The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
21-392
DERRICK P. WILLIAMS
VERSUS
LAFAYETTE CITY-PARISH CONSOLIDATED
GOVERNMENT, ET AL.
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20183932
HONORABLE ROYALE L COLBERT, JR., DISTRICT JUDGE
**********
ELIZABETH A. PICKETT
JUDGE
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Court composed of Elizabeth A. Pickett, Jonathan W. Perry, and Sharon Darville
Wilson, Judges.
AFFIRMED AS AMENDED.
Bryan D. Scofield
James T. Rivera
Jessica W. Marchand
Scofield & Rivera, LLC
100 E. Vermilion, Suite 301
Lafayette, LA 70501
(337) 235-5353
COUNSEL FOR DEFENDANTS-APPELLANTS:
Jacob Belaire
Lafayette City Parish Consolidated Government
James P. Ryan
Morrow, Morrow, Ryan, Bassett & Haik
P. O. Drawer 1787
Opelousas, LA 70571-1787
(337) 948-4483
COUNSEL FOR PLAINTIFF-APPELLEE:
Derrick P. Williams
PICKETT, Judge.
The defendants, Lafayette City-Parish Consolidated Government and Jacob
Belaire (collectively referred to throughout as “Lafayette”), appeal the judgment of
the trial court which awarded damages to the plaintiff, Derrick Williams, for
damages sustained in a motor vehicle accident following a bench trial.
FACTS
On June 22, 2017, Jacob Belaire, an employee of Lafayette, was driving a
backhoe while in the course and scope of his employment on a public highway.
Mr. Williams was following the backhoe. Mr. Belaire executed a U-turn, and Mr.
Williams’s vehicle struck the tire of the tractor. Mr. Belaire admitted he did not
see Mr. Williams’s vehicle when he made the U-turn.
Mr. Williams filed suit against Lafayette and Mr. Belaire. Lafayette
stipulated full liability for the accident. The matter proceeded to a trial before the
trial court on the issue of damages. Following the trial, the trial court awarded the
following damages to Mr. Williams: $300,000 in general damages, $302,000.92
for past medical expenses, and $83,462.14 for future medical expenses. Lafayette
appeals that judgment.
ASSIGNMENTS OF ERROR
The appellants assert four assignments of error:
1. The District Court erred in awarding $302,000.92 in past
medical expenses because the parties stipulated that the past
medical charges totaled $301,188.33.
2. The District Court erred in awarding Plaintiff the amount
charged for medical expenses, instead of the amounts actually
paid for medical expenses.
3. The District Court erred in concluding that Plaintiff will need a
future low back surgery on a more probable than not basis.
Therefore, the District Court erred in awarding future medical
expenses and the general damage award should be reduced
accordingly.
4. The District Court erred in concluding that the need for surgery
was caused by the accident in question, instead of the natural
progression of preexisting degenerative conditions. Therefore,
the District Court’s award for past medical expenses and
general damages should be reduced accordingly.
DISCUSSION
By their first assignment of error, Lafayette contends the trial court erred in
awarding $302,000.92 in past medical expenses. In brief, Mr. Williams concedes
that the parties stipulated that the full costs of Mr. Williams’s past medical
expenses totaled $301,188.33. We will therefore amend the award of past medical
expenses to the stipulated amount.
In its second assignment of error, Lafayette contends that Mr. Williams
should only recover what his insurance company paid for past medical expenses,
rather than the amount he was billed for the treatment he received. In addition to
the stipulation that Mr. Williams’s medical bills totaled $301,188.33, the parties
stipulated that the amount paid by Mr. Williams or his health insurance company is
$82,299.67. Lafayette argues that the collateral source rule should not apply and
Mr. Williams should only be allowed to recover amounts actually paid by private
insurance, not the amounts that were discounted because of the agreements
between the health insurer and health care providers.
In Bozeman v. State, 03-1016, p. 9 (La. 7/2/04), 879 So.2d 692, 698, the
supreme court defined the collateral source rule:
Under the collateral source rule, a tortfeasor may not benefit,
and an injured plaintiff's tort recovery may not be reduced, because of
monies received by the plaintiff from sources independent of the
tortfeasor’s procuration or contribution. [Louisiana Dep’t of Transp.
and Dev. v.] Kansas City Southern. Ry., [02–2349 (La.5/20/03), 846
So.2d 734,] 739. Hence, the payments received from the independent
source are not deducted from the award the aggrieved party would
otherwise receive from the wrongdoer, and a tortfeasor’s liability to
an injured plaintiff should be the same, regardless of whether or not
the plaintiff had the foresight to obtain insurance. Id., at 739–740. As
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a result of the collateral source rule, the tortfeasor is not able to
benefit from the victim’s foresight in purchasing insurance and other
benefits. Suhor v. Lagasse, 2000–1628 (La.App. 4 Cir. 9/13/00), 770
So.2d 422, 423.
