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CHARLES RATLIFF, JR. VERSUS LSU BOARD OF SUPERVISORS, DR. MICHAEL C. TOWNSEND AND DR. ROBERT M. MORRISON, III

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NO. 2009-CA-0012

COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA ******* CONSOLIDATED WITH: SUCCESSION OF CHARLES RATLIFF, JR. CONSOLIDATED WITH: NO. 2009-CA-0013

CONSOLIDATED WITH: KATRINA M. THOMPSON AND CHARLES D. BANKS VERSUS SUCCESSION OF CHARLES RATLIFF, JR.

CONSOLIDATED WITH: NO. 2009-CA-0014

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NOS. 2006-1583 C/W 2007-13988 C/W 2008-6710, DIVISION "I-14" HONORABLE PIPER D. GRIFFIN, JUDGE ****** JUDGE MICHAEL E. KIRBY ****** (COURT COMPOSED OF CHIEF JUDGE JOAN BERNARD ARMSTRONG, JUDGE PATRICIA RIVET MURRAY, JUDGE MICHAEL E. KIRBY)

May 7, 2010

ARTHUR W. LANDRY JEANNE ANDRY LANDRY ARTHUR W. LANDRY AND JEANNE ANDRY LANDRY, LLC 710 CARONDELET STREET NEW ORLEANS, LA 70130 COUNSEL FOR KATRINA M. THOMPSON, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATRIX OF THE ESTATE OF CHARLES RATLIFF, JR., AND CHARLES D. BANKS, INDIVIDUALLY

JAMES D. CALDWELL, ATTORNEY GENERAL J. MARC VEZINA EMILY H. FOURNIER KELLI M. KHALAF SPECIAL ASSISTANT ATTORNEYS GENERAL VEZINA AND GATTUSO, L.L.C. 401 WEYER STREET, P. O. BOX 461 GRETNA, LA 70054 COUNSEL FOR LSU BOARD OF SUPERVISORS AND DR. MICHAEL TOWNSEND

MICHAEL F. NOLAN CONNICK AND CONNICK, L.L.C. 2551 METAIRIE ROAD METAIRIE, LA 70001 COUNSEL FOR DR. ROBERT M. MORRISON III

AFFIRMED IN PART, AMENDED IN PART AND REVERSED IN PART

The defendants, the State of Louisiana through the Louisiana State University Health Sciences Center (LSUHSC), Michael C. Townsend, M.D., and Robert M. Morrison, III, M.D.1, appeal a district court judgment in favor of the plaintiffs, the Estate of Charles Ratliff, Jr., Katrina M. Thompson, and Charles D. Banks. In conjunction with this appeal, the defendants again raise peremptory exceptions of prescription and no right of action, which the trial court previously overruled. For the reasons that follow, we amend, in part, and reverse, in part, the trial court's judgment and deny the defendants' peremptory exceptions.

FACTS AND PROCEEDINGS BELOW On April 27, 2003, Charles Ratliff, Jr., was admitted to the Medical Center of Louisiana at New Orleans (Charity Hospital) with complaints of nausea, vomiting, abdominal pain and rectal bleeding. He was diagnosed with acute

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Dr. Townsend was surgeon and teaching physician on staff at Tulane University Medial Center (TUMC). Dr. Morrison was a fifth year surgical resident at TUMC. LSUHSC owned and operated the Medical Center of Louisiana at New Orleans (Charity Hospital), a public health care facility that served as a teaching/training hospital for both LSUHSC and TUMC.

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cholecystitis2 and cholangitis3.

Mr. Ratliff underwent a laparoscopic

cholecystectomy4 performed by Dr. Morrison under the supervision of Dr. Townsend. During the procedure, while Dr. Townsend was absent from the

operating room, Dr. Morrison observed a large, inflamed mass that appeared to be emanating from the liver. Due to scar tissue and thickened peritoneum, Dr.

Morrison decided to convert the procedure to an open cholecystectomy, which Dr. Townsend approved. During the open procedure, Dr. Morrison severed what he believed to be a cystic duct and dissected the inflamed mass. Dr. Townsend, who was summoned back to the operating room, discovered that Dr. Morrison had severed a ureter5 and removed the right kidney, not the gall bladder. Dr.

Townsend and a staff urologist confirmed that the right kidney could not be saved. The surgeons then removed Mr. Ratliff's gall bladder. Pursuant to LSA-R.S. 40:1299.39.1 A(1)(b), Mr. Ratliff timely filed a request for a state medical review panel, alleging medical malpractice claims against Dr. Morrison, Dr. Townsend, and the LSUHSC. After convening to

review the evidence, the medical review panel rendered an opinion, finding that Dr. Morrison and Dr. Townsend had breached the applicable standard by mistaking the kidney for the gallbladder, causing the unnecessary loss of Mr. Ratliff's right

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Cholecystitis is inflammation of the gallbladder, a complication of gallstones which are formed by cholesterol and pigment (bilirubin) in bile. 3 Cholangitis is a chronic disorder of the liver in which the ducts carrying bile from the liver to the intestine, and often the ducts carrying bile within the liver, become inflamed, thickened, scarred (sclerotic), and obstructed. 4 Cholecystectomy is the surgical removal of the gallbladder. The procedure may be done by laparoscopy or by open surgery. 5 Ureter is either of the long, narrow tubes carrying urine down from the pelvis of each kidney to the urinary bladder.

