Kimberly and Todd Thibodeaux, Individually and on Behalf of Their Minor Child, Gabrielle Thibodeaux v. James F. Donnell, M.D.
Kimberly and Todd Thibodeaux, Individually and on Behalf of Their Minor Child, Gabrielle Thibodeaux v. James F. Donnell, M.D.
Opinion of the Court
hWe granted the writ in this medical malpractice case to determine whether the court of appeal properly assessed damages under the principles set forth in Coco v. Winston Industries Inc., 341 So.2d 332 (La. 1976). We'find that, because the court of appeal found manifest error in the jury’s factual findings, the court' should have instead performed a de novo review of damages under the principles outlined in Mart v. Hill, 505 So.2d 1120 (La. 1987). For the. reasons set forth below, we reverse the judgment of the court of appeal and remand to the court of appeal for it to reconsider its decision under the principles set forth in Mart.
. BACKGROUND
In 2003, plaintiff Kimberly Thibodeaux (then 37 years old), married to Todd Thi-bodeaux, became pregnant with her fourth child. Dr. James Donnell was her obstetrician-gynecologist throughout her pregnancy. During the course of the pregnancy, Mrs! Thibodeaux was diagnosed with complete placenta previa and, in |2mid-Novem-ber, at approximately 29 weeks pregnant, she was hospitalized for four days at Ter-rebonne General Medical Center (“TGMC”) in Houma, for vaginal bleeding secondary to placenta previa. On November 18, upon Dr. Donnell’s referral, she consulted a maternal/fetal medicine specialist who handled high risk pregnancies; the specialist recommended rest, limited activity, and delivery of Mrs. Thibodeaux’s child at 36-37 weeks gestation. The next day, November 19, Mrs. Thibodeaux returned to TGMC with renewed vaginal bleeding and contractions. Dr. Donnell delivered Gabrielle Thibodeaux via cesarean section on November 20.
After the baby’s delivery, Dr. Donnell was unable to remove the placenta from Mrs. Thibodeaux’s lower uterine segment and encountered vigorous bleeding. As-a result, Dr.' Donnell performed an emergeii-cy cesarean'hysterectomy, which entailed removal of' plaintiff s uterus and cervix. After completing the hysterectomy, and while preparing to close the Mrs. Thibo-deaux’s abdomen, Dr. Donnell discovered a large laceration to her bladder.
After completing the surgery, Dr. Donnell ordered a post-operative test to determine if the bladder repair was successful. The test revealed that the bladder sutures were obstructing Mrs. Thibodeaux’s ureters, the tubes that drain urine from the kidney into the bladder. This obstruction was then confirmed by a cystoscopy performed by a urologist, Dr. Robert Alexander, consulted by Dr. Donnell. The same day as the birth and cesarean hysterectomy, Dr. Alexander reopened Mrs. Thibo-deaux’s abdomen, removed the bladder sutures to free the ureters, and | ^re-repaired the bladder laceration. Dr. Alexander also inserted a catheter in plaintiffs bladder and stents into her ureters to facilitate urine drainage from the kidneys to the bladder. Mrs. Thibodeaux remained hospitalized for five days.
Mrs. Thibodeaux followed up with Dr. Alexander several weeks later, and underwent separate procedures to remove the catheter and stents. Dr. Alexander testified that, at that point, her urologie system was flowing properly; the bladder was not leaking, and the ureters were functioning correctly. Mrs. Thibodeaux followed up again with Dr. Alexander in late April 2004, at which time he unsuccessfully attempted to distend her bladder. He determined her bladder had a capacity of 300-350 cubic centimeters (ccs), less than the average bladder capacity of 400-500 ccs for a person of her size.
Although her bladder healed, Mrs. Thi-bodeaux continued to see Dr. Alexander for three years with irritative bladder symptoms, including urinary frequency every 30-60 minutes, urgency, urine leakage, painful urination, painful sexual intercourse, urination during sexual intercourse, excessive nighttime urination, and abdominal pain. Dr. Alexander diagnosed her with interstitial cystitis, also known as painful bladder syndrome, and prescribed medications, none of which relieved plaintiffs symptoms. Mrs. Thibodeaux last saw Dr. Alexander in September 2007, when he again unsuccessfully attempted to distend her bladder. At that point, he determined her bladder had a capacity of only 250 ccs. According to Dr. Alexander, Mrs. Thibo-deaux’s diminished bladder capacity is permanent.
