                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #030


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 27th day of June, 2018, are as follows:



BY GUIDRY, J.:


2017-C-1488       ROGER BURCHFIELD AND CAROL BURCHFIELD     v. FORREST H. WRIGHT,
                  M.D., THOMAS RENDA, M.D., AND WILLIS KNIGHTON MEDICAL CENTER
                  (Parish of Caddo)
                  In this medical malpractice case, the jury declined to find the
                  defendant surgeon’s failure to refer the plaintiff for a cardiac
                  consult before performing non-emergency gallbladder surgery had
                  caused the patient to suffer a severe heart attack thirty or so
                  hours later that ultimately necessitated a heart transplant
                  rather than a heart bypass. Instead, the jury found the
                  plaintiffs had proven the defendant’s breach of the standard of
                  care had resulted in the loss of a chance of a better outcome.
                  The jury awarded the plaintiffs lump sum general damages, which
                  the trial court in its judgment made subject to the Medical
                  Malpractice Act’s limitation on the total amount recoverable. The
                  court of appeal found legal error in the verdict form
                  necessitated de novo review of the damages awarded. The court of
                  appeal affirmed the jury’s determination the plaintiff had
                  suffered a lost chance of a better outcome and awarded both
                  general damages and special damages, including past medicals,
                  future medicals, and lost wages. Because the court of appeal
                  erred in failing to apply the jurisprudence of this court in
                  determining the damages to be awarded in a lost chance of a
                  better outcome case, we reverse and reinstate the jury’s verdict,
                  its lump sum award of general damages, and the trial court’s
                  judgment.

                  REVERSED; JUDGMENT OF THE DISTRICT COURT REINSTATED AND AFFIRMED.
06/27/18



                      SUPREME COURT OF LOUISIANA

                                  No. 2017-C-1488

            ROGER BURCHFIELD AND CAROL BURCHFIELD

                                      VERSUS

           FORREST H. WRIGHT, M.D., THOMAS RENDA, M.D.,
             AND WILLIS KNIGHTON MEDICAL CENTER

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
              SECOND CIRCUIT, PARISH OF CADDO

GUIDRY, Justice

      In this medical malpractice case, the defendant surgeon ordered pre-operative

tests including a chest x-ray and an electrocardiogram (“EKG”) before performing

non-emergency gallbladder surgery on the plaintiff. However, the defendant did not

review the results of these tests prior to performing the surgery, but had he done so,

the tests would have alerted him to potential issues with the plaintiff’s heart

necessitating the ordering of a cardiac consult prior to surgery. Although the surgery

itself was successful and uneventful, some thirty or so hours after discharge, the

plaintiff suffered a heart attack and eventually had to undergo a heart transplant. The

plaintiff and his wife brought suit against the defendant alleging medical

malpractice. The defendant surgeon settled, and the Louisiana Patients’

Compensation Fund (“PCF”) intervened.

      After a trial against the PCF, the jury declined to find the plaintiffs had proven

the defendant’s failure to review the test results and to refer his patient to a

cardiologist before performing the surgery had caused the patient to suffer the

subsequent heart attack that ultimately necessitated a heart transplant. Instead, the

jury found the plaintiffs had proven the defendant’s breach of the standard of care

                                           1
had resulted in the loss of a less than even chance of a better outcome. The jury

awarded the plaintiffs lump sum general damages, which the trial court in its

judgment made subject to the Medical Malpractice Act’s limitation on the total

amount recoverable by the plaintiffs, La. Rev. Stat. 40:1231.2.

      The court of appeal found legal error in what it deemed to be a “patently

inconsistent” jury verdict in light of the verdict form, thereby necessitating de novo

review of the case. Following its review, the court of appeal nonetheless found the

jury’s determination that the plaintiffs had proven a lost chance of a better outcome

was clearly supported by the record. The court of appeal then awarded general

damages (affirming the trial court’s award), but it also awarded special damages,

including past medicals, future medicals, and lost wages, which it did not subject to

the Medical Malpractice Act’s limitation on the total amount recoverable. Because

we find error in the court of appeal’s decision, we hereby reverse that decision and

reinstate the jury’s verdict, its award of lump sum general damages, and the trial

court’s judgment.