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kidney. Shortly thereafter, Mr. Ratliff filed a petition for damages in the district court asserting claims of medical malpractice against the defendants. Mr. Ratliff died on May 15, 2007, at the age of 51. The autopsy report listed the manner of death as "Natural" and the cause of death as "Hypertensive atherosclerotic cardiovascular disease," or coronary artery disease.6 The report indicated he had a 70-80% blockage of the left anterior descending coronary artery and an enlarged heart. On October 19, 2007, Ms. Thompson filed a Petition for Independent Administration of the Estate of Charles Ratliff, Jr., in the district court, alleging that she and Mr. Banks were the surviving children and sole legal heirs of the decedent.7 That same day, the trial court appointed Ms. Thompson as the

administratrix of the succession. On November 20, 2007, Ms. Thompson, individually and as administratrix of the succession, and Mr. Banks filed a supplemental and amended petition in the medical malpractice suit asserting survival actions under La. Civ. Code art. 2315.1 and wrongful death claims under La. Civ. Code art. 2315.2. The defendants filed peremptory exceptions of no right of action and prescription or, alternatively, a dilatory exception of lack of procedural capacity, arguing that the plaintiffs were not the legal heirs of the decedent because their respective birth certificates did not name him as their father and they had not filiated with him prior to their 19 th

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Atherosclerosis is a process of progressive thickening and hardening of the walls of medium- sized and large arteries as a result of fat deposits on their inner lining. Risk factors for atherosclerosis include high levels of "bad" cholesterol, hypertension (high blood pressure), smoking, diabetes and a genetic family history atherosclerotic disease. 7 Succession of Charles Ratliff, Jr., Civil District Court No: 07-13988, Div. I, Section 14.

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birthdays8 as required under former La. Civ. Code art. 2099. The trial court overruled the exceptions and allowed the plaintiffs to file their petition for filiation on June 25, 2008. The filiation, wrongful death and survival actions were consolidated and tried to a jury over a three-day period. The jury found that Dr. Morrison and Dr. Townsend had breached the applicable standard of care and that their breach had caused and contributed to Mr. Ratliff's injuries and/or death. The jury also found that Ms. Thompson and Mr. Banks proved by clear and convincing evidence that they were the children of Mr. Ratliff. The jury allocated fault seventy percent (70%) to Dr. Morrison; twenty percent (20%) to Dr. Townsend; and five percent

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Ms. Thompson was born on November 28, 1972, and Mr. Banks was born on February 9, 1973. La. Civ. Code art. 209, repealed by Acts 2005, No. 192, effective June 29, 2005, had provided: A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article. B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgement under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article. C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever first occurs. This time limitation shall run against all persons including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages. D. The right to bring this proceeding is heritable.

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(5%) to Mr. Ratliff. As to damages, the jury found the following amounts would fairly compensate the plaintiffs: The Estate of Charles Ratliff, Jr. Physical pain and suffering..................................$125,000.00 Mental pain and suffering...................................$125,000.00 Disability......................................................$125,000.00 Loss of Enjoyment of Life...................................$125,000.00 Total....................................................$500,000.00 Katrina M. Thompson, Individually For the wrongful death of her father Charles Ratliff, Jr....$40,000.00 Charles D. Banks, Individually For the wrongful death of his father Charles Ratliff, Jr....$20,000.00. On August 5, 2008, the trial court rendered a written judgment against LSUHSC in accord with the jury's verdict. The defendants appealed the trial court judgment.

ISSUES On appeal, the defendants raise six assignments of error: 1. The trial court erred by denying the exceptions of prescription and allowing the plaintiffs to file their petition to filiate; 2. The trial court erred in granting the plaintiffs' motion in limine, precluding the defendants from introducing evidence of Mr. Ratliff's dishonorable discharge from the military; 3. The jury erred by allocating only five (5%) of fault to Mr. Ratliff; 4. The jury award is excessive considering the evidence that Mr. Ratliff failed to mitigate his damages;

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5. The jury erred in awarding duplicative damages; and 6. The jury erred in finding that the defendants' negligence caused Mr. Ratliff's death. Our consideration of the peremptory exceptions and the issues follows.

STANDARD OF REVIEW 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. Foley v. Entergy La. Inc., 2006-0983, p. 10 (La. 11/29/06); 946 So. 2d 144, 153. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at p. 10, 946 So. 2d at 153. 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. Id. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the appellate court may well find manifest error. Id.

DISCUSSION Peremptory exceptions of no right of action and prescription and Assignment of Error No. 1

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The defendants argue that the plaintiffs' right of action to filiate was perempted under La. Civ. Code. art. 19710 or, alternatively, their claims as legal heirs were prescribed because they had not filiated with Mr. Ratliff prior to their 19th birthdays as required under former La. Civ. Code art. 209 C. In support of their argument, the defendants cite Succession of James, 20072509, p. 1 (La. App. 1 Cir. 8/21/08), 994 So. 2d 120. In that case, the decedent's alleged daughter petitioned to intervene into his succession proceeding and establish filiation with the decedent years after her 19th birthday but following the enactment of La. Civ. Code art. 197. Id., p. 2, 994 So. 2d at 121-122. The

administrator of the estate excepted on the grounds that the right to filiate was perempted under former La. Civ. Code art. 209 C and that the new act (La. Civ. Code art. 197) could not revive a prescribed cause of action or create a new one. Id. The trial court maintained the exception. Affirming the trial court, the First Circuit Court of Appeal held that the alleged daughter's petition to intervene into the succession proceeding was barred since she had failed to establish paternity prior to her 19th birthday and that despite the fact that the alleged father had died after the enactment of La. Civ. Code art. 197, the article did not apply retroactively to revive her right, claim or cause of action to filiate. Id., p. 9, 994 So. 2d at 125126.

Acts 2005, No. 192,

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