Petition for Writ of Certiorari — Hemingway v. Ochsner Clinic

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NO “2 . ALEXANDER L. STEVAS

In the

Supreme Court of the United States

OCTOBER TERM, 1983

GRETCHEN HEMINGWAY

Administratrix of the Estate of

Glen R. Hemingway, Deceased,

PETITIONER

versus

OCHSNER CLINIC and/or

OCHSNER FOUNDATION HOSPITAL,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

DARRYL J. TSCHIRN

3850 N. Causeway Boulevard

Suite 1290

Metairie, LA 70002

(504) 837-0706

Attorney for

Glen R. Hemingway

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

QUESTIONS PRESENTED FOR REVIEW

Was plaintiff, Glen R. Hemingway, denied his constitu-

tional right to trial by jury due to the trial judge’s granting

a “remittitur” and alternatively a new trial on damages on-

ly; and limiting the time frame for said damages to thirty-

six (36) specific days instead of the entire period of time dur-

ing which plaintiff was injured and suffered damages which

were presented to the jury.

II.

Was it truly a “remittitur” that was being ordered by

the Court or was it actually a “judgment notwithstanding

the verdict’”’ (N.O.V.) when the trial judge remitted the

$365,000 jury verdict to $15,000, limiting damages to a

“specific thirty-six (36) day period”, instead of the entire

period of injuries and damages that were presented to the

jury; and alternatively, offering the plaintiff a “new trial’’ on

the issue of damages only, and limiting the “new trial” to

thirty-six (36) specific days as determined by the trial judge.

lil.

Whether the Fifth Circuit Court of Appeals, in their

opinion in the case of ‘““Glen R. Hemingway v. Ochsner Clinic

and/or Ochsner Foundation Hospital, et al’ dated January

16, 1984 at 722 F.2d 1220, is in direct conflict with the opi-

nion of the same Fifth Circuit Court of Appeals in their opi-

nion in the same case (tried five years earlier), “Glen R. Hem-

ingway v. Ochsner Clinic and/or Ochsner Foundation

Hospital, et al” dated December 27, 1979 at 608 F.2d 1040.

IV.

Whether there was sufficient evidence of damages,

considering all of the evidence (rather than 36 specific days)

to justify a verdict of $365,000 that the jury returned in

favor of the plaintiff.

Was it error on the part of the trial judge to

substitute his own fact finding determination that

damages should be limited to 36 specific days around the

July, 1973 episode, in place of the jury’s obvious deter-

mination that the plaintiff's damages started in May, 1973,

which would include the surgical procedure known as a

sympathectomy and the results, both physical and mental,

therefrom.

iii

TABLE OF CONTENTS

PAGE

Questions Presented for Review..................... i

Se a re ee ee ae

ee es Cena wake akinne Vv

Nee ee ks Kil wieiece 2

EE ee ee 2

Constitutional Provisions Involved.................. 3

EE 3

eC Le a adh cde eek sca bice ces 7

a 20

EE Pe eS 22

APPENDIX A—Judgment of the U.S. District

Court of March 8, 1977, Judge Edward J.

Boyle, Sr., entered on March 9, 1977........... A-l

APPENDIX B—Opinion of the U.S. Court of

Appeals for the Fifth Circuit of December

27, 1979, Rehearing Denied January 30, 1980,

Ng tk et ans A-3

APPENDIX C—Jury Instructions on Damages,

Third Trial of December, 1981 ............... A-25

APPENDIX D—Minute Entry of U.S. District

Court of December 8, 1981, Judge Edward J.

Boyle, Sr., entered on December 9, 1981

Denying Defendants’ Motion for Directed

Verdict, Third Trial of December, 1981........ A-28

APPENDIX E—Corrected Judgment of the U.S.

District Court of December 16, 1981,

Judge Edward J. Boyle, Sr.................. A-29

APPENDIX F—Memorandum Opinion and Order

of the U.S. District Court of April 5, 1982,

(Remittitur), Judge Edward J. Boyle, Sr....... A-31

APPENDIX G—Minute Entry of U.S. District

Court of May 13, 1982, Judge Edward J.

Boyle, Sr., entered on May 14, 1982, Denying

Plaintiff's Request for Certification........... A-45

APPENDIX H—Minute Entry of U.S. District

Court of December 8, 1982, Judge A. J.

McNamara, entered on December 13, 1982,

on New Trial on Transcript Limited to Damages

from July 9, 1973 to mid-August, 1973......... A-47

APPENDIX I—Judgment of U.S. District Court

of December 20, 1982, Judge A. J. McNamara,

oe OR ee ee A-49

APPENDIX J—Opinion of U.S. Court of Appeals

for the Fifth Circuit of January 16, 1984,

on Third Trial of December, 1981, Second

Re Te EE CE + Lie Ves LER KA AR RRA A-51

APPENDIX K—Order of U.S. Court of Appeals

for the Fifth Circuit of February 17, 1984,

Denying Petition for Rehearing and Suggestion

ge PS rer rrr Pee A-65

TABLE OF AUTHORITIES

CASES: PAGE

Boeing Company v. Shipman,

411 F.2d 365, 375 (5th Cir. 1969)............... 13

Bonura v. Sealand Service, Inc.,

505 F.2d 665, 670 (5th Cir. 1974) (En Banc)...... 12

City Service Oil Company v. Launey,

403 F.2d 537, 540 (5th Cir. 1968)............... 11

Great American Indemnity Company v. Holioway,

286 F.2d 106 (5th Cir. 1960)................... 17

Hemingway v. Ochsner Clinic,

608 F.2d 1040 (Sth Cir. 1979).................. 14

Temingway v. Ochsner Clinic, et al.,

ED yanks awa oom 48 Tier Tt eee 14

Little v. Green,

429 F.2d 1061 (5th Cir. 1970), cert. denied,

400 U.S. 964, 91 S.Ct. 366 (1971)............... 19

L’Urdaine Et La Seine v. Rodriguez,

ee ae & Wee Ge. BO. www cece 19

Miami Coal Company v. Luce,

76 Ind. App. 245, 131 N.E. 824............. -~ |

Narcisse v. Illinois Central Gulf Railway Company,

620 F.2d 544 (Sth Cir. 1980)................... 11

Rogers v. Missouri Pacific Railway Company,

352 U.S. 500 (77 S.Ct. 433, 1 L.Ed.2d 493)....... 18

Sentilles v. Inter-Caribbean Corporation,

1959, 361 U.S. 107, 109-110, 80 S.Ct. 173,

(HS Sg RB SD 18

Spurlin v. General Motors Corporation,

528 F.2d 612, 620 (5th Cir. 1976)............... 11

Sullivan v. Boston Elevated Railway Company,

ee ewe c de ee ees 17

Tennant v. Peoria and Pekin Union Railway Company,

321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed.

vate Beeline si ia Ai oF era aa 13, 18

United States v. Bucon Construction Company,

430 F.2d 420, 423 (5th Cir. 1970)................ 7

UNITED STATES CONSTITUTION:

EES RE ee 3

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

GLEN R. HEMINGWAY

(GRETCHEN HEMINGWAY Substituted as

Plaintiff-Appellant for GLEN R. HEMINGWAY,

Deceased),

PETITIONER

versus

OCHSNER CLINIC and/or

OCHSNER FOUNDATION HOSPITAL,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MAY IT PLEASE THE COURT:

Glen R. Hemingway, (Gre. chen Hemingway, substi-

tuted as plaintiff-appellant for Glen R. Hemingway,

deceased), plaintiff in the United States District Court: for

the Eastern District of Louisiana and appellant and cross-

appellee in the United States Court of Appeals for the Fifth

Circuit, prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

Fifth Circuit rendered on January 16, 1984, the Court hav-

ing denied petitions for rehearing on February 17, 1984.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit captioned, “Glen R. Hemingway,

plaintiff-appellant versus Ochsner Clinic and/or Ochsner

Foundation Hospital, et al, defendants-appellees’’ bearing

No. 77-2178 dated December 27, 1979, rehearing denied

January 30, 1980. (Appendix, p. A-3, Document B)

The opinion of the United States District Court for

the Eastern District of Louisiana, Memorandum Opinion

and Order under caption, “Glen R. Hemingway versus

Ochsner Clinic and/or Ochsner Foundation Hospital, et al’’

bearing Civil Action No. 74-1657-EJB. That opinion

memorandum is dated April 5, 1982 and appears at Appen-

dix, p. A-31, Document F.

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported under the caption, ‘Glen

R. Hemingway (Gretchen Hemingway, substituted as

plaintiff-appellant for Glen R. Hemingway, deceased),

plaintiff-appellant, cross-appellee versus Ochsner Clinic

and/or Ochsner Foundation Hospital, defendant-appellee,

cross-appellant”’ bearing No. 83-3051. That opinion is

dated January 16, 1984 and appears at Appendix, p. A-51,

Document J.

Petitions for rehearing and suggestion for rehearing

en banc were denied on February 17, 1984 and appears at

Appendix K, p. A-65, Document K.

JURISDiCTION

The judgment of the District Court in the first trial

was rendered on March 8, 1977.

The judgment of the Court of Appeals for the Fifth

Circuit, in the first trial, was rendered on December 27, 1979;

rehearing denied January 30, 1980.

The judgment of the District Court in the second com-

plete trial was rendered on December 16, 1981.

After the remittitur was denied, the judgment on the

new trial was rendered on December 20, 1982.

The judgment of the Court of Appeals for the Fifth

Circuit, having been appealed from the second complete trial,

refusal of the remittitur and appealing from the new trial

thereon was rendered on January 16, 1984 and denial of

rehearing was rendered on February 17, 1984.

Jurisdiction of this Court is invoked under Title 28,

U.S.C. 1332, based upon diversity of citizenship and jurisdic-

tional amount.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment VII—Civil Trials

In Suits at common law, where the value in con-

troversy shall exceed twenty dollars, the right of

trial by jury shall be preserved, and no fact tried

by a jury, shall be otherwise reexamined in any

Court of the United States, than according to the

rules of the common law.

STATEMENT OF THE CASE

This case has been in constant litigation for approx-

imately ten (10) years now. The plaintiff, Glen R. Hemingway,

first filed his suit against Drs. Murison and Ochsner and

their staffs, Ochsner Clinic and Ochsner Foundation

Hospital and their respective insurance firms on June 14,

1974.

The case was first set for trial, and proceeded to trial

on February 28, 1977 whereupon on March 1, 1977 at the

conclusion of the plaintiff’s evidence, the Court directed a

verdict in favor of all defendants, thereby dismissing the

case.

The plaintiff appealed the case to the United States

Court of Appeals for the Fifth Circuit and on December 27,

1979, the Court of Appeals for the Fifth Circuit reversed

the District Court and ordered that the case be remanded

to be retried.

In September, 1981, trial once again reconvened, and

during the testimony of the very last plaintiff's witness,

the Court made some remarks to the witness in front of the

jury that we felt were prejudicial. The jury was excused,

counsel for plaintiff asked the Court for some corrective in-

struction to the jury to remedy the problem. The Court

refused to give any such instruction, which left the plaintiff

with no alternative but to move for a mistrial, which we

did. The Court immediately granted the motion for mistrial

and the trial was aborted.

This case was reset for trial in early December, 1981

and this time was tried to its conclusion. The jury returned

with a verdict in favor of the plaintiff in the amount of

$365,000.00.

The Court denied defendants’ motion for directed

verdict and entered judgment on the jury verdict against

Ochsner Clinic and Ochsner Foundation Hospital in the

sum of $365,000.00.

The Court then entertained post-trial motions filed

by defendants asking for (1) judgment notwithstanding the

verdict and alternatively, (2) for a new trial. On April 5,

1982, the Court denied defendants’ motion for a judgment

notwithstanding the verdict and also denied defendants’

motion for a new trial on the issue of liability. The Court

stated that, ‘““The verdict of the jury on the issue of

damages only in favor of the plaintiff and the judgment

entered thereon on December 10, 1981 be set aside and a

new trial allowed on the issue of damages only unless

within twenty days of the date of entry of this order the

plaintiff files in the the record of these proceedings a remit-

titur of that amount of the aforesaid jury award and judg-

ment in excess of $15,00.00.’’ The Court, at that time,

issued a Memorandum Opinion and Order stating the basis

of the Court’s rulings. This appears in Appendix, p. A-31,

Document F. In this memorandum of reasons, the Court

stated that in the new trial, the plaintiff would be allowed

to present evidence of damages only from July 9, 1973 until

mid-August, 1973.

The plaintiff asked that the question be certified to

the Court of Appeals for the Fifth Circuit, which request

was denied by the Court. This appears at Appendix, p.

A-45, Document G.

During this time, Judge Boyle, who was previously

the District Court judge, took senior status. Judge

McNamara was appointed to the bench and took over the

case. Judge McNamara held a conference in December,

1982 whereupon all parties were notified that the new trial

would be limited to damages sustained by the plaintiff

between July 9, 1973 and mid-August, 1973 in accord with

the opinion rendered by Judge Boyle.