FACTS and PROCEDURAL HISTORY

      Referred by his gastroenterologist to resolve gastric complaints, Roger

Burchfield, then age 58, was admitted to Willis-Knighton Medical Center on August

14, 2013, for non-emergency gallbladder surgery, specifically a laparoscopic

cholecystectomy, to be performed by Forrest Wright, M.D. Though Dr. Wright

ordered a pre-operative chest x-ray and EKG, which were completed, neither the

chest x-ray nor the EKG was read by Dr. Wright prior to the surgery. The x-ray

would have revealed Mr. Burchfield had congestive heart failure, while the EKG

indicated possible left atrial enlargement, nonspecific intraventricular block, and two

possible prior heart attacks, a septal infarct and an inferior infarct. None of these

ailments was apparently known to the patient, according to his testimony at trial.

                                          2
      Mr. Burchfield was placed under general anesthesia and Dr. Wright

performed the surgery successfully. There were no intraoperative complications,

and, with no apparent complications, Mr. Burchfield was discharged later that day.

Upon discharge, Mr. Burchfield returned home and initially had no issues eating or

walking. Approximately thirty hours later, Mr. Burchfield began experiencing

edema in his lower extremities and difficulty “getting comfortable.” On August 16,

2013, he presented to a local emergency room where he was determined to be in

critical condition, and was transferred back to Willis-Knighton and admitted to the

intensive care unit.

      At Willis-Knighton, it was determined that Mr. Burchfield had suffered an

acute myocardial infarction, respiratory failure, along with worsening of his

pulmonary edema, congestive heart failure, and bi-lateral pleural effusions. Mr.

Burchfield was intubated and placed into a medically-induced coma. A heart

catheterization was performed, an intra-aortic balloon pump was placed to allow his

heart to pump, and he was placed on a ventilator.

      Ultimately, it was determined Mr. Burchfield was not a candidate for heart

bypass surgery, so he was transported to Baylor Medical Center in Dallas on August

22, 2013, and evaluated. On September 3, 2013, Mr. Burchfield underwent a heart

transplant. He has recovered successfully from this surgery, but was unable to return

to his previous profession as a mechanic and will necessarily require medical

treatment related to the transplant for the remainder of his life.

      Mr. Burchfield and his wife Carol filed a medical malpractice claim naming

Dr. Wright, the radiologist, and Willis-Knighton as defendants. The plaintiffs

alleged Mr. Burchfield was suffering from congestive heart failure, as revealed by

the x-ray, and that Dr. Wright should have either not gone forward with the surgery

or taken pre-operative precautions before doing so. Plaintiffs settled their claims

                                           3
against Dr. Wright for $100,000.00, reserving their rights against the PCF for excess

damages. The remaining defendants were ultimately dismissed.

       A Medical Review Panel concluded Dr. Wright had breached the standard of

care by failing to review the pre-operative tests he had ordered. The panel opinion

observed that the gallbladder surgery was not an emergency. The panel opined that

the chest x-ray report “warranted postponing the surgery until a cardiology consult

could be obtained [and that] the failure to review the chest x-ray report and request

a cardiology consult was a factor of the resultant damages.” 1

       The case proceeded to trial against the PCF. The Verdict Form, which the

parties had negotiated and accepted, was answered by the jury in the following

manner. Question No 1: “Have the plaintiffs proven, by a preponderance of the

evidence, that Dr. Forrest Wright’s breach of the applicable standard of care was a

substantial factor in contributing to the injuries of Roger Burchfield?” The jury

checked the “No” box. The form then indicated: “If your answer is ‘yes,’ proceed to

Question No. 2. If your answer is ‘no’ then, proceed to Question No. 6.” Assuming

the jury found causation in Question No. 1, Question Nos. 2-5 concerned damages

for past and future pain and suffering, past and future disability, past medical

expenses, past lost wages, future lost wages, future medical care, and loss of

consortium for Mrs. Burchfield. However, because the jury answered “no” to

Question No. 1, it then proceeded as directed on the form to Question No. 6, which

provided: “Do you find that Roger Burchfield lost a chance of a better outcome as a

result of the breach of the standard of care by Forrest Wright, M.D.?” The jury

checked the “Yes” box to Question No. 6. The Verdict Form then instructed: “If your

answer to the above question is no, please STOP and have the foreperson sign and



1
 The Panel was composed of two general surgeons and an anesthesiologist. The Panel’s opinion
did not specify what the “resultant damages” entailed.
                                               4
call the Bailiff. If ‘yes’ proceed to Question No. 7.” Question No. 7 provided: “What

damages do you find that Roger Burchfield and/or Carol Burchfield suffered in

connection with a loss of a chance of a better outcome?” The jury answered

“$680,000.” The Verdict Form was signed and dated by the foreperson.

