital Service District No. 2 of St. Landry's Trust Indenture brought the OGH within the scope of the legislative amendments throughout the years and that OGH is a "public corporation" within the meaning of the Louisiana Governmental Claims Act.

The second issue for this court to address is whether La.R.S. 13:5102(B)(1) is constitutional as applied to Plaintiffs' case. Plaintiffs argue that there is no rational relationship to any state interest in extending the Louisiana Governmental Claims Act to OGH, and that it only serves "to deprive the Billeaudeaus of their constitutional guarantees of equal protection, due process of law, access to the courts, and an adequate remedy under the law."

The Louisiana Supreme Court addressed the principles of review for constitutionality in La Fed'n of Teachers v. State , 13-120, 13-232, 13-350, pp. 21-22 (La. 5/7/13), 118 So.3d 1033, 1048-49 (emphasis added), and stated:

As a general rule, legislative instruments are presumed to be constitutional; therefore, the party challenging the validity of a legislative instrument has the burden of proving its unconstitutionality. See State v. Citizen , 04-1841, p. 11 (La. 4/1/05), 898 So.2d 325, 334 ; Louisiana Municipal Association[ v. State] , 04-0227 at 45, 893 So.2d [809]at 842 [ (La. 2005) ] ; Board of Commissioners of North Lafourche Conservation, Levee and Drainage District v. Board of Commissioners of Atchafalaya Basin Levee District , 95-1353, pp. 3-4 (La. 1/16/96), 666 So.2d 636, 639.
Because the provisions of the Louisiana Constitution are not grants of power, but instead are limitations on the otherwise plenary power of the people of the state, exercised through the legislature, the legislature may enact any legislation that the constitution does not prohibit.
Louisiana Municipal Association , 04-0227 at 45, 893 So.2d at 842-43 ; Polk v. Edwards , 626 So.2d 1128, 1132 (La.1993) ; Board of Commissioners of Orleans Levee District v. Department of Natural Resources , 496 So.2d 281, 286 (La.1986). Consequently, a party chal lenging the constitutionality of a legislative instrument must point to a particular provision of the constitution that would prohibit the enactment of the legislative instrument and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the legislative instrument in question.
See World Trade Center Taxing District v. All Taxpayers, Property Owners , 05-0374, p. 12 (La. 6/29/05), 908 So.2d 623, 632 ; Caddo-Shreveport Sales and Use Tax Commission v. Office of Motor Vehicles Department of Public Safety and Corrections of the State , 97-2233, pp. 5-6 (La. 4/14/98), 710 So.2d 776, 779 ; Polk , 626 So.2d at 1132. A constitutional limitation on the legislative power may be either express or implied. World Trade Center Taxing District , 05-0374 at 12, 908 So.2d at 632 ; Caddo-Shreveport Sales and Use Tax Commission , 97-2233 at 6, 710 So.2d at 779-80.
Finally, because it is presumed that the legislature acts within its constitutional authority in promulgating a legislative instrument, this court must construe a legislative instrument so as to preserve its constitutionality when it is reasonable to do so . See State v. Fleury , 01-0871, p. 5 (La. 10/16/01), 799 So.2d 468, 472 ; Moore v. Roemer , 567 So.2d 75, 78 (La.1990). In other words, if a legislative instrument is susceptible to two constructions, one of which would render it unconstitutional or raise grave constitutional questions, the court will adopt the interpretation of the legislative instrument which, without doing violence to its language, will maintain its constitutionality. See Hondroulis v. Schuhmacher , 553 So.2d 398, 416-17 (La.1988). Nevertheless, the constitution is the supreme law of this state to which all legislative instruments must yield. See World Trade Center Taxing District , 05-0374 at 12, 908 So.2d at 632 ; Caddo-Shreveport Sales and Use Tax Commission , 97-2233 at 6, 710 So.2d at 780. When a legislative instrument conflicts with a constitutional provision, the legislative instrument must fall. See Caddo-Shreveport Sales and Use Tax Commission , 97-2233 at 6, 710 So.2d at 780.

Thus, under La Fed'n of Teachers , the Louisiana Supreme Court made it clear that a person challenging the constitutionality of a statute must point to a particular provision of the constitution that has been violated and must demonstrate clearly and convincingly how the statutory provision has violated the constitutional provision.