Thereupon, all parties agreed that since the matter had

been tried three times previously and since obviously it was

a matter that would be appealed, that we simply submit the

matter to the Court based upon the prior transcripts and the

Court would issue a judgment in direct accord with the opi-

nion previously written by Judge Boyle and then we could

all take the matter to the Court of Appeals. (Appendix, p.

A-47, Document H)

Accordingly, on December 20, 1982, Judge McNamara

issued a judgment in favor of the plaintiff in the amount of

$15,000.00, stating in that judgment that, “The damages

herein awardec are limited to the damages sustained by the

plaintiff between July 9, 1973 and mid-August, 1973 as per

the findings of Judge Edward J. Boyle, Sr. in the order dated

April 5, 1982”. Appendix, p. A-49, Document I.

Plaintiff filed post-trial motions, all of which were

denied. Whereupon plaintiff then appealed both judgments

of the Court of Appeals for the Fifth Circuit. On January

16, 1984, the Court of Appeals affirmed the lower court in

their opinion which is attached hereto in Appendix, p. A-51,

Document J.

It is from this second appeal and the opinion of the

Court of Appeals for the Fifth Circuit which is in direct con-

flict with the Court of Appeals for the Fifth Circuit’s previous

opinion of December 27, 1979 and the fact that the plaintiff

herein was denied his Seventh Amendment Constitutional

right to a trial by jury that we now ask this Honorable Court

for relief.

ARGUMENT

It was error for the District Court to enter the order

of April 5, 1982, granting a remittitur reducing the jury

verdict and judgment of December 16, ].°$1, in the amount

of $365,000.00 to $15,000.00 and for the Court of Appeals

for the Fifth Circuit to affirm; further it was error for the

District Court to order that the subsequent new trial, after

plaintiff’s refusal to accept the Court’s remittitur, to limit

plaintiff's presentation of damages to some thirty-six days

and for the Court of Appeals for the Fifth Circuit to affirm

it.

Plaintiff submits that he proved substantial

damages to the jury and that their award was not ex-

cessive. In granting the defendants’ motion for a new trial

on the issue of damages alone, the Court referred to the

case of United States v. Bucon Construction Company, 430

F.2d 420, 423 (5th Cir. 1970) for a standard which governs

the granting of a motion for a new trial. There the District

Court stated that ‘‘a motion for a new trial is addressed to

the sound discretion of the Court which may set aside the

verdict if it is contrary to the preponderance of the

evidence, although a judgment N.O.V. is not justified or if,

for other reasons, it will result in a miscarriage of justice’.

(Emphasis supplied)

Plaintiff submits that the District Court, in granting

the defendants’ motion for a new trial on damages, isolated

its consideration to only one period of time when piaintiff

was being treated by the defendants. At page 9 of the

Court’s April 5, 1982 Memorandum Opinion and Order, the

Court stated as follows:

“The jury’s determination of damages, however,

is not supported by a preponderance of the

evidence. The jury’s award of $365,000.00 is

shockingly excessive and was made although any

alleged ill effects from the July 9th administra-

tion of Cafergot had dissipated by mid-August.

Plaintiff has made no claim of ‘Cafergot damage’

resulting from Cafergot administered to him on

any other occasion by doctors at Ochsner Clinic

or Ochsner Foundation Hospital.’’

In making this determination, the Court disregarded other

evidence of damages suffered by the plaintiff during his

course of treatment by the defendants. Plaintiff would

point out to the Court allegation fourteen in his original

complaint (Record 10) wherein plaintiff alleged the

following:

“The defendants, their agents, servants, and

employees, acting together and within the course

and scope of their employment, were careless and

negligent in the following respects, among others:

(A) They failed to use reasonable and due care and

skill in prescribing medication for petitioner's il-

Iness; (B) They failed to use reasonable and due

care and skill in ascertaining the contraindica-

tions of the drug which they prescribed for the

petitioner; (C) They failed to use reasonable and

due care in prescribing treatment for petitioner’s

foot and they failed to tell the petitioner to return

| in sufficient time to receive additional treatment,

so that when he did finally return, surgery was

necessary in order to save his leg; (D) They

negligently and carelessly cut a healthy nerve,

rendering the petitioner sterile for the rest of his

life; (E) They negligently and carelessly failed to

properly diagnose and treat petitioner for the con-

dition which he suffered when he first went to the

emergency room on June 10, 1973; (F) Petitioner

further pleads res ipsa loquitur insofar as the

surgical sympathectomy is concerned; (G) They

failed to read the proper orders on hospital charts

and negligently administered a drug which was

contraindicated to the petitioner, causing him ad-

ditional injury; (H) They failed to exercise care

and skill requisite under the circumstances; (I)

They did not fully disclose to the petitioner, one,

the precise nature of the contemplated procedure;

two, the risk involved in the procedure; three, the

prospects of success or failure of the procedure;

and four, alternate procedures.”’

In addition to these allegations, plaintiff would point

out to the Court the pre-trial order filed prior to the third

trial of this case (Record 576), wherein plaintiff made the

following allegations of negligence and Cafergot damage at

paragraph 6(a) of the pre-trial order, to-wit:

“The plaintiff contends that during the period

between May, 1973 and July, 1973, while under

the care of defendants, Dr. Paul J. Murison, Dr.

John J. Ochsner, Dr. W. H. Mosely, Ochsner

Clinic and/or Ochsner Foundation Hospital, its

agents, employees, residents and administrators,

that these defendants negligently and improperly

and/or deviated from standards of medical prac-

tice, authorized and acknowledged drugs and

medications to the plaintiff in the form of a sup-

pository known as Cafergot, which caused

damage to plaintiff in the following respects, to-

wit: Damage to the vessels and arteries in the

plaintiff's lower extremities, primarily the left

leg. This damage being to the nerve, tissues, and

circulatory system. Additionally, causing

gangrene of the left foot and causing plaintiff to

be scheduled for amputation or part amputation

of the left leg. Further, causing doctors at

Ochsner, including defendants herein, to perform

a sympathectomy to plaintiff, which operation

resulted in plaintiff’s inability to perform sexual-

ly and additionally causing pain and a condition

known as retroejaculation. Additionally, plaintiff

went through, in the past, mental anguish having

been told on two occasions of amputation of his

left leg, and plaintiff continues, as did in the past,

to suffer mental anguish and loss of sexual

capacities.”

Further, in counsel for plaintiff’s opening statement,

he outlined plaintiff's contentions that the surgical pro-

cedure performed on plaintiff known as a sympathectomy

was caused by the failure of doctors at Ochsner to properly

ascertain the medications that the plaintiff was taking at

the time. Plaintiff submits that had the doctors who

treated plainti;f in the emergency room in June of 1973

ascertained that Lhe problems he was having was due to the

Cafergot that had been prescribed to him by other doctors

at Ochsner, the sympathectomy would have been un-

necessary. Plaintiff submits that the damage done to his

body by the sympathectomy is irreversible. The nerves cut

by Dr. Ochsner control circulatory processes in the lower

left leg. Throughout these proceedings, as stated by

counsel for plaintiff in his opening statement (see trial

record volume 6, page 12 through page 15), plaintiff was

contending he was seeking damages because he felt the

sympathectomy performed by Dr. Ochsner was thought to

be necessary because of a condition caused by the prescrip-

tion of a vascular-constricting medication. Obviously, this

goes beyond the scope of the limitation set forth by Judge

Boyle in his Memorandum Opinion and Order. It should be

specifically noted that the plaintiff had been improperly

treated since May of 1973 and that the sympathectomy

was performed on June 17, 1973 which was clearly before

the July 9 - mid-August, 1973 period to which the Court

22 WALI TA ee

limited its remitted award. It is clear that plaintiff put on

sufficient evidence to justify a verdict of $365,000.00, con-

sidering the events which took place when he came into

Ochsner in June of 1973.

Plaintiff suggests that the standard used by the

District Court in granting the new trial on the issue of

damages alone was the proper standard. In its Opinion at

page 8, the District Court stated, ‘‘A motion for a new trial

is addressed to the sound discretion of the Court which

may set aside the verdict if it is contrary to the

preponderance of the evidence...”’ Plaintiff submits the pro-

per standard is set forth in Spurlin v. General Motors Cor-

poration, 528 F.2d 612, 620 (5th Cir. 1976). There the Court

stated:

“The standard adopted by this Court is that the

District Court should not grant a new trial mo-

tion unless the jury verdict is ‘at least...against

the great weight of evidence’. City Service Oil

Company v. Launey, [403 F.2d 537, 540 (5th Cir.

1968)] (Emphasis in the original.) A rule which

would permit a court to grant a new trial when

the verdict was merely against the ‘greater

weight’ of evidence, this Court said, ‘would

destroy the role of the jury as the principal trier

of the facts, and would enable the trial judge to

disregard the jury’s verdict at will.’ ’’ Jd.

Regarding the granting of new trials due to supposed

excessive damage award, plaintiff would refer the Court to

Narcisse v. Illinois Central Gulf Railway Company, 620

F.2d 544 (5th Cir. 1980). There, the district court granted

a new trial because of an alleged excessive damage award.

A second trial resulted in a much lower verdict for the

plaintiff, and he appealed, contending that the district

court abused its discretion in ordering a new trial. The

Court of Appeals held that the first jury’s verdict for the

plaintiff in the sum of $175,000.00 was clearly within the

universe of possible awards which are supported by the

evidence, and, therefore, the district court erred in granting

the defendant’s motion for a new trial. Plaintiff submits

that this case presents a similar situation. However, in this

case, the District Court, in granting the defendants’ motion

for a new trial on the issue of damages alone, went one step

further and ordered that in any new trial plaintiff would be

limited in his presentation of damages to the jury. Clearly,

what the District Court did was grant the defendants’ mo-

tion for a judgment notwithstanding the verdict regarding

the obvious jury award for all of plaintiff's damages which

were related to Cafergot. Plaintiff disagrees that a jury

award of $365,000.00 for thirty-six days of pain and suffer-

ing might be excessive. However, plaintiff submits that the

evidence supports the award because the jury believed that

the sympathectomy was caused by the prescription of

Cafergot and that this surgical invasion of the plaintiff's

body was unnecessary, but for the negligent administra-

tion of the drug to the plaintiff. Accordingly, plaintiff sub-

mits that the damage award in the present case was ‘‘clear-

ly within the universe of possible awards which are sup-

ported by the evidence”. Bonura v. Sealand Service, Inc.,

505 F.2d 665, 670 (5th Cir. 1974) (Emphasis in original

quotes.)

In addition, the Court, in its Memorandum Opinion

and Order, disregarded the testimony regarding the

scheduled amputation of plaintiff's leg. Both the plaintiff

and his wife testified extensively regarding the sequence of

events between June and July, 1973 (see trial transcript

volume 10). Both plaintiff and his wife testified that they

were notified by the defendants that plaintiff's leg was

scheduled to be amputated. Although Dr. Ochsner denied

that any amputation was ever scheduled, plaintiff submits

that this was simply a matter of credibility. The District

Court chose to believe Dr. Ochsner’s version that no am-

putation was ever scheduled. However, plaintiff submits

that the credibility of witnesses is for the jury to deter-

mine, and obviously, the jury believed the plaintiff, his

wife, and his mother. Plaintiff submits the proper rule is

that courts are not free to reweigh the evidence and set

aside the jury verdict merely because the jury could have

drawn different inferences or conclusions or because judges

feel that other results are more reasonable. Tennant v.

Peoria and Pekin Union Railway Company, 321 U.S. 29, 35,

64 S.Ct. 409, 412, 88 L.Ed. 520 (1944). Moreover, it is the

function of the jury as the traditional finder of the facts,

and not the court, to weigh conflicting evidence and in-

ferences, and determine the credibility of witnesses. Boeing

Company v. Shipman, 411 F.2d 365, 375 (5th Cir. 1969) (En

Banc).

Plaintiff submits that in reducing the jury award to

$15,000.00 or alternatively ordering a new trial on damages

alone limited to that period between July 9 and mid-

August, 1973 effectively amounted to a judgment not-

withstanding the verdict. In the first appeal of this case,

the Court of Appeals for the Fifth Circuit already reversed

the District Court for granting a directed verdict at the

first trial. Plaintiff submits that some of the language in

the Court’s Opinion then is very pertinent to the issues

herein, to-wit:

‘““As shown by our recitation of the facts, the

defendant doctors clearly established the com-

munity standard touching upon the prescribing

of medication that constricted the blood vessels

at a time when the jury could infer that the defen-

dants had knowledge that the patient was suffer-

ing from a disease evidenced by two greatly con-

stricted blood vessels. This is clear from the

testimony, quoted above, to the effect that the

community standard was that a physician would

not, except under exceptional circumstances, ad-

minister a drug when it was contraindicated by a

disease from which the patient was suffering.

