Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #030
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 27th day of June, 2018, are as follows:
BY GUIDRY, J.:
2017-C-1488 ROGER BURCHFIELD AND CAROL BURCHFIELD v. FORREST H. WRIGHT,
M.D., THOMAS RENDA, M.D., AND WILLIS KNIGHTON MEDICAL CENTER
(Parish of Caddo)
In this medical malpractice case, the jury declined to find the
defendant surgeon’s failure to refer the plaintiff for a cardiac
consult before performing non-emergency gallbladder surgery had
caused the patient to suffer a severe heart attack thirty or so
hours later that ultimately necessitated a heart transplant
rather than a heart bypass. Instead, the jury found the
plaintiffs had proven the defendant’s breach of the standard of
care had resulted in the loss of a chance of a better outcome.
The jury awarded the plaintiffs lump sum general damages, which
the trial court in its judgment made subject to the Medical
Malpractice Act’s limitation on the total amount recoverable. The
court of appeal found legal error in the verdict form
necessitated de novo review of the damages awarded. The court of
appeal affirmed the jury’s determination the plaintiff had
suffered a lost chance of a better outcome and awarded both
general damages and special damages, including past medicals,
future medicals, and lost wages. Because the court of appeal
erred in failing to apply the jurisprudence of this court in
determining the damages to be awarded in a lost chance of a
better outcome case, we reverse and reinstate the jury’s verdict,
its lump sum award of general damages, and the trial court’s
judgment.
REVERSED; JUDGMENT OF THE DISTRICT COURT REINSTATED AND AFFIRMED.
06/27/18
SUPREME COURT OF LOUISIANA
No. 2017-C-1488
ROGER BURCHFIELD AND CAROL BURCHFIELD
VERSUS
FORREST H. WRIGHT, M.D., THOMAS RENDA, M.D.,
AND WILLIS KNIGHTON MEDICAL CENTER
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
SECOND CIRCUIT, PARISH OF CADDO
GUIDRY, Justice
In this medical malpractice case, the defendant surgeon ordered pre-operative
tests including a chest x-ray and an electrocardiogram (“EKG”) before performing
non-emergency gallbladder surgery on the plaintiff. However, the defendant did not
review the results of these tests prior to performing the surgery, but had he done so,
the tests would have alerted him to potential issues with the plaintiff’s heart
necessitating the ordering of a cardiac consult prior to surgery. Although the surgery
itself was successful and uneventful, some thirty or so hours after discharge, the
plaintiff suffered a heart attack and eventually had to undergo a heart transplant. The
plaintiff and his wife brought suit against the defendant alleging medical
malpractice. The defendant surgeon settled, and the Louisiana Patients’
Compensation Fund (“PCF”) intervened.
After a trial against the PCF, the jury declined to find the plaintiffs had proven
the defendant’s failure to review the test results and to refer his patient to a
cardiologist before performing the surgery had caused the patient to suffer the
subsequent heart attack that ultimately necessitated a heart transplant. Instead, the
jury found the plaintiffs had proven the defendant’s breach of the standard of care
1
had resulted in the loss of a less than even chance of a better outcome. The jury
awarded the plaintiffs lump sum general damages, which the trial court in its
judgment made subject to the Medical Malpractice Act’s limitation on the total
amount recoverable by the plaintiffs, La. Rev. Stat. 40:1231.2.
The court of appeal found legal error in what it deemed to be a “patently
inconsistent” jury verdict in light of the verdict form, thereby necessitating de novo
review of the case. Following its review, the court of appeal nonetheless found the
jury’s determination that the plaintiffs had proven a lost chance of a better outcome
was clearly supported by the record. The court of appeal then awarded general
damages (affirming the trial court’s award), but it also awarded special damages,
including past medicals, future medicals, and lost wages, which it did not subject to
the Medical Malpractice Act’s limitation on the total amount recoverable. Because
we find error in the court of appeal’s decision, we hereby reverse that decision and
reinstate the jury’s verdict, its award of lump sum general damages, and the trial
court’s judgment.
FACTS and PROCEDURAL HISTORY
Referred by his gastroenterologist to resolve gastric complaints, Roger
Burchfield, then age 58, was admitted to Willis-Knighton Medical Center on August
14, 2013, for non-emergency gallbladder surgery, specifically a laparoscopic
cholecystectomy, to be performed by Forrest Wright, M.D. Though Dr. Wright
ordered a pre-operative chest x-ray and EKG, which were completed, neither the
chest x-ray nor the EKG was read by Dr. Wright prior to the surgery. The x-ray
would have revealed Mr. Burchfield had congestive heart failure, while the EKG
indicated possible left atrial enlargement, nonspecific intraventricular block, and two
possible prior heart attacks, a septal infarct and an inferior infarct. None of these
ailments was apparently known to the patient, according to his testimony at trial.
