Robin Oldenburg, wife of/and Gair Oldenburg v. Mohamed Elkersh, M.D. and Advanced Pain Institute Treatment Center, LLC and its employees, agent and/or staff ( 2024 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2023 CA 0890
ROBIN OLDENBURG, WIFE OF/ AND LAIR OLDENBURG
t
VERSUS
MOHAMED ELKERSH, M.D. AND ADVANCED PAIN INSTITUTE
TREATMENT CENTER, LLC AND ITS EMPLOYEES, AGENTS AND/OR
STAFF
DATE OF JUDGMENT. • JUL 0 2 2024
7
ON APPEAL FROM TI IE TWENTY-FIRST JUDICIAL DISTRICT COURT
G PARISH OF TANGIPAHOA, STATE OF LOUISIANA
NUMBER 2015- 0002245, DIVISION C
HONORABLE ERIKA SLEDGE, JUDGE
Katie Lewis Hebert Counsel for Plaintiffs -Appellees
Amanda K. I-Iamm Robin Oldenburg, wife of/and
James A. Marchand, Jr. Gair Oldenburg
Frank E. St. Phillip, Il
Covington, Louisiana
Keith C. Armstrong Counsel for Intervenors -2nd Appellants
Joseph R. Dronet Louisiana Patient' s Compensation
Baton Rouge, Louisiana Fund and Louisiana Patient' s
Compensation Fund Oversight Board
Tonya Kilpatrick Gallaspy Counsel for Defendant -Appellant
Metairie, Louisiana Mohamed Elkersh, M.D.
Harry J. Philips, Jr.
Ann Michelle Ilalphen
Amy Collier Lambert
Shelby G. LaPlante
Savannah W. Smith
Baton Rouge, Louisiana
BEFORE: GUIDRY, C. J., CHUTZ, AND LANIER, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
Defendant -appellant, Dr. Mohamed Elkersh, and intervenors -appellants, the
Louisiana Patient' s Compensation Fund ( PCF) and the Louisiana Patient' s
Compensation Fund Oversight Board ( collectively intervenors), appeal the trial
court' s judgment, rendered after a jury verdict concluded that Dr. Elkersh had
breached the standard of care, causing damages to plaintiffs -appellees, Robin
Oldenburg and her husband, Gair Oldenburg. Dr. Elkersh and intervenors
collectively appellants) appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 23, 2015, the Oldenburgs instituted this malpractice lawsuit, naming
Dr. Elkersh as a defendant.' According to the allegations of the petition, on
November 7, 2012, Robin presented to Dr. Elkersh at his facility, Advanced Pain
Institute Treatment Center, LLC ( API), for an injection into her neck.' Following
the procedure, Robin had weakness in her right upper extremity and could not raise
her right arm or grip with her hand. Dr. Elkersh advised the Oldenburgs that the
symptoms were related to anesthetic toxicity and discharged her. The next
morning, Robin reported to API that her symptoms had not abated. An
appointment with Dr. Elkersh and an MRI were scheduled. After the MRI results
were reviewed by Dr. Elkersh, he contacted the Oldenburgs, advising Robin to go
to North Oaks Medical Center. Robin was treated with IV steroids as well as
physical and occupational therapy for spinal cord edema. On November 13, 2012,
Robin was discharged from the hospital with continued complaints of right-sided
The Oldenburgs alleged, and it is undisputed that Dr. Elkersh is a qualified health care provider
under the Louisiana Medical Malpractice Act. A medical review panel ( MRP) was convened,
and on April 13, 2015 rendered its opinion. The Oldenburgs' petition included an averment that
the petition had been filed in accordance with La. R.S. 40: 1299.47( Ax2)(a).
2 Although API, a qualified health care provider, was named as a defendant, the jury concluded
that API' s breach in the standard of care was not a proximate cause of Robin' s damages. The
trial court' s judgment dismissed API from this lawsuit, and that dismissal has not been appealed.
2
upper extremity deficits. In their petition, the Oldenburgs aver that Dr. Elkersh
breached the standard of care causing injury to Robin.
On September 10, 2015, Dr. Elkersh answered the lawsuit,
generally
denying the allegations of the petition and raising affirmative defenses. He also
requested a jury trial.
The trial court issued a scheduling order on December 7, 2021, setting the
matter for a jury trial during the week of August 8, 2022, with a discovery cutoff
date of June 13, 2022. A final pretrial conference was also set for August 8, 2022.
Prior to empanelment of the jury, the parties participated in a pretrial motions
hearing on August 8, 2022, wherein the trial court permitted some evidence and
excluded other evidence.
A four-day trial on the merits was held, commencing on August 9, 2022,
after which the jury rendered a verdict in favor of the Oldenburgs, awarding total
damages of $3, 985,000.00, which included $ 2, 500,000.00 for Robin' s past and
future general damages and $ 200,000.00 to Gair for his loss of consortium
damages.3 On September 2, 2022, the trial court signed a judgment in favor of the
Oldenburgs and against the PCF in the reduced amount of $400, 000.00 for the
Oldenburgs' excess general damages a On October 31, 2022, intervenors filed a
petition of intervention. A motion for judgment notwithstanding the verdict
alternatively new trial and/ or remittitur, challenging the excess general damages
3 The jury specifically itemized Robin' s general damages, awarding $ 750,000.00 for pain and
suffering ( past and future), $ 750,000. 00 for mental anguish and emotional distress ( past and
future), $ 500,000.00 for permanent disability, and $ 500,000.00 for loss of quality of life ( past
and future). The jury quantified Gair' s loss of consortium, awarding $ 100, 000.00 for loss of
companionship, love, and affection and $ 100,000. 00 for loss of services.
4 The trial court judgment awarded the Oldenburgs general damages totaling $ 500,000.00
pursuant to La. R.S. 40: 1231. 2( B)( 1), leaving in place the jury' s awards for past and future
medical expenses. See Williams Y. Enriquez, 40,305 ( La. App. 2d Cir. 11/ 17/05), 915 So. 2d 434,
437. The application of the statutory limitation of liability, the quantum of $100,000.00 awarded
against Dr. Elkersh pursuant to the limitation of liability contained in La. R.S. 40: 1231. 2( B)(2),
and the order directing the PCF to pay Robin' s future medical care and related benefits in
accordance with La. R.S. 40: 1231. 3( C) have not been not appealed.