Here, it is clear that the jury could infer that

there was ample knowledge on the part of the ap-

propriate persons in both hospital and clinic that

Hemingway was threatened by, and actually suf-

fering from, peripheral vascular insufficiency,

which Dr. Murison testified would amount to

‘peripheral vascular disease’. The jury could also

infer that at the time the sympathectomy was per-

formed by Dr. Ochsner that the procedure was

thought to be required because of a condition

caused by prescription by other doctors of a

vascular-constricting medication. Moreover, the

jury could, of course, have believed the testimony

of mother and wife of the plaintiff who testified

that on an occasion before the last Cafergot was

prescribed for Hemingway, the surgeon had

stated to them that the patient was suffering

from Buerger’s disease, which was clearly a con-

traindication for the use of such medication.”

(Emphasis supplied.) Glen Hemingway v.

Ochsner Clinic, 608 F.2d 1040, 1048 through 1049

(5th Cir. 1979).

Moreover, plaintiff submits that the testimony of

Dr. Ochsner supported his position that the cause of the

sympathectomy (performed on June 17, 1973) was due to

the prescription of Cafergot. Plaintiff refers the Court to

the testimony of Dr. Ochsner in volume 8 of the trial

transcript, wherein Dr. Ochsner seems to have changed his

opinion as to whether or not plaintiff was suffering from

hypersensitivity to Cafergot in June of 1973. Specifically,

plaintiff refers the Court to page 56, line 24 through page

67, line 1. Regarding plaintiff's other damages, both the

plaintiff and his wife testified when the plaintiff sits or

stands for more than an hour to an hour and a half, his foot

swells and he is unable to move very well. Sometimes the

plaintiff's leg swells so badly, one cannot see his ankle.

Sometimes the plaintiff's leg will go into spasms at night,

and the plaintiff wakes up screaming, and he has to place

himself in a bathtub to cut the spasms down. Whenever

plaintiff has to stand for long periods, he has pain in his leg,

and he becomes dizzy. Plaintiff constantly has to sleep with

pillows under his leg to keep it high in order to keep the

swelling down, and because of the pain he can only sleep in-

termittently. In addition, both the plaintiff and his wife

testified that, because of the intense pain in his leg, they

have no sexual relationship and that plaintiff is unable to

work. It should be noted that, in the hospital record, there

is a note by Dr. Murison prior to the Cafergot episodes and

the sympathectomy that, notwithstanding the plaintiff's

pancreatectomy, splenectomy and chloecystectomy, it was

expected plaintiff ‘‘should be able to return to work soon”’. '

The plaintiff also testified that the muscles in his leg do not

work; he has shooting pains like electricity; the he has

much cramping in his leg; he can no longer run; that he has

constant swelling and trouble with infecticns. Plaintiff also

testified that the medications he takes for the swelling in

his leg caused an increase in his bladder activity which

prevents him from sleeping any long period of time. See

generally, plaintiff's testimony volume 10, page 74 through

139. Plaintiff submits there was an abundance of evidence

from which the jury could justifiably award plaintiff

$365,000.00. The plaintiff submits that the ordeal suffered

by him in the months of June and July 1973 alone would

justify such an award, considering the episodes of arterial

shutdown, the sympathectomy, the contemplated amputa-

tion of his leg, and the continuous pain suffered by the

plaintiff. The plaintiff testified that, ever since the various

bouts of arterial shutdown due to Cafergot and the sym-

pathectomy, he has encountered an extraordinary amount

of problems with his left leg as set forth above. While the

defendant might contend there is no medical testimony

that any action on the part of the defendant's staff doctors

caused the plaintiff's problems, clearly this is not the case.

It is clear from the testimony at the trial, that on various

occasions Cafergot completely shut down the blood supply

to plaintiff's left leg and foot. All of the doctors were in

agreement that the lack of blood supply to the foot would

ultimately cause the tissues to die and result in amputa-

tion. In addition, Dr. Ochsner testified that the sympathec-

tomy which he performed cut the sympathetic nerve fibers

which innervate the muscles which surround the blood

vessels in the leg which aid in proper circulation. When the

sympathetic nerve fibers were cut, these muscles became

permanently relaxed in the plaintiff thus taking away any

benefit plaintiff's circulatory system might receive when

the sympathetic nerve fibers are intact. Clearly, the jury

could have viewed this favorably to the plaintiff, and the

jury could have properly found that the sympathectomy

resulted from the administration of the drug Cafergot and

inferred that the operation would have been unnecessary

had the staff of Ochsner Clinic and Oschner Foundation

Hospital properly communicated to Dr. Ochsner that plain-

tiff had been taking Cafergot, a vasoconstrictant, at least

since January of 1973 and that this was a reaction to this

drug and that, by discontinuing use of the drug, plaintiff

would have recovered without the necessity of the sym-

pathectomy. As previously stated, ever since the bouts

with Cafergot and the sympathectomy, plaintiff has many

problems with his leg, with swelling, dizziness, spasms, and

7 Mae

constant pain. In addition, although the Ochsner medical

records note that, prior to the bouts with Cafergot and the

sympathectomy, Dr. Murison anticipated that plaintiff

would be able to return to his former occupation as a

telephone installer, he has been unable to work since that

time. In addition, both plaintiff and his wife testified that,

because of the severe pain plaintiff has in his leg, it has

been difficult and then impossible for them to enjoy a nor-

mal husband and wife relationship. Plaintiff would refer

the Court to the case of Great American Indemnity Com-

pany v. Holloway, 286 F.2d 106 (5th Cir. 1960), wherein the

Fifth Circuit quoted from the Supreme Court regarding the

rule of testimony of medical experts, to-wit:

‘The jury’s power to draw the inference that the

aggravation of petitioner's tubercular condition,

evidence so shortly after the accident, was, in

fact, caused by that accident, was not impaired

by the failure of any medical witness to testify

that it was, in fact, the cause. Neither can it be

impaired by the lack of medical unanimity as to

the respective likelihood of the potential causes of

the aggravation, or by the fact that other poten-

tial causes of the aggravation existed and were

not conclusively negated by the proofs. The mat-

ter does not turn on the use of a particular form

of words by the physicians in giving their

testimony. The members of the jury, not the

medical witnesses, were sworn to make a legal

determination of the question of causation. They

were entitled to take all the circumstances, in-

cluding the medical testimony, into considera-

tion. See Sullivan v. Boston Elevated R. Co., 185

Mass. 602, 71 N.E. 90; Miami Coal Co. v. Luce, 76

Ind.App. 245, 131 N.E. 824. Though this case in-

volves a medical issue, it is not exception to the

adminition that, ‘It is not the function of a court

to search the record for conflicting circumstantial

evidence in order to take the case away from the

jury on a theory that the proof gives equal sup-

port to inconsistent and uncertain inferences. The

focal point of judicial review is the reasonableness

of the particular inference or conclusion drawn by

the jury******. Courts are not free to reweigh the

evidence and set aside the jury verdict merely

because the jury could have drawn different in-

ferences or conclusions or because the judges feel

that other results are more reasonable. Tennant v.

Peoria and Pekin Union Railway Company, 321

U.S. 29, 35 [64 S.Ct. 409, 88 L.Ed. 520]. The

proofs here justified with reason the conclusion of

the jury that the accident caused the petitioner’s

serious subsequent illness. See Rogers uv.

Missouri Pacific Railway Company, 352 U.S. 500

[77 S.Ct. 433, 1 L.Ed.2d 493].”’ Sentilles v. Inter-

Caribbean Corporation, 1959, 361 U.S. 107,

109-110, 80 S.Ct. 173, 175, 4 L.Ed.2d 142.

Accordingly, plaintiff submits it is clear that the

testimony of he and his wife was sufficient to prove legal

causation. Moreover, viewing all the testimony in the light

most favorable to the plaintiff, it is clear that the Cafergot

and the sympathectomy caused the problems from which

the plaintiff suffered and continues to suffer for the rest of

his life.

As previously stated by plaintiff in this brief, the

jury award of $365,000.00 is clearly within the universe of

possible awards supported by the evidence. Plaintiff sub-

mits that the jury in this case heard all of the evidence and

was instructed by the Court as to the applicable law. As

previously stated by the Fifth Circuit, it should always be

presumed that the jury found the facts correctly, and hav-

ing done so, it would consider the Court’s instructions con-

cerning the applicable law and return a verdict consistent

with those facts and instructions. L‘Urdaine Et La Seine v.

Rodriguez, 258 F.2d 1 (5th Cir. 1959); Little v. Green, 429

F.2d 1061 (5th Cir. 1970) cert. denied 400 U.S. 964, 91 S.Ct.

366 (1971). This is precisely what the jury did in this case

and returned its verdict in favor of plaintiff after hearing

all of the evidence as to negligence, causation and damages.

It should be noted that the trial court heard the

plaintiff's evidence on three separate occasions, and having

done so, prepared an appropriate jury instruction which in-

cluded an instruction on damages (Appendix C, p. A-25,

Document C) wherein the Court instructed the jury concer-

ning damages past and future. We can only conclude from

this that having heard plaintiff's evidence on three

separate trial occasions, the Court must have felt that

there was some basis for giving such a jury instruction.

The Court at no time limited the jury to approximately 36

days from July 9, 1973 to mid-August.

Accordingly, from the evidence presented by plain-

tiff and the jury instruction by the Court, the jury was pro-

perly within its rights to consider all damages from May,

1973 up until the time of trial and on into the future. For

the District Court to then take away the jury verdict and

limit the period of damages in a ‘‘new trial’’ is nothing less

than substituting the Court’s verdict for that of the jury,

which is clearly under the law a judgment notwithstanding

the verdict. To do this takes away plaintiff's Seventh

Amendment Constitutional right to trial by jury.

Additionally, it should be noted that when the trial

court directed a verdict in the first trial (1977) and the

Court of Appeals for the Fifth Circuit reversed »rdering

that there was substantial evidence to allow plaintiff his

Seventh Amendment right to trial by jury; and when the

trial court, after the second complete trial (1981) ordered a

remittitur and/or a new trial limiting the period of damages

to some 36 days, this was once again taking away the plain-

tiff’s Seventh Amendment right to a trial by jury. When

this matter was taken to the Fifth Circuit Court of Appeals

for a second time, the Fifth Circuit Court of Appeals was

put in the position of following its 1979 opinion and revers-

ing the trial court or affirming the trial court thereby rever-

sing themselves by issuing a conflicting opinion in 1984.

We respectfully submit that the evidence presented

in the last trial was precisely the same as the evidence

presented in the first trial; yet, the Fifth Circuit Court of

Appeals sought to reverse the trial judge in the first in-

stance, and sought to affirm the trial court in the second in-

stance (thereby reversing their original position and caus-

ing a direct conflict within themselves).

CONCLUSION

Finally, and in conclusion, we respectfully submit

that for the District Court to direct a verdict against this

plaintiff in 1977, and then to have the Fifth Circuit Court

of Appeals state very succinctly that there was an abun-

dance of evidence in favor of plaintiff's case and that it

should be submitted to the jury; then for the case to be

retried in 1981 and a verdict of $365,000.00 rendered on the

basis of that evidence and on the law that the Court sub-

mitted to the jury in its jury instructions, based upon the

evidence that was presented in the case (a copy of which

pertinent part of the jury instructions as to damages ap-

pears at Appendix, p. A-25, Document C) and then to take

away that jury award and order that the award be remitted

to $15,000.00 or alternatively order that the case be tried

again only on the issue of damages and only for damages

from July 9, 1973 until mid-August, 1973 is not ordering a

new trial, but is rather a judgment notwithstanding the ver-

dict. By the trial court issuing this judgment notwithstan-

ding the verdict, the trial court substituted its own verdict

in place of the verdict rendered by the jury, thereby virtual-

ly taking away from this plaintiff, for a second time since

1977, his right to trial by jury.

The Fifth Circuit Court of Appeals in 1979 told the

trial court that he was in error by directing the verdict and

gave their reasons therefor. In the 1981 trial, the judge denied

all of the defendants’ motions for directed verdict. The Court,

having heard all of the evidence, instructed the jury on the

issue of damages, both past and future, and then submitted

the matter to the jury. After the jury returned with their ver-

dict, the Court then virtually “threw out” that verdict and

instated its own verdict in place of the jury verdict. The Court

further ordered that if the plaintiff did not accept its

$15,000.00 award (remittitur), then it further threw out the

jury verdict by ordering a new trial limited to some 34 to 36

days, namely July 9, 1973 until mid-August, 1973.

It is clear that the net effect of what the Court did in

this last trial in 1981 was to take away the plaintiff's right

to trial by jury which is afforded him by the Seventh Amend-

ment to the Constitution of the United States, and to instate

the Court’s own verdict in place of the verdict of the jury to

which this plaintiff is clearly entitled.