2
Mr. Burchfield was placed under general anesthesia and Dr. Wright
performed the surgery successfully. There were no intraoperative complications,
and, with no apparent complications, Mr. Burchfield was discharged later that day.
Upon discharge, Mr. Burchfield returned home and initially had no issues eating or
walking. Approximately thirty hours later, Mr. Burchfield began experiencing
edema in his lower extremities and difficulty “getting comfortable.” On August 16,
2013, he presented to a local emergency room where he was determined to be in
critical condition, and was transferred back to Willis-Knighton and admitted to the
intensive care unit.
At Willis-Knighton, it was determined that Mr. Burchfield had suffered an
acute myocardial infarction, respiratory failure, along with worsening of his
pulmonary edema, congestive heart failure, and bi-lateral pleural effusions. Mr.
Burchfield was intubated and placed into a medically-induced coma. A heart
catheterization was performed, an intra-aortic balloon pump was placed to allow his
heart to pump, and he was placed on a ventilator.
Ultimately, it was determined Mr. Burchfield was not a candidate for heart
bypass surgery, so he was transported to Baylor Medical Center in Dallas on August
22, 2013, and evaluated. On September 3, 2013, Mr. Burchfield underwent a heart
transplant. He has recovered successfully from this surgery, but was unable to return
to his previous profession as a mechanic and will necessarily require medical
treatment related to the transplant for the remainder of his life.
Mr. Burchfield and his wife Carol filed a medical malpractice claim naming
Dr. Wright, the radiologist, and Willis-Knighton as defendants. The plaintiffs
alleged Mr. Burchfield was suffering from congestive heart failure, as revealed by
the x-ray, and that Dr. Wright should have either not gone forward with the surgery
or taken pre-operative precautions before doing so. Plaintiffs settled their claims
3
against Dr. Wright for $100,000.00, reserving their rights against the PCF for excess
damages. The remaining defendants were ultimately dismissed.
A Medical Review Panel concluded Dr. Wright had breached the standard of
care by failing to review the pre-operative tests he had ordered. The panel opinion
observed that the gallbladder surgery was not an emergency. The panel opined that
the chest x-ray report “warranted postponing the surgery until a cardiology consult
could be obtained [and that] the failure to review the chest x-ray report and request
a cardiology consult was a factor of the resultant damages.” 1
The case proceeded to trial against the PCF. The Verdict Form, which the
parties had negotiated and accepted, was answered by the jury in the following
manner. Question No 1: “Have the plaintiffs proven, by a preponderance of the
evidence, that Dr. Forrest Wright’s breach of the applicable standard of care was a
substantial factor in contributing to the injuries of Roger Burchfield?” The jury
checked the “No” box. The form then indicated: “If your answer is ‘yes,’ proceed to
Question No. 2. If your answer is ‘no’ then, proceed to Question No. 6.” Assuming
the jury found causation in Question No. 1, Question Nos. 2-5 concerned damages
for past and future pain and suffering, past and future disability, past medical
expenses, past lost wages, future lost wages, future medical care, and loss of
consortium for Mrs. Burchfield. However, because the jury answered “no” to
Question No. 1, it then proceeded as directed on the form to Question No. 6, which
provided: “Do you find that Roger Burchfield lost a chance of a better outcome as a
result of the breach of the standard of care by Forrest Wright, M.D.?” The jury
checked the “Yes” box to Question No. 6. The Verdict Form then instructed: “If your
answer to the above question is no, please STOP and have the foreperson sign and
1
The Panel was composed of two general surgeons and an anesthesiologist. The Panel’s opinion
did not specify what the “resultant damages” entailed.
4
call the Bailiff. If ‘yes’ proceed to Question No. 7.” Question No. 7 provided: “What
damages do you find that Roger Burchfield and/or Carol Burchfield suffered in
connection with a loss of a chance of a better outcome?” The jury answered
“$680,000.” The Verdict Form was signed and dated by the foreperson.
The trial court later issued a judgment against the Patient’s Compensation
PCF in the amount of $400,000.00 plus judicial interest from February 20, 2014, and
court costs, after crediting the PCF with the $100,000 settlement with Dr. Wright
and applying the limitation on damages under the Medical Malpractice Act. The
plaintiffs thereafter moved for a judgment notwithstanding the verdict, which the
trial court denied.