      The trial court later issued a judgment against the Patient’s Compensation

PCF in the amount of $400,000.00 plus judicial interest from February 20, 2014, and

court costs, after crediting the PCF with the $100,000 settlement with Dr. Wright

and applying the limitation on damages under the Medical Malpractice Act. The

plaintiffs thereafter moved for a judgment notwithstanding the verdict, which the

trial court denied.

      On appeal, the appellate court agreed with the jury that Mr. Burchfield

suffered a lost chance of a better outcome as a result of Dr. Wright’s breach of the

standard of care, but it found the jury’s responses to the Verdict Form were

“internally inconsistent, contributing to the troublesome reduction by the trial judge

of the jury’s award.” Burchfield v. Wright, 51,459 p. 4 (La. App. 2 Cir. 6/28/17), 224

So.3d 1170, 1173. The appellate court agreed with the plaintiffs that the trial court

had erred in concluding that a lost chance of a better outcome could consist only of

general damages, and thereby subject to the Medical Malpractice Act’s limitation on

the total amount recoverable, reasoning that “the answers to interrogatory numbers

one and six on the jury verdict form to be patently inconsistent, leading to an

inability of the jury to consider all of the damages suffered by the Burchfields as a

result of Roger’s heart transplant.” Id. [Emphasis in original.] Finding this perceived

inconsistency to be legal error, the appellate court reviewed the record de novo and

concluded the record clearly supported the jury’s determination that Mr. Burchfield

had suffered a lost chance of a better outcome. Id. at p. 6, 224 So.3d at 1174. The

appellate court found the jury had not been properly instructed on how to quantify

                                          5
the resultant damages on the Verdict Form. The appellate court cited this court’s

instructions on that precise issue in Smith v. State, Dept. of Health & Hosps., 95-

0038 (La. 06/25/96), 676 So.2d 543, but then it found the trial court had erred in

considering the jury’s award as general damages and subject to the Medical

Malpractice Act’s limitation on total recoverable damages, without awarding the

plaintiffs past medical awards, future medical care, and lost wages. Id. at pp. 7-9,

224 So.3d at 1175. The court of appeal affirmed the trial court’s $400,000 award in

general damages, but it additionally awarded past medical expenses of $692,850.64,

future medical care, and lost wages of $493,020.00, none of which it made subject

to the Medical Malpractice Act’s limitation on the total amount recoverable by the

plaintiffs. Id. at pp. 9-11, 224 So.3d at 1176-77.

      We granted the writ application of the Patient’s Compensation Fund to review

the appellate court’s decision to conduct a de novo review and to award additional

and separate damages for past medical bills, future medical care, and lost wages, not

subject to the Medical Malpractice Act’s limitation on the amount of recoverable

damages. Burchfield v. Wright, 17-1488 (La. 12/15/17), 231 So.3d 643.

DISCUSSION

      The PCF asserts essentially four assignments of error. First, it contends the

court of appeal failed to follow the decisions of this court that provide that the only

available recovery in a loss of chance claim is a lump sum award, which is in the

nature of a general damage. The PCF argues that, as a result, the appellate court

committed a number of interrelated errors by finding that the jury’s answers to the

Verdict Form were internally inconsistent and that the form did not adequately state

the law, by conducting a de novo review, and by rendering separate and distinct

awards for general damages, lost wages, and medical expenses. Second, the PCF

asserts the court of appeal erred in finding that Mr. Burchfield was entitled to future

                                           6
medical care pursuant to La. Rev. Stat. 40:1231.3, because it is not an available

remedy in a claim for loss of a chance of a better outcome. Third, the PCF asserts

the court of appeal erred in not applying the Medical Malpractice Act’s limitation

on the total amount recoverable by the plaintiffs, as provided by La. Rev. Stat.