Respectfully submitted,

DARRYL J. TSCHIRN

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the

above and foregoing Brief this the 5th day of June, 1984 by

placing it in the United States Postal Service postage

prepaid to:

Mr. Henry B. Alsobrook, Jr.

ADAMS AND REESE

4500 One Shell Square

New Orleans, LA 70139

DARRYL J. TSCHIRN

A-1l

APPENDIX “A”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NO. 74-1657

CIVIL ACTION

SECTION ‘“‘D”

GLEN R. HEMINGWAY

VERSUS

OCHSNER CLINIC AND/OR

OCHSNER FOUNDATION HOSPITAL,

DR. JOHN OCHSNER,

DR. PAUL J. MURISON,

DR. W. H. MOSBY,

ARGONAUT SOUTHWEST INS. CO.

JUDGMENT

This matter came on for jury trial before the Court on

February 28, 1977 and March 1, 1977. The Court having

granted motion of defendants, Ochsner Clinic and/or

Ochsner Foundation Hospital, Dr. John Ochsner and Dr.

Paul J. Murison, for directed verdict at the close of plain-

tiff’s evidence, and considering that the defendants, Dr. W.

H. Mosby and Argonaut Southwest Ins. Co., had been

heretofore voluntarily dismissed by plaintiff;

IT IS ORDERED, ADJUDGED AND DECREED

that there be judgment in favor of defendants, Ochsner

Clinic and/or Ochsner Foundation Hospital, Dr. John

Ochsner and Dr. Paul J. Murison, and against plaintiff,

Glen R. Hemingway, dismissing plaintiff’s suit with costs.

A-2

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that intervention of Steven R. Plotkin be, and

it is hereby, DISMISSED for mootness.

New Orleans, Louisiana, this 8th day of March, 1977.

/S/ Signed

NELSON B. JONES, CLERK

Approved as to form:

/S/ Signed

UNITED STATES DISTRICT JUDGE

A-3

APPENDIX “B”

Glen R. HEMINGWAY,

Plaintiff-A ppellant,

Vv.

OCHSNER CLINIC and/or Ochsner

Foundation Hospital et al.,

Defendants-Appellees.

No. 77-2178.

United States Court of Appeals,

Fifth Circuit.

Dec. 27, 1979.

Rehearing Denied Jan. 30, 1980.

In malpractice action against doctors, hospital and

clinic with which they were associated, and their respective

insurance carriers, the United States District Court for the

Eastern District of Louisiana at New Orleans, Edward J.

Boyle, Sr., J., directed verdict for defendants, and plaintiff

appealed. The Court of Appeals, Tuttle, Circuit Judge, held

that: (1) plaintiff was not precluded from recovering

against doctors on ground that there was no positive, affir-

mative evidence as to the abstract standard of the profes-

sion in the locality, produced independently by plaintiff,

together with testimony at trial of a qualified physician

that defendants failed to measure up to such standard,

where defendant doctors themselves, called on behalf of

plaintiff sufficiently established the standard of care, and

record disclosed sufficient objective evidence from which

A-4

jury could find that such standard was not complied with;

(2) proof in hospital and clinic records from which jury

could infer that at the time patient was being treated for

lack of blood supply to his left foot, he was given medica-

tion with further constricted the blood supply generally

was sufficient from which jury could have inferred

negligent conduct on the part of such defendants; and (3)

under Louisiana law, plaintiff is not required to prove

either the existence of or the content of a ‘‘community stan-

dard’”’ to esstablish liability of hospital or clinic.

Reversed and remanded.

Darryl J. Tschirn, John M. Robin, Covington, La.,

for plaintiff-appellant.

Henry Alsobrook, Jr., Gregory J. Laborde, New

Orleans, La., for defendants-appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana.

Before TUTTLE, GOLDBERG and RANDALL, Cir-

cuit Judges.

TUTTLE, Circuit Judge:

The appellant here challenges the correctness of the

trial court’s order directing a verdict for the appellees,

several doctors, the hospital and clinic with which they

were associated and their respective insurance carriers.

The trial court based its decision on the failure of the plain-

tiff to produce evidence ‘‘as to the standard of care general-

ly practiced by other physicians in this community or in

A-5

the community in which these defendant physicians practice

in similar situations,’ and on the further ground that “there

has been no evidence offered by the plaintiff tending to show

that the defendant doctors negligently failed to follow such

a standard.” The court then determined that in the absence

of adequate evidence to establish a claim against the doc-

tors, the hospital and clinic with which they were associated

could not be found negligent on the record before it.

Because we find that the defendant doctors them-

selves, called on behalf of the plaintiff, sufficiently established

the standard of care applicable to the conduct which the plain-

tiff challenges in his action, and that the record discloses suf-

ficient objective evidence from which a jury could find that

such standard was not complied with, we reverse.

The plaintiff’s action was based on his contention, to

use laymen’s language, that at a time when he was being

treated for serious arterial insufficiency in his left foot the

defendant doctors or other doctors and hospital personnel

administrated a drug which was designed to reduce or cut

down the blood supply to all parts of his body. He claims

that both the literature concerning the drug used and the

pharmacopoeia warned against use in such circumstances,

and the doctors’ statement that ‘the standard in this com-

munity” is “that normally you don’t prescribe a drug to so-

meone who has a condition which is a contraindication” met

all of the requirements for submission of the case to the jury.

I. FACTUAL BACKGROUND

The evidence which we find was sufficient to with-

stand a directed verdict was produced entirely from examina-

tion and cross-examination of the defendant doctors and from

the hospital and clinic records. Briefly, it will be outlined

A-6

as follows: Hemingway entered the Ochsner Clinic on

January 1, 1973, having been referred by the Veterans Ad-

ministration. He carne under the care of Dr. William Davis

and Dr. McKinnon for gastrointestinal disorders. He was

subjected to the usual tests and was found to be suffering

from a disease of the pancreas. On January 25, Dr. McKin-

non performed an 95% pancreatectomy, cholecystectomy,

and splenectomy. Because plaintiff continued to suffer

symptoms of pancreatitis, on April 12, 1973, Dr. McKin-

non performed further complete pancreatectomy. One of

the side effects of these operations is that the patient

becomes a diabetic, suffering from diabetes mellitus.

After the operation, Hemingway began outpatient

treatment under the care of Dr. Paul Murison, an Ochsner

Foundation endocrinologist for the treatment of his

diabetes mellitus. He was first seen by Dr. Murison in

February 1973. Dr. Murison was asked “‘whether or not

diabetes had anything to do with vascular disease,’’ ‘‘does

one relate to the other?’ He said ‘‘diabetics are more prone

to develop preblems with vascular.”’ Then the further ques-

tion; ‘‘more prone than ...?;’’ He stated ‘‘an average per-

son."’ Subsequently, during further questioning he

qualified his answer by stating “‘certain time levels. Early

in diabetes the disease is not a major problem, but after

many years it becomes an increasingly important pro-

blem.”’ Dr. Murison also testified that while in the hospital

on January 3, some 20 days before the first operation,

Hemingway had complained of a migraine headache and

had been given a Cafergot suppository and that at that

time he had shown no adverse reaction to this dosage. It

was undisputed that Cafergot contains the phar-

macological properties of ergotamine which is used for the

purpose of constricting blood vessels. Prolonged or ex-

cessive administration of the ergot alkaloids can cause

A-7

vascular insufficiency and gangrene of the extremities. The

literature which accompanies Cafergot and the pharmacy

textbook introduced in evidence state that Cafergot is con-

traindicated for patients when suffering from certain types

of vascular disease. |

Dr. Murison testified as to the meaning of the words

‘peripheral vascular disease’’ as follows:

Q: Would you explain to them what peripheral

vascular disease is.

A: First of all, before we get to the symptoms,

peripheral vascular diseases are a group of

diseases in which there are problems dealing with

the circulation in the extremities, the peripheral

areas of the hands and the feet.

Q: By peripheral, you mean the hands or the feet,

is that right, the ends of the extremities, is that

right?

A: Yes.

Q: What do you say with regard to those, the

vascular disease?

| Under the heading ‘‘Contraindications”’ the literature accompa-

nying the medicine states: ‘‘Peripheral vascular disease, coronary heart

disease, hypertension, impaired hepatic or renal function, sepsis and

pregnancy.”

The textbook states under the heading ‘‘Contraindications:”’

Because gangrene due to ergotamine has occurred in a number of pa-

tients with infection, sepsis is a definite counterindication. It should not

be used in patients with vascular disease, such as syphlitic arthritis,

marked arteriosclerosis, coronary artery disease, thrombophlebitis, and

Raynaud's or Buerger’s syndrome....”’

A-8

A: That is what peripheral vascular disease is.

You asked me—

Q: I am sorry, I just want to hear the first part of

your answer again. I didn’t catch it.

THE WITNESS:

Would you give me the answer?

(The court reporter read the answer.)

BY MR. TSCHIRN:

Q: Dealing with circulation in the peripherial

areas, would that be a layman’s way of saying it?

A: Yes.

Q: So, dealing with circulation in hands or feet, is

that correct?

A: Yes.

Q: That is what peripheral vascular disease is?

THE COURT:

How many times are you going over that,

Counsel? That is four times, now.

BY MR. TSCHIRN:

Q: Is that correct, sir?

A: Yes.

Following this testimouy, the medical witness testi-

fied that physicians originally obtain familiarity with the

A-9

administration and prescribing of drugs in medical school

and by keeping in constant awareness ‘‘through the

medical literature, through meetings.’’ The identified text

‘Pharmacological Basis of Therapeutics” is one of the tex-

tbooks with which he said he was familiar. The following

evidence was then introduced:

Q: The drug Cafergot: First of all, let me ask you

this. Do doctors or should doctors normally

deviate or change from what the pharmacy tex-

tbooks tell them what to do as far as prescribing

drugs?

Should a doctor on his own just change from

that?

A: It should not be done unless there are very

compelling reasons why it might be necessary or

needed.

Q: So, the answer, first of all, it should not be

done, is that correct?

A: That covers too much. There are certain rare

instances in which you may deviate from for the

good of the patient, from the restrictions that are

put upon.

Q: Now is that pretty much the standard in this

community, that physicians should adhere, as far

as prescribing and the administration of drugs—

adhere to what the pharmacy textbooks tell them

to do?

A: They should be acquainted with what the phar-

macy textbooks say and should follow that as

closely as the patient’s special condition

warrants.

A-10

Q: So, that is the standard, then, is that correct?

A: Yes.

Q: And is it correct, sir, that the doctors should

not deviate from that unless there is such special

circumstances that the doctor feels is compelling

to deviate from it?

A: Yes.

Thereafter, in response to the question: ‘‘Isn’t it a

fact that normally you don’t prescribe a drug to someone

who has a condition which is a contraindication’’ the

witness answered: ‘“True’’ and to the question: “‘And that

is a standard in this community, isn’t that right?’’ the doc-

tor answered: ‘‘Yes.”’

Towards the end of May, after he became a diabetic,

Cafergot was again prescribed for Hemingway’s migraine

headache. This was followed by a further use of Cafergot on

June 9. On June 10, plaintiff's foot began hurting and he

went to the Ochsner Hospital emergency room. At that

time, he reported that in handling his motorcycle, it had

fallen and injured his left foot. The Ochsner Foundation

Hospital ‘‘Notes and Consultant’s Reports’’ of June 16

state: ‘‘On 6/10/73 patient was injured while riding a motor-

cycle [this is incorrect the motorcycle fell while he was

handling it] the bike fell across his left leg and foot and in-

curred only minor injury, seen here, X-rays negative and

sent home. Left foot began swelling two days ago and

became swollen and ecchymotic. Pain, swelling, and

discoloration have increased.’’ On the same sheet under the

heading ‘‘Exam’’ there appears the entry ““EXT—left foot

cold and blue. No pulses in left foot.’’ At the bottom of the

page under the words “‘Imp [elsewhere used on the records

A-11

to indicate ‘‘impressions’’] appears the entry ‘‘acute

arterial insufficiency—left foot’’. On June 17, it appeared

that the condition of the left foot had deteriorated and Dr.

John Ochsner recommended a procedure known as an

arteriogram. This procedure involved the insertion of a

catheter into a main artery and the introduction of a dye

which permitted the medical personnel to see the flow of

blood in the affected area. The arteriogram was performed

and it showed ‘“‘diffuse vasospasm with potency to foot....”’

On the following day, Dr. Hutchinson made an entry ‘‘foot

is more eschemic in appearance in spite of efforts at

vasodiliatation. Dr. Ochsner suggested the possibility of

venus occlusion which may be predominant problem. Sym-

pathectomy may be of some benefit.’”2

Thereupon, Dr. Ochsner performed a left lumbar

sympathectomy which, as the witnesses testified, was for

the purpose of increasing the blood supply to the affected

foot.