3
filed by Dr. Elkersh was denied by the trial court on November 28, 2022.5 Dr.
Elkersh and the intervenors appeal.
EVIDENTIARY RULINGS
Without asserting that the jury' s liability determination was manifestly
erroneous, on appeal appellants limit their liability challenge to three evidentiary
determinations made by the trial judge, asserting that the rulings so tainted the
jury' s verdict that they warrant a de novo review by this court. Thus, we consider
each of these trial court rulings.
Exclusion of Dr. Koga' s Oainions and Trial Testimony:
Generally, the trial court is granted broad discretion in making evidentiary
rulings. The trial court' s determinations will not be disturbed on appeal absent a
clear abuse of discretion. An abuse of discretion results from a conclusion based on
an erroneous view of the law or from a conclusion reached capriciously or in an
arbitrary manner. " Arbitrary or capricious" means the absence of a rational basis
for the action taken. City of Baton Rouge v. Mucciacciaro, 2021- 0656 ( La. App.
1st Cir. 5/ 25/ 22), 342 So.3d 955, 963- 64, writ denied, 2022- 01172 ( La. 11/ 1/ 22),
349 So. 3d 2.
The trial court' s discretion in controlling the admission of expert testimony
is well established in Louisiana jurisprudence. See La. C.E. art. 702. The trial
judge is vested with broad discretion in ruling on the scope of expert testimony.
However, if the exclusion of evidence taints a trial court' s findings, this court steps
into the shoes of the fact finder and conducts a de novo review of all admissible
evidence to ensure a fair trial and fair judgment. Mucciacciaro, 342 So. 3d at 964.
Both Dr. Elkersh and the intervenors complain that the trial court erred in
granting the Oldenburgs' motion in limine, striking the report and the anticipated
S The trial court granted the motion for remittitur in part and reduced the past medical expenses
award of $385,000.00 rendered in the September 2, 2022 judgment to $ 384,808. 55. The past
medical expenses award has not been appealed.
4
trial testimony of defendants' expert neurosurgeon, Dr. Sebastian Koga. The basis
of the trial court' s exclusion was that the expert' s report was provided after the
discovery cutoff date.
If a party' s attorney fails to obey a pretrial order, the court, on its own
motion or on the motion of a party, after hearing, may make such orders as are just,
including an order prohibiting the disobedient party from introducing designated
matters in evidence. La. C.C.P. art. 1551( C). See also La. C. C. P. an. 1471( Ax2).
A trial court renders a pretrial order after holding a pretrial conference, and the
order " controls the subsequent course of the action, unless modified at the trial to
prevent manifest injustice." La. C.C. P. art. 1551( B). The theory inherent in pretrial
procedure is to avoid surprise and to allow orderly disposition of cases. Morgan Y.
E. Baton Rouge Par. Sch. Bd., 2016- 1065 ( La. App. 1st Cir. 2/ 17/ 17), 215 So.3d
442, 444, writ denied, 2017- 0457 ( La. 5/ 1/ 17), 219 So.3d 330.
A reviewing court must defer to a trial judge' s reasonable decision on a
question or matter properly within his or her discretion. Kem Search, Inc. Y.
Sheffield, 434 So.2d 1067, 1071 ( La. 1983). In matters of discovery, decisions of
the trial court should not be disturbed in the absence of an abuse of discretion. See
Dennis Y. Turner, 35, 553 ( La. App. 2d Cir. 1/ 23/ 02), 806 So.2d 942, 944. Given
the varying factual circumstances and the discretionary nature of each such
decision, when the trial court' s ruling is a " close call," it rarely can be considered a
gross abuse of discretion. See Palace Properties, L.L.C. Y. Sizeler Hammond
Square Ltd. P'ship, 2001- 2812 ( La. App. 1st Cir. 12/ 30/02), 839 So.2d 82, 91
n. 14, writ denied, 2003- 0306 ( La. 4/4/ 03), 840 So.2d 1219.
5
Here, it is undisputed that, despite a discovery cutoff date of June 13, 2022,
Dr. Koga was not identified as a medical expert until May 31, 2022.6 By joint
motion, the discovery cutoff date was extended until July 13, 2022.
4n June 6 and 7, 2022, counsel for plaintiffs were provided the deposition
and report fees they had requested of Dr. Koga. Also included in a June 7, 2022
email, defense counsel noted, " Please let us know if you would like a report
instead of or in addition to the deposition." In a June 9, 2022 email, plaintiffs'
counsel advised defense counsel to have Dr. Koga prepare a written report and to
provide deposition dates after the anticipated issuance of his report.
On June 13, 2022, plaintiffs' counsel emailed defense counsel requesting
available deposition dates for Dr. Koga and whether he required prepayment for
the requested report. In response, defense counsel stated, via email dated June 17,
2022, that Dr. Koga was available at 9:30 a.m. on July 11, 2022, pointing out that
it was the same date the plaintiffs' expert, Dr. Christopher Gharibo, was providing
perpetuation of his testimony, scheduled for 2: 30 that afternoon.
Defendants supplemented their responses to interrogatories and requests for
production on June 20, 2022. Defendants identified Dr. Koga as:
expected [ to] ...provide opinion testimony in response to the
allegations regarding treatment of [ Robin] and [ Robin' s] history,
condition, and course, specifically including expert opinion testimony
regarding standard of care and causation issues, that the patient
experienced a rare but known complication which was timely
diagnosed and properly managed resulting in improvement. Please
see deposition and report. [Emphasis added.]
An email from plaintiffs' counsel to defense counsel dated June 21, 2022
indicated that an updated copy of November 10, 2012 MRI and CT of Robin' s
cervical spine was available to retrieve. The email pointed out plaintiffs'
6 The Oldenburgs acknowledge that after the identification of Dr. Koga, on June 6 and 8, 2022,
they identified two additional medical expert witnesses.
TA
understanding that Dr. Koga had been unable to review the images since
defendants' copy was in a corrupt condition.
On July 1, 2022, responding to defense counsel' s June 17, 2022 email,
counsel for plaintiffs advised that Dr. Koga' s report was needed prior to the July
11, 2022 perpetuation of Dr. Gharibo' s testimony and requested the status of the
report. That same day, defense counsel replied by email that the report was
expected to be forwarded to plaintiffs' counsel the following week. Defense
counsel acknowledged the need to have the opinion before the perpetuation of Dr.