On appeal, the appellate court agreed with the jury that Mr. Burchfield
suffered a lost chance of a better outcome as a result of Dr. Wright’s breach of the
standard of care, but it found the jury’s responses to the Verdict Form were
“internally inconsistent, contributing to the troublesome reduction by the trial judge
of the jury’s award.” Burchfield v. Wright, 51,459 p. 4 (La. App. 2 Cir. 6/28/17), 224
So.3d 1170, 1173. The appellate court agreed with the plaintiffs that the trial court
had erred in concluding that a lost chance of a better outcome could consist only of
general damages, and thereby subject to the Medical Malpractice Act’s limitation on
the total amount recoverable, reasoning that “the answers to interrogatory numbers
one and six on the jury verdict form to be patently inconsistent, leading to an
inability of the jury to consider all of the damages suffered by the Burchfields as a
result of Roger’s heart transplant.” Id. [Emphasis in original.] Finding this perceived
inconsistency to be legal error, the appellate court reviewed the record de novo and
concluded the record clearly supported the jury’s determination that Mr. Burchfield
had suffered a lost chance of a better outcome. Id. at p. 6, 224 So.3d at 1174. The
appellate court found the jury had not been properly instructed on how to quantify
5
the resultant damages on the Verdict Form. The appellate court cited this court’s
instructions on that precise issue in Smith v. State, Dept. of Health & Hosps., 95-
0038 (La. 06/25/96), 676 So.2d 543, but then it found the trial court had erred in
considering the jury’s award as general damages and subject to the Medical
Malpractice Act’s limitation on total recoverable damages, without awarding the
plaintiffs past medical awards, future medical care, and lost wages. Id. at pp. 7-9,
224 So.3d at 1175. The court of appeal affirmed the trial court’s $400,000 award in
general damages, but it additionally awarded past medical expenses of $692,850.64,
future medical care, and lost wages of $493,020.00, none of which it made subject
to the Medical Malpractice Act’s limitation on the total amount recoverable by the
plaintiffs. Id. at pp. 9-11, 224 So.3d at 1176-77.
We granted the writ application of the Patient’s Compensation Fund to review
the appellate court’s decision to conduct a de novo review and to award additional
and separate damages for past medical bills, future medical care, and lost wages, not
subject to the Medical Malpractice Act’s limitation on the amount of recoverable
damages. Burchfield v. Wright, 17-1488 (La. 12/15/17), 231 So.3d 643.
DISCUSSION
The PCF asserts essentially four assignments of error. First, it contends the
court of appeal failed to follow the decisions of this court that provide that the only
available recovery in a loss of chance claim is a lump sum award, which is in the
nature of a general damage. The PCF argues that, as a result, the appellate court
committed a number of interrelated errors by finding that the jury’s answers to the
Verdict Form were internally inconsistent and that the form did not adequately state
the law, by conducting a de novo review, and by rendering separate and distinct
awards for general damages, lost wages, and medical expenses. Second, the PCF
asserts the court of appeal erred in finding that Mr. Burchfield was entitled to future
6
medical care pursuant to La. Rev. Stat. 40:1231.3, because it is not an available
remedy in a claim for loss of a chance of a better outcome. Third, the PCF asserts
the court of appeal erred in not applying the Medical Malpractice Act’s limitation
on the total amount recoverable by the plaintiffs, as provided by La. Rev. Stat.
40:1231.2, which prohibits recovery, exclusive of future medical care and related
benefits, from exceeding $500,000.00. Fourth, the PCF asserts the court erred in
concluding Mr. Burchfield was deprived of a chance of a coronary bypass when the
weight of the evidence is that he was never a candidate for the procedure due to his
pre-existing conditions, including congestive heart failure, hypertension, and two,
but possibly four, prior heart attacks. The PCF suggests that Mr. Burchfield was
deprived of at most a cardiac consult prior to surgery and that the small chance of a
better outcome merits a reduction in the lump sum award to $250,000.
The plaintiffs counter the court of appeal correctly conducted a de novo review
of the record and properly concluded the plaintiffs’ damages were caused by the
defendant’s medical malpractice. The plaintiffs also note they had pointed out to the
court of appeal that the trial court’s jury charges did not comport with this court’s
preferred civil jury charges. The plaintiffs alternatively argue that, under any
standard of review, they proved their damages caused by the defendant’s medical
malpractice exceeded the maximum award allowed under the Medical Malpractice
Act. They argue the evidence and expert testimony established that Mr. Burchfield
more probably than not would have received a heart bypass instead of a transplant if
he had been properly treated and diagnosed by Dr. Wright. The plaintiffs assert the
record supports the court of appeal’s finding that but for Dr. Wright’s breach of the
standard of care, Mr. Burchfield would not have experienced the damage he did – a
resultant heart attack. The plaintiffs alternatively argue that they are entitled to seek
both damages that were definitely caused by the malpractice and additional damages
7
that could be awarded in the form of “lost chance.” They claim there was evidence
of damages that could have fallen in either category, but the trial court declined to
allow multiple awards by the use of erroneous jury instructions and the Verdict
Form. Next, the plaintiffs assert that, analyzed as a lost chance of a better outcome
case, their damages fully exceeded the medical malpractice limitations on damages,
and a lost chance is not limited to general damages, but entitles the plaintiff to full
damages – not only general damages, but also medical expenses, lost wages, and lost
consortium. As to lost wages, the plaintiffs assert that they are not subject to the
Medical Malpractice Act’s limitation on recoverable damages because they could
reasonably be included as future medical expenses and “related benefits,” under La.