Thereafter during the next five or six days the plain-

tiff’s foot improved in appearance and he was released to

return home. At the bottom of the sheet following the en-

tries as to the operation, there appear the following entries:

Op. Note: Pre Op Dx—Chronic § arterial

insufficiency

Left Foot.

Post—Op. Same

“In dictionary language the first sentence of this en-

try means: ‘‘Foot shows more evidence of lack of blood in ap-

pearance in spite of efforts at enlarging the vessels.”

A-12

Procedural—left lumbar sympathectomy

Surgeon—J. Ochsner

Assist—Ancalmo, Cofer, Manson

To R Room good condition.

J. Manson

{emphasis added]

By July 7, 1973, plaintiff's foot had turned cold

again and was blue in color. He returned to the emergency

room and Dr. Ancalmo, who had assisted with the sym-

pathectomy, admitted him with the following physician's

report:

Post pancreatectomy for chronic pancreatitis.

developed a cold left foot four weeks ago, sym-

pathectomy [without] gross results. Returns with

same problem— poss. Buerger’s disease. Admit to

Dr. J. Ochsner.

As indicated above, the literature with respect to Cafergot

staes that it is contraindicated in the case of a person who

has Buerger’s disease. Subsequently, at the trial, Dr.

Ochsner testified that at the time Mr. Hemingway ap-

peared on July 7, he knew that the patient was not suffer-

ing from Buerger’s disease, in spite of the possibility noted

by the receiving doctor. The physicians performed a con-

tinuous epidural block which relieved the plaintiff from the

3 Buerger’s disease is a vascular disease known as thrombosis

angitis obliterans, which means an inflammation of the blood vessels

with thrombosis in the veins and arteries. It causes blood clots in the

veins and arteries and may thus cut off circulation.

A-13

severe pain he was suffering and introduced medications

designed to dilate the plaintiff's blood vessels in order to

promote circulation in his lower leg and foot.

On the morning of July 9, two days later, plaintiff

woke up with a migraine headache. At 9:30 a.m., Dr.

Moseley ordered Cafergot for the plaintiff. It was ad-

ministered. A short while thereafter, Hemingway was

visited by Dr. Ochsner who later testified that: ‘‘This foot

was well and then suddenly it turned bad under our eyes.’’4

4 Dr. Ochsner testified to the occurrences beginning with the mor-

ning of July 9 as follows:

A: Then he asked to take some of his medication, that he had

a migraine headache, and he specifically called one—or one

of the residents, namely Dr. Moseley, and Dr. Moseley asked

him what he took and he said he took Cafergot, had taken it

for many years, so Dr. Moseley gave him the Cafergot

suppository.

Q: Dr. Moseley, is he a resident?

A: Yes, sir.

Q: Who is he employed by, foundation or the hospital?

A: He is employed by the foundation, which is the hospital.

Q: Which is the hospital?

A: All right.

Q: So, Dr. Moseley, who is a doctor—then, of course, Dr.

Moseley knew what his condition was at tha: time, is that

correct?

A: Yes.

Q: He knew that you all had given him an epidural block and

he knew you ail had given him injections into the muscle to

deaden the leg and to relax the muscle to let the bicod flow

so he wouldn't have a contracted or saveezed in biood vessel,

is that right?

A-14

This condition was slowly remedied by the same intra-

(Footnote 4 continued)

A: Right.

Q: Yet he allowed him to take Cafergot at that time?

A: Correct. He had taken it on many occasions before.

Q: Before he became a diabetic?

A: And after he became a diabetic.

Q: On two occasions that we know of he ended up in the

hospital with a darkened foot—

THE COURT:

Counsel, you are arguing your case. There will be a time when

you may argue your case but now is not that time.

BY MR. TSCHIRN:

Q: At any rate, Dr. Moseley allowed him or gave him the

Cafergot?

A: Yes.

Q: Now, what happened after he took the Cafergot? At that

time he is on the road to recovery and his foot looking good

and warmness back and pain is gone and everything.

What happened after he took the Cafergot?

A: A few hours later it began to get blue again.

Q: Turned blue again?

A: Yes, sir. That is when they came and told us the foot is get-

ting blue again, and it was at that time that we said, well,

something’s got to be amiss here because this foot was well

and then suddenly it turned bad under our eyes.

We went back and they said the only thing he’s gotten is

Cafergot? So then we automatically made the assumption that

this man is—had an ergotrate intoxication from one or three

reasons. We have to assume that it is a hypersensitivity

A-15

arterial injections that had previously been given to dilate

the vessels.

The plaintiff introduced a prescription over Dr.

Murison’s signature dated June 9 which provided for

Cafergot, P-B suppositories, 12 of them, one rectally as

needed for pain. The following colloquy then occurred:

Q: At least someone at Ochsner knew, on June

9th, before you had him in there on June 16th—

someone knew he was on Cafergot, didn’t they?

(Footnote 4 continued)

because he told us up until that time that he had not taken

any Cafergot prior to the admission.

Q: He told you he had not taken Cafergot prior to the

admission?

A: He had not taken any drugs prior to the admission.

Q: You keep saying Cafergot.

A: Excuse me. No, I don’t keep saying Cafergot.

Q: Twice you have said it, once with regard to June and once

with regard to July. You said he denied taking Cafergot and

he didn’t deny it, did he?

A: I said before he denied taking any drugs outside of in-

sulin, and I will say that again.

THE COURT:

Is Cafergot a drug?

THE WITNESS:

Yes sir. It is my initial impression this man did take a drug,

and you can take my entire staff ana ask them that. This was

my initial impression, this man was taking a drug. That is

why I specifically asked him.

A-16

A: Yes, lots of people knew he was on Cafergot.

Q: I mean at Ochsner.

A: Yes.

Q: Lots of people knew it?

A: I assume. He had it two or three times before.

The recital of facts above is all undisputed, except for

the fact that Dr. Murison and Dr. Ochsner undertook at the

trial to qualify from time to time the statements attributed

to them. We give the facts most favorable to the plaintiff,

because we are required to do so in considering whether

there was sufficient evidence for the case to be submitted

to the jury.

In addition to the foregoing facts, there was a serious

dispute about statements by Drs. Ochsner and Murison to

Hemingway’s mother and wife.” Mrs. Hemingway, Sr.

testified that on July 9, she was at the hospital and her son

had a severe migraine (this is the day on which Dr. Moseley

had prescribed Cafergot for the migraine). She testified

that his foot changed color and got cold and she got in

touch with Dr. Ochsner who then had him taken ‘‘to the

operating room downstairs.’’ At that time, she met with

Dr. John Ochsner and she testified:

° His mother and father lived in Atlanta and talked on the

telephone to Dr. Ochsner on the eve of the operation performed for the

sympathectomy on June 17, at which time the father testified that Dr.

Ochsner called him on the telephone and ‘‘said that Ronnie’s foot, his

left foot, was in very bad shape and that he recommended a sympathec-

tomy, that he be operated on, because if he didn’t, he was going to lose

the foot and maybe part of the leg’. The mother and father both went

to New Orleans and arrived at the hospital just as the sympathectomy

had been completed. They returned to Atlanta after the foot appeared

better but went back again on July 7.

A-17

He said to me “‘your son has an artery infection

or disease’ which he called Buerger’s which I

didn’t understand and I asked him what that

meant, and he said it meant that the arteries were

going into the foot, as they neared the foot at the

ankle had collapsed and that no blood could get

into the foot and that this was possible—

possibility that it could happen to other parts of

his body, his other leg or his arms and I asked

him, I said: ‘‘Well, does this have to do with his

big operation and all that? Would this cause

this?’’ and he said: ‘‘No, this is a separate thing,

a separate disease,”’ and he said: “‘It is necessary

that we schedule an amputation tomorrow morn-

ing at 6 o'clock.”

Hemingway’s wife testified that she was present at the

time of this conversation and stated that her recollection

was the same as testified to by Mrs. Hemingway, Sr. Dr.

Ochsner testified that he had not said Hemingway had

Buerger’s disease and he had not said he planned to am-

putate the foot.

Finally, it should be noted that the admission slip on

June 16 contains the entry: ‘“‘PX: acute arterial insufficien-

cy left foot’’ and the discharge summary, following

discharge on June 23, contained the entry: ‘‘Acute arterial

insufficiency fundecipherable, but possibly etioloty

unknown].”’

II. PRELIMINARY LEGAL QUESTIONS

In addition to the contention about the administer-

ing of Cafergot at a time when the doctors were attempting

to clear up arterial insufficiency in his left foot, Hem-

ingway makes a further more serious contention relating to

A-18

the sympathectomy. He contends that he was not advised

by Dr. Ochsner of any side effects of the sympathectomy.

Dr. Ochsner testified that there are no side effects. Hem-

ingway sought to introduce at the trial a text called

‘“‘Medical-Surgical Nursing’’ written by two registered

nurses. This text listed potential results from a sympathec-

tomy. One of these results listed by these writers was “‘loss

of ejaculation in the male.’’ Upon objection, the court ruled

that the plaintiff had failed to establish the degree of

recognition required for the introduction of such a text.

This ruling was correct under Rule 803(1°‘ of the Federal

Rules of Evidence, which require that for a party to rely

upon a learned treatise it must be established as a reliable

authority by the testimony or admission of a witness or by

other expert testimony or by judicial notice. There was no

testimony that recognized this document as a reliable

authority and the trial court correctly ruled that it could

not be recognized by judicial notice, since it had been writ-

ten by registered nurses.

Respecting his claim of loss of sexual powers, the ap-

pellant contends that since the proof showed that these had

been unimpaired prior to the sympathectomy but had been

almost totally lost thereafter, he should have prevailed

under the doctrine res ipsa loquitur. The trial court proper-

ly declined to accept this contention, since there were many

medical frailties affecting the plaintiff. Hayward v. Echols,

362 F.2d 791 (5th Cir. 1966).

We must therefore conclude that there was no proof

at the trial that would have permitted the jury to have

found in favor of the plaintiff as to this particular

complaint.

A-19

Ill. THE DIRECTED VERDICT

The parties do not disagree as to the standard to be

applied by the trial court in determining whether there is

sufficient evidence to warrant submitting the case to the

jury. The principles enunciated in Boeing v. Shipman, 411

F.2d 365 (5th Cir. 1969) are too well known to require

restatement here. The trial court directed the jury’s verdict

in favor of the defendants here on the two grounds already

noted above: 1) as to the claim against the doctors, the

court found that there was a failure on the part of the plain-

tiff to produce evidence ‘‘as to the standard of care general-

ly practiced by other physicians in this community or in

the community in which these defendant physicians prac-

tice in similar situations”’ and ‘‘there has been no evidence

offered by the plaintiff tending to show that the defendant

doctors negligently failed to follow such a standard.”’ 2) As

to the foundation and hospital defendants, the court decid-

ed that in the absence of adequate evidence to establish a

claim against the doctors, the hospital and foundation with

which they were associated could not be found negligent on

this record.

We deal first with the proof of what is known

generally as the “‘locality rule’’ by which the performance

of doctors has traditionally been measured under the Loui-

siana law. The trial court cited Hayward v. Echols, 362

F.2d 791 as a principal basis of its determination. Both par-

ties at the trial and in this court are in agreement that the

plaintiff in a malpractice case would carry the burden of

establishing that the doctor failed to meet the standard

which may be expressed as it was by this court in Mills v.

Levy, 537 F.2d 1331 (5th Cir.) at 1332:

[P]hysicians and surgeons are not negligent if

A-20

they exercise that degree of skill and care which is

usually possessed and exercised by practitioners of

their profession in the same locality or community.

6 Significantly, the Louisiana Code dealing with this subject mat-

ter has been amended and given retroactive effect, as it relates to medical

or surgical specialists. La.R.S. 9:2794 provides in pertinent part:

(A) In a malpractice action based on the negligence of a

physician licensed under R.S. 37:1261 et seq. or a dentist licens-

ed under R.S. 37:751 et seq., the plaintiff shall have the burden

of proving:

(1) The degree of knowledge or skill possessed or the degree

of care ordinarily exercised by physicians or dentists practic-

ing in the same community or locality to that in which the

defendant practices; and where the defendant practices in a

particular specialty and where the alleged acts of medical

negligence raise issues peculiar to the particular medical

specialty involved, then the plaintiff has the burden of prov-

ing the degree of care ordinarily practiced by physicians or den-

tists within the involved medical specialty.

(2) That the defendant either lacked this degree of knowledge

or skill or failed to use reasonable care and diligence, along

with his best judgment in the application of that skill, and

(3) That as a proximate result of this lack of knowledge or

skill or the failure to exercise this degree of care the plaintiff

suffered injuries that would not otherwise have been incurred.

{Emphasis added.]}

In Ardoin v. Hartford Accident Indemnity Co, 360 So.2d 1331

(La.1978), the court indicated that this section had been modified, in ef-

fect, to permit the proof of the standard applicable to medical specialists

without limiting the proof to those who are familiar with the performance

within the particular locality or community.