Gharibo' s deposition testimony on July 11, 2022, and offered to file a motion to
briefly extend the deadline to complete the perpetuation of video testimony that
was to be played for the jury at trial. Plaintiffs' counsel responded, " As long as we
have [ Dr. Koga' s] report next week, extending the deadline should not be
necessary."
The next communication was an email from plaintiffs' counsel to defense
counsel on July 8, 2022, requesting the status of Dr. Koga' s report, with a reminder
of the July 11, 2022 perpetuation of Dr. Gharibo' s trial testimony, that the report
was needed to provide Dr. Gharibo " an opportunity to address Dr. Koga' s
opinions," and pointing out that it had been a month since Dr. Koga' s report had
been requested. On July 11, 2022, defense counsel emailed plaintiffs' counsel,
explaining Dr. Koga' s report had not yet been received but that if the report were
received and defendants planned to call Dr. Koga at trial, defense counsel would
produce the report " and we can discuss applicable remedies."
On July 14, 2022, the day after the discovery cutoff date and three days after
perpetuation of Dr. Gharibo' s testimony, defense counsel emailed a copy of Dr.
Koga' s report to plaintiffs' counsel. Plaintiffs' counsel replied on July 18, 2022,
inquiring whether Dr. Koga was to testify as to the standard of care. In a response
7
that same day, defense counsel stated, " Dr. Koga will testify with regard to
standard of care and causation issues in response to the opinions of [ five of
plaintiffs' identified experts]."
An email between defense counsel, dated July 19, 2022, stated that
plaintiffs' counsel was " going to forward some language, so we can work out a
Consent Judgment for the scope of Dr. Koga' s testimony as to standard of care."
Counsel then provided the following as an example of language she had offered for
the proposed consent judgment, " He doesn' t do procedure, so would not testify as
to the needle selection or technique, but would testify as to standard of care ( more
broadly)." The record is devoid of any communication from defense counsel to
plaintiffs' counsel indicating the gist of the email or an intention to enter a consent
judgment by plaintiffs' counsel. Similarly, nothing in the record establishes the
intended scope of counsels' discussions.
In rendering its ruling, the trial court stated:
Yes, the plaintiffs could have taken Dr. Koga' s deposition;
however, they requested his report. They requested it numerous times.
And I' m not saying they were intentionally misled. Not at all. But
they were told that the report would be provided prior to Dr.
Gharibo' s deposition. One date [ for a deposition] was provided. It was
the same date ... as Dr. Gharibo' s deposition.
It' s difficult to reschedule a doctor' s deposition. They have
demanding schedules and places that they need to be, and so ... there
was definitely an effort, a significant effort on the part of the plaintiffs
to obtain the information. Repeated requests for the report. They were
told they would get it ..., and then it was provided after discovery
cutoff.
At this point, it' s my understanding that Dr. Gharibo is out of
the country. Even if he could get on Zoom, he may not want to do
that. He may be on vacation or visiting with his family. He is not a
party to this litigation. He' s an expert, and we' re at the eleventh
hour....
So it' s going to be the Court' s ruling that the plaintiffs' motion
to exclude Dr. Koga is granted.
We cannot say that the trial court abused its discretion in excluding Dr. Koga' s
opinion and anticipated trial testimony under these circumstances.
8
While the late identification of medical experts by counsel for the parties
created a tight schedule,
they collectively agreed to the extended discovery
deadline. Insofar as appellants' contention that plaintiffs independently requested a
report rather than deposition testimony, the record establishes that it was
defendants who suggested " a report instead of or in addition to the deposition," and
that defendants agreed to supply the report prior to Dr. Gharibo' s July 11, 2022
testimony perpetuated for trial. Additionally, defendants provided plaintiffs with
only a single deposition date, the morning of July 11, 2022, which would not have
allowed Dr. Gharibo the opportunity to review the testimony so as to rebut Dr.
Koga' s standard of care and causation opinions. And as noted by the trial court,
plaintiffs repeatedly made efforts to obtain Dr. Koga' s report prior to the
perpetuation of Dr. Gharibo' s testimony. Therefore, the record shows that the late
report caused prejudice to plaintiffs.
We are mindful that even when the trial court' s ruling is a " close call," its
decision rarely can be considered a gross abuse of discretion. In light of the
sequence of events during discovery, given the trial court' s ruling, this court must
uphold the exclusion of Dr. Koga' s report and anticipated trial testimony.'
Intervenors assert that because plaintiffs did not comply with La. C.C.P. art. 1425 by filing a
contradictory motion requiring that Dr. Koga provide an expert report, defendants had no codal
obligation to produce the expert report and, thus, its late production did not constitute a violation
of the scheduling order. Intervenors overlook that defendants voluntarily agreed to produce the
expert report and created an expectation of timely production. Defendants acknowledged
plaintiffs' need for the report prior to the perpetuation of Dr. Gharibo' s testimony. They offered
only a single deposition date that did not allow the rebuttal witness an opportunity to review Dr.
Koga' s testimony. Most importantly, defendants agreed to supply the report before July 11,
2022. Therefore, irrespective of whether defendants had a codal obligation to produce the report,
defendants expanded the scope of discovery to include production of the report, and plaintiffs
were prejudiced when it was not timely produced. Therefore, the trial court did not abuse its
discretion in finding a violation of the scheduling order and excluding Dr. Koga' s trial testimony
and opinions on this basis.
0
Accordingly, we find no error.$
Exclusion of a Demonstrative Evidence Durine Dr. Markman' s Testimony:
During defendants' direct examination of Dr. John Markman, an expert in
the fields of neurology and pain management, an exhibit showing the blood vessels
in the back of a person' s neck was presented to the jury by projection onto a
screen. Defendants' proffer of the demonstrative exhibit shows two illustrations
with a caption below which states, " Corrosion cast of the dural venous sinuses and
vertebral venous plexus ( left) and schematic drawing ( right) showing the
connections between the emissary veins of the posterior occipital region and
vertebral venous plexus."
Plaintiffs' counsel requested a sidebar, objecting to the presentment of the
demonstrative evidence because it had not been produced during discovery.