After reviewing Plaintiffs' pleadings, we find that Plaintiffs failed to actually explain how their rights were violated by the statutes at issue in order to overcome the presumption of constitutionality. Further, the La.Const. art. 12, § 10 (C) directs the legislature to provide both a procedure for suits against entities such as OGH and for a limitation on the effect of judgments against it. We find that the legislature clearly expressed its purpose in enacting the Louisiana Governmental Claims Act and we find that the statutes evidence the legislative intent to limit recovery of damages from political subdivisions of the state as defined by La.R.S. 13:5102(B)(1).

Accordingly, we find that the trial court properly granted Defendants' Motion for Partial Summary Judgment on the applicability of the Louisiana Governmental Claims Act and its finding that the provisions of the Act are controlling with respect to Plaintiffs' claims of negligent credentialing. Further, we find that the trial court properly denied Plaintiffs' Motion to Declare La.R.S 13:5102(B)(1) unconstitutional.

AFFIRMED.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    Willie BROWN, Jr. v. BREAUX BRIDGE VENTURES, LLC
    CA 17-440
    Court of Appeal of Louisiana, Third Circuit.
    February 15, 2018
    Nelson W. Wagar, III, Sarah W. Hickman, Wagar Richard Kutcher Tygier & Luminais, LLP, Two Lakeway Center, Suite 900, 3850 N. Causeway Boulevard, Metairie, LA 70002, (504) 830-3838, COUNSEL FOR DEFENDANT/APPELLANT: Breaux Bridge Ventures, LLC d/b/a Silver's Casino
    R. Scott Iles, P. O. Box 3385, Lafayette, LA 70502, (337) 234-8800, COUNSEL FOR PLAINTIFF/APPELLEE: Willie Brown
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.
   SAVOIE, Judge.

In this slip and fall case, Defendant Breaux Bridge Ventures, LLC d/b/a Silver's Casino appeals the trial court's JNOV granted in favor of Plaintiff Willie Brown, Jr. and judgment increasing the jury's award of $25,000 for "past and future physical and mental pain and suffering, and physical impairment" to $250,000. For the following reasons we reverse the JNOV granted in favor of Mr. Brown and reinstate the jury's verdict.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Brown alleges that he was injured when he fell in the parking lot of Silver's Casino on October 13, 2013. He was sixty-five years old at the time. On that date, Mr. Brown and his wife were patrons of the casino. Per Mr. Brown, the casino unexpectedly lost electricity and he and his wife exited to the parking lot at the direction of casino management. He alleges that it was dark outside at the time, and that he stumbled and fell as he walked back toward the casino when patrons were allowed to reenter. He filed suit against Silver's Casino on June 9, 2014. Trial was held September 29-30, 2015.

At trial, Mr. Brown testified that on the day of the incident, he fell, hit his head "hard," "twisted," and fell on his shoulder. He stated, "right at that moment, I just fell. I didn't feel any pain hardly." Mr. Brown did not seek medical treatment that day.

Mr. Brown testified that the next morning at about 6:00 a.m. he woke up with "a big old knot, and it was like a big scab. It was turning. And my vision in this right eye was blurred." His wife thereafter brought him to the emergency room at St. Martin Area Hospital. Mr. Brown testified that his initial complaints were his head injury and blurred vision, that a CT scan was performed at the hospital, and that he was advised to see an ophthalmologist or an optometrist regarding his blurred vision. According to the medical records from St. Martin Area Hospital, Mr. Brown was discharged the same day with a diagnosis of a head abrasion, and he was prescribed ibuprofen.

According to Mr. Brown, a few days later his neck and shoulder started hurting and he noticed some swelling. When asked how it felt, he stated, "if I'd bend my neck, I could feel it. It was like a lump right there. And I still have it. It would just bother me, and my shoulder too." He testified that he did not have any pain in his neck or shoulder before the incident.