Although some of the defendants here were specialists, it is unim-

portant for us to consider this section of the Louisiana Code because the

actions complained of were not actions that require the services of a

specialist. Moreover, as indicated by the Louisiana Supreme Court, the

purpose of the legislation was to make easier, not more difficult, the pro-

of necessary to establish the standard of performance of the professional

duty of the physician. Here, the plaintiff met the more difficult “locality

rule.”

A-21

The language of this Court in Hayward must have caused

the trial court here to conclude that in order to establish both

the standard and the deviation therefrom in a Louisiana case

there must be positive, affirmative evidence as to the abstract

standard, produced independently by the plaintiff, together

with testimony at the trial of a qualified physician that the

defendant failed to measure up to such standards. This con-

clusion may have come from the language in our Hayward

opinion:

Where, as here, no surgeon or other expert in the

field of neurosurgery testified that Dr. Echols had

proceeded negligently in making the final diagnosis

or in the performance of the operation, or that the

operation was not proper in every respect, plaintiff

is not entitled to recover for maipractice.

362 F.2d at 797.

Of course, in using such language in Hayward, this

court dealt with the record before it. The record here is

something entirely different. As shown by our recitation of

the facts, the defendant doctors clearly established the com-

munity standard touching on the prescribing of medication

that constricted the blood vessels at a time when the jury

could infer that the defendants had knowledge that the pa-

tient was suffering from a disease evidenced by too greatly

constricted blood vessels. This is clear from the testimony,

quoted above, to the effect that the community standard was

that a physician would not, except under exceptional cir-

cumstances, adininister a drug when it was contraindicated

by a disease from which the patient was suffering. Here it

is clear that the jury could infer that there was ample

knowledge on the part of the appropriate persons in both

hospital and clinic that Hemingway was threatened by, and

A-22

actually suffering from, peripheral vascular insufficiency,

which. Dr. Murison. testified would amount to “peripheral

vascular disease.’ The jury could also infer that at the time

the sympathectomy was performed by Dr. Ochsner that pro-

cedure was thought to be required because of a condition

caused by prescription by other doctors of a vascular con-

stricting medication. Moreover, the jury could, of course, have

believe the testimony of the mother and wife of the plaintiff

who testified that on an occasion before the last Cafergot was

prescribed for Hemingway, the surgeon had stated to them

that the patient was suffering from Buerger’s disease, which

was clearly a contraindication for the use of such medication.

So far as the responsibility of the hospital and founda-

tion are concerned, there was further proof in the hospital and

clinic records from which the jury could infer that at the time

that the patient was being treated for lack of blood supply to

his left foot, he was being given medication which further con-

stricted the blood supply generally. Our attention has been

called to the recent Louisiana case of Bryant v. St. Paul Fire

& Marine Ins. Co., 365 So.2d 537 (La.App.1978) which holds

that the liability of a hospital to a patient depends upon proof

of ordinary negligence or as the court in Bryant stated from

the Louisiana Supreme Court decision in Hunt v. Bogalusa

Community Medical Center, 303 So.2d 745 (Sup.Ct.La.1974):

A hospital is bound to exercise the requisite

amount of care toward a patient that the particular

patient’s condition may require. It is the hospital's

duty to protect a patient from dangers that may

result from the patient’s physical and mentai in-

capacities as well as from external circumstances

peculiarly within the hospital’s control. A deter-

mination of whether a hospital has breached the

duty of care it owes to a particular patient depends

upon the circumstances and the facts of that case.

A-23

303 So.2d 745, 747.

The Bryant court then said:

The standard of care enunciated above does not

require the establishment of a ‘community stan-

dard’’ in order to make a determination of

negligence of hospitals.

365 So.2d at 540.

The trial court placed its decision to direct a verdict

in favor of the hospital and clinic upon its assumption

‘that the plaintiff would visit liability on the defendant

Ochsner Clinic and the defendant Foundation Hospital

through the alleged negligence of the doctor defendants

here.’’ To the extent that the trial court relied upon the

failure to establish sufficient evidence of the doctors’

liability under the ‘‘“community standard,”’ it would be im-

proper for the court to hold the plaintiff to the strict proof

against the hospital and clinic that is required as against

the doctors. However, the court further stated ‘‘nor has

there been any evidence of any other negligence [besides

that of the doctors] which could be attributable to the

defendant Ochsner Clinic and defendant Ochsner Founda-

tion which would warrant us denying the motion for a

directed verdict.’’ What we have stated above with respect

to the error in directing the verdict against the doctors, of

course, applies with greater force against the other defen-

dants in light of the fact that the plaintiff is not required

to prove either the existence of or the content of a ‘‘com-

munity standard”’ to establish liability of the hospital and

foundation. There was more than sufficient evidence from

which the jury could have inferred negligent conduct by

these two defendants as well as by the doctors.

A-24

The judgment is REVERSED and the case is

REMANDED for further proceedings not inconsistent

with this opinion.

A-25

APPENDIX “C”’

JURY INSTRUCTIONS ON DAMAGES

The law allows simple reparation, that is, a just and

adequate compensation for injury. It does not permit

damages to be awarded in order to punish a party.

If you determine that damages should be awarded, the

amount of damages you award must be reasonable, that is,

in an amount as will fairly and reasonably compensate the

plaintiff for any damage which was legally caused by any

negligence of any or all of the defendants.

You may not award damages for any injury unless it

has been established by a preponderance of the evidence that

the damage was legally caused by the negligence of defen-

dants. Injury or damage is legally caused by negligence if

the negligence played a substantial part in bringing about

or actually causing injury or damage.

You may not award speculative damages. This means

that you must not include in any verdict compensation for

any loss which, although possible, is wholly remote or con-

jectural. However, damages are not speculative merely

because they cannot be computed with mathematical certain-

ty. You may award damages where the evidence permits you

to reasonably approximate them.

The statements of any of the lawyers as to their

estimate of the damages to be awarded in this case are not

evidence and they are to be disregarded by you unless they

are supported by the evidence. Always remember that the

determination of damages is solely your function and must

be based on competent evidence.

A-26

If you find the plaintiff is entitled to damages, you

may include the following elements of damages if you find

they have been proven by a preponderance of the evidence

to have been legally caused by the accident:

—physical pain and suffering, both past and

future;

—mental pain and anguish, including embarass-

ment, fear, worry, nervousness, scars, disfigure-

ment and humiliation, both past and future;

—impairment of bodily functions and disability

or other residual effects of the physical injuries as

shown by the evidence, including any limitation

of normal physical functions and activities inci-

dent to daily living, past and future.

No evidence of the value of such intangible things as

mental and physical pain and suffering has been or need be

introduced. In that respect, it is not value you are trying

to determine, but an amount that will fairly compensate

the plaintiff for the damages he has suffered. There is no

exact standard for fixing the compensation to be awarded

on account of such elements of damage. Any such award

should be fair and just in the light of the evidence.

If you should determine from the evidence that, as a

result of the negligence of defendants, plaintiff will sustain

in the future some permanent disability, whether it be total

or partial, or any other future damage, you may consider in

determining the amount of damages to be awarded that

(applicable mortality tables show that) the plaintiff, who is

presently 33 years of age, has a life expectancy of 38 years.

The life expectancies as shown by these tables are

A-27

based on averages of all people, healthy, sick, old, young,

etc., and you, in considering such expectancies, must

remember that they are only an average.

In this connection, you may consider that some per-

sons exceed, while others do not live out, their life

expectancies.

A-28

APPENDIX “‘D”’

Minute Entry

December 8, 1981

BOYLE, J.

CIVIL ACTION

NO. 74-1657

SECTION D

GLEN R. HEMINGWAY

VERSUS

OCHSNER CLINIC AND/OR OCHSNER

FOUNDATION HOSPITAL, ET AL

(Filed 12-9-81)

The defendants’ Motion for Directed Verdict made at

the close of all evidence is DENIED and the Clerk is

directed to enter judgment on the verdict herein in favor of

the plaintiff and against the defendants, Ochsner Clinic

and Ochsner Foundation Hospital, in the sum of

$365,000.00 plus interests and costs, and in favor of the

defendants, Dr. Paul J. Murison and Dr. John J. Ochsner,

dismissing the plaintiff's complaint at his cost.

Darryl J. Tschirn

John M. Robin

Henry B. Alsobrook, Jr.

Jean M. Farquharson

A-29

APPENDIX “E”

UNITED STATES DiSTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION

NO. 74-1657

SECTION D

GLEN R. HEMINGWAY

VERSUS

OCHSNER CLINIC AND/OR OCHSNER

FOUNDATION HOSPITAL, DR. JOHN OCHSNER,

DR. PAUL J. MURISON, DR. W. H. MOSBY,

ARGONAUT SOUTHWEST INSURANCE COMPANY

(Filed Dec. 16, 1981)

CORRECTED JUDGMENT

Considering the Court’s direction to enter judgment

on the jury verdict herein, accordingly,

IT IS ORDERED, ADJUDGED AND DECREED

that there be judgment herein in favor of plaintiff, Glen R.

Hemingway, and against the defendants, Ochsner Clinic and

Ochsner Foundation Hospital, in the sum of $365,000.00

together with legal interest from the date of judicial demand

until paid and costs.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment in favor of the defen-

dants, Dr. Paul J. Murison and Dr. John J. Ochsner, and

against plaintiff, Glen R. Hemingway, dismissing the plain-

tiff’s complaint at his cost.

A-30

New Orleans, Louisiana, this 16th day of December,

1981.

/S/ Signed

CLERK, U.S. DISTRICT COURT

APPROVED AS TO FORM:

/S/ Signed

UNITED STATES DISTRICT JUDGE

A-31

APPENDIX “F”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION

NO. 74-1657-EJB

GLEN R. HEMINGWAY

VERSUS

OCHSNER CLINIC AND/OR OCHSNER

FOUNDATION HOSPITAL, ET AL

(Filed 4-5-82)

MEMORANDUM OPINION AND ORDER

Darryl J. Tschirn

John Robin

Attorneys for Plaintiff

Henry B. Alsobrook, Jr.

Jean M. Farquharson

Adams & Reese

Attorneys for Defendants

BOYLE, District Judge:

This matter came before the court on the defen-

dants’, Ochsner Clinic and Ochsner Foundation Hospital,

motion for judgment notwithstanding the verdict and,

alternatively, for a new trial. The trial of this medical

malpractice case resulted in a jury verdict for the plaintiff,

Glen R. Hemingway, in the amount of $365,000, against

A-32

defendants Ochsner Clinic and Ochsner Foundation

Hospital. ! The jury found staff doctors negligently failed

to follow the recognized standard of care in the diagnosis

or treatment of plaintiff's condition and that such

negligence was a legal cause of any injury or damage suf-

fered by plaintiff. Before the case went to the jury, the par-

ties entered into a stipulation whereby Ochsner Clinic and

Ochsner Foundation accepted responsibility for any

negligence found on the part of staff doctors. Tr., Vol. 1, p.

157. The remaining two defendants, Dr. Murison and Dr.

Ochsner, were absolved on the jury’s finding neither was

negligent in his treatment of the plaintiff.

At the close of the evidence both parties moved for

directed verdicts. Although the plaintiff's motion was

denied in open court, decision on the defendants’ motions

was reserved. Following the jury’s verdict, defendants’ mo-

tions were denied and judgment was ordered entered on the

verdict. The jury’s verdict in favor of defendants Dr.

Murison and Dr. Ochsner is not challenged. Defendants

Ochsner Clinic and Ochsner Foundation Hospital timely fil-

ed this motion for judgment notwithstanding the verdict

and, in the alternative, a new trial.

I. MOTION FOR JUDGMENT NOTWITHSTANDING

THE VERDICT

The test for determining whether to grant a motion

for judgment notwithstanding the verdict in this diversity

! The grant of motions for directed verdict removed from the

jury’s consideration the vicarious liability of Ochsner Clinic and

Ochsner Foundation Hospital based on the actions of nurses, phar-

macists or other personnel except Dr. Ochsner and Murison and other

involved doctors at Ochsner Clinic and Ochsner Foundation Hospital.

Trial Transcript, Doc. 152 [hereinafter Tr.], Vol. III, pp. 88-128.

A-33

case is a federal standard and the same as that applied to

a motion for directed verdict. Kicklighter v. Nails by Jan-

nee, Inc., 616 F.2d 734, 738 (5th Cir. 1980), 9 Wright &

Miller, Federal Practice and Procedure: Civil § 2537 at 599.