Defense counsel stated that she " got [ the exhibit] last night." Plaintiffs' counsel
8
Additionally, the record is devoid of a proffer of Dr. Koga' s trial testimony. Without a proffer,
appellate courts have no way to ascertain the nature of the excluded testimony. Salvador
Valencia, LLC Y. Robertson Dev., L.L.C., 2022-0489 ( La. App. 1st Cir. 12/ 27./22), 360 So.3d
555, 561. See also La. C.C.P. art. 1636. At the pretrial hearing, Dr. Koga' s report was admitted
into evidence without objection. Without Dr. Koga' s testimony, the report is hearsay. SSe.
Brasseaux Y. Stand -By Corp., 371 So.2d 1174, 1175 ( La. 1979). See also La. C.E. art. 803( 6).
But because plaintiffs failed to object to its admission, they waived the objection. See Ackee Y.
Nat'l Tea Co., 95- 2556 ( La. App. 1st Cir. 12/ 20/96), 686 So.2d 121, 126 n. 5. See also La. C.E.
art. 103( A)( 1). Moreover, to the extent that the admission of the report at the pretrial motion
hearing constituted a proffer, we conclude defendants failed to show its exclusion for review by
the jury was prejudicial. Given the highly technical nature of the report, we question whether the
jury could have understood it sufficiently to rely on its content without Dr. Koga' s testimony.
Additionally, mechanism -of i-njury opinions other than injection into the spinal cord were set
forth by other defense experts, including Dr. Elkersh, Dr. John Markman, and Dr. Sean Graham.
Insofar as Dr. Koga' s statement that the MRI and CT images did not show a " needle track" but
evidenced cord edema with varying possible causes, other defense experts also so testified,
including Dr. Elkersh, Dr. Patricia Espinosa -Prado, and Dr. Markman. Appellants have correctly
pointed out that Dr. Koga' s opinion that advancement of the needle into the spinal cord was
within the standard of care was not an opinion provided by any other defense expert.
Specifically, Dr. Koga' s report stated that it was his professional opinion that Robin " suffered a
rare but known complication of cervical injections with resultant spinal cord injury." Review of
the MRP opinion, which was admitted during the presentation of evidence to the jury, shows that
the MRP concluded the evidence did not support the conclusion that Dr. Elkersh failed to meet
the applicable standard of care. The MRP specifically found that Robin experienced " a known
but rare complication of an interventional cervical injection." From this MRP conclusion, the
jury could have inferred that the advancement of the needle into the spinal cord was within the
standard of care. While Dr. Koga' s report more directly delineated that an injection into the
spinal cord fell within the standard of care than did that of the MRP opinion, ultimately Dr.
Koga' s opinion was in conformity with the MRP' s and, therefore, cumulative. Accordingly,
appellants have failed to show prejudice by the exclusion of Dr. Koga' s opinions as set forth in
the report.
10
responded that during the trial testimony of another of plaintiffs' experts, the use of
a demonstrative exhibit had been withdrawn when defendants objected because it
had not been timely produced. Thereafter, defense counsel complained that during
the perpetuation of his testimony, Dr. Gharibo had been permitted use of an exhibit
contained in medical literature. The defense suggested that this resulted in a rule
that demonstrative exhibits found within the text of medical literature that were
straight anatomical depiction[ s] out of a book" were permissible to use during
questioning. Counsel for plaintiffs advised the trial judge that all of plaintiffs'
experts had testified and been released, and that use of the demonstrative exhibit
was prejudicial since medical expertise was necessary to understand the
illustrations it depicted insofar as plaintiffs' theory of the case.
In issuing its ruling, which disallowed Dr. Markman' s use of the
demonstrative exhibit, the trial court emphasized that Dr. Gharibo' s testimony had
been completed July 11, 2022, and, therefore, defendants had ample time to rebut
his use of an unproduced demonstrative exhibit. However, since Dr. Markman' s
use of the late -produced exhibit occurred after plaintiffs had rested their case -in -
chief, the demonstrative exhibit was not allowed " because I just don' t think it gives
either side an opportunity to prepare for the information with their witnesses."
Appellants contend the trial court' s rulings as to the use of demonstrative
evidence by Drs. Gharibo and Markman were inconsistent. As such, they urge that
the trial court' s ruling excluding Dr. Markman' s use of the demonstrative exhibit
was a consequential error that significantly impacted the verdict.
La. C.E. art. 103( A) provides, in part, that " Error may not be predicated
upon a ruling which admits or excludes evidence unless a substantial right of the
party is affected." The party alleging prejudice by the evidentiary ruling of the trial
court bears the burden of so proving. The trial court is granted broad discretion in
11
rulings on admissibility of evidence and its determinations will not be disturbed on
appeal absent a clear abuse of that discretion. Doe v. ABC Sch., 2019-0983 ( La.
App. 1st Cir. 12/ 17/ 20), 316 So.3d 1086, 1101, writ denied, 2021- 00098 ( La.
3/ 9/ 21), 312 So.3d 582.
The record establishes that during the entire sidebar, the exhibit was
projected onto the screen. Thus, the jury had ample opportunity to see its
depictions. It was only after the sidebar concluded and questioning of Dr.
Markman resumed that plaintiffs' attorney asked for the removal of the
demonstrative exhibit. Even without the demonstrative exhibit, Dr. Markman
thereafter testified in detail, fully describing to the jury a person' s neck anatomy,
the location of blood vessels in the neck, and his theory of the mechanism of
injury." Therefore, the failure to allow use of the demonstrative evidence was
harmless error at worst. Given the trial court' s vast discretion, under the facts and
circumstances, we cannot say there was an abuse of discretion.
Admission of Dr. Gharibo' s Testimony Regarding a Pre-procedure Physical
Examination:
Appellants aver that the trial court erred in denying defendants' motion in
limine to exclude Dr. Gharibo' s testimony as to any acts or omissions by Dr.