Mr. and Mrs. Thibodeaux filed a request for medical review in November 2004, but the medical review panel expired before an opinion was issued. In October 2006, the Thibodeauxs filed this medical malpractice suit against Dr. Donnell, individually, and on behalf of their child, Gabrielle. The trial court dismissed the suit as prescribed, but the court of appeal reversed, finding that the suit was timely filed. Thibodeaux v. Donnell, 07-1845 (La.App. 1 Cir. 994 So.2d 612. This Court affirmed, holding that the case was not prescribed and could go forward. 08-2436 (La. 5/5/09), 9 So.3d 120.
The matter proceeded to a four-day jury trial in May 2014, which concluded with a verdict in favor of the Thibodeauxs. As the court of appeal noted, the expert witnesses disagreed as to whether Mrs. Thibodeaux’s symptoms were caused by the failed bladder repair or by interstitial cystitis unrelated to the failed bladder repair. Dr. Alexander testified that he had not treated Mrs. Thibodeaux before November 2003, but that there was no evidence she had a history of these symptoms before that time. He also testified, however, that interstitial cystitis has no known cause and that it can occur in the absence of surgery or trauma to the bladder. On the other hand, the Thibodeauxs’ expert, Dr. Fred
After considering the evidence and testimony, the jury found that Dr. Donnell breached the applicable standard of care in the treatment of Mrs. Thibodeaux and that she was injured as a result of Dr. Donnell’s breach of the standard of care. With respect to damages, the jury award was as follows:
Kimberly Thibodeaux
Physical pain and suffering (past, present, future): $0
Mental pain and suffering (past, present, future): $0
Permanent Disability: $0
Loss of enjoyment of life: $0
Medical expenses: $60,000
Todd Thibodeaux
Loss of consortium: $0
Gabrielle Thibodeaux
Loss of consortium: $0
Total Damages: $60,000
|BThe trial court signed a judgment conforming to the jury verdict. Both parties filed motions for judgments notwithstanding the verdict, which were denied.
Plaintiffs appealed, contending that the jury abused its discretion by awarding special damages, but failing to award general damages. Dr. Donnell did not appeal the verdict. The court of appeal reversed in part, first holding that there was a “reasonable factual basis in the record” to support the jury’s finding of causation, specifically that (i) Dr. Donnell’s failed bladder repair caused injury to -Mrs. Thibodeaux, but (ii) all of Mrs. Thibodeaux’s mental or physical pain and suffering, discomfort, inconvenience, and/or emotional trauma were not causally related to Dr. Donnell’s malpractice. 15-0503, p.6-7 (La.App. 1 Cir. 2/24/16), 189 So.3d 469, 475. The court of appeal then held that, because the jury found plaintiff suffered “some injuries” causally related to the failed bladder repair, the jury abused its discretion in failing to award plaintiff “some amount of general damages.” Id., 15-0503, p.7, 189 So.3d at 475. The court then posed the inquiry: “The issue becomes, then, to what extent were Mrs. Thibodeaux’s injuries causally related to Dr. Donnell’s failed bladder repair.” Id.
Following this Court’s decision in Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1977), the court of appeal noted it must determine the “lowest amount of general damages associated with those injuries reasonably within the jury’s discretion.” Id. After a review of the evidence and after analyzing the range of general damages awards for similar injuries, the court of appeal found that $50,000 was the lowest amount reasonably within the jury’s discretion and consistent with the special damages award. Id., 15-0503, p.11-12, 189 So.3d at 478-79. The court of appeal also held that the jury manifestly erred in finding that Dr. Donnell’s malpractice did not cause loss of consortium damages to Mr. Thibodeaux and Gabrielle. The court concluded that the evidence established that both Mr. Thibodeaux and Gabrielle suffered from Mrs. Thibodeaux’s inability to | ^accompany them in recreational activities they previously enjoyed and the Thibo-deaux’s sex life had been impacted “both quantitatively and qualitatively.” Id., 15-0503, p.13, 189 So.3d at 479-80. Based on the evidence—but “mindful that Dr. Donnell’s failed bladder repair only caused some of their damages”—the court of appeal found the appropriate loss of consortium awards to be $15,000 for Mr. Thibo-deaux and $5,000 for Gabrielle, the “lowest
Plaintiffs filed a writ of certiorari in this Court, which was granted. 16-0570 (La. 6/3/16), 192 So.3d 756. '
DISCUSSION
As noted above, we granted the writ in this matter to determine whether the court of appeal properly adjusted damages under the principles set forth in Coco v. Winston Industries Inc., 341 So.2d 332 (La. 1976). In Coco, the plaintiff filed suit against his employer, seeking damages arising from the loss of several fingers that occurred while operating a saw. The jury returned a verdict in favor of the plaintiff for $350,000, and the court of appeal, on rehearing, reduced the damage award to $140,000. Id. at 333-34. This Court reinstated the jury’s damage award, and articulated the applicable standard of review for an appellate court seeking to disturb a damage award:
[Bjefore a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court- abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is nevér appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.