“{I}f there is substantial evidence opposed to the motion,

that is, evidence of such quality and weight that reasonable

and fair-minded men in the exercise of impartial judgment

might reach different conclusions, the motion should be

denied....’’ Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th

Cir. 1969) (en banc); Williams v. United Insurance Co. of

America, 634 F.2d 813, 815 (5th Cir. 1981). In passing on

a motion for judgment notwithstanding the verdict, the

court must view all of the evidence in the light most

favorable to the party opposing the motion, resolving con-

flicts in the evidence and drawing all reasonable conclu-

sions and inferences from the evidence in that party’s

favor. The court is not free to weigh conflicting evidence

and inferences, to pass on the credibility of witnesses or to

substitute its judgment of facts for that of the jury. As we

are concerned only with the question of negligence in the

care of plaintiff on the part of doctors serving on the staffs

of Dr. Ochsner and Dr. Murison, we must consider whether

the facts and inferences, viewed in the light most favorable

to the plaintiff, ‘‘point so strongly and overwhelmingly in

favor of [the Jefendants Ochsner Clinic and Ochsner Foun-

dation Hospital, as employers of the staff doctors] that

reasonable jurors could not arrive at a contrary verdict.”

H. C. Blackwell Co., Inc. v. Kenworth Truck Co., 620 F.2d

104, 106 (5th Cir. 1980).

Plaintiff argues the jury could have found staff doc-

tors on the service of Dr. Ochsner and Dr. Murison were

negligent in that they administered Cafergot to plaintiff

when the drug was contraindicated. Liability on the part of

Ochsner Clinic and Ochsner Foundation Hospital was

A-34

predicated on a finding of negligence on the part of their

employee staff doctors under a theory of respondeat

superior. Under this theory, ‘‘[t]he duty of care at issue is

that of the servant and it must be proved that this duty

was breached before the master can be held liable.’’ Bryant

v. St. Paul Fire and Marine Ins. Co., 382 So.2d 234, 237

(La.App.3rd Cir. 1980). Thus under the applicable Loui-

siana law, plaintiff had to prove, by a preponderance of the

evidence:

1) The recognized standard of care ordinarily ex-

ercised by physicians within the medical specialty

of the doctors with regard to the diagnosis and

treatment which is in controversy in this case;

2) That the doctors negligently failed to follow the

recognized standard of care in the diagnosis or

treatment of plaintiff; and

3) that such negligent failure to follow the

recognized standard of care in the diagnosis or

treatment of plaintiff was the legal cause of plain-

tiff’s alleged injuries.

LSA-R.S. 9:2794.

The applicable standard for administration of drugs

was established by the medical testimony. All of the doc-

tors agreed a doctor should not administer a drug to a pa-

tient when it is contraindicated, absent a compelling reason

to do so. Having reviewed the trial transcript and the

documents admitted into evidence, in the light most

favorable to the plaintiff, we conclude the jury could

reasonably have inferred a staff doctor ordered Cafergot, a

drug containing caffeine and ergotamine used for migraine

headaches, for plaintiff when the drug was contraindicated.

A-35

The literature on Cafergot introduced into evidence

lists the contraindications to Cafergot as being hyperten-

sion, impaired hepatic or renal function, sepsis and

pregnancy, hypersensitivity to any of the components and

peripheral vascular diseases such as coronary heart

disease, syphilitic arteritis, marked atherosclerosis, throm-

bophlebitis and Raynaud’s or Buerger’s syndrome. Trial

Exhibits, December 1, 1981, P-2, Pharmaceutical Sheet;

Trial Exhibits, December 1, 1981, P-3, Pharmacology Tex-

tbook, p. 878. Of these contraindications, the jury could

have determined plaintiff suffered from hypersensitivity to

ergotamine in June and July, 1973, and that Dr. Moseley,

a staff doctor on the service of Dr. Ochsner, should have

been aware of such fact from the plaintiff's chart at the

time he ordered Cafergot for plaintiff on July 9, 1973.

Plaintiff was admitted to the hospital on July 7th for

loss of circulation in his left foot. An epidural block was

begun immediately and by the next morning his foot had

improved markedly. Dr. Moseley visited plaintiff at 7:30

a.m. on July 9, 1973 (Ochsner Medical Record, Vol. III,

Nurses Notes for July 9, 1973), and found plaintiff’s foot

warm, pink and looking very good. Tr., Vol. Ili, p. 143.

Plaintiff received his last epidural block the night before

and it was decided such treatment was no longer required

as the left foot was warm and pink. Tr., Vol. III, p. 144.

Later on the morning of July 9th, at approximately

9:00 o’clock, Dr. Moseley was called to plaintiff's room

when plaintiff complained of a migraine headache. Plaintiff

asked the doctor for Cafergot because the anti-nausea

medication which he had been given earlier by the nurse

had not been effective. Tr., Vol. III, pp. 144-145. Mr. Hem-

ingway told Dr. Moseley he had been taking Cafergot for

some time for relief from migraines, Tr., Vol. III, pp. 145-

A-36

146, and testified at trial he had been taking Cafergot

regularly since December, 1971.2 Tr., Vol. III, pp. 36, 49.

Dr. Moseley then ordered the nurse to administer Cafergot

to plaintiff. Two to three hours later Dr. Ochsner and Dr.

Moseley were called to plaintiff's room after plaintiff's left

foot had started turning blue and cold.

Plaintiff was then taken to anesthesiology and an

epidural block was started. The first injection of medica-

tion to dilate the arteries had no effect on the lack of cir-

culation in plaintiff’s left foot. However, the second ad-

ministration of medication began to produce the desired ef-

fect. By the evening of July 9th, plaintiff's foot began to

show improvement, which continued throughout the

following days, during which the artery dilation medication

was administered. In addition to the medication injected

through the epidural block, piaintiff also received treat-

ment for the blisters on the tips of the toes of his left foot,

which blisters had resulted from the loss of circulation in

his foot.

On July 14, 1973, plaintiff was discharged from the

hospital. He returned to the clinic two or three times in Ju-

ly and August, 1973, for a routine followup on his left

“ Furthermore, plaintiff had been administered an ergotamine for

relief of migraine headaches on two previous occasions during visits to

Ochsner Foundation Hospital. On January 3, 1973, while admitted io

Ochsner Foundation Hospital for pancreatitis, plaintiff received a

Cafergot suppository. Ochsner Medical Records, Vol. 1. Then on April

29, 1973, in the emergency room of Ochsner Foundation Hospital, plain-

tiff received D.H.E.-45, a drug similar to Cafergot containing

ergotamine. Ochsner Medical Records, Vol. III; Tr., Vol. II, pp. 7-8.

Plaintiff did not experience any ill effects from either one of these ad-

ministrations of ergotamine. Tr., Vol. II, pp. 3-4, 8.

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foot.2 Ochsner Medical Record, Vol. III; Tr., Vol. I, p. 229;

Tr., Vol. II, p. 31. The discharge summary from this

hospital stay reveals the doctors diagnosed plaintiff's con-

dition to be “‘ergot poisoning.’’ Ochsner Medical Record,

Vol. III. Although this diagnosis was made and noted in

the record after the July 9th episode, the evidence supports

the inference plaintiff was suffering from ergot poisoning

prior to receiving the Cafergot on the 9th.

Dr. Ochsner defined ergot poisoning as being, among

other things, a sensitivity to ergotamine, a vasoconstric-

tant. Tr., Vol. I, p. 72-74. Dr. Murison testified when one

gets ergot poisoning ‘‘[aJll of the peripheral arteries con-

tract and coldness is in all of the extremeties, even though

one may be more severely involved than the other.”’ Trial

Transcript, Doc. 77, pp. 117-118. When plaintiff was admit-

ted to Ochsner Hospital on July 7th, Dr. Ancalmo, also a

staff doctor, noted ‘‘[t]here is generalized vasoconstriction

involving all extremeties”’ in addition to the blue, cold left

foot. Ochsner Medical Record, Vol. III. In the same note,

Dr. Ancalmo made a stick figure drawing of the human

body with pulse readings at the relevant points. The pulse

readings indicated normal circulation throughout plain-

tiff’s body except for his left foot.

Dr. Ochsner was questioned about this apparent in-

consistency. He stated plaintiff probably showed some

symptoms and signs of vasoconstriction at that time which

Plaintiff continued to be treated at Ochsner Clinic until

September 25, 1973, shortly before he moved to Atlanta, Georgia. These

visits, however, were not for treatment of his left foot, but for treatment

of his diabetes, for ‘‘suture granuloma” along the incision made during

his pancreatectomy and for apparent drug addiction resulting from the

administration of codeine to control his complaints of pain during

various hospital stays. Ochsner Medical Records, Vol. III.

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were noted by Dr. Ancalmo, but the generalized

vasoconstriction had to be minimal as plaintiff also showed

normal circulation as indicated by the pulse readings. Tr.,

Vol. I, pp. 176-177. The jury, however, could have conclud-

ed Dr. Ancalmo’s note of ‘‘generalized vasoconstriction”’

accurately described plaintiff’s condition on July 7th and,

hence, that it showed signs of hypersensitivity to

ergotamine at that time.

Furthermore, the jury could have concluded plaintiff

continued to show signs of hypersensitivity to ergotamine

on July 9th when he was administered Cafergot. The

nurses’ notes for the morning of July 9th, prior to the ad-

ministration of Cafergot, read, in part, ‘‘left foot warm to

touch, foot white but toes do not blanch well.’’ Ochsner

Medical Record, Vol. III. On direct examination, Dr.

Ochsner incorrectly read the note as saying “‘...toes do not

blanch’”’ and testified this notation meant there was no

vasoconstiction and no evidence of poor circulation. Tr.,

Vol. I, p. 214. However, on cross examination, when the

failure to include the last word in the sentence, “‘well,’’ was

brought to the court’s attention, Dr. Ochsner testified this

note indicated plaintiff did not have good circulation at

that time. Tr., Vol. II, p. 30. The jury was free to resolve

the conflict in plaintiff’s favor and concluded plaintiff did

not have good circulation in his foot on the morning of July

9th and the lack of circulation was due to hypersensitivity

to ergotamine.

This view is supported by Dr. Ochsner’s testimony in

a prior trial that following the July 9th episode, it appeared

there was a relationship between Cafergot and the loss of

circulation in plaintiff's foot on June 16th, July 7th and

again on July 9th. Tr., Vol. I, p. 194. At the trial Dr.

Ochsner modified this testimony stating there was no way

Pe et ee eC

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to prove or disprove that the events of June 16th and July

7th and 9th were related to plaintiff's prior use of Cafergot.

Tr., Vol. II, pp. 56-58.

There is sufficient evidence to permit the jury to find

that the negligence it found was a legal cause of plaintiff's

injuries. Evaluating all of the evidence in the light most

favorable to plaintiff, we cannot say the facts and inferences

point so strongly and overwhelmingly in favor of the mov-

ing defendants that reasonable jurors could not reach a ver-

dict in plaintiff’s favor.

II. MOTION FOR NEW TRIAL

Having considered defendants’ motion for judgment

notwithstanding the verdict, we now turn to the alernative

motion for a new trial. Montgomery Ward & Co. v. Duncan,

311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 124 (1940).

Unlike a motion for judgment n.ov., which raises the issue

of legal sufficiency of the evidence, a motion for a new trial

is addressed to the sound discretion of the court which may

set aside the verdict if it is contrary to the preponderance

of the evidence, although a judgment n.ov. is not justified

or if, for other reasons, it will result in a miscarriage of justice.

United States v. Bucon Construction Company, 430 F.2d 420,

423 (5th Cir. 1970); 6A Moore’s Federal Practice 4 59.08[5);

8 Wright & Miller, Federal Practice and Procedure: Civil §§

2805, 2806.

Defendants contend the jury’s determination of liabili-

ty is contrary to the weight of the evidence and damages are

so excessive as to shock the conscience of the court. The im-

portant first step in assessing this motion is to separate the

liability and damages issues. We have previously discussed

the evidence supporting the conclusion that Cafergot was

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negligently administered to plaintiff on July 9, 1973, when

plaintiff was suffering from hypersensitivity to

ergotamine, a contraindication to the use of Cafergot.

The jury’s determination of damages, however, is not

supported by a preponderance of the evidence. The jury’s

award of $365,000.00 is shockingly excessive and was

made although any alleged ill effects from the July 9th ad-

ministration of Cafergot had dissipated by mid-August.

Plaintiff has made no claim of ‘Cafergot damage”

resulting from Cafergot administered to him on any other

occasion by doctors at Ochsner Clinic or Ochsner Founda-

tion Hospital. As discussed above, plaintiff received treat-

ment for the loss of circulation in his foot on July 9th as

soon as the doctors learned of his condition. Although it

took some time to achieve results from the epidural block,

by the next morning his foot showed marked improvement.

By the time he was discharged five days later, he was only

being treated for the blisters which had developed on the

tips of the toes of his left foot, and this treatment ceased

by the middle of August.