Elkersh preceding November 7, 2012, the date of the procedure that gave rise to
Robin' s right-sided upper extremity deficits. They maintain that the trial court
should have excluded as an impermissible expansion of the pleadings and outside
9 Dr. Markman used a human skeleton to show the jury the orientation that Dr. Elkersh
approached Robin in administering the injections. He explained that the skeleton he was using
did not include the venous system, which drained the blood of the spinal cord and the brain. He
depicted to the jury how the venous system overlays the place in Robin' s neck that Dr. Elkersh
was targeting in administering the injection. Dr. Markman advised the jury that most likely, the
needle contacted the vascular system and the overwhelming likelihood was that area had a
spontaneous spasm. Dr. Markman further elaborated how the vein overlay is different in each
person and drains differently. According to Dr. Markman' s theory of the mechanism that
resulted in Robin' s injury, when the venous walls tightened, the blood could not drain, which
caused swelling. Once the blood was restored and reflowed, as a result of the lack of draining,
some of the cells were compromised giving rise to the spinal cord hemorrhage, which caused the
deficits in her right upper extremity.
12
the scope of the allegations presented to the MRP any testimony or opinion related
to acts and omissions by Dr. Elkersh on November 6, 2012. By allowing the
testimony and corresponding opinion, appellants contend the trial court permitted
the jury to hear prejudicial evidence that tainted the verdict and requires a de novo
review.
The trial court has great discretion to admit or disallow evidence subject to
an objection based upon the scope of the issues and pleadings and to determine
whether evidence is encompassed by the general issues raised in the pleadings. A
court of appeal will not disturb a trial court' s determination in this regard absent an
abuse of the trial court' s discretion. Salvador Valencia, LLC v. Robertson Dev.,
LL.C., 2022- 0489 ( La. App. 1st Cir. 12/22/22), 360 So.3d SSS, 559.
Dr. Gharibo, accepted as an expert in the fields of anesthesiology, pain
management, and best practices, testified that although Robin had been sent to Dr.
Elkersh to administer cervical facet injections, by failing to conduct his own
physical exam of Robin' s neck verifying the need for the injections prior to
commencing the November 7, 2012 procedure, Dr. Elkersh breached the standard
of care. Reviewing Robin' s medical history with Dr. Elkersh, Dr. Gharibo noted
that the November 7, 2012 procedure was actually the third time that Dr. Elkersh
had administered cervical facet injections in her neck. Looking at the note from
Robin' s November 6, 2012 pre- procedure office visit with Dr. Elkersh, Dr.
Gharibo pointed out that, under the portion of the printed form entitled " Physical
Exam," Dr. Elkersh failed to include a notation of having conducted an
independent exam of Robin' s neck. He explained to the jury the proactive
maneuvers that needed to be performed to confirm that Robin' s cervical facets
were tender so as to warrant the procedure. Later in his testimony, Dr. Gharibo
13
advised the jury that the pre- procedure physical exam should have been conducted
on November 6, 2012 at the pre-procedure office visit.
In ruling on defendants' motion in limine, the trial court stated:
A] nything prior to [ November 7, 2012], I think that ... is earlier acts
of alleged malpractice and breach of the standard of care that' s not
contained in the petition. So I .... grant [ the] motion in limine to strike
those references....
And I think [ November 6, 2012] relates to that [ November 7, 2012
cervical facet injections procedure]. Anything before that relates to the
other injections [ and are excluded]....
I] f there was something ... done to prepare for that [ November 7,
2012] procedure ... directly related in time that wasn' t done, I think
that is contemplated within the petition. So I [ will] allow that, but
nothing before.
In their petition, letter requesting the formation of the MRP, and MRP
position paper, the Oldenburgs alleged, among other things, that on November 7,
2012, Robin presented to Dr. Elkersh for the cervical facet injection procedure, that
Dr. Elkersh lacked the skill or care required by the specialty, and that he injured
Robin' s spinal cord during the procedure. Our review of Dr. Gharibo' s full
testimony convinces us that his opinion was simply that a pre-procedure exam
should have been undertaken prior to administration of the cervical facet injection
procedure, ostensibly even on the day of the procedure. Although Dr. Gharibo
focused on November 6, 2012 at times during his testimony, opining that the lack
of a physical exam was a breach in the standard of care, that date was suggested in
conjunction with Robin' s medical history, which included the pre- procedure exam
held on November 6, 2012. But nothing in Dr. Gharibo' s testimony expressly
required that the undertaking of a pre-procedure physical exam to confirm
continued ongoing pain was required only on November 6, 2012 and at no
subsequent time. Accordingly, we cannot say the trial court abused its discretion in
concluding Dr. Gharibo' s opinion that the failure to conduct a pre- procedure
14
physical exam is encompassed by the general issues raised in the allegations in the
petition, MRP letter, and MRP paper.10
Because we have found no error in the trial court' s evidentiary rulings,
appellants are not entitled to a de novo review. And while they have not asserted
that the determination of liability is manifestly erroneous, we expressly note a
reasonable factual basis exists for the jury' s findings that Dr. Elkersh breached the
standard of care, causing damages to Robin. See White Y. LAMMICO, 2021- 1222
La. App. 1st Cir. 4/ 8/ 22), 342 So.3d 63, 67 ( To establish a claim for medical
malpractice, the plaintiffs must prove by a preponderance of the evidence: ( 1) the
standard of care applicable to the defendant; ( 2) the defendant breached that
standard of care; and ( 3) there was a causal connection between the breach and the
resulting injury.). See also Landry Y. Doe, 2019- 0880 ( La. App. 1st Cir. 6/ 26/20),
307 So.3d 1064, 1073, writ denied, 2020- 00952 ( La. 10/ 20/20), 303 So.3d 313,
and writ denied, 2020- 00948 ( La. 10/ 20/ 20), 303 So.3d 316 (Resolution of whether
a plaintiff proved the elements of a claim for medical malpractice is a factual
determination that may not be reversed on appeal absent manifest error.).
The jury heard extensive testimony from Dr. Gharibo, Dr. Joseph Ghitis (an
expert in the fields of radiology and neuroradiology), and Dr. Chad Domangue as
to the mechanism of injury, identifying it as the injection of an injectate consisting
of a steroid ( Decadron) and an anesthetic ( Marcaine) into Robin' s spinal cord.