40:1231.2, which prohibits recovery, exclusive of future medical care and related

benefits, from exceeding $500,000.00. Fourth, the PCF asserts the court erred in

concluding Mr. Burchfield was deprived of a chance of a coronary bypass when the

weight of the evidence is that he was never a candidate for the procedure due to his

pre-existing conditions, including congestive heart failure, hypertension, and two,

but possibly four, prior heart attacks. The PCF suggests that Mr. Burchfield was

deprived of at most a cardiac consult prior to surgery and that the small chance of a

better outcome merits a reduction in the lump sum award to $250,000.

      The plaintiffs counter the court of appeal correctly conducted a de novo review

of the record and properly concluded the plaintiffs’ damages were caused by the

defendant’s medical malpractice. The plaintiffs also note they had pointed out to the

court of appeal that the trial court’s jury charges did not comport with this court’s

preferred civil jury charges. The plaintiffs alternatively argue that, under any

standard of review, they proved their damages caused by the defendant’s medical

malpractice exceeded the maximum award allowed under the Medical Malpractice

Act. They argue the evidence and expert testimony established that Mr. Burchfield

more probably than not would have received a heart bypass instead of a transplant if

he had been properly treated and diagnosed by Dr. Wright. The plaintiffs assert the

record supports the court of appeal’s finding that but for Dr. Wright’s breach of the

standard of care, Mr. Burchfield would not have experienced the damage he did – a

resultant heart attack. The plaintiffs alternatively argue that they are entitled to seek

both damages that were definitely caused by the malpractice and additional damages

                                           7
that could be awarded in the form of “lost chance.” They claim there was evidence

of damages that could have fallen in either category, but the trial court declined to

allow multiple awards by the use of erroneous jury instructions and the Verdict

Form. Next, the plaintiffs assert that, analyzed as a lost chance of a better outcome

case, their damages fully exceeded the medical malpractice limitations on damages,

and a lost chance is not limited to general damages, but entitles the plaintiff to full

damages – not only general damages, but also medical expenses, lost wages, and lost

consortium. As to lost wages, the plaintiffs assert that they are not subject to the

Medical Malpractice Act’s limitation on recoverable damages because they could

reasonably be included as future medical expenses and “related benefits,” under La.

Rev. Stat. 40:1231.2. Finally, the plaintiffs argue they proved Mr. Burchfield would

require future medical care for the rest of his life and thus they were entitled to future

medical care not subject to the Medical Malpractice Act’s limitation on total

recoverable damages.

      Essentially, the plaintiffs’ theory of the case commences with the assertion

that Dr. Wright should have read the EKG and the x-ray reports he had ordered prior

to surgery, and that his failure to read those reports, to discern that they revealed Mr.

Burchfield was suffering from congestive heart failure and had suffered two prior

heart attacks, and therefore to refer Mr. Burchfield for a cardiology consult before

conducting the gallbladder procedure constituted a breach of the standard of care.

The PCF does not dispute that Dr. Wright’s actions constituted a breach of the

standard of care. Though he testified he was asymptomatic, Mr. Burchfield’s

condition prior to the gallbladder surgery was later determined to include congestive

heart failure, cardiomegaly, resistant hypertension, coronary artery disease, resistant

hyperlipidemia, and two, or possibly four, prior heart attacks. Accordingly, there is

no doubt that Mr. Burchfield required medical intervention of some kind. The

                                            8
question, however, was what modality of treatment was required, and did Dr.

Wright’s negligence deprive Mr. Burchfield of a less invasive treatment, such as a

coronary bypass operation, rather than the more serious heart transplant he

ultimately received.

      The plaintiffs make alternative contentions. Primarily, they contend Dr.