Id. at 335 (emphasis added). ■ The Coco Court held that the jury in that case “did not abuse its much discretion” in assessing $350,000 in damages.
| /There are several rationales for what has become known as the Coco Rule.
The Coco principle of appellate review applies when an appellant questions the adequacy of a monetary award in a case which is otherwise uncomplicated by factual errors relating to the cause or duration of the plaintiff’s disability. ... Simply stated, Coco applies when an appellate , court is asked to correct a fact finder’s abuse of discretion in assessing the appropriate monetary award for a given injury. The principles are not applicable when a [de novo] review of quantum must be made to compensate a plaintiff for damages which the trial court did not believe were causally related to the accident.
Id. at 1128 (emphasis added). In other words, Coco’s highest/lowest principle does not apply when a reviewing court disturbs a jury’s factual finding related to causation. See Frank L. Maraist, 1 La. Civ. L. Treatise, Civ; Pro. § 14:14 (2d éd.) (Nov. 2015) (“The ‘much discretion’ rule does not apply if there was error in the trial court which interdicted the damage-determining process”) (emphasis added) (citing Mart).
Instead, as articulated in Mart,-the proper standard where an appellate court disturbs the trier of-fact’s causation finding is the manifest error/clearly wrong standard, under which the appellate court: (i) must find from the record that there is no reasonable factual basis for the trial court’s finding, and (ii) must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). 505 So.2d at 1127. After the reviewing court finds manifest error in a |fltrier of fact’s finding, the court performs a de novo damages review unbound by the limitations of Coco.
Considering these rationales, in Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70, the Court expounded on the principles of Coco. In Wainwright—as in
We now turn to the court of appeal’s opinion in this case to determine the proper standard of review for an assessment of damages under these circumstances: abuse of discretion or manifest error.
110Causation and General Damages Findings Belated to Mrs. Thibodeaux
In setting forth the jury’s finding of fact regarding Mrs. Thibodeaux’s injuries, the jury verdict form read as follows:
INTERROGATORY NO. 1: Do you find by a preponderance of the evidence that Dr. James Donnell breached the applicable standard of care in the treatment of Kimberly Thibodeaux?
Yes X No ___
INTERROGATORY NO. 2: Do you find by a preponderance of the evidence that Kimberly Thibodeaux was injured as a result of a breach of the applicable standard of care by the defendant?
Yes X No_
The only remaining finding from the jury related to Mrs. Thibodeaux was the damages allocation; there was no additional finding related to causation. The court of appeal initially stated that it found a “reasonable factual basis in the record” to support the jury’s causation findings and applied the abuse of discretion standard and Coco to its review of damages. However, after a review of the court of appeal’s reasoning, we now hold that the court of appeal disturbed those findings in several significant ways.
First, the court of appeal states that the jury’s award of “only $60,000 in medical expenses suggests that the jury did not believe that all of Mrs. Thibodeaux’s mental or physical pain and suffering, [etc.] were causally related to Dr. Donnell’s medical malpractice.” 15-0503, p.6-7, 189 So.3d at 475 (emphasis added). But the words “suggests” and “all” indicate that the court of appeal is reading information into the verdict form that simply is not present. Second, the court of appeal held that, because the jury found Mrs. Thibo-deaux suffered “some injuries” causally related to the failed bladder repair, the jury abused its discretion in failing to award plaintiff “some amount of general damages.” Id. (emphasis in original). But
Our review of the court of appeal’s analysis leads to the conclusion that, by reading information regarding the scope or extent of causation into the verdict form, the court of appeal altered the jury’s causation finding where the jury was silent.
|12The court of appeal therefore erred by limiting its award for Mrs. Thibodeaux to “the lowest amount reasonably within the jury’s discretion and consistent with the special damages award” pursuant to Coco. 15-0503,p.11, 189 So.3d at 478.
