# Petition for Writ of Certiorari — Hemingway v. Ochsner Clinic > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2939%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 829 ## Text 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 i QUESTIONS PRESENTED FOR REVIEW I. 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. ii 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. V. 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 iv 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 Vv 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 l 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. 2 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. 3 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, 4 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 5 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 6 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. 7 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, 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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. A-37 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. A-38 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 A-39 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 A-40 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. A-41 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. A-42 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 A-43 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. A-44 /S/ Signed UNITED STATES DISTRICT JUDGE New Orleans, Louisiana April 5, 1982 A-45 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 A-47 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 A-48 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 A-49 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 A-50 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 A-51 APPENDIX “J” Glen P. HEMINGWAY, (Gretchen Hemingway, substituted as plaintiff- appellant for Glen R. Hemingway, deceased), Plaintiff-Appellant Cross-Appellee, v. 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. See also, 5 Cir., 608 F.2d 1040. Tschirn & Robin, John M. Robin, Darryl J. Tschirn, Covington, La., for plaintiff-appellant cross-appellee. Adams & Reese, Henry B. Alsobrook, Jr., Jean M. Farquharson, New Orleans, La., for defendant-appellee cross-appellant. Appeals from the United States District Court for the Eastern District of Louisiana. Before GEE and GARWOOD, Circuit Judges, and EAST,* District Judge. GEE, Circuit Judge: On several occasions in 1973, doctors at Ochsner Hospital Clinic and Ochsner Foundation Hospital prescrib- ed to Glen Hemingway the drug Cafergot, to which he became hypersensitive. He developed dramatic symptoms of hypersensitivity and was treated for these at Ochsner, but some time went by before doctors there realized that his problems were caused by the administration of Cafergot. After a protracted sequence of litigation, the jury found that certain physicians at Ochsner were negligent in their diagnosis and treatment of Mr. Hemingway and awarded him $365,000 damages. Reviewing the verdict and the damage award in light of Louisiana’s standard of * District Judge of the District of Oregon, sitting by designation. A-53 proof in malpractice actions, the trial court found that the evidence would support the jury verdict as to one specific incident and none other. He determined that the evidence of effects from this incident was limited to a 36-day period and ordered damages reduced to $15,000. Hemingway’s widow! now appeals the remittitur, contending that the evidence presented justified the jury’s award. We find that the trial judge did not err in pinpointing the specific act that the jury could have found to constitute malpractice under Louisiana law, nor did he err in limiting the period for which the evidence supported finding injury from this act. Despite our sympathy for Mr. Hemingway’s suffering, this court may not hold the hospital liable to him for negligence beyond that which he has proved according to the standard prescribed by law.” Hemingway’s Illness and Treatment Glen Hemingway was first admitted to Ochsner Clinic in January of 1973, at which time he was diagnosed as suf- fering from pancreatitis.° Operations in January and in April removed his pancreas, rendering him an iatrogenic diabetic. After the operation, Hemingway was seen by Dr. Murison, an endocrinologist at Ochsner Foundation Hospital, for his diabetes. i Hemingway died during the pendency of this appeal. 2 It is uncontested that Louisiana law applies to this diversity case. 3 More facts of Hemingway's ailments and treatment at Ochsner are given in our previous opinion in this case, reported at 608 F.2d 1040, 1042-46 (1979). While the testimony quoted in that opinion comes from the first of the three jury trials in this case, the testimony of Dr. Murison quoted therein was submitted to the jury in this last trial by way of deposi- tion since Dr. Murison was unavailable. Thus his earlier testimony, but none other, is properly part of the record on this appeal. A-54 Hemingway also suffered from migraine headaches, which had plagued him since young manhood. He testified at trial that he had been taking Cafergot, a combination of caffeine and ergotamine, since December of 1971 to obtain relief from his severe migraine symptoms. Dr. Murison con- tinued to prescribe Cafergot for Hemingway’s migraine; Hemingway testified at trial that he was using over twelve Cafergot suppositories in two weeks. Ergotamine is a vasoconstrictant; excessive intake can cause vascular insufficiency and gangrene of the ex- tremities. Ergotamine can also cause gastrointestinal pro- blems. The literature accompanying the drug—introduced into evidence—indicates