Rev. Stat. 40:1231.2. Finally, the plaintiffs argue they proved Mr. Burchfield would
require future medical care for the rest of his life and thus they were entitled to future
medical care not subject to the Medical Malpractice Act’s limitation on total
recoverable damages.
Essentially, the plaintiffs’ theory of the case commences with the assertion
that Dr. Wright should have read the EKG and the x-ray reports he had ordered prior
to surgery, and that his failure to read those reports, to discern that they revealed Mr.
Burchfield was suffering from congestive heart failure and had suffered two prior
heart attacks, and therefore to refer Mr. Burchfield for a cardiology consult before
conducting the gallbladder procedure constituted a breach of the standard of care.
The PCF does not dispute that Dr. Wright’s actions constituted a breach of the
standard of care. Though he testified he was asymptomatic, Mr. Burchfield’s
condition prior to the gallbladder surgery was later determined to include congestive
heart failure, cardiomegaly, resistant hypertension, coronary artery disease, resistant
hyperlipidemia, and two, or possibly four, prior heart attacks. Accordingly, there is
no doubt that Mr. Burchfield required medical intervention of some kind. The
8
question, however, was what modality of treatment was required, and did Dr.
Wright’s negligence deprive Mr. Burchfield of a less invasive treatment, such as a
coronary bypass operation, rather than the more serious heart transplant he
ultimately received.
The plaintiffs make alternative contentions. Primarily, they contend Dr.
Wright’s decision to proceed with the surgery directly resulted in, and thus
substantially caused, a worsening of Mr. Burchfield’s condition, the acute
myocardial infarction, and the resultant heart transplant, necessitated by the damage
caused by the subsequent heart attack. Thus, they asserted that Dr. Wright’s decision
to proceed with the surgery, which involved placing Mr. Burchfield under anesthesia
and undergoing the laparoscopic surgery, rather than call for a cardiology consult
and a workup as a bypass candidate, was a substantial cause of the ultimate heart
transplant. As plaintiffs’ counsel argued to the jury, the gallbladder surgery was the
straw that broke the proverbial camel’s back, and that Mr. Burchfield more likely
than not could have undergone a coronary bypass and not have been required to
undergo the heart transplant and take medications and an immunosuppressant for the
remainder of his life. Alternatively, the plaintiffs contend that, even if there was not
more than a 50% chance that Mr. Burchfield would have been a candidate for a
coronary bypass, there was some chance that he would have been such a candidate
and could have had a better outcome than having to undergo a heart transplant. The
jury, as the Verdict Form shows, unanimously rejected the plaintiffs’ contention that
Dr. Wright’s failure to call a cardiology consult before proceeding with the surgery
was a substantial cause of Mr. Burchfield’s condition to worsen, resulting in a heart
attack, and having to undergo a heart transplant. Instead, the jury agreed with the
plaintiffs’ alternative theory that Dr. Wright’s breach of the standard of care did
deprive Mr. Burchfield of a chance of a better outcome.
9
For the reasons set forth below, we find the court of appeal misconstrued the
theory of lost chance of a better outcome in a medical malpractice case and
misapplied our settled jurisprudence on the determination of damages in a lost
chance of a better outcome case. In analyzing the issues presented in this case, we
must first examine the theory of lost chance of survival and lost chance of a better
outcome in the context of medical malpractice cases, the nature of loss of chance
damages, and the methodology for determining them.
Medical malpractice has been defined by La. Rev. Stat. 40:1299.41(A)(8)2 as:
[A]ny unintentional tort or any breach of contract based on health
care or professional services rendered, or which should have been
rendered, by a health care provider, to a patient, including failure to
render services timely and the handling of a patient, including loading
and unloading of a patient, and also includes all legal responsibility of
a health care provider arising from defects in blood, tissue, transplants,
drugs and medicines, or from defects in or failures of prosthetic devices,
implanted in or used on or in the person of a patient.
La. Rev. Stat. 9:2794(A)(3) provides that the plaintiff in medical malpractice
actions has the burden of proving by a preponderance of the evidence that as a
proximate result of the lack of knowledge or skill or failure to exercise the degree of
care required, the plaintiff suffered injuries that would not otherwise have been
incurred. Thus, the plaintiff must establish the standard of care applicable to the
charged physician, a violation by the physician of that standard of care, and a causal
connection between the physician’s alleged negligence and the plaintiff’s injuries
resulting therefrom. Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, p. 2 (La.