Loss of Consortium Claim Findings
With respect to the loss of consortium, service, and society damages claimed by Mr. Thibodeaux and the minor child, the court of appeal examined the jury ver
| isThe court of appeal correctly recognized that manifest error review applied to the loss of consortium claims, because it adjusted the jury’s factual findings. Mart, 505 So.2d at 1128. However, the court of appeal failed to recognize the implication of that holding. As explained above, after finding manifest error, the court of appeal should have performed a de novo review in accordance with Mart, unbound by the highest/lowest limitations of the Coco Rule. Id. at 1128-29.
CONCLUSION
The Coco Rule applies when the reviewing court determines that the trier of fact abused its discretion when assessing damages. The Mart Rule, on the other hand, applies when the reviewing court determines that there was error in the jury’s factual findings and such error interdicted the damage-determining process. Here, despite saying that there was a reasonable factual basis for the findings, the court of appeal found error in the jury’s findings with respect to Mrs. Thibodeaux’s general damages. With respect to the loss of consortium claims, the court of appeal properly found manifest error, but then erroneously assessed damages using the Coco principle. In both of these scenarios, an entirely de novo review under Mart was required, rather than a limited damages review under Coco.
DECREE
Because the court of appeal adjusted the jury’s factual findings, such that it plainly found “error” in the jury verdict, the court should have performed a de novo review of damages under the principles outlined in Mart v. Hill, 505 So.2d 1120 (La. 1987), unrestricted by the limitations set forth in Coco. For the reasons set forth below, we reverse the judgment of the court of appeal and. remand for the court of appeal to reconsider its, awards under the principles set forth in Mart.
REVERSED AND REMANDED.
. Knoll, J., retired, participated in this decision which was argued prior to her, retirement.
. As also noted by the court of appeal, the record does not clearly establish what caused the bladder laceration, For purposes of clarity, the allegation of breach is not that Dr. Donnell created the laceration, but instead that he failed to properly repair it.
. In their brief to the Court, plaintiffs request? ed that the Court overrule Coco. We expressly decline to do so here and reiterate its ongoing vitality in the law.
. In Mart, Justice Calogero used the term “res nova" rather than “de novo." Here, however, we will use the term "de novo,” because it is more commonly . used in Louisiana., See Black's Law Dictionary (10th ed, 2014), de novo ("Anew”); Id. res nova ("1. An undecided question of law. 2, A case of first impression.”).
.. This distinction between Coco and Mart was reiterated in Ryan. v. Zurich American Insurance Co., 07-2312 (La. 7/1/08), 988 So.2d 214. In Ryan, liability was stipulated by the defendants before trial—i.e., causation was not at issue. Because Ryan was not complicated by causation issues, the principles annunciated in Coco applied to the damages review. 07-2312, p.7-8, 988 So.2d at 219. The Court distinguished Mart, noting that Ryan, unlike Mart, was not a case "where a determination of the amount of damages to be awarded for that item was foreclosed by a. prior determination of lack of fault or causation.” Id., 07-2312, p.6, 988 So.2d at 218.
. In 2004, this Court considered the case Green v. K-Mart Corp., 03-2495 (La. 5/25/04), 874 So.2d 838. In Green the court of appeal found no error in the jury’s finding that the accident caused the plaintiff’s injuries—i.e., causation was not at issue—and this Court affirmed that finding and proceeded to use the abuse of discretion standard to alter the damages award. For the reasons set forth herein, Green is therefore inapplicable to the present case.
. This error by the court of appeal is unsurprising, because the court of appeal was forced to interpret a verdict form that does not adequately address the complex factual issues presented in the case. We observe here that a verdict form with more information could have assisted the appellate court (and this Court) in interpreting the issues presented by this case. In any event, we recognize that this issue is not before us, as Dr. Donnell did not appeal the verdict, nor did he file a writ application here.
. The dissent argues that the juiy did in fact address the extent of the injury, because the jury awarded no general damages to Mrs. Thibodeaux. But this interpretation of the verdict form falls into the trap of extrapolating causation from the jury’s damages finding— exactly the mistake made by' the court of appeal here.