Wright’s decision to proceed with the surgery directly resulted in, and thus

substantially caused, a worsening of Mr. Burchfield’s condition, the acute

myocardial infarction, and the resultant heart transplant, necessitated by the damage

caused by the subsequent heart attack. Thus, they asserted that Dr. Wright’s decision

to proceed with the surgery, which involved placing Mr. Burchfield under anesthesia

and undergoing the laparoscopic surgery, rather than call for a cardiology consult

and a workup as a bypass candidate, was a substantial cause of the ultimate heart

transplant. As plaintiffs’ counsel argued to the jury, the gallbladder surgery was the

straw that broke the proverbial camel’s back, and that Mr. Burchfield more likely

than not could have undergone a coronary bypass and not have been required to

undergo the heart transplant and take medications and an immunosuppressant for the

remainder of his life. Alternatively, the plaintiffs contend that, even if there was not

more than a 50% chance that Mr. Burchfield would have been a candidate for a

coronary bypass, there was some chance that he would have been such a candidate

and could have had a better outcome than having to undergo a heart transplant. The

jury, as the Verdict Form shows, unanimously rejected the plaintiffs’ contention that

Dr. Wright’s failure to call a cardiology consult before proceeding with the surgery

was a substantial cause of Mr. Burchfield’s condition to worsen, resulting in a heart

attack, and having to undergo a heart transplant. Instead, the jury agreed with the

plaintiffs’ alternative theory that Dr. Wright’s breach of the standard of care did

deprive Mr. Burchfield of a chance of a better outcome.

                                           9
       For the reasons set forth below, we find the court of appeal misconstrued the

theory of lost chance of a better outcome in a medical malpractice case and

misapplied our settled jurisprudence on the determination of damages in a lost

chance of a better outcome case. In analyzing the issues presented in this case, we

must first examine the theory of lost chance of survival and lost chance of a better

outcome in the context of medical malpractice cases, the nature of loss of chance

damages, and the methodology for determining them.

       Medical malpractice has been defined by La. Rev. Stat. 40:1299.41(A)(8)2 as:

              [A]ny unintentional tort or any breach of contract based on health
       care or professional services rendered, or which should have been
       rendered, by a health care provider, to a patient, including failure to
       render services timely and the handling of a patient, including loading
       and unloading of a patient, and also includes all legal responsibility of
       a health care provider arising from defects in blood, tissue, transplants,
       drugs and medicines, or from defects in or failures of prosthetic devices,
       implanted in or used on or in the person of a patient.

       La. Rev. Stat. 9:2794(A)(3) provides that the plaintiff in medical malpractice

actions has the burden of proving by a preponderance of the evidence that as a

proximate result of the lack of knowledge or skill or failure to exercise the degree of

care required, the plaintiff suffered injuries that would not otherwise have been

incurred. Thus, the plaintiff must establish the standard of care applicable to the

charged physician, a violation by the physician of that standard of care, and a causal

connection between the physician’s alleged negligence and the plaintiff’s injuries

resulting therefrom. Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, p. 2 (La.

10/17/94), 643 So.2d 1228, 1230

       The loss of a chance of a better outcome is a theory of recovery recognized in

Hastings v. Baton Rouge General Hosp., 498 So.2d 713 (La. 1986). See also Martin

v. East Jefferson General Hosp., 582 So.2d 1272 (La. 1991). It is not a separate


2
 Redesignated as La. Rev. Stat. 40:1231.1(A)(13) by H.C.R. No. 84 of the 2015 Regular
Session.
                                             10
cause of action distinct from a statutory malpractice claim. See Bailey v. Knatt, 16-

1130 (La. 10/10/16), 207 So.3d 407. Under this theory of recovery, a plaintiff may

carry his burden of proof by showing that the defendant’s negligence was a

substantial factor in depriving the patient of some chance of life, recovery, or, as in

the instant case, a better outcome. The negligence need not be the only causative

factor, but it must have increased the harm to the patient. Hastings, 498 So.2d at 720.

Consequently, the plaintiff does not have to shoulder the burden of proving the

patient would have survived if properly treated; he need only demonstrate the

decedent had a chance of survival or recovery that was denied him as a result of the

defendant’s negligence. Pfiffner, 94-0924, 94-0963, 94-0992, p. 2, 643 So.2d at

1230; Martin, 582 So.2d at 1278.