10/17/94), 643 So.2d 1228, 1230
The loss of a chance of a better outcome is a theory of recovery recognized in
Hastings v. Baton Rouge General Hosp., 498 So.2d 713 (La. 1986). See also Martin
v. East Jefferson General Hosp., 582 So.2d 1272 (La. 1991). It is not a separate
2
Redesignated as La. Rev. Stat. 40:1231.1(A)(13) by H.C.R. No. 84 of the 2015 Regular
Session.
10
cause of action distinct from a statutory malpractice claim. See Bailey v. Knatt, 16-
1130 (La. 10/10/16), 207 So.3d 407. Under this theory of recovery, a plaintiff may
carry his burden of proof by showing that the defendant’s negligence was a
substantial factor in depriving the patient of some chance of life, recovery, or, as in
the instant case, a better outcome. The negligence need not be the only causative
factor, but it must have increased the harm to the patient. Hastings, 498 So.2d at 720.
Consequently, the plaintiff does not have to shoulder the burden of proving the
patient would have survived if properly treated; he need only demonstrate the
decedent had a chance of survival or recovery that was denied him as a result of the
defendant’s negligence. Pfiffner, 94-0924, 94-0963, 94-0992, p. 2, 643 So.2d at
1230; Martin, 582 So.2d at 1278.
The seminal case from this court is Smith v. State, Dept. of Health and
Hospitals, 95-0038 (La. 6/25/96), 676 So.2d 543. We explained as follows:
The issues in loss of a chance of survival cases are whether the
tort victim lost any chance of survival because of the defendant’s
negligence and the value of that loss. The question of degree may be
pertinent to the issue of whether the defendant’s negligence caused or
contributed to the loss, but such a tort-caused loss in any degree is
compensable in damages.
Allowing recovery for the loss of a chance of survival is not…a
change or a relaxation of the usual burden of proof by a preponderance
of the evidence. Rather, allowing such recovery is a recognition of the
loss of a chance of survival as a distinct compensable injury caused by
the defendant’s negligence, to be distinguished from the loss of life in
wrongful death cases, and there is no variance from the usual burden in
proving that distinct loss.
Thus, in a medical malpractice case seeking damages for the loss
of a less-than-even chance of survival because of negligent treatment
of a pre-existing condition, the plaintiff must prove by a preponderance
of the evidence that the tort victim had a chance of survival at the time
of the professional negligence and that the tortfeasor’s action or
inaction deprived the victim of all or part of that chance, and must
further prove the value of the lost chance, which is the only item of
damages at issue in such a case.
Smith, p. 6, 676 So.2d at 547[footnotes omitted; emphasis supplied].
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Regarding the calculation of damages and the nature of such damages in a loss
of chance of survival case, this court in Smith specifically instructed “the factfinder
-- judge or jury -- to focus on the chance of survival lost on account of malpractice
as a distinct compensable injury and to value the lost chance as a lump sum award
based on all the evidence in the record, as is done for any other item of general
damages.” Smith, p. 7, 676 So.2d at 547. The Smith court held that “full recovery is
not available for deprivation of a chance of survival of less than fifty percent.” Id.
The Smith court explained that “[t]o allow full recovery would ignore the claimants’
inability to prove by a preponderance of the evidence that the malpractice victim
would have survived but for the malpractice, which is a requirement for full
recovery.” Id., 7-8, 676 So.2d at 547. The loss of a less-than-even chance of survival
is “a distinct injury compensable as general damages” that cannot be calculated with
mathematical certainty; thus, the factfinder must make a “subjective determination
of the value of that loss, fixing the amount of money that would adequately
compensate the claimants for that particular cognizable loss.” Id., p. 9, 676 So.2d at
548. The jury must consider “the same evidence considered by a jury in a survival
and wrongful death action, and the loss-of-chance jury then reaches its general
damages award for that loss on that evidence as well as other relevant evidence in
the record.” Id., p. 11, 676 So.2d at 549. The jury may consider “all the evidence,
including expert medical testimony regarding the percentage chances of
survival,…to value directly the lost chance….” Id.