Plaintiff might, arguably, contend he also suffered

injury when, on the afternoon of July 9th, he was allegedly

informed by Dr. Ochsner he had Buerger’s disease and his

leg would have to be amputated. Tr., Vol. I, pp. 255-257;

Tr., Vol. III, pp. 12-13, 16; Tr., Vol. III, pp. 70-71. Accor-

ding to plaintiff, whose mother and wife testified similarly,

Dr. Ochsner informed plaintiff of the Buerger’s disease and

the need to amputate his leg while he was in anesthesiology

and the epidural block was being started. Tr., Vol. III, p.

70-71. Plaintiff seems to contend that reversal of the deci-

sion to amputate came late on the afternoon of the 9th

when the relationship of Cafergot to his foot condition was

realized by the doctors. Tr., Vol. III, pp. 69-74.

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Dr. Ochsner denied ever telling plaintiff, plaintiff's

wife or plaintiff's mother that plaintiff was suffering from

Buerger’s disease and his left foot would have to be am-

putated. Tr., Col. I, pp. 201-204; Tr., Vol. II, pp. 47-49. Fur-

thermore, both Dr. Ochsner and Dr. Moseley refuted plain-

tiff’s account of what transpired on July 9th after his foot

began to turn blue. Tr., Vol. I, pp. 197-199, 200-201; Tr.,

Vol. III, pp. 147-149.

The testimony of Dr. Ochsner and Dr. Moseley is

unrefuted and uncontradicted that the impression of

‘possible Buerger’s disease’’ made on July 7, 1973, by the

admitting doctor, Dr. Ancalmo, also on the service of Dr.

Ochsner, was ruled out by them on the evening of July 7th

after obtaining the results of the angiogram. Tr., Vol. I, pp.

92-93; Tr. Vol. II, p. 43; Tr., Vol. III, pp. 146-147. There is

no evidence suggesting Buerger’s disease was ever again

considered by the doctors as the cause of plaintiff’s pro-

blems with his left foot. As to the allegation that Dr.

Ochsner informed plaintiff his foot would be amputated,

Dr. Ochsner testified that before the amputation of any

limb would be scheduled he would have to consult with an

orthopedic surgeon and obtain the consent of the patient.

Tr., Vol. II, pp. 48-49. The medical records reveal no such

procedures were taken. It is interesting to note that similar

procedures were followed by Dr. Ochsner prior to his per-

forming a sympathectomy on plaintiff, despite the

emergency nature of the procedure. In particular, Dr.

Ochsner obtained the written consent of the patient and

clearance from internal medicine before he performed the

operation. If the jury concluded that plaintiff was told his

foot would have to be amputated, the evidence shows that

within a few hours thereafter he was aware that such was

not the case.

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It appears the jury was influenced by the plaintiff’s

present condition but failed to give appropriate considera-

tion to the undisputed evidence that Mr. Hemingway is a

surgical diabetic whose condition is very difficult to con-

trol, and that since his pancreatectomy in the spring of

1973, plaintiff has been unable to work and has experienced

numerous medical complications. Tr., Vol. III, pp. 74-76,

80-86. The evidence clearly shows this unfortunate condi-

tion and plaintiff's present difficulties with circulation in

his foot do not result from the administration of Cafergot

by Ochsner staff doctors on the service of Dr. Ochsner or

Dr. Murison but, are due, instead, to plaintiff’s diabetes.

Dr. Murison testified ‘‘diabetics are eventually going to get

into trouble with their circulation’’ which condition is

hastened in brittle diabetics and diabetics who smoke

heavily, such as plaintiff. Trial Transcript, Doc. 77, pp.

57-60. Dr. Ochsner testified that a recent examination of

plaintiff’s left foot indicated clearly to him that plaintiff's

present problems were due to diabetes and not to the use

of Cafergot. Dr. Ochsner’s testimony was neither refuted

nor contradicted by plaintiff or the medical evidence.

A damage award may be set aside unless it is ‘‘clear-

ly within the universe of possible awards which are sup-

ported by the evidence.”’ Narcisse v. Illinois Cent. Gulf R.

Co., 620 F.2d 544, 547 (5th Cir. 1980). The jury could not

reasonably have computed damages to be $365,000.00 for

the maximum thirty-six day period over which it might

reasonably be found plaintiff sustained any loss.

A jury’s finding of liability can be binding even

though its monetary award is found to be excessive. Ed-

wards v. Sears, Roebuck and Co., 512 F.2d 276, 282 (5th

Cir. 1975). As we have determined the fact of liability is

fairly demonstrated by the evidence and only the damages

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award has been tainted by improper jury action, we may

order a remittitur or a new trial addressed to damages

alone. Jd.; Hadra v. Herman Blum Consulting Engineers,

632 F.2d 1242, 1245-1246 (5th Cir. 1980); 8 Wright &

Miller, Federal Practice and Procedure: Civil § 2815. We

find the maximum amount the jury might reasonably have

awarded plaintiff for his injuries? is $15,000 See Gorsalitz

v. Olin Mathieson Chemical Corporation, 429 F.2d 1033,

1047 (5th Cir. 1970); Glazer v. Glazer, 278 F.Supp. 476,

479-482 (E.D. La. 1968).

For the foregoing reasons,

IT IS ORDERED that:

1. The defendants’ motion for judgment n.o.v. is

DENIED.

2. The defendants’ motion for a new trial on the issue

of liability is DENIED.

3. The verdict of the jury on the issue of damages on-

ly in favor of the plaintiff and the judgment entered

thereon on December 10, 1981 be set aside and a new trial

allowed on the issue of damages only unless with twenty

(20) days of the date of entry of this order the plaintiff files

in the record of these proceedings a remittitur of that

amount of the aforesaid jury award and judgment in excess

of $15,000.00.

4 The motions for directed verdict of all defendants with respect

to the plaintiff's claims for damages for future medical expenses, past

wage loss, and loss of future earning capacity were granted in open court

on December 4, 1981. Tr., Vol. III, p. 128.

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/S/ Signed

UNITED STATES DISTRICT JUDGE

New Orleans, Louisiana

April 5, 1982

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APPENDIX “G”

Minute Entry

May 13, 1982

BOYLE, J.

CIVIL ACTION

NO. 74-1657-EJB

Filed May 14, 1982

GLEN R. HEMINGWAY

VERSUS

OCHSNER CLINIC AND/OR OCHSNER

FOUNDATION HOSPITAL, ET AL

On April 5, 1982, we denied motions of defendants

Ochsner Clinic and Ochsner Foundation Hospital for judg-

ment n.o.v. and for a new trial on the issue of liability but

we set aside the jury’s verdict on the issue of damages only,

together with the judgment entered thereon on December

.0, 1981, and allowed a new trial on the issue of damages

only unless the plaintiff agreed to a remittitur. Record,

Doc. 158, Memorandum Opinion and Order, p. 12. Plaintiff

now moves the court for permission to appeal the latter

portion of our April 5th order. Record, Doc. 159. The defen-

dants have opposed plaintiff's motion. In the alternative,

they have requested leave to take an appeal from our denial

of their motions for judgment n.o.v. and for new trial as to

the issue of liability, which appeal has already been filed.

An order granting a new trial, even when accom-

panied by a provision for remittitur, is an interlocutory

order not appealable as a final judgment. Evers v. Equifax,

Inc., 650 F.2d 7393, 796 (5th Cir. 1981); Dillard Dept. Stores

A-46

v. Fidelity Union Life Ins. Co., 508 F.2d 331, 332 (5th Cir.

1975); Eaton v. National Steel Products Company, 624 F.2d

863, 864 (9th Cir. 1980). See Montgomery Ward & Co. v. Dun-

can, 311 U.S. 243, 254, 61 S.Ct. 189, 196 (1940). If plaintiff

accepts the remittitur, plaintiff may not then challenge the

correctness of the remittitur order. This is true regardless of

whether plaintiff's acceptance is “under protest.” Donovan

v. Penn Shipping Co., Inc., 429 U.S. 648, 649, 97 S.Ct. 835,

836 (1977); Keene v. International U. of Operating Eng., etc.,

569 F.2d 1375, 1381 (5th Cir. 1978). If the remittitur is refused,

as in this case, the appeal with respect to the order properly

awaits entry of a final judgment in the second trial. Only in

extraordinary circumstances, such as when the court lacks

jurisdiction to dispose of the motion, may a direct appeal be

had. Wiggs v. Courshon, 485 F.2d 1281, 1282 (5th Cir. 1973);

11 Wright & Miller, Fed. Practice & Procedure § 2818 at 113,

114. No such jurisdictional defects are present in the instant

case. Accordingly, an appeal pursuant to 28 U.S.C. § 1291 will

not lie.

Plaintiff argues the issue should be certified for appeal

under 28 U.S.C. § 1291(b). We find none of the conditions for

the appeal of an interlocutory order pursuant to 28 U.S.C. §

1292(b) have been satisfied in this case. See Eaton v. National

Steel Products Co., supra; 15 Wright & Miller, Fed. Practice

& Procedure § 3915 at 596 n.21.

Accordingly, having considered the memoranda of

counsel and the applicable law, the motions of plaintiff and

defendants are hereby DENIED.

Darryl Tschirn

John Robin

Henry Alsobrook

Jean Farquharson

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APPENDIX “H”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MINUTE ENTRY

McNAMARA, J.

December 8, 1982

CIVIL ACTION

NO. 74-1657

SECTION “D”

GLEN R. HEMINGWAY

VERSUS

OCHSNER CLINIC AND/OR OCHSNER

FOUNDATION HOSPITAL, ET AL

A Status Conference was held in the above captioned

matter this date.

PRESENT:

Darryl J. Tschirn, Esq. and

John Robin, Esq.

Counsel for Plaintiff

Henry B. Alsobrook, Jr., Esq. and

Jean M. Farquharson, Atty. at Law

Counsel for Defendants

The parties agreed, that unless the Court receives an

objection in writing within seven (7) days of this Minute

Entry, the new trial of this matter, on the issue of damages

as ordered by the Court on April 5, 1982, shall be tried by

the Court without a jury. It was further agreed that the

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Court will not receive any additional evidence but will

determine the matter on the basis of the Court Reporter's

transcript of the testimony taken at the trial of this matter

in December of 1981, and the documents introduced into

evidence at that trial. As per the Court’s Order of April 5,

1982, the damages to be determined in this new trial on the

transcript, is limited to damages sustained by Plaintiff bet-

ween July 9, 1973, and mid-August, 1973.

The Motion of Plaintiff to take a video-tape deposi-

tion and the Motion of Defendant to continue the hearing

on that Motion are now moot.

Signed

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APPENDIX “TIT”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION

NO. 74-1657

SECTION “D”

GLEN R. HEMINGWAY, ET AL

VERSUS

OCHSNER CLINIC AND/OR OCHSNER

FOUNDATION HOSPITAL, ET AL

JUDGMENT

The trial of this matter on the issue of damages as

ordered by the Court on April 5, 1982, was, by agreement

of the parties, submitted to this Court for determination,

without a jury, and on the basis of the tesimony taken at

the trial of this matter in December of 1981, and the

documents introduced into evidence at that trial. The

damages hereinafter awarded are limited to the damages

sustained by Plaintiff between July 9, 1973, and mid-

August, 1973, as per the findings of Judge Edward J.

Boyle in the Order dated April 5, 1982.

After considering the transcript of the proceedings

taken at the trial in December of 1981 and the documents

introduced into evidence at that trial;

IT IS ORDERED, ADJUDGED AND DECREED

that there be Judgment herein in favor of Plaintiff, Glen R.

Hemingway, and against the Defendants, Ochsner Clinic

and Ochsner Foundation Hospital, in the amount of

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FIFTEEN THOUSAND AND NO/100 ($15,000.00)

DOLLARS plus legal interest and costs of these

proceedings.

New Orleans, Louisiana, this 20th day of December,

1982.

/S/ Signed

UNITED STATES DISTRICT JUDGE

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APPENDIX “J”

Glen P. HEMINGWAY,

(Gretchen Hemingway, substituted as plaintiff-

appellant for Glen R. Hemingway, deceased),

Plaintiff-Appellant Cross-Appellee,

OCHSNER CLINIC and/or Ochsner

Foundation Hospital,

Defendant-Appellee Cross-Appellant.

No. 83-3051

United States Court of Appeals,

Fifth Circuit.

Jan. 16, 1984.

Appeals were taken from an order of the United

States District Court for the Eastern District of Louisiana,

A.J. McNamara, Jr., which ordered a remittitur in a

medical malpractice action. The Court of Appeals, Gee, Cir-

cuit Judge, held that trial court did not err in finding that

the sole incident as to which the evidence submitted would,

under Louisiana law, support jury finding of liability on

part of certain physicians was the administration of

Cafergot, a vasoconstrictant, on a date when physician

knew or should have known that the patient was being

treated for acute arterial insufficiency and trial court also

did not err in determining that the period for which

damages for that incident could be awarded covered only

the next 36-odd days until date of his last treatment for his

foot.

Affirmed.