The supreme court adopted the “benefit of the bargain” approach in Bozeman,
explaining that it embraced the reasoning of the California Supreme Court in
Helfend v. S. California Rapid Transit Dist., 2 Cal.3d 1, 84 Cal.Rptr. 173, 465 P.2d
61, 66–67 (1970):
The collateral source rule expresses a policy judgment in favor of
encouraging citizens to purchase and maintain insurance for personal
injuries and for other eventualities. Courts consider insurance a form of
investment, the benefits of which become payable without respect to any
other possible source of funds. If we were to permit tortfeasor to mitigate
damages with payments from plaintiff's insurance, plaintiff would be in a
position inferior to that of having bought no insurance, because his payment
of premiums would have earned no benefit. Defendant should not be able to
avoid payment of full compensation for the injury inflicted merely because
the victim has had the foresight to provide himself with insurance.
Bozeman, 879 So.2d at 704 (emphasis added).
There is no dispute in this case that Mr. Williams paid premiums for
healthcare insurance. Two cases cited by Lafayette to support its argument involve
plaintiffs who received workers’ compensation benefits (Simmons v. Cornerstone
Inv., LLC, 18-735 (La.5/8/19), 282 So.3d 199) and whose attorneys negotiated for
lower charges (Hoffman v. 21st Century N. Am. Ins. Co., 14-2279 (La. 10/2/15),
809 So.3d 702). In each of these cases, the plaintiffs did not diminish their
patrimony to receive the benefit of a lower cost for medical services. Thus, these
cases do not support Lafayette’s assignment or error.
A third case cited by Lafayette, Thomassie v. Amedisys La Acquisitions,
LLC, 20-1229 (La. 1/20/21), 308 So.3d 1165, actually supports the judgment
rendered by the trial court. In Thomassie, the trial court and the court of appeals
held that payments made by TRICARE, a federally-subsidized supplemental
insurance offered to active and retired members of the military, was not a collateral
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source. The supreme court reversed the lower court and found that the amount
paid by TRICARE was subject to the collateral source. In this case, Mr. Williams
premiums were subsidized by the federal government as a result of the Affordable
Care Act.
In Thomassie, the Patients’ Compensation Fund (PCF) also argued that
because it was not the actual tortfeasor, the goal of tort deterrence was not
furthered by the application of the collateral source rule. The supreme court
dismissed that argument:
“The major policy reason for applying the collateral source rule
to damages has been, and continues to be, tort deterrence. The
underlying concept is that tort damages can help to deter unreasonably
dangerous conduct. Tort deterrence has been an inherent, inseparable
aspect of the collateral source rule since its inception over one
hundred years ago.” Bozeman, 879 So. 2d at 700. The collateral
source rule applied to these facts has a deterrent effect. The Patient
Compensation Fund intervened in place of the tortfeasor Amedisys.
The Patient Compensation Fund’s resources derive from annual
charges on healthcare providers, such as Amedisys. These annual
charges are calculated by an actuarial study that considers the
healthcare provider’s past and prospective loss and expense
experience. La. R.S. 40:1231.4(A)(2). The negative financial effects
of adverse claims motivates healthcare providers like Amedisys to
avoid unreasonably dangerous conduct. Applying the collateral source
rule here furthers the policy goal of tort deterrence.
Thomassie, 308 So.3d at 1165.
Here, Lafayette, also argues that it is not the actual tortfeasor – it is only
vicariously liable for the tort of its employee, thus tort deterrence is not furthered
by requiring payment of the full amount of the medical bills. We find an
employer’s relationship to its employee supports the application of the collateral
source rule just as the supreme court found PCF’s relationship to a qualified
healthcare provider does. As the supreme court found in Thomassie, we find that
Mr. Williams diminished his patrimony to obtain insurance benefits, and the
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collateral source rule applies to make inadmissible the amounts paid by Mr.
Williams’ private insurance coverage.
In its third assignment of error, Lafayette argues the trial court erred in
awarding future medical expenses for surgery. Lafayette claims that the evidence
presented by Mr. Williams’s treating physician does not support a finding that Mr.
Williams will need back surgery in the future. This court set forth the standard of
reviewing an award of future medical expenses in Brossett v. Howard, 08-535, pp.
12-14 (La.App. 3 Cir. 12/10/08), 998 So.2d 916, 928, writ denied, 09-0077 (La.