that Cafergot is contraindicated for patients suffering from certain vascular problems, in- cluding hypersensitivity to any of its components and peripheral vascular disease.4 Dr. Murison testified that diabetics are prone to develop vascular problems, although, he stated, such problems usually take some years to develop. According to Hemingway’s testimony at trial, on June 8th he had a diabetic crisis while moving his motorcy- cle in his garage and fainted, hitting his head and right arm when he fell. Later that day he developed a migraine headache and took Cafergot for relief. The next morning, his left foot was swollen and painful. On that day he renew- ed his prescription for Cafergot. Since his foot was worse on June 10th, he went to Ochsner Hospital emergency room where his foot was X-rayed and an Ace bandage ap- plied. In the next few days the foot got progressively worse and Hemingway returned to Ochsner emergency room. On 4 Dr. Murison, in his testimony, defined peripheral vascular disease as ‘‘a group of diseases in which there are problems dealing with the circulation in the extremities....”’ pa exo A-55 the evening of June 16th, Dr. John Ochsner, a surgeon ex- pert in the fields of cardiovascular and vascular surgery, was called in to treat Hemingway's circulatory problem. Dr. Ochsner testified that when he asked the patient what drugs he was taking Hemingway mentioned three medications but did not mention Cafergot. Dr. Ochsner testified that he does not personally review patients’ records, but relies on his staff to consult with physicians on the staff of supervising physi- cians who have been treating the patient and to relay perti- nent information to him. The medical records show that a physician on Dr. Ochsner’s staff did consult with one on Dr. Murison’s staff. Dr. Ochsner testified, however, that he was not made aware in June that Cafergot had been prescribed to Hemingway. When medication failed to dilate the blood vessels in the patient’s foot, Dr. Ochsner performed a left lum- bar sympathectomy, an operation in which nerves controll- ing the flow of blood to the leg are severed, allowing the blood to flow without restraint. In a few days the foot improved and Hemingway was discharged. Hemingway returned to Ochsner on July 7th, suffer- ing from the same symptoms: his left foot was swollen, cold and blue. The physician on Dr. Ochsner’s staff who filled out the admission report noted “possible Buerger’s disease,”° a condition for which Cafergot is specifically contraindicated. Dr. Ochsner’s staff performed a continuous epidural block and administered medication to dilate the vessels, with moderate success. On July 9th, Hemingway suffered a mi- graine headach. Dr. Moseley, a member of Dr. Ochsner’s staff, gave the patient a Cafergot suppository for the headache. Almost immediately thereafter, Hemingway's foot became blue again. When the doctors realized that Hemingway . Buerger’s disease is a severe circulatory disease in which blood clots in the limbs cut off circulation. A-56 had received Cafergot just before the relapse, they diagnos- ed ‘‘ergotamine poisoning”’ as the cause of his lack of cir- culation in the left foot. Dr. Ochsner testified to the doc- tors’ conclusions on July 9th:® “Q Oh, then you all knew then that this had to be a relationship between the foot condition and the Cafergot, is that correct? ‘‘A Correct. ‘“Q Did you conclude at that time, Doctor, that there was a relationship between the foot condi- tion and Cafergot back in June when you did the sympathectomy? ‘““A Yes, yes.” Hemingway’s condition was slowly remedied by continued use of the same medication previously administered to dilate the blood vessels. Hemingway was discharged on July 14th. He return- ed to Ochsner Clinic two or three times later in July and August for follow-up treatment of his foot, the last date of such treatment being August 17, 1973. In early September, doctors at Ochsner became concerned that Hemingway had developed an addiction to the codeine that had been prescribed to him as a painkiller. Dr. Murison, Dr. McKin- non (who performed the pancreatectomy) and two other physicians at Ochsner reviewed Hemingway’s record. The hospital record of their conference shows that they also discussed Hemingway’s ergotamine sensitivity, as to © This testimony was given at the first trial in this case but affirm- ed by Dr. Ochsner at the instant trial. A-57 which they came to the following conclusion: ‘‘The migraine problem is major since ergotamine sensitivity precludes use of this—which has helped patient in past but also conceivably could have played a role in starting the pancreatitis, i.e., its elements of [these three preceding words crossed out] vasculitis, as initiating this.’” Hemingway and his wife testified at this trial to con- tinuing pain and swelling in his left leg and foot and his in- ability to lead a normal life or to have normal sexual rela- tions. However, the only testimony introduced of the cause of Hemingway’s problems after mid-August of 1973 was the expert testimony of Dr. Ochsner, who stated that he had examined Hemingway after September of 1973 and that, in his opinion, Hemingway’s present problems were due to his diabetes and not in any way to his hypersen- sitivity to Cafergot. The Posture of this Appeal This case has been in court for nine and a half years. Hemingway originally filed suit against Doctors Murison and Ochsner and their staffs, Ochsner Hospital and Clinic, and their respective insurance firms on June 14, 1974. The case came to trial in early 1977. At the close of plaintiff's case, the trial court directed a verdict in favor of a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2939%3A1. Public record. Not legal advice.