Mr. Brown's attorney referred him to Dr. Mathew Abraham. Dr. Abraham's video deposition as well as his medical records were submitted into evidence. Mr. Brown first saw Dr. Abraham on October 22, 2013. Dr. Abraham testified that at this time, Mr. Brown explained the incident at issue indicating that he had hit his forehead and had some swelling, and that when he fell, he braced himself with his left arm and rotated to his right, impacting his right knee. The medical record from this date notes that Mr. Brown reported "some cervical discomfort [,] worse over the left side and mainly involving the left shoulder and left chest wall." Dr. Abraham testified that Mr. Brown "had a contusion over the right forehead and complained of occasional visual disturbances. He had some cervical discomfort after the injury. He had a discomfort involving his left shoulder and interior chest wall. And he had [an] abrasion over the right knee[.]"

Dr. Abraham stated that he initially believed Mr. Brown had a soft tissue injury, specifically, "sprains with some myofascial strains" that could improve over time with therapy, at an average of three to six months. Dr. Abraham therefore recommended physical therapy as well as an evaluation by an ophthalmologist. As of the date of Dr. Abraham's initial exam, Mr. Brown reported he took the following medications: Lisinopril, Motrin, Ambien, and Mobic, as needed. Dr. Abraham testified he did not know what provider had proscribed Mobic, which is a medication for pain.

Mr. Brown testified that he thereafter attended physical therapy at Dr. Abraham's clinic four times a week initially, and then three times a week, while under Dr. Abraham's care. He stated that the physical therapy "worked a little while, and then I started having a lot of swelling. And they would come in, and the lump in my neck, it would go down and it would come back up again. And it started hurting."

Mr. Brown saw Dr. Abraham again on November 19, 2013. Dr. Abraham testified that at this time, Mr. Brown

was worried about his left shoulder, having continued pain in the cervical area. He had limited improvements with therapy but it wasn't worsening. He had an examination with the ophthalmologist. He said his knee pain was improved. The chest wall discomfort had somewhat improved. So he had some areas of improvement and other areas that were not.

Dr. Abraham's medical report from November 19, 2013, notes "[l]eft cervical and upper thoracic myofascial strain involving the left shoulder." It further states that "therapeutic modalities" for his complaints would continue, but that if there was no significant improvement over the next few weeks, an evaluation with a specialist may be considered. Dr. Abraham additionally prescribed Lortab.

Mr. Brown's next appointment with Dr. Abraham was December 17, 2013. Dr. Abraham testified that at this time Mr. Brown "had some improvements of the thoracic and cervical area, but still had discomfort and pain. The discomfort was improving slowly." Dr. Abraham also noted that Mr. Brown's primary complaints were tenderness on the left side of his neck and left shoulder. He further indicated that Mr. Brown had regularly attended physical therapy since his initial appointment. Dr. Abraham's medical record from that date reflects that Mr. Brown reported seeing an ophthalmologist and that he had fewer complaints of "floaters." The report also states that Mr. Brown was to continue his current medications, as well as "[c]ontinue therapeutic modalities, which are having benefit."

Dr. Abraham saw Mr. Brown again January 14, 2014. Dr. Abraham's medical record from this date states:

Mr. Brown is here today for follow-up evaluation. He has had improvements over the past month. The cervical discomfort is improved significantly, as well as the left upper myofascial strain. He has some discomfort over the anterior aspect of the neck, where it attaches to the clavicle, but otherwise he feels better.
....
He had some tenderness over the anterior cervical musculature near the clavicular area. That being said, there was no instability of the clavicle. This is also improvement. He had minimal discomfort or tenderness at all over the left cervical and upper thoracic area at the time of exam.

The January 2014 medical record further reflects that Lortab was discontinued, and that Mr. Brown would take non-steroidal anti-inflammatory medication as needed. Dr. Abraham testified that Mr. Brown was still attending physical therapy as well.

Mr. Brown next saw Dr. Abraham on February 18, 2014. Dr. Abraham's medical report from this date states Mr. Brown "has continued pain over his left shoulder, especially with elevation of the shoulder above horizontal. The pain is not improved[,]" but his cervical pain "had significant improvements with therapy." Dr. Abraham testified that at on this date, he recommended an MRI of Mr. Brown's left shoulder, which revealed "a mild ... labral tear." Based on the results of the MRI, Dr. Abraham referred Mr. Brown to Dr. Louis Blanda, an orthopedic surgeon.