10 Dr. Elkersh complains that the theory of liability that he breached the standard of care by
failing to conduct a pre-procedure exam was not revealed until six days before the discovery
cutoff deadline and one month before the start of trial. He buttresses this complaint with the
exclusion of Dr. Koga' s trial testimony and report, suggesting Dr. Koga' s opinion would have
rebutted Dr. Gharibo' s on this point. As we have already noted, the parties agreed to a tight
schedule for expert opinions, identifying three experts in the two months before trial, including
Dr. Gharibo. Thus, Dr. Elkersh cannot assert prejudicial error on this basis, especially since the
opinion is encompassed within the general issues raised by the allegations of the pleadings. In
addition, the record shows that plaintiffs' expert, Dr. Chad Domangue, with expertise in
neurology, pain management, and complex regional pain syndrome, opined that the lack of a
physical exam was not a breach of the standard of care in this case, rebutting Dr. Gharibo' s
opinion. Thus, Dr. Koga' s testimony would have simply been cumulative. Therefore, we cannot
say the trial court abused its discretion on this basis.
15
Each of these plaintiffs' medical experts pointed out to the jury the needle track on
a November 10, 2012 MRI image that supported their respective opinions that
Robin' s spinal cord had been punctured and injected. Drs. Gharibo and Domangue
each testified that Dr. Elkersh breached the standard of care when he injected the
injectate into Robin' s spinal cord. Additionally, Drs. Gharibo and Domangue each
opined that Dr. Elkersh failed to properly use fluoroscopy ( which are rapidly -
produced x-rays taken during the procedure) and that this failure was another
breach in the standard of care. In light of this outlined medical testimony, a
reasonable factual basis exists to support the jury' s findings imposing liability.
GENERAL DAMAGES
Intervenors maintain that the award of general damages, particularly the
award of $400,000.00 recoverable against the PCF, was grossly excessive, and that
the trial court abused its discretion in so rendering. They request reduction of the
total general damages award to an award consistent with the amounts rendered in
similar cases."
General damages are those which may not be fixed with pecuniary
exactitude; instead, they involve mental or physical pain or suffering,
inconvenience, the loss of intellectual gratification or physical enjoyment, or other
losses of life or life-style which cannot be definitely measured in monetary terms.
Jones P. Mkt. Basket Stores, Ina, 2022- 00841 ( La. 3/ 17/ 23), 359 So.3d 452, 464.
In the assessment of damages in cases of offenses, much discretion must be left to
the judge or jury. La. C.C. art. 2324. 1.
In Pete P. Boland Marine & Mfg. Co., LLC, 2023- 00170 ( La. 10/ 20/23),
379 So.3d 636, 641, the Louisiana Supreme Court has recently explained that the
I I On appeal, intervenors do not levy any assertions challenging the quantum of the jury' s awards
as set forth in the verdict, limiting their contentions to a challenge of the quantum of the award of
500,000.00 in total general damages awarded by the trial court. See n.3, supra. Therefore, the
issue of whether the jury' s awards in the amounts set forth in the verdict were excessive and,
therefore, an abuse of discretion is not before us, and we pretermit a discussion of that issue.
16
discretion afforded the trier of fact " is not unfettered." Thus, the two-step analysis
by which appellate courts review general damage awards has been modified. The
question of whether the trier of fact abused its discretion in assessing the amount of
the award of general damages remains the initial inquiry. But to evaluate this issue,
appellate courts have been instructed to include a consideration of prior awards in
similar cases, as well as the particular facts and circumstances of the case under
review. See Pete, 379 So. 3d at 644. If an abuse of discretion is found, the second
step is for appellate courts to then consider those prior awards to determine " the
highest or lowest point which is reasonably within that discretion." Id.
The record shows the following relevant evidence as to the general damages
Robin suffered. Robin was 50 years old on November 7, 2012, when Dr. Elkersh
performed the cervical facet injection procedure in her neck for the fourth time.
Robin described Gair and herself as " a pretty active couple" at that time who
enjoyed, among other things, boating, canoeing, hiking, bowling, and playing pool.
Robin was in two bands, one with Gair, and they also joined in with others who
performed in bands. Robin told the jury that she and Gair participated in karate
together and that she was a second-degree blackbelt who had participated in
national competition and ranked third in an international competition.
In 2005, she and Gair moved to St. Tammany Parish, and she began working
as a deputy clerk at which she primarily sat and typed. In 2012, Robin began
experiencing neck pain. She was referred to Dr. Elkersh, who administered
multiple cervical facet injection procedures beginning in March 2012. The
procedures had been uneventful and quick. According to Robin, she did not have
any relief after the first one, could not recall if she had relief after the second one,
but had relief after the third one.
17
After the November 7, 2012 procedure, Robin recalled waking up to a
different experience from her earlier post-procedure care. She was on oxygen, a
wet rag was on her head, people were circling her, and " it was a lot of
pandemonium." She was screaming, asking why she was experiencing
unbearable" pain on her left side and unable to pick up her right arm.
Robin left the API facility in Hammond after several hours in post-procedure
care with the understanding that her condition was temporary and would improve
once the lidocaine wore off. She detailed the " bumpy," painful ride back to her St.
Tammany Parish residence and found herself "more hysterical" after she returned
home. Robin was unable to sleep from the " unbelievable pain" on her left side and
continued to have right -side weakness. She also had a pain that was " very
different" down her neck and shoulder blade.
The next morning, Robin called Dr. Elkersh insisting on an MRI. Dr.
Elkersh sent an order for an MRI and agreed to see Robin that afternoon at his
Covington office. Despite waiting to see Dr. Elkersh, he did not examine her. He
took the MRI image disk and advised Robin that he would call her later. When she
arrived home, Dr. Elkersh called and instructed her to go to the North Oaks
hospital in Hammond. According to Robin, Dr. Elkersh did not explain himself,
causing her to become " crazy, hysterical."
At the hospital, Robin continued experiencing the same pain and inability to
lift her right arm. Although she was able to move her finger, her hand " felt kind of
like it does now, [ pins] and needles constant." An IV of steroids was administered
and the next day, she began feeling " steroid nervousness" and a steroid -induced
panic. Robin was afraid sl -.%
e was going to experience permanent paralysis. After
three days on steroids, Robin was able to feed herself although it was challenging.
18
On the fourth day, Robin was able to lift her arm. She participated in occupational
and physical therapy, the latter of which helped her stabilize when she walked.