.The court of appeal also erred in stating that “[a] trier of fact abuses its discretion in failing to award general damages when it finds that a plaintiff has suffered injuries causally related to the accident that required medical attention.” 15-0503, p.6-7, 189 So.3d at 475. As noted above—and as the court of appeal acknowledges yet then ignores—Wain-might expressly declined to draw such a bright line rule. Wainwright, 00-0492 p.9, 774 So.2d at 75-76.
Concurring Opinion
concurs in part, dissents in part, and assigns reasons.
hi respectfully dissent from the majority’s finding that the court of appeal erred in its review and award of general damages to Mrs. Thibodeaux. I find the majority opinion creates confusion by failing to apply the clear principles set forth by this court in Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70 and Green v. K-Mart Corp., 03-2495 (La. 5/25/04), 874 So.2d 838, wherein this court has directly addressed the proper standard of review for assessment of damages in cases such as this one.
In Wainwright, this court explained that when faced with a verdict in which a jury determined that the defendant is both legally at fault for the plaintiffs injuries and liable for his medical expenses, yet has
After review of the record, I find the court of appeal correctly determined that the jury abused its discretion in failing to award general damages while awarding a substantial amount for past and future medical expenses. In this case, the jury determined through its award of all of Mrs. Thibodeaux’s medical expenses that plaintiff suffered injuries causally related to the accident which required medical attention, and is still suffering an injury that will require medical attention in the future. Further, the evidence establishes that the medical treatment caused Mrs. Thibodeaux pain and suffering. I find failing to make a general damage award in such circumstances was an abuse of discretion.
.Additionally, to the extent the failure to award general damages is an abuse of discretion, as opposed to an error of fact or law, review and correction of the damage award is limited by the principles stated by this court in Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La. 1976) (i.e., the reviewing court is limited to raising the inadequate general damage award to the lowest amount reasonably within the jury’s discretion), rather than a de novo determination of damages as contemplated in Mart v. Hill, 505 So.2d 1120 (La. 1987). In this case, the court of appeal determined the jury’s finding that Mrs. Thibo-deaux was entitled to an award of special damages, but no general damages was, under the facts, so inconsistent as to constitute an abuse of its much discretion. Thibodeaux v. Donnell, 15-0503 (La.App. 1 Cir. 2/24/16), 189 So.3d 469, 475, Given that determination, the court of |Rappeal then correctly proceeded to fix an award of general damages calculated as “the lowest amount within the jury’s discretion- and consistent with the special damages award,” in accordance with this court’s holding in Coco. Thibodeaux, 189 So.3d at 478.
Therefore, consistent with Waimmght and Green, I find that in this case where the jury awarded special damages but declined to award general damages, it is the task of the reviewing court to determine whether the jury’s' finding “is so inconsistent as to constitute an abuse of discretion.” Because such a finding was made in this case, I find'the court of appeal properly assessed the award of general damages under' the principles set forth in Coco. Thus, I would affirm the court of appeal’s decision on this issue.
Finally, relative to loss' of consortium damages, I agree with the majority that because the court of appeal found the jury manifestly erred in failing to award loss of consortium damages, the court of appeal was not constrained by the award parameters set forth in Coco. However, I dissent from the majority’s holding to the extent the case is remanded to the court,of appeal
Concurring in Part
dissenting in part and concurring in part.
bln answering the interrogatories, the jury in this medical malpractice case determined that defendant breached the applicable standard of care in his treatment of Mrs. Thibodeaux and that the breach caused Mrs. Thibodeaux to sustain injury, but not her husband or minor child. When asked to determine the amount of money that would “fully and fairly compensate” Mrs. Thibodeaux for the damage sustained as a result of defendant’s breach of the applicable standard of care, the jury awarded special damages for Mrs. Thibo-deaux’s medical expenses, but declined to award general damages. On appeal, the court of appeal determined that the jury’s finding that Mrs. Thibodeaux was entitled to an award of special damages, but no general damages was, under the facts, so inconsistent as to constitute an abuse of its much discretion. Thibodeaux v. Donnell, 15-0503, p. 7 (La.App. 1 Cir. 2/24/16), 189 So.3d 469, 475. Given its determination that the jury’s failure to award general damages was an abuse of discretion, the court of appeal then proceeded to fix an award of general damages calculated as “the lowest amount within the jury’s discretion and consistent with the special damages award,” in accordance with this court’s directive in Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La. 1976) (“Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the [damage] award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.”). Thibodeaux, 15-0503 at 11, 189 So.3d at 478. Because this approach seemed to conflict with the result in Green v. K-Mart Corp., 03-2495 (La. 5/25/04), 874 So.2d 838 (a case in which this court found an abuse of discretion in the jury’s failure to award general damages despite awarding a substantial amount for past and future medical expenses, and then affirmed the court of appeal’s de novo assessment of damages unconstrained by Coco’s high/low limitations), we granted
The issue we granted the writ to resolve is relatively straightforward. Unfortunately, the majority’s resolution of that issue is not as straightforward.