Mr. Brown saw Dr. Abraham again in March 2014. At that time he had not yet seen Dr. Blanda. Dr. Abraham's report from that date reflects "significant pain over his left shoulder," and "cervical pain that has improved." Mr. Brown's last visit with Dr. Abraham was May 20, 2014, at which time Mr. Brown was treating with Dr. Blanda. Due to Dr. Blanda overseeing his care, no follow up appointments were scheduled.

Mr. Brown testified at trial that after the several months of treating with Dr. Abraham, his neck was still hurting, and that his worst problem "three, four, five months, after the accident" was his neck. When asked to describe what his neck felt like then, Mr. Brown stated:

I can't turn my head real fast. I went to the doctor one day, and he did a little test. He just took his hand and put it on the top of my head and pushed down. And believe me it hurt. When I go to bed at night, I can't rest. I wind up getting out of bed several times a night. I go cut the TV on, and I sit down in a recliner. And that's been going on for quite a while.

Mr. Brown first saw Dr. Blanda on April 17, 2014. Dr. Blanda's video deposition and medical records were admitted into evidence. Dr. Blanda's medical record from that date states:

Patient words: This is a 65 year old right handed male referred by Dr. Matthew Abraham for evaluation of left shoulder complaints.... He was initially concerned about his head injury and a few days later he began with left shoulder pain.
The patient retained the services of Scott Isles who sent him to see Dr. Abraham who treated him conservatively with medications and physical therapy. This was not working and the patient was sent for a left shoulder MRI on February 20, 2014. He was told he had a bad tear in his shoulder and was referred here for orthopedic evaluation.
The patient is complaining of an aching, burning pain in his left shoulder that he rates an 8 on a scale of 0-10. He has a tingling sensation and pins and needles sensation in his shoulder.

Dr. Blanda testified that on April 17, 2014:

I examined his neck and left shoulder and his arm. In the neck area, he had restrictive range of motion. A maneuver, which is a compression-type test, did produce pain in both shoulders and arms. He had muscle spasms in his neck muscles. Range of motion, as mentioned was painful, especially with his bending forward. His shoulder showed some weakness in the general area of the shoulder girdle. He had some weakness with grip and also with the bicep muscle.
....
The shoulder itself showed some weakness with abduction, meaning his ability to lift his shoulder, and also some pain with range of motion both active, which is the patient's lifting of the arm, as well as my range of motion by bringing his arm through rotation and lifting. There was also some mild stiffness, and he had tenderness in the AC joint, which is the joint where the collarbone attaches to the shoulder.
So I felt he had both problems with the neck and the shoulder. He had some neurological changes as well as some weakness in the primary shoulder exam itself.

Dr. Blanda also testified that he had reviewed the MRI of Mr. Brown's left shoulder previously ordered by Dr. Blanda, noted that it "showed some degenerative changes," and stated:

Dr. Abraham thought he had a bad tear, but it looked like he had mostly arthritic change in the ... joint where the collarbone attaches, as well as the ball-and-socket part of the shoulder itself.
There was some suspicious tear in what's called the labrum, which is the ligament part of the shoulder. But I think the major concern was the rotator cuff, which was mainly inflamed and had tendinitis-type changes rather than a tear itself.

Dr. Blanda further testified that, in his opinion, there was not any injury to the shoulder that would require shoulder surgery, and that his "main concern ... was his exam was really pointing more to a neck problem, than the shoulder itself[,]" based upon the "reflex changes with the absent biceps[, which] usually means something going on around the 6-the C5-6 disk with perhaps a lesion or compression in the C6 nerve root." Dr. Blanda then recommended an MRI of Mr. Brown's neck. The medical record reflects Dr. Blanda further gave prescriptions for Norco and Elavil.