      The seminal case from this court is Smith v. State, Dept. of Health and

Hospitals, 95-0038 (La. 6/25/96), 676 So.2d 543. We explained as follows:

             The issues in loss of a chance of survival cases are whether the
      tort victim lost any chance of survival because of the defendant’s
      negligence and the value of that loss. The question of degree may be
      pertinent to the issue of whether the defendant’s negligence caused or
      contributed to the loss, but such a tort-caused loss in any degree is
      compensable in damages.
             Allowing recovery for the loss of a chance of survival is not…a
      change or a relaxation of the usual burden of proof by a preponderance
      of the evidence. Rather, allowing such recovery is a recognition of the
      loss of a chance of survival as a distinct compensable injury caused by
      the defendant’s negligence, to be distinguished from the loss of life in
      wrongful death cases, and there is no variance from the usual burden in
      proving that distinct loss.
             Thus, in a medical malpractice case seeking damages for the loss
      of a less-than-even chance of survival because of negligent treatment
      of a pre-existing condition, the plaintiff must prove by a preponderance
      of the evidence that the tort victim had a chance of survival at the time
      of the professional negligence and that the tortfeasor’s action or
      inaction deprived the victim of all or part of that chance, and must
      further prove the value of the lost chance, which is the only item of
      damages at issue in such a case.

Smith, p. 6, 676 So.2d at 547[footnotes omitted; emphasis supplied].



                                          11
      Regarding the calculation of damages and the nature of such damages in a loss

of chance of survival case, this court in Smith specifically instructed “the factfinder

-- judge or jury -- to focus on the chance of survival lost on account of malpractice

as a distinct compensable injury and to value the lost chance as a lump sum award

based on all the evidence in the record, as is done for any other item of general

damages.” Smith, p. 7, 676 So.2d at 547. The Smith court held that “full recovery is

not available for deprivation of a chance of survival of less than fifty percent.” Id.

The Smith court explained that “[t]o allow full recovery would ignore the claimants’

inability to prove by a preponderance of the evidence that the malpractice victim

would have survived but for the malpractice, which is a requirement for full

recovery.” Id., 7-8, 676 So.2d at 547. The loss of a less-than-even chance of survival

is “a distinct injury compensable as general damages” that cannot be calculated with

mathematical certainty; thus, the factfinder must make a “subjective determination

of the value of that loss, fixing the amount of money that would adequately

compensate the claimants for that particular cognizable loss.” Id., p. 9, 676 So.2d at

548. The jury must consider “the same evidence considered by a jury in a survival

and wrongful death action, and the loss-of-chance jury then reaches its general

damages award for that loss on that evidence as well as other relevant evidence in

the record.” Id., p. 11, 676 So.2d at 549. The jury may consider “all the evidence,

including expert medical testimony regarding the percentage chances of

survival,…to value directly the lost chance….” Id.

      This court reaffirmed its decision in Smith that loss of chance damages are

general in nature and extended the loss of chance theory of recovery to claims not

only based upon the death of the patient but also to a loss of a chance of a better

outcome. Graham v. Willis-Knighton Medical Center, 97-0188 (La. 9/9/97), 699

So.2d 365. The Graham court held that the loss of a chance to save a limb from

                                          12
amputation is a “distinct injury compensable as general damages,” and that full

recovery for the loss of the limb was not allowed when the chance of saving the limb

from amputation is less than fifty percent. 97-0188, p. 16, 699 So.2d at 373. See also

Hargroder v. Unkel, 39,009 (La. App. 2 Cir. 10/29/04), 888 So.2d 953, writ denied,

04-2908, 04-2909 (La. 2/4/05), 893 So.2d 874 (applying Smith and finding the jury

erred in failing to consider the degree of loss of chance of a better outcome and to

award a lump sum for that element of damage, as is done in any other item of general

damages).3

         Turning to the issues presented in this case, we first find the court of appeal

erred in concluding the jury’s answers to Question Nos. 1 through 6 were

inconsistent or fatally flawed. The parties negotiated and accepted the Verdict Form,

and, as the court of appeal noted, the record “is unclear if there was sufficient

objection to, or argument for, any proposed jury interrogatory.” Burchfield, 51,459,

p. 5, 224 So.3d at 1174. Our reading of Question Nos. 1 through 5 clearly shows

they were related to plaintiffs’ statutory malpractice claim, which required the

plaintiffs to prove, by a preponderance of the evidence, that the defendant’s breach

of the standard of care was a substantial factor in causing Mr. Burchfield’s injuries.