After describing the competing approaches to appellate review of damages set forth in Coco and Mart v. Hill, 505 So.2d 1120 (La. 1987), the majority re-frames the issue this court granted the writ to address as whether “the proper standard of review for an assessment of damages under [the] circumstances [of this case] is abuse of discretion or manifest error.” Thibodeaux, slip op. at 9. However, this court previously answered that question, and it did so in cases discussed but ultimately dismissed by the majority as being inapplicable here.
In Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70, this court was
[A] jury, in the exercise of its discretion as factfinder, can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compensable pain and suffering as a result of defendant’s fault. It may often be the case that such a verdict may not withstand review under the abuse of discretion standard. However, it would be inconsistent with the great deference afforded the factfinder by this court and our jurisprudence to state that, as a matter of law, such a verdict must always be erroneous. Rather, a reviewing court faced with a verdict such as the one before us must ask whether the jury’s determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion. Only after the reviewing court determines that the factfinder has abused its much discretion can that court conduct a de novo review of the record.
Wainwright, 00-0492 at 8-9, 774 So.2d at 76 (emphasis added). The Wainwright decision is not an outlier. Rather, it was followed by Green v. K-Mart Corp., supra, which affirmed that the standard of review in a case such as this one is abuse of discretion. Id., 03-2495 at 7, 874 So.2d at 843—44 (“When, as here, the jury has awarded special damages but has declined to award general damages, the reviewing court must determine whether the jury’s finding ⅛ so -inconsistent as to constitute an abuse of discretion.’ Wainwright, 00-0492 at 8-9, 774 So.2d at 76. If so, only then can the reviewing court perform a de novo review of the record. Id.”).
Rather than adhere to the abuse of discretion standard of review dictated by Wainwright and Green, the majority recasts the issue as one involving the jury’s “causation” or liability determination, thereby avoiding the deference due the jury’s |4assessment of damages entirely. By tying the jury’s award of damages to the liability determination, the majority errs both legally and factually.
In a negligence action, the plaintiff bears the burden of proving fault, causation, and damages. Wainwright, 00-0492 at 5, 774 So.2d at 74. In reviewing an award of damages, the court of appeal does not necessarily disturb the determinations of fault and causation, as the majority here implies. Rather, as we have explained, the jury’s determinations of fault and causation establish liability, and liability implies some damage, but not specifically which damage or how much. See Hall v. Brookshire Bros., Ltd., 02-2404, 02-2421, p. 11-12 (La. 6/27/03), 848 So.2d 559, 567. Having proven the defendant’s fault caused damage, a plaintiff must further prove what damage, by kind and seriousness, was caused by defendant’s fault. Id.
In this case, the majority looks to the interrogatories submitted to the jury and essentially concludes that the jury made no finding as to this latter determination-the extent to which Mrs. Thibodeaux’s damages were causally related to the bladder repair-and that in order to reach that determination, the court must re-visit the liability determination (the fault and causation interrogatories). See Thibodeaux, slip op. at 10-11. In short, the majority reasons
The problem with the majority’s analysis is that it overlooks the fact that there was a line (in fact there were several lines) on the verdict form in which the jury was asked to resolve the precise question regarding the “scope or extent” of the injuries sustained by Mrs. Thibodeaux that the majority suggests was overlooked.
Thus, I respectfully disagree with the majority’s determination that the standard of review in this case (insofar as the award of damages to Mrs. Thibodeaux is concerned) is manifest error. I believe, consistent with Wainwright and Green, that in this case in which the jury has awarded special damages but declined - to award |figeneral damages, it is the task of the reviewing court to 'determine whether the jury’s finding “is so inconsistent as to constitute an abuse of discretion.” See Wainwright, 00-0492 at 8, 774 So.2d at 76.