Mr. Brown saw Dr. Blanda again on May 6, 2014, at which time an MRI of Mr. Brown's neck was performed. Dr. Blanda testified that the MRI "show[ed] a herniated disc at C5-6[,]" as well as "some degenerative changes and spinal stenosis in the level above it, at the C4-5 level. And it was more severe on the left, which I think would fit very consistently with his complaints and his physical exam." Dr. Blanda testified that at the May 6, 2014 appointment, Mr. Brown's physical exam was the same as the initial exam, and that he was going to consider an "anterior cervical diskectomy [sic] and fusion" ("ACDF"). When asked to describe this procedure, Dr. Blanda testified:

A. .... It's called an anterior diskectomy, meaning we go in surgically from the front and remove the offending disc or bone spurs that's pressing on the spinal cord or nerves and fuse the disc.
Q. Is that a major surgery?
A. It's big, yes sir.
....
Q. When a patient has an anterior cervical diskectomy and fusion with plates and grafts at the C4-5 and C5-6 level, if you take into consideration the surgeon's cost, anesthesia, the hospital cost, and the bone grafts, things like that, the instruments, in today's dollars, those are probably in the $85,000 range?
A. I think that's pretty accurate, yes, sir.

Dr. Blanda testified that, following the May 6, 2014 exam, he recommended that Mr. Brown undergo an EMG study and nerve conduction to confirm any nerve damage. He explained that a neck surgery is done either because of nerve damage or compression or because of "intractable pain, which is not relieved by conservative treatment." With respect to Mr. Brown's EMG, Dr. Blanda testified, that "it very accurately confirmed that he had a left C5-6 radiculopathy coming from the C5-6 disc herniation."

Dr. Blanda next saw Mr. Brown on June 12, 2014, at which time he discussed the results of the EMG study with Mr. Brown and recommended the ACDF surgery. The medical record from that date noted that Mr. Brown's chief complaint was neck and arm pain and that he "is doing a little better with his pain medications but doesn't want to stay on narcotics." Dr. Blanda saw Mr. Brown again on September 23, 2014, wherein Mr. Brown complained of continued neck symptoms, left shoulder pain, and left and right radicular symptoms, but worse on the left. Mr. Brown's pain medications were refilled on this date.

Mr. Brown saw Dr. Blanda again on February 26, 2015. The medical record from that date reflects Mr. Brown's complaint of neck pain, and states

The neck pain has been occurring in a persistent pattern for years. The course has been constant. The neck pain is described as moderate to occasionally severe.... He states no real change in his symptoms. He states cortisone injection received last visit did not last long. He states his meds helped considerably. He also states that lately he's been having trouble sleeping.

When asked about this record entry, Dr. Blanda testified that the reflected history of Mr. Brown's current illness was not in Mr. Brown's words, but rather Dr. Blanda's statement after reviewing notes from prior visits. He further explained that his reference to "for years," meant only from the incident in 2013 through 2015, and not before. The February 26, 2015 report further indicates that the treatment plan would remain in effect and that Mr. Brown could refill his pain medication.

Dr. Blanda testified that he last saw Mr. Brown on August 25, 2015. As of this date, Mr. Brown had not undergone surgery, and still had arm, shoulder, and neck pain. Dr. Blanda indicated that his examinations of Mr. Brown since the first examination in April 2014, "remained fairly consistent, although there were probably some ups and downs as far as the severity."

When asked whether Mr. Brown would continue to have discomfort and pain for the rest of his life, if he did not have the ACDF surgery, Dr. Blanda stated:

It's hard to predict accurately. But, for the most part, it probably will. I mean, he's already in his 60s, I think. These things last indefinitely without definite treatment.... It's certainly the patient's choice. He can choose to live with it. But if he's going to get any better, it's going to probably take surgery to correct it.

Dr. Blanda also testified that during the course of his treatment of Mr. Brown, Mr. Brown obtained a second opinion from Dr. Romero, and that Dr. Blanda had received Dr. Romero's report. According to Dr. Blanda, Dr. Romero suggested that it was Mr. Brown's shoulder that was referring pain to his neck, rather than his neck referring pain to his shoulder, but that Dr. Romero agreed that there was cervical disc radiculopathy. Dr. Blanda indicated that Dr. Romero thought that injecting the shoulder might relieve the pain, and that an injection should be attempted before neck surgery.

As of the date of trial in September 2015, Mr. Brown had not yet undergone the ACDF surgery recommended by Dr. Blanda fifteen months prior. When questioned as to why not, Mr. Brown explained that his wife had had to have open heart surgery, as well as have her gall bladder removed shortly after the heart surgery. He stated "Eventually, I'm going to have the surgery. But I don't want to be tied down. And my wife have [sic] problems right now. If I go into the hospital and she's there by herself, my household ain't gonna' function." Mr. Brown further indicated that as soon as his wife was better, he would have the recommended surgery.