3/6/09), 3 So.3d 492:
Future medical expenses are reviewed by an appeals court
pursuant to the manifest error standard of review. Armentor v.
Safeway Ins. Co., 07–805 (La.App. 3 Cir. 12/19/07), 972 So.2d 444
(citing Cormier v. Colston, 05–507 (La.App. 3 Cir. 12/30/05), 918
So.2d 541). A plaintiff seeking an award for future medical expenses
is required to establish those expenses “with some degree of
certainty.” Armentor, 972 So.2d at 448. The plaintiff is required to
show that it is more probable than not that the expenses will be
incurred. Id. We have held that “[a]wards will not be made in the
absence of medical testimony that they are indicated and setting out
their probable cost.” Id. Moreover, as we stated in Veazey v. State
Farm Mut. Auto Ins. Co., 587 So.2d 5, 8 (La.App. 3 Cir.1991), “an
award for future medical expenses cannot be based on mere
speculation of the jury. Much stronger proof, such as medical
testimony of the specific expenses to arise, should be required for
such an award.”
The trial court heard evidence from Mr. Williams’s treating physician, Dr.
Jayme Trahan, testified that he determined that it is more probable than not that
Mr. Williams will need additional surgery due to adjacent segment disease. He
explained his reasoning as follows:
Mr. Williams is 40 years old. He had a two-level lumbar fusion
surgery. The way that I talk to my patients in layman’s terms is if you
have five lumbar segments, and let’s say you – so let’s say you have
five people lifting a heavy load. If two of those people are removed
from lifting that heavy load, then that means there are only three left
to maintain that same bearing of the load. The one closest to the
people that left will bear the most load. In Mr. Williams’ case, he had
a 4-5, 5-1 fusion. That’s [sic] means L3-4 is sitting next to them, and
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that is going to be the level that will break down on a more probable
than not basis within his lifetime, assuming Mr. Williams lives to be
the average age of a male.
Under examination, Dr. Trahan explained that there were no studies that perfectly
corresponded to Mr. Williams’s situation. Instead, he must extrapolate from the
data that is available in journals. He also testified that in determining if surgery is
necessary, the doctor will look not just to radiographic findings, but also to
symptoms of the patient. He further testified:
[I]f we can declare that a disc breaks down on an average of three to
five percent per year, you can extrapolate on a more probable than not
basis. If Mr. Williams lives 15 to 17 years, he ‘s going to reach that
50th – that 50 percentile to declare probability. And he’s going to
cross the threshold.
Dr. Trahan also testified about his expertise and experience as a surgeon. He
performs one to two lumbar fusions per week, and one to two of those surgeries are
because of adjacent segment pathology. Dr. Trahan clearly set forth the reasons he
reached the conclusion that Mr. Williams would need future surgery. Despite
assertions in Lafayette’s brief, Dr. Trahan did offer support for his medical
opinion.
Lafayette claims that Dr. Trahan’s findings are not based on peer-reviewed
studies. It instead argues that its expert, Dr. Chambliss Harrod, has written
multiple peer-reviewed articles about adjacent segment pathology. Thus, his
testimony should be given more weight than Dr. Trahan. Dr. Harrod testified that
it is not more probable than not that Mr. Williams will need future surgery. Dr.
Harrod cited the same statistics as Dr. Trahan, but only looked ten years into the
future to determine that it was unlikely that Mr. Williams would need surgery. He
also explained that a finding of adjacent segment pathology does not necessarily
indicate that surgery would be necessary.
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A reviewing court will not disturb a factual finding of the trial court in the
absence of manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). “[T]he issue
to be resolved by a reviewing court is not whether the trier of fact was right or
wrong, but whether the factfinder's conclusion was a reasonable one.” Stobart v.
State through Dep’t of Transp. & Dev., 617 So. 2d 880, 882 (La.1993). Having
reviewed the record in its entirety, we find the trial court had a reasonable basis for
its conclusion that Mr. Williams more probably than not needed future surgery.
We find no merit to this assignment of error.
Likewise, we find that the evidence presented to the trial court supports its
finding that the lumbar surgery performed on Mr. Williams was causally related to
the accident. There is testimony in the record from both Dr. Trahan and Dr.
Harrod that the impact from the accident aggravated Mr. Williams’s degenerative
condition in his back. This forms a reasonable basis for the trial court’s finding.
CONCLUSION
The award for past medical expenses is amended to $301,188.33. In all other
respects, the judgment of the trial court is affirmed. Costs of this appeal are
assessed to Lafayette City-Parish Consolidated Government and Jacob Belaire in
the amount of $13,697.32.
AFFIRMED AS AMENDED.
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