This court reaffirmed its decision in Smith that loss of chance damages are
general in nature and extended the loss of chance theory of recovery to claims not
only based upon the death of the patient but also to a loss of a chance of a better
outcome. Graham v. Willis-Knighton Medical Center, 97-0188 (La. 9/9/97), 699
So.2d 365. The Graham court held that the loss of a chance to save a limb from
12
amputation is a “distinct injury compensable as general damages,” and that full
recovery for the loss of the limb was not allowed when the chance of saving the limb
from amputation is less than fifty percent. 97-0188, p. 16, 699 So.2d at 373. See also
Hargroder v. Unkel, 39,009 (La. App. 2 Cir. 10/29/04), 888 So.2d 953, writ denied,
04-2908, 04-2909 (La. 2/4/05), 893 So.2d 874 (applying Smith and finding the jury
erred in failing to consider the degree of loss of chance of a better outcome and to
award a lump sum for that element of damage, as is done in any other item of general
damages).3
Turning to the issues presented in this case, we first find the court of appeal
erred in concluding the jury’s answers to Question Nos. 1 through 6 were
inconsistent or fatally flawed. The parties negotiated and accepted the Verdict Form,
and, as the court of appeal noted, the record “is unclear if there was sufficient
objection to, or argument for, any proposed jury interrogatory.” Burchfield, 51,459,
p. 5, 224 So.3d at 1174. Our reading of Question Nos. 1 through 5 clearly shows
they were related to plaintiffs’ statutory malpractice claim, which required the
plaintiffs to prove, by a preponderance of the evidence, that the defendant’s breach
of the standard of care was a substantial factor in causing Mr. Burchfield’s injuries.
Thus, to prevail on their claim, the plaintiffs were required to prove that the
defendant’s negligence in failing to review the preoperative tests caused injury to
3
In Hargroder 888 So.2d 953, 957–58, the Second Circuit explained:
The damage claimed in this case, loss of a chance of a better medical outcome, has
its basis in cases dealing with loss of a chance of survival. Smith v. State
Department of Health and Hospitals, 95–0038 (La.6/25/96), 676 So.2d 543. The
issues in a loss of a chance of survival case are whether the tort victim lost any
chance of survival because of the defendant’s negligence and the value of that loss.
The question of degree may be pertinent to the issue of whether the defendant’s
negligence caused or contributed to the loss, but such a tort-caused loss in any
degree is compensable in damages. In such cases, the factfinder is to focus on the
chance of survival lost on account of malpractice as a distinct compensable injury
and to value the lost chance as a lump sum award based on all the evidence in the
record, as is done for any other item of general damages. Smith v. State Department
of Health and Hospitals, supra.
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the plaintiff’s heart to such an extent that a heart transplant was necessary, rather
than a heart bypass. The thrust of the plaintiffs’ claim was that, had Dr. Wright called
for a cardiology consult prior to the gallbladder surgery, Mr. Burchfield would have
forgone the surgery and at that time would have been a suitable candidate for a heart
bypass; but, by failing to request the consult and proceeding with the surgery, Dr.
Wright caused further damage to Mr. Burchfield’s heart necessitating a heart
transplant.
Clearly, the jury found the plaintiffs failed to make that showing by a
preponderance of the evidence. The court of appeal may have implicitly found the
jury’s determination in this regard was not interdicted by the “inconsistent answers”
to the verdict form. See Burchfield, pp. 5-6, 224 So.3d at 1174 (“Notably, in this
case, the legal error in the verdict form did not affect all of the jury’s findings, i.e.,
the jury’s determination whether [Mr. Burchfield] suffered a lost chance of a better
outcome --- the record clearly supports that. The problem lies with the determination
of the monetary amount of damages for that lost chance….”). Regardless, the court
of appeal should have applied a manifest error standard of review to the jury’s
finding that the surgeon’s breach of the standard of care did not cause the heart attack
ultimately necessitating the heart transplant. Had it done so, the court of appeal
would have concluded, as we do, that there was no manifest error in the jury’s
finding in that regard. 4
4
It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact
in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in
the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not
be disturbed upon review, even though the appellate court may feel that its own evaluations and
inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter
v. Koehring, 283 So.2d 716, 724 (La.1973).
The testimonial evidence was conflicting on whether Mr. Burchfield would have been a
candidate for a heart bypass, rather than a heart transplant, prior to the gallbladder surgery. As
the plaintiffs concede, there was conflicting testimony as to whether the laparoscopic gallbladder
surgery itself had directly caused the subsequent heart attack or if the surgery had caused the
worsening condition that caused the subsequent heart attack. Moreover, as both the plaintiffs and
14
After finding insufficient proof of the plaintiffs’ statutory malpractice claim,
the jurors were appropriately directed to disregard Question Nos. 2 through 5, which
concerned damages recoverable in a statutory medical malpractice claim, and to
proceed to Question No. 6, which was related to the plaintiffs’ alternative theory of
loss of a chance of a better outcome. To that inquiry, the jury answered in the
affirmative, and then was directed to Question No. 7 to award an amount of damages
for the loss of a chance of a better outcome. The jury did so, awarding $680,000.00
as a lump sum general damages award.