Also during trial, Mr. Brown indicated that he had suffered a right knee injury in 1995 and that he medically retired after that; therefore, he received retirement income. Mr. Brown's wife did not work. Mr. Brown further testified at trial as follows:

Q. Okay. Mr. Brown, what kind of things did you enjoy doing before this accident that you don't do now or do less of?
A. I sure don't go fishing anymore.
Q. Did you fish a good bit before your fall? Did you fish a bunch before you fell?
A. It probably had been awhile before I had went.
Q. And now since this accident? Have you been wetting the line much?
A. No.
Q. What keeps you from doing so?
A. Well, my wife. I like to be around the house, so I don't like to get out too far. I was out one day, and I got home and found her on the floor. So I stay around the house.
Q. Your injuries because of this accident, your neck problem, does that affect how you interact with your family and friends?
A. I would say, yes, because I don't-I don't go around like I used to.
....
Q. How did you sleep before this accident happened?
A. I slept good.
Q. What's a night sleeping with your neck pain now?
A. In numbers, from one to ten?
Q. Yes, sir.
A. On a scale, I would say eight.
Q. Were you in much pain because of your knee injury you had in the past before this accident happened?
A. No.
Q. How about now because of your injuries from this accident? Are you in pain?
A. I just have to watch how I move my neck. No rough stuff. That's for sure.
Q. If you could, can you describe what discomfort level is in your neck now from a scale of one to ten?
A. It's-I would say seven.
Q. What's the worst its been since this accident on a scale of one to ten?
A. It varies. Some nights, it's-I just can't sleep. And when I try to sleep, it start hurting. I can't get a position in bed. Even now, on the recliners, I can't stay on that too long, because I'm sitting back and my neck start hurting. I got to get pillows. I just keep moving around.

Following trial, a jury returned a verdict allocating Mr. Brown with 45% fault and Silver's Casino with 55% fault. The jury further awarded damages totaling $152,526.66, which included $86,000 for "future medical expenses," $25,000 for "past and future physical and mental pain and suffering and physical impairment," and $25,000 for "past and future loss of enjoyment of life."

On December 28, 2015, the trial court signed a judgment that included $86,000 for "future medical expenses," $25,000 for "[p]ast and present general damages," and "$25,000 in future general damages." The judgment also reduced damages owed to Mr. Brown by the percentage of fault allocated to him.

Mr. Brown thereafter filed a motion for JNOV and alternative motion for new trial on January 21, 2016. The trial court rendered a ruling on March 21, 2016, denying the motion for new trial, but granting the motion for JNOV in part and increasing the award for "future general damages" to $250,000. Silver's Casino appealed.

On December 7, 2016, this court rendered an opinion concluding that the December 28, 2015 judgment did not properly correspond to the categories of damages awarded by the jury. Brown v. Breaux Bridge Ventures, LLC , 16-662 (La.App. 3 Cir. 12/7/16), 207 So.3d 1083. Therefore, this court concluded it lacked jurisdiction over the appeal as there was not a valid judgment, and the matter was remanded to the trial court with instructions to execute a judgment corresponding to the jury's verdict. Id.

The trial court executed a corrected judgment on December 15, 2016, reflecting the jury's allocation of fault and the damages awarded, and rendering Silver's Casino liable for a total of $83,899.11, which is 55% of the total damages awarded, in addition to interest and costs of the proceedings. The categories of damages awarded included: $86,000 in "future medical expenses;" $25,000 in "past and future physical and mental pain and suffering and physical impairment;" and $25,000 in "past and future loss of enjoyment of life." The corrected judgment also rendered Silver's Casino liable for $3,384 for deposition fees that were taxed as costs of court.

