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Thibodeaux v. Donnell

Supreme Court of Louisiana

January 20, 2017



          CRICHTON, J. [1]

         We 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.


         In 2003, plaintiff Kimberly Thibodeaux (then 37 years old), married to Todd Thibodeaux, 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 mid-November, at approximately 29 weeks pregnant, she was hospitalized for four days at Terrebonne 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 emergency cesarean hysterectomy, which entailed removal of plaintiff's uterus and cervix. After completing the hysterectomy, and while preparing to close the Mrs. Thibodeaux's abdomen, Dr. Donnell discovered a large laceration to her bladder.[2] At that point, Dr. Donnell considered a urologic consultation due to the size of the laceration, but he ultimately repaired it himself. Dr. Donnell testified that he made this decision because Mrs. Thibodeaux had "lost a lot of blood" and he wanted to close her abdominal wall to avoid additional blood loss.

         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. Thibodeaux'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 urologic 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. Thibodeaux 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. Thibodeaux'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. 9/12/08), 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 Duboe, testified that Dr. Donnell's failed bladder repair contributed to Mrs. Thibodeaux's reduced bladder capacity and, consequently, her urinary frequency and urgency. Dr. Duboe admitted, however, that the interstitial cystitis symptoms were "not as clear."

         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

         The 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 Thibodeaux'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. Thibodeaux and $5, 000 for Gabrielle, the "lowest amount reasonably within the jury's discretion." Id., 15-0503 p. 14, 189 So.3d at 480.

         Plaintiffs filed a writ of certiorari in this Court, which was granted. 16-0570 (La. 6/3/16), 192 So.3d 756.


         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:

[B]efore 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 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.

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.[3]The first rationale is that the "trier of fact has more direct contact with the parties, the witnesses, and the evidence and thus can better evaluate the true extent of plaintiff's injury, whereas the court of appeal bases its decision solely on the written record, briefs, and oral argument." Clement v. Frey, 95-C-1119, 95-C-1163, p.5-6 (La. 1/16/96), 666 So.2d 607, 610. This fundamental principle has roots in our Civil Code. See La. C.C. art. 2324.1 ("In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury."). As this Court has stated, "[s]ince an award of damages for personal injuries is of necessity somewhat arbitrary and also must vary greatly with the facts and circumstances of each case, the trial court is entrusted with large discretion making such awards, which discretion should not be disturbed on appellate review." Id. (quoting Gaspard v. LeMaire, 158 So.2d 149, 160 (La. 1963)). Two other, related, considerations influence the Coco Rule. First, "the trial court is in the best position to weigh the claimant's testimony." Id. And second, "repeated substitution by an appellate court of its own opinion as to quantum for that of the trial court, when combined with other appellate practices inherent in the Louisiana system of appellate review of law and fact, may have a demoralizing effect upon a trial judge in his assessment of his role in the judicial process." Id. (citing Frank L. Maraist, Procedure, 38 La. L. Rev. 503, 511 (1978)).

         As we made clear several years after Coco, in Mart v. Hill, 505 So.2d 1120 (La. 1987), the Coco Rule does not apply to every appellate review of a damages award. Mart, which involved an automobile accident, was tried before a commissioner, who found the plaintiff was 50% at fault. The commissioner awarded no damages for the consequences of the accident beyond a certain date, finding that the plaintiff did not prove that his surgeries and disabilities beyond that date were causally related to the accident. The commissioner recommended a total damage award of $18, 760.00, which was subject to the 50% reduction. Id. at 1121-22. The court of appeal affirmed, but this Court reversed, finding that the lower courts were "clearly wrong" and that the plaintiff's disability was "causally related" to the accident. Id. at 1127-28. We expressly found the Coco analysis inapplicable and instead applied what was termed a "res nova"[4]-or de novo- determination of damages:

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 ed.) (Nov. 2015) ("The 'much discretion' rule does not apply if there was error in the trial court which ...

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