We find no inherent conflict in the jury’s answers to the interrogatories, and
the closing arguments by counsel to the jurors certainly expounded upon the precise
issues presented to the jury for resolution. The jurors were asked to determine
whether the plaintiffs had sufficiently proven that Dr. Wright’s negligence had
caused the injuries necessitating a heart transplant, and the jury determined the
plaintiffs did not meet their burden of proof. The jury was then asked to determine
whether Dr. Wright’s negligence had deprived the plaintiff of a chance of a better
outcome, and the jury responded that it had. The jury then awarded a lump sum
general damages award, after considering all the evidence of damages presented by
the plaintiffs. There was no jury confusion here, and as the trial judge had
the court of appeal noted, there was also conflicting testimony among the experts as to whether
Mr. Burchfield would have even been a candidate for a heart bypass at the time of the
gallbladder surgery. Though the plaintiffs’ various experts testified Mr. Burchfield might have
been a candidate for heart bypass had a cardiac consult been requested prior to the surgery, the
defendant’s expert testified otherwise, believing Mr. Burchfield’s heart was already too damaged
prior to the surgery to be suitable for heart bypass surgery and that only a heart transplant was
available to him at that time. See Burchfield, 51,459, pp. 8-9, 224 So.3d at 1175. The plaintiffs
have argued that the testimony of the defendant’s expert was not credible, while the defendant
has pointed out that its expert was the only witness who had performed coronary artery bypass
surgeries and also the only witness to have reviewed the heart necropsy report. Regardless, even
the court of appeal ultimately reviewed this case under the theory of lost chance of a better
outcome rather than a statutory malpractice case. Accordingly, because the testimonial evidence
was conflicting as to whether Dr. Wright’s negligence caused Mr. Burchfield to have a
subsequent heart attack requiring a heart transplant rather than a heart bypass, we find no
manifest error in the jury’s determination that the plaintiffs failed to carry their burden of proof
in that regard.
15
anticipated, the jury was able to understand and resolve the issues presented to it.
Moreover, as the court of appeal itself specifically concluded, the record clearly
supports the jury’s determination that Mr. Burchfield suffered a lost chance of a
better outcome. Burchfield, 51,459, p. 6, 224 So.3d at 1174. The Patient’s
Compensation Fund essentially concedes there was sufficient proof of a loss of a
chance of a better outcome, though it has argued for a reduced lump sum award.
Where the court of appeal further erred, which prompted our grant of
supervisory writs, was in the determination of damages allowed for lost chance of a
better outcome. The court of appeal declined to follow clear and established
jurisprudence from this court, set forth in Smith and Graham, supra. Instead of
reviewing the jury’s award under that jurisprudence, the court of appeal instead
conducted a de novo review based upon a faulty premise regarding the jury
interrogatories, and awarded not only general damages, but also separate awards of
past medical expenses, lost wages, and future medical expenses.
The court of appeal found the jury had not been given adequate instructions
on the verdict form or in the jury charge on how to quantify the damages for lost
chance of a better outcome, and questioned whether any part of the award was
intended to compensate emotional distress, lost wages, loss of consortium, or past
medical expenses. Burchfield, 51,459, pp. 7-8, 224 So.3d at 1175-76. The appellate
court, though it properly referred to this court’s opinion in Smith, supra, nonetheless,
relied on Bianchi v. Kufoy, 2010-0607 (La. App. 3 Cir. 12/08/10), 53 So.3d 530, for
the premise that in calculating an award for lost chance of a better outcome, a jury
may consider what otherwise would be elements of special damages, such as lost
wages, and past, present and future medical expenses. Consideration of such
damages may be appropriate, keeping in mind that a lost chance of a better outcome
envisions a less than 50% chance, and thus not full recovery. But the court of appeal
16
did not stop there. Despite jurisprudence from its own circuit, see Hargroder v.
Unkel, supra, note 2, it opined that lump sum damages for a lost chance of a better
outcome “may include special damages to adequately compensate a patient, and that
‘lump sum’ damages should not be limited to the cap for general damages
established by the Medical Malpractice Act.” Burchfield, 51,459, p. 8, 224 So.3d at
1175.
There is no support for such a conclusion in this court’s specific jurisprudence
on the issue of the calculation of damages for lost chance of a better outcome.
Moreover, to the extent that the Bianchi court’s decision might support the court of
appeal’s approach, we disapprove of that rationale. 5 As we explained in Graham:
When the chance of survival (or in this case of saving the leg
from amputation) is less than fifty percent, the court may not award full
damages for the loss of life (or loss of the leg). Smith v. State, Dept. of
Health and Hosp., 95–0038 (La. 6/25/96); 676 So.2d 543 (1996).