Following the corrected judgment, Mr. Brown filed another motion for JNOV and alternative motion for new trial. Mr. Brown argued to the trial court that the jury's award of future medical expenses was inconsistent with the $25,000 award for "past and future physical and mental pain and suffering, and physical impairment" and therefore a JNOV was warranted. In its reasons for judgment granting the JNOV as to the award of "past and future physical and mental pain and suffering, and physical impairment," the trial court stated:

This court finds that the jury abused its discretion in assessing this amount of damages.... [T]he jury awarded Plaintiff $86,000 in future medical expenses, which was the amount suggested at trial that a potential future surgery would cost. Based on this award, the court conclude[s] that the jury believed Plaintiff would benefit from such a surgery, thus awarding him the sum for the surgery. Nonetheless, the jury only awarded Plaintiff $25,000.00 for past and future physical and mental pain and suffering, and physical impairment. [Emphasis added [by the trial court].] The court finds that this award is much too low considering the physical and mental suffering Plaintiff may suffer while recovering from his future surgery, said surgery being contemplated by the jury in their award of future medical expenses.

On January 31, 2017, the trial court signed a judgment granting Mr. Brown's motion for JNOV in part and increasing the jury's award of $25,000 for "past and future physical and mental pain and suffering and physical impairment" to $250,000. The judgment denied the remainder of the motion for JNOV as to allocation of fault and also denied the motion for new trial.

Silver's Casino appeals challenging the trial court's granting of the JNOV and the increase of $25,000 for past and future physical and mental pain and suffering and physical impairment to $250,000. Mr. Brown does not seek review of the trial court's denial of the remainder of his motion for JNOV or the denial of his motion for new trial. Therefore, we consider only the trial court's JNOV with respect to the award of "past and future physical and mental pain and suffering and physical impairment."

ANALYSIS

As recently stated by our supreme court in Pitts v. Louisiana Medical Mutual Insurance Company , 2016-1232, pp. 7-8 (La. 3/15/17), 218 So.3d 58, 64-65 (emphasis added):

A JNOV is a procedural device authorized by La. C.C.P. art. 1811, by which the trial court may modify the jury's findings to correct an erroneous jury verdict. Wood v. Humphries , 11-2161 (La.App. 1 Cir. 10/9/12), 103 So.3d 1105, 1109, writ denied , 12-2712 (La. 2/22/13), 108 So.3d 769. The criteria for granting a JNOV was jurisprudentially provided by this court in Scott v. Hospital Serv. Dist. No. 1 , 496 So.2d 270 (La. 1986). More recently, this court summarized the standard for a JNOV in Joseph v. Broussard Rice Mill, Inc. , 00-0628 (La. 10/30/00), 772 So.2d 94 :
As enunciated in Scott , [496 So.2d 270], a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that "[w]hen there is a jury, the jury is the trier of fact."
772 So.2d at 99 (internal citations removed). On appellate review of a JNOV, the court must first determine whether the trial judge erred in granting the JNOV by using these criteria in the same way as the trial judge in deciding whether to grant the motion. VaSalle v. Wal-Mart Stores, Inc. , 01-0462 (La. 11/28/01), 801 So.2d 331, 339. "That is, the court must determine whether the 'facts and inferences point so strongly and overwhelmingly in favor of the moving party that
reasonable persons could not arrive at a contrary verdict .' If reasonable persons might reach a different conclusion, then the trial judge erred in granting the motion and the jury verdict should be reinstated." Id.

Therefore, we will first consider whether the trial court erred in granting the JNOV as to the jury's award of $25,000 for "past and future physical and mental pain and suffering and physical impairment."

On the issue of general damages, the trial court charged the jury as follows:

If you find that the plaintiff is entitled to an award, you may award only such as will compensate for injury and damage that you find has actually been sustained or may be sustained in the future, proven by a preponderance of the evidence. The amounts claimed by the attorney are not evidence, but merely something for you to consider.
Your award should include general damages, which are:
Any physical and mental pain and suffering incurred by the plaintiff in the past, present, and future[.]

The trial court's written reasons for granting the JNOV as to "past and future physical and mental pain and suffering and physical impairment," suggest that JNOV was warranted because the jury awarded the cost of the future ACDF surgery, but that the general damages awarded was too low to provide for future pain and suffering associated with recovery from that surgery. However, there was very limited testimony presented as to the specifics of the surgery, other than general testimony regarding the anticipated cost of surgery, anesthesia and hospital cost; Dr. Blanda's agreement with counsel that it was a "big surgery," without explanation as to what that meant; and that the ACDF involves "surgical removal of the offending disc or bone spur that is pressing on the spinal cord or nerves and fuse the disc." There was no testimony regarding the length of any hospital stay required by the surgery, any recovery period that Mr. Brown would face following surgery, or any degree of pain or future disability he would endure if he were to undergo the surgery. Instead, Dr. Blanda was asked only about continued discomfort and pain that Mr. Brown would suffer, if he did not have the ACDF surgery , to which Dr. Blanda answered he "probably" would, but that "if he's going to get any better, it's going to probably take surgery to correct it."