In this regard, and as Wainwright notes, it is plaintiffs burden to affirmatively, establish, by a preponderance of the evidence, that plaintiff (in this case, Mrs. Thibodeaux) is entitled to general damages for pain and suffering. See Id., 00-0492 at 10, 774 So.2d at 77. On review, the proper inquiry is whether there was evidence in the record from which the jury could reasonably conclude that defendant’s bladder repair, which required treatment in the form of a second surgery to remove the errant sutures, resulted in no compen-sable pain and suffering.' As the court of appeal notes, the evidence on this point does not support such a finding. That evidence establishes that after completing the surgery, successfully delivering Mrs. Thi-bodeaux’s daughter, and stanching her profuse bleeding by means of the emergency (and life-saving) hysterectomy, defendant ordered a post-operative intravenous pyelogram (IVP) to determine if the bladder repair was successful. During the three to four-hour period in which the test
Mindful of Wainwright’s reluctance to adopt a bright line rule regarding when a jury’s award of medical expenses but no general damages will be so inconsistent as to constitute an abuse of discretion,
Given this conclusion, the question’that presents itself is the one this court granted writs to resolve: whether, after finding an abuse of discretion in the jury’s failure to award general damages, the appellate court, in reviewing the evidence and rendering an appropriate award, is nevertheless constrained by the principles of deference announced in Coco to the lowest amount of general damages associated with those injuries reasonably within the jury’s discretion. I find that Coco is directly applicable here. This court’s decisions in Wainwright and Green firmly establish that, in a case such as this one, where the jury has determined that the defendant is both legally at fault for the plaintiffs injuries and liable for medical expenses incurred, yet has declined to make any award at all for general damages, the standard of review is abuse of discretion. Sinee correction of the damage award 18is based on finding an abuse of discretion, under Coco, the reviewing court is necessarily limited to raising the inadequate general damage award to the lowest amount reasonably within the jury’s discretion, because, as this court cautioned in Coco: “It is never appropriate for a Court of Appeal, having found' that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” Coco, 341 So.2d at 335.
However, while disagreeing with the majority as to the general damage award, I agree with the majority’s conclusion regarding the court of appeal’s review of the claims for loss of consortium.
While I agree with the majority’s determination that the court of appeal erred in assessing damages for the loss of consortium claims of Mrs. Thibodeaux’s husband and daughter according to the principles of Coco, I respectfully disagree with its decision to remand this case to the court of appeal for the purpose of having that court reconsider its awards. It is a long-standing precept of this court that “[wjhere a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law forecloses any finding of fact, and where the record is otherwise complete, the appellate court should, if it can, render judgment on the record.” See Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707, 708 (La. 1980); See also, Gonzales v. Xerox Corporation, 254 La. 182, 320 So.2d 163, 165-66 (1975). The majority offers no explanation for why it is appropriate to deviate from this practice in the present case.
|inThis court has before it a complete record. That record fully supports the jury’s determination, evidenced by its decision to award medical expenses but no general and no permanent disability dam
Dr. Alexander, Mrs. Thibodeaux’s treating urologist, testified that when he freed her ureters from the sutures, they were intact. He placed stents in the ureters to shore them up, as a kind of safety net in case there was some minimal undetected damage, and inserted a suprapubic catheter as an additional precaution. The surgery was performed on November 20, 2003. Mrs. Thibodeaux returned to Dr. Alexander in December 2003, and, over two visits, he successfully removed the catheter and stents. A cystoscopy performed at the time revealed that Mrs. Thibodeaux had a reduced bladder capacity, but the bladder and ureters were functioning properly.
Unfortunately, Mrs. Thibodeaux developed irritative bladder symptoms (including having to urinate every 30 to 60 minutes). In April 2004, Dr. Alexander performed another cystoscopy in which he noted the presence of scar tissue, but observed that the ureters were normal and unobstructed. At this time, Dr. Alexander attempted to distend the bladder in hopes of providing relief from the symptoms of urinary frequency and pressure. It was on this examination that Dr. Alexander diagnosed Mrs. Thibodeaux with interstitial cystitis, a condition of the bladder lining characterized by symptoms such as excessive urinary frequency, pain related to bladder fullness, and painful intercourse. While he prescribed medications to alleviate the symptoms, none proved to be effective. It was the treating physician, Dr. Alexander’s, opinion that the interstitial cystitis is unrelated to the bladder repair.