As she testified, the jury was able to see Robin engage in a habit that started
while she was in the hospital. She rubs over her thumb with a rag to help with
sensitivity issues. She explained that for the last ten years, it has felt like her hand
is continually in a bowl of ice water and that the worst discomfort is in her thumb
and index finger. Rubbing the thumb helps alleviate the pain temporarily. Robin
told the jury that she prefers to use restaurant napkins because the material is of a
stiffness that provides the most relief. She has rubbed her thumb so frequently that
the skin tears open. Because she feels like there is no skin on her hand, Robin
wears a particular furry sock at night, underscoring her sensitivity to textures. She
is unable to sleep with her hand open.
Robin described a " shock" sensation that she experiences when she looks
down as an " electric" feeling in her neck and head. She has been advised a surgical
solution does not exist to address her hand discomfort, right upper extremity
weakness, or the " shock" sensation she experiences. A neurologist has advised
Robin there are no cures.
Robin began seeing Dr. Domangue for pain management in January 2013.
He has prescribed medications for neuropathy, which caused her to gain 30 pounds
and do not provide 100% relief. Robin uses ice and a TENS unit to aid in pain
relief. She undertook a trial for a spinal cord simulator but determined that the
relief was not worth the risk of allowing another surgical cervical intervention.
Robin advised the jury of two falls she experienced: one in 2014 and another
in 2018. In both instances, emphasizing her second-degree blackbelt conditioning,
Robin was convinced that she would not have suffered the injuries she sustained
had the falls occurred before the November 7, 2012 procedure because she had
sufficient agility and reflexes to catch herself and avoid falling to the ground.
On the date of trial, Robin continued to feel stress and neck, back, and arm
pain as well as neuropathy in her hand. She is unable to touch household cleaners,
gasoline, or the alcohol in hand sanitizers because they cause pain and irritation of
her right hand. Although she is right-handed, she has learned to apply makeup with
her left hand, but it takes longer. Gair initially had to brush her hair, but while it
takes longer and she is in pain, she has learned to do so for herself.
Robin told the jury that the intimacy between Gair and her is not the same.
They no longer share a bed because she kept him awake with her restlessness from
the discomfort. She cannot ride in a vehicle for long distances so she must fly
when they take vacations. Robin testified that she no longer skis, dives, rides
motorcycles, bowls, or bikes. She mostly stays at home. Robin feels as though with
each new problem, she has lost friends. She cannot stay out long because she
becomes tired and needs to apply ice to her neck and back. She and Gair gave up
their Pelicans season tickets because Robin was unable to climb the stairs without
difficulty. Given the changes in her physical appearance and lifestyle, Robin stated
that her self-confidence has diminished and she feels worthless. She is self-
conscious, anxious, and shakes.
Gair testified in conformity with Robin. He had accompanied her to the API
facility for the cervical facet injection procedure and more fully detailed her
discomfort after discharge, on the ride home, and once at home, indicating she was
unable to sleep and remained in constant discomfort. Gair accompanied Robin to
the North Oaks hospital and remained with her almost the entire time she was
there. He told the jury that two physicians expressed surprise that Robin was
20
walking. Gair also stated that based on some of the theories of mechanism of injury
he was told, he had genuine concerns whether Robin was going to die.
Gair provided the jury with a more articulated description of Robin' s
occupational and physical therapy sessions, including how she had to learn to write
and walk on grass again. Due to her post-procedure clumsiness, Robin easily loses
track of whether she has taken the required medication; therefore, Gair has
maintained Robin' s prescription regime. He explained how Robin uses three
separate ice packs on parts of her neck and back multiple times a day. Gair advised
the jury that Robin was unable to return to work fulltime. She then tried to work
parttime but was unsuccessful.
Insofar as traveling with Robin, Gair elaborated that she is unable to sit in a
vehicle for long periods of time and that they cannot stay in a hotel that does not
have a freezer because of her need for the ice packs to function. He also indicated
issues with flying including that they have to travel with a briefcase full of
medications and her TENS unit. Gair noted the many activities in which they no
longer participate, advising the jury that she is his best friend and that he was not
going to engage in events like bowling, fishing, boating, or biking without her. In
conformity with his wife, Gair agreed that Robin' s personality has changed since
she was injured in the cervical facet injection procedure. She has lost her
confidence, is exhausted from the pain, and is self-conscious about the weight gain.
Dr. Domangue testified as to the nature of Robin' s injury and the scope of
her impediments. He stated that Robin no longer has fine motor skills in her hand.
The sensory tracts, ability to regulate temperatures, and the blood vessels in her
hand have all been damaged. Additionally, her hand swells, and her skin is dry. Dr.
Domangue advised the jury that Robin will never have 100% relief.
21
Comparing imaging from 2013 with later images, Dr. Domangue stated that
they continue to show similar findings in the spinal cord, which meant that while
the injectate was absorbed over time, Robin nevertheless has permanent scarring.
He pointed out on imaging the area of abnormality and its extension, advising the
jury that this was why her arm does not work like it did before November 7, 2012.
According to Dr. Domangue, Robin' s left side sensitivity is in part due to complex
pain syndrome. The mass effect of injectate into the spinal cord pushed its
structure to the side, affecting other areas of Robin' s body. Dr. Domangue also
attributed the falls that Robin experienced to the injury to her spinal cord as well.
He explained the area affected is the region that regulates proprioception, which is
the ability to know where one is in space. Robin continues to have problems from
the kyphoplasty surgery she had to have as a result of the 2014 fall in which she
broke three vertebrae in her back. Dr. Domangue testified that Robin will likely
fall again in future.
Because Robin has been on medications for ten years, including narcotics,
Dr. Domangue sees the pain on her face and that she has aged. Additionally, she
has developed osteopenia, which Dr. Domangue stated was due to chronic opioid
use. He noted that the medication is shortening Robin' s lifespan and weakening her
immune system and that " the cure" is part of the complex pain syndrome from
which Robin suffers.
A spinal cord stimulator was an unavailable relief because Robin has PTSD
about her neck. Dr. Domangue recalled that when they considered use of a
stimulator, Robin was anxious and declined to have another procedure in her neck
area.
Insofar as future prognosis, Dr. Domangue advised the jury that there is no
fix for Robin. As she ages, she is at higher risk for additional problems. Although
22
she initially responded well to the medications that have been administered to her,
over time they have become less effective. Dr. Domangue pointed out to the jury
how Robin constantly moved her hands, which he described as both voluntary and
involuntary reflexes. The napkin rubbing is voluntary as Robin tries to focus her
attention away from the pain; but she also has involuntary tremors that resemble
those of Parkinson' s disease.