Rather, the factfinder, judge or jury, focuses on the chance of survival
(or the chance of saving the leg) that has been lost because of the
malpractice and “value[s] the lost chance as a lump sum award based
on all the evidence in the record, as i[s] done for any other item of
general damages.” 95-0038 at 7; 676 So.2d at 547. The “loss of a less-
than-even chance of survival [or chance of saving a limb] is a distinct
injury compensable as general damages which cannot be calculated
with mathematical certainty, ... [and] the factfinder should make a
subjective determination of the value of that loss, fixing the amount of
money that would adequately compensate the claimants for that
5
In Bianchi, the trial court had determined the physician had breached the standard of care, but
that the plaintiff had failed to prove causation. On appeal, the court concluded the plaintiff had
proven the physician’s negligence had caused the plaintiff a lost chance of a better outcome. The
Bianchi court quoted Hargroder v. Unkel, supra, which had relied on our decision in Smith to
explain how to value a lost chance as a lump sum award. The plaintiffs sought $176,333.84 in
past and future medical expenses and $2,150,000.00 in general damages “subject to the Medical
Malpractice cap of $500,000.00.” Bianchi, 10-0607, pp. 8-9, 53 So.3d 530. Nevertheless, without
specifically discussing the imposition of a “lump sum” general damage award for lost chance of
a better outcome, the Bianchi court, in calculating damages, reviewed previously incurred
medical expenses, as well as the possibility of future medical expenses, and awarded $100,000 in
past and future medical care and related expenses. It then awarded $300,000 in general damages
and loss of consortium damages. Thus, the court awarded $400,000 for special and general
damages. The Bianchi court did not address whether the Medical Malpractice Act’s limitation on
recoverable damages would apply, presumably because the total award did not exceed the
Medical Malpractice Act’s limitation. The Bianchi court certainly did not award the full damages
requested by the plaintiffs, and thus may have implicitly accounted for the lost percentage of a
better recovery in fashioning its ultimate “lump sum” award of $400,000. Nevertheless, to the
extent the Bianchi decision may be interpreted contrary to our holdings in Smith and Graham, we
disapprove of that decision.
17
particular cognizable loss.” 95-0038 at 9; 676 So.2d at 548. “The jury’s
verdict of a lump sum amount of damages can be tested on appeal for
support in the record by reviewing the percentage chances and the
losses incurred by the tort victim and his or her heirs, and any other
relevant evidence, thus providing assurance against speculative
verdicts.” 95-0038 at 11; 676 So.2d at 549.
Graham, 97-0188, p. 17, 699 So.2d at 373.
The court of appeal in this case failed to apply our jurisprudence in reviewing
the jury’s lump sum award. The jury was properly charged that it could consider all
factors of damages in fashioning a lump sum award for lost chance of a better
outcome, including past and future medical expenses and general damages. That
charge included:
In a medical malpractice action in which damages are sought for loss
of any chance of a better outcome, the fact finder should make a
subjective determination of the valuable [sic] of that loss, fixing the
amount of money that would adequately compensate the claimants,
which may include considering all the evidence of percentages of
chance of a better outcome.
The court of appeal was correct that the record contains evidence of the total
damages incurred by the plaintiffs: medical expenses for the transplant totaled
$692,850.64; medications as a result of the transplant total $1,718.78 per month,
with $1,202.77 per month for anti-rejection medication; future medical protocols as
necessary for heart transplant recipients; and lost wages of $493,020.00. The court
of appeal “affirmed” the trial court’s award of general damages of $400,000.00,
noting in detail the suffering of the plaintiff and his wife, but recognizing the trial
court’s application of the Louisiana Medical Malpractice Act’s limitation on the total
amount recoverable by the plaintiffs. In closing argument, the plaintiffs had argued
that general damages for Mr. Burchfield should be between $750,000.00 to
$1,000.000 and loss of consortium for Mrs. Burchfield should be between $50,000
and $75,000. As for the value of the lost chance of a better outcome, the plaintiffs
argued to the jury that it should be 49% of the total damages, or roughly $1,000,000.
18
Although the jury did not specifically determine a percentage of a better outcome
lost by the plaintiffs due to the defendant’s failure to review the pre-operative tests,
nor was it required to do so, it obviously found a significant percentage for a better
outcome was lost when it valued the lost chance of a better outcome at some 35% of
the total of the damages award sought by the plaintiffs. Given our review of the
record testimony, we cannot say that the amount of $680,000.00 awarded by the jury
as a “lump sum” in the nature of general damages was an abuse of the jury’s
discretion in making such an award. See Graham, supra.
CONCLUSION
For the reasons set forth above, we reverse the decision of the court of appeal
and reinstate the jury verdict and the judgment of the district court, awarding the
plaintiffs $680,000.00 for the lost chance of a better outcome, and applying the
Louisiana Medical Malpractice Act’s limitation on the total amount recoverable by
the plaintiffs to reduce that amount to $500,000.00, plus judicial interest and costs,
subject to a credit for the $100,000.00 paid by the defendant physician.
REVERSED; JUDGMENT OF THE DISTRICT COURT REINSTATED
AND AFFIRMED
19