1, plaintiffs’ expert witness was ob/gyn Dr. Fred Duboe. Dr. Duboe opined that defendant’s error in blocking the ureters with sutures necessitated a second surgery, produced some devascularized tissue which had to be extracted and resulted in scar tissue and a reduced bladder size. While Dr. Duboe opined that Mrs. Thibo-deaux’s reduced bladder size and symptoms of urinary frequency were related to the bladder repair, as to her interstitial cystitis, the connection “was not as clear.”
Given the foregoing, there is ample record evidence to support the determination that the more significant and long term problems from which Mrs. Thibodeaux suffers are not related to the bladder repair, but to her subsequent diagnosis of interstitial cystitis. Accordingly, any loss of consortium, service and society experienced by Mr. Thibodeaux and daughter Gabrielle is logically and necessarily limited to losses sustained prior to the diagnosis of that interstitial cystitis. After reviewing the record de novo, and being constrained by the fact that defendant did not apply for relief in this court and, thus, cannot obtain a more favorable verdict,
Thus, I respectfully dissent from the majority’s ruling in this case.
Finally, in doing so, I note as an aside that, if we were not constrained in our review by the fact that defendant did not apply for relief in this court, I would be hard pressed to find that defendant deviat
. Thibodeaux v. Donnell, 16-0570 (La. 6/3/16), 192 So.3d 756.
. While I agree with the majority’s assessment that a more detailed verdict form would have made the analysis in this case easier, I do not find that the absence'of a more detailed version inhibits our review to the extent the majority suggests.
. The surgery itself was performed on November 20, 2003.
. See Wainwright, 00-0492 at 8-9, 774 So.2d at 76-77.
. Admittedly, .there is loose language in both Wainwright and Green that might suggest the opposite conclusion. However, Wainwright’s reference to. a de novo review ("[o]nly after the reviewing court determines that the fact-finder has abused its much discretion can that court conduct a de novo review of the record”) was clear dicta, as the court did not find an abuse of discretion on the jury's part and,- thus, did not find it necessary to assess damages. Wainwright, 00-0492 at 8-9, 774 So.2d at 76. To the extent that the court’s decision in Green to affirm the court of appeal’s de'novo assessment of general damages unconstrained by Coco rather than remand for a new damage determination consistent with Coco’s limitations might suggest that Coco does not apply once an abuse of discre
. I agree with the majority’s conclusion only insofar as it finds that once the court of appeal found legal error in the jury’s conclusion that defendant’s actions did not cause Mr. Thibodeaux or daughter Gabrielle to suffer a loss of consortium, the assessment of damages was not constrained by Coco. I do not necessarily agree with the majority that the jury erred in finding that no loss of consortium was proved in the first instance. However, the court of appeal so found, and defendant did not apply to this court for a writ. As a result, this court cannot alter the court of appeal’s liability determination to favor defendant.
. See Granger v. Christus Health Central Louisiana, 12-1892, p. 47 (La. 6/28/13), 144 So.3d 736, 770 ("When a writ of certiorari or review is granted at the instance of one of the parties to a suit, to consider a complaint of a judgment of the court of appeal, an opposing party to the suit, who has not applied for writ of review, cannot have the judgment amended for his benefit.”)
. Interestingly, at a hearing on the cross-motions for JNOV filed by the parties, the trial judge acknowledged having had a discussion with one juror.who had indicated the jury wanted to exonerate defendant, but still award plaintiff’s medical expenses. However, as the trial judge explained, there was no formal record made on this point and there is no indication how many jurors felt that way,
. See Granger, 12-1892 at 47, 144 So.3d at 770.
Concurring Opinion
concurs in the result and assigns reasons.
hi concur in the result of the majority decision. However, I write separately to express my concern that the - majority opinion creates a standard that could lend itself to inconsistent interpretations. Although the majority demurred from overturning Coco v. Winston Industries Inc., 341 So.2d 332 (La. 1976), I question the vitality of the principles set forth therein, which appear to be judicially created, and not firmly based upon statutory law or established precedent.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.