Dr. Domangue reminded the jury that before the November 7, 2012
procedure, Robin was a " well put together" woman who functioned highly
neurologically. After the injection into her spinal cord, she had a rapid
deterioration. She has pains, falls, and suffers from psychological issues. She is
unable to sleep and is judged because of her constant hand movement. Robin has
experienced a major drop in neurological function and in her quality of life. Dr.
Domangue expressly discounted any suggestion that Robin' s pain before and after
the injury were similar. The pre-procedure neck pain was arthritis but the post-
procedure injury is a devastating neurological insult. He described the two pains as
entirely different.
In ascertaining whether the trial court abused its discretion in awarding
500,000.00 in total general damages, we turn to a consideration of prior awards in
similar cases. We note that in presenting their appellate assertions, counsel have
adjusted the awards for inflation in all the cases they have cited.
Of the cases cited by intervenors, none include injuries or circumstances
identical to those presented to us in this appeal. See Wise Y. Nanda, 50,944 ( La.
App. 2d Cir. 12/ 28/ 16), 211 So. 3d 629, writ denied, 2017- 0213 ( La. 3/ 24/ 17), 217
So.3d 354 ( the jury' s award of $250,000.00, inflation-adjusted to $ 317,947.70 was
not appealed by patient, injured by physician who tore her dura, i.e., the membrane
covering the spinal cord, during a decompressive cervical laminectomy, which was
23
subsequently repaired but left patient with weakness in all four extremities and
blood clots); Cortez v. Zurich Ins. Co., 98- 2059 ( La. App. 1 st Cir. 12/ 28/99), 752
So.2d 957 ( award of $ 140,000.00, inflation-adjusted to $ 255, 419. 73, affirmed
where utility pole fell on parked car and driver in the car was struck on top of her
head, rupturing cervical discs at two levels, causing headaches, neck pain, and
carpel tunnel, as well as PTSD and depression); Birdsall v. Regional Elec. &
Constr., Inc., 97- 0712 ( La. App. 1st Cir. 4/8/98), 710 So.2d 1164 ( plaintiff, who
struck his head on a board protruding out of defendant' s work truck, suffered
headaches, neck and arm pain, and intermittent numbness in hands, awarded
150,000.00, or $ 283, 431. 69 when adjusted for inflation); and Johnson v. State
through Dept ofPub. Safety and Corrs., 95- 0003 ( La. App. 1st Cir. 10/ 6/ 95), 671
So.2d 454, writ denied, 95- 2666 ( La. 1/ 5/ 96), 667 So.2d 522 ( passenger in moving
vehicle accident suffered herniated discs at two levels of her neck sustaining neck
stiffness, sporadic pain, and aggravation of lower lumber arthritis awarded
85, 000.00 or adjusted amount of $169, 806.99).
For example, the range of symptoms that Robin has suffered includes issues
with the regulation of proprioception, which has given rise to falls and caused
additional injuries. Sem, Hall v. Brookshire Bros., Ltd., 2001- 1506 ( La. App.
3d Cir. 8/ 21/ 02), 831 So.2d 1010, affirmed, 2002- 2404 ( La. 6/ 27/ 03), 848 So.2d
559 ( award of $ 500,000. 00, statutorily reduced from jury' s award of
1, 500, 000.00, or $ 2,637, 511. 85 inflation-adjusted, was affirmed in patient who
suffered permanent injury to vestibular system, which compromised her mobility
and stability leaving her with a propensity to fall but also compromised her vision,
general balance, and equilibrium as she ages) ( cited by the Oldenburgs). But
Robin' s proprioception injury and its effects, including two falls, one which
24
required surgical intervention, were not accounted for in any of the cases that the
intervenors suggest establish a proper amount of an award.
Additionally, none of the cases offered by intervenors considered the impact
her injuries have had on the highly active lifestyle that Robin engaged in prior to
the cervical facet injection procedure. Sem, McLemore Y. Fox, 565 So.2d 1031La. App. 3d Cir.), writs denied, 569 So.2d 966 & 968 ( La. 1990) ( appellate court
determined award of $ 150,000. 00, or inflation-adjusted to $ 349,459.97, was an
abuse of discretion and increased to $ 300, 000.00, or $698,919.94 after adjustment
for inflation, where a motor vehicle accident plaintiff with asymptomatic
preexisting condition affecting the cervical spinal canal became symptomatic post-
accident, experiencing an injury " as severe as it could possibly be to the cervical
area without causing complete paralysis," including constant pain from spasticity,
which rendered him unable to work, mentally depressed, and socially and
physically inactive).
Based on the totality of the circumstances, particularly Robin' s physical,
mental, and life -altering injuries, including the complex pain syndrome,
osteopenia, the proprioception injury, and the lost active lifestyle in which Robin
engaged, we cannot say that the reduced award of $500,000.00 in total general
12
damages was an abuse of discretion. Accordingly, we affirm the trial court' s
award of excess damages against the PCF in the amount of $400,000.00.
12 The jury awarded Gair $200,000.00 for his loss of consortium damages and that award was
necessarily included in the statutory limit of the Louisiana Malpractice Act. See Williams V.
Enriquez, 40,305 ( La. App. 2d Cir. 11/ 17/ 05), 915 So.2d 434, 437 (" The statutory $ 500,000 cap
includes loss of consortium damages as they are derivative claims that arise from the same act of
malpractice."). The compensable elements of a claim for loss of consortium of a spouse include
loss of love and affection, loss of companionship, loss of material services, loss of support,
impairment of sexual relations, loss of aid and assistance, and loss of felicity. Lemoine v Mike
Munna, L.L.C., 2013- 2187 ( La. App. 1st Cir. 6/6/ 14), 148 So. 3d 205, 214. In challenging the
award of $400,000.00 imposed against the PCF, intervenors have not accounted for Gair' s loss
of consortium claim in any manner.
25
DECREE
For these reasons, the trial court' s judgment is affirmed. Appeal costs in the
amount of $11, 745. 50 is assessed one-half to defendant -appellant, Dr. Mohamed
Elkersh, and one-half to intervenors -appellants, the Louisiana Patient' s
Compensation Fund and the Louisiana Patient' s Compensation Fund Oversight
AFFIRMED.