Based on this evidence, it would be reasonable for a jury to conclude that once Mr. Brown underwent the ACDF surgery, which the jury awarded, he would no longer suffer from any neck or shoulder discomfort, and therefore an award of future pain and suffering after the surgery was not warranted. The jury also was presented with evidence indicating that Mr. Brown failed to mitigate damages as he had not yet chosen to undergo the surgery. Therefore, it would be reasonable for the jury to limit damages for "past and future physical and mental pain and suffering and physical impairment," from the date of the incident (October 13, 2013) through the date that the surgery was recommended (June 12, 2014), which is about eight months.

Moreover, the jury was presented with inconsistent testimony and evidence regarding the severity, extent, and location of Mr. Brown's reported pain and suffering during that eight-month period. Mr. Brown testified that when the incident occurred, he "didn't feel any pain hardly," but that a few days later, his neck and left shoulder started hurting, so he saw an attorney, who referred him to Dr. Abraham. Dr. Abraham's records and testimony suggest that by January 2014, Mr. Brown's cervical discomfort had "improved significantly" and that "[h]e had minimal discomfort or tenderness at all over the left cervical and upper thoracic area[.]" Dr. Abraham's February 18, 2014 record also noted that the cervical pain had significantly improved with therapy, but that on this date Mr. Brown reported "significant complaints" of left shoulder pain. Mr. Brown was therefore referred to Dr. Blanda in April 2014 due to issues with his shoulder. Dr. Blanda thereafter determined that his shoulder pain could be attributed to cervical issues and therefore recommended the ACDF surgery, rather than a shoulder surgery.

At trial, however, Mr. Brown testified that after several months of treating with Dr. Abraham, his worst problem was his neck. Mr. Brown made no specific mention of shoulder pain during trial, other than stating that his shoulder bothered him a few days after the incident.

Based on the record before us, we conclude that the facts and inferences from the evidence presented do not point so strongly and overwhelmingly in favor of Mr. Brown as to the issue of damages for "past and future physical and mental pain and suffering and physical impairment." Instead, reasonable persons could reach a different conclusion as to whether he is entitled to more than the $25,000 awarded. Therefore, we find that the trial court erred in granting Mr. Brown's motion for JNOV.

CONCLUSION

For the reasons stated above, we reverse the trial court's January 31, 2017 judgment to the extent it grants Mr. Brown's motion for JNOV as to the issue of "past and future physical and mental pain and suffering and physical impairment" and increases that award to $250,000. The judgment of the trial court dated December 15, 2016, reflecting the jury's verdict is hereby reinstated. Costs of this appeal are assessed to Appellee, Willie Brown, Jr.

REVERSED AND RENDERED.

      The corrected judgment provides as follows:
      The jury found each party negligent in causing the accident in the following percentages:
      Plaintiff Willie Brown, Jr. 45% Defendant Breaux Bridge Ventures, 55% L.L.C. d/b/a Silver's Casino
      The jury then found that the following damages were sustained by Plaintiff Willie Brown, Jr. as a result of the accident:
      Future Medical Expenses $86,000.00 Past and Future Physical and $25,000.00 And Mental Pain and Suffering, and Physical Impairment Past and Future Loss of $25,000.00 Enjoyment of Life
      The parties had previously stipulated to Past Medical Expenses, which totaled $16,525.00. Thus the following is the total amount of damages awarded:
      Total amount of Damages: $152,525.66
      Considering the reduction for comparative fault:IT [IS] HEREBY ORDERED ADJUDGED AND DECREED, that there be judgment in favor of Willie Brown Jr. and against Breaux Bridge Ventures, L.L.C. doing business as Silver's Casino, in the amount of $83,889.11, together with judicial interest from the date of demand until paid.