Thus, to prevail on their claim, the plaintiffs were required to prove that the

defendant’s negligence in failing to review the preoperative tests caused injury to


3
    In Hargroder 888 So.2d 953, 957–58, the Second Circuit explained:

         The damage claimed in this case, loss of a chance of a better medical outcome, has
         its basis in cases dealing with loss of a chance of survival. Smith v. State
         Department of Health and Hospitals, 95–0038 (La.6/25/96), 676 So.2d 543. The
         issues in a loss of a chance of survival case are whether the tort victim lost any
         chance of survival because of the defendant’s negligence and the value of that loss.
         The question of degree may be pertinent to the issue of whether the defendant’s
         negligence caused or contributed to the loss, but such a tort-caused loss in any
         degree is compensable in damages. In such cases, the factfinder is to focus on the
         chance of survival lost on account of malpractice as a distinct compensable injury
         and to value the lost chance as a lump sum award based on all the evidence in the
         record, as is done for any other item of general damages. Smith v. State Department
         of Health and Hospitals, supra.

                                                 13
the plaintiff’s heart to such an extent that a heart transplant was necessary, rather

than a heart bypass. The thrust of the plaintiffs’ claim was that, had Dr. Wright called

for a cardiology consult prior to the gallbladder surgery, Mr. Burchfield would have

forgone the surgery and at that time would have been a suitable candidate for a heart

bypass; but, by failing to request the consult and proceeding with the surgery, Dr.

Wright caused further damage to Mr. Burchfield’s heart necessitating a heart

transplant.

        Clearly, the jury found the plaintiffs failed to make that showing by a

preponderance of the evidence. The court of appeal may have implicitly found the

jury’s determination in this regard was not interdicted by the “inconsistent answers”

to the verdict form. See Burchfield, pp. 5-6, 224 So.3d at 1174 (“Notably, in this

case, the legal error in the verdict form did not affect all of the jury’s findings, i.e.,

the jury’s determination whether [Mr. Burchfield] suffered a lost chance of a better

outcome --- the record clearly supports that. The problem lies with the determination

of the monetary amount of damages for that lost chance….”). Regardless, the court

of appeal should have applied a manifest error standard of review to the jury’s

finding that the surgeon’s breach of the standard of care did not cause the heart attack

ultimately necessitating the heart transplant. Had it done so, the court of appeal

would have concluded, as we do, that there was no manifest error in the jury’s

finding in that regard. 4


4
  It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact
in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in
the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not
be disturbed upon review, even though the appellate court may feel that its own evaluations and
inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter
v. Koehring, 283 So.2d 716, 724 (La.1973).

        The testimonial evidence was conflicting on whether Mr. Burchfield would have been a
candidate for a heart bypass, rather than a heart transplant, prior to the gallbladder surgery. As
the plaintiffs concede, there was conflicting testimony as to whether the laparoscopic gallbladder
surgery itself had directly caused the subsequent heart attack or if the surgery had caused the
worsening condition that caused the subsequent heart attack. Moreover, as both the plaintiffs and
                                                  14
       After finding insufficient proof of the plaintiffs’ statutory malpractice claim,

the jurors were appropriately directed to disregard Question Nos. 2 through 5, which

concerned damages recoverable in a statutory medical malpractice claim, and to

proceed to Question No. 6, which was related to the plaintiffs’ alternative theory of

loss of a chance of a better outcome. To that inquiry, the jury answered in the

affirmative, and then was directed to Question No. 7 to award an amount of damages

for the loss of a chance of a better outcome. The jury did so, awarding $680,000.00

as a lump sum general damages award.

       We find no inherent conflict in the jury’s answers to the interrogatories, and

the closing arguments by counsel to the jurors certainly expounded upon the precise

issues presented to the jury for resolution. The jurors were asked to determine

whether the plaintiffs had sufficiently proven that Dr. Wright’s negligence had

caused the injuries necessitating a heart transplant, and the jury determined the

plaintiffs did not meet their burden of proof. The jury was then asked to determine

whether Dr. Wright’s negligence had deprived the plaintiff of a chance of a better

outcome, and the jury responded that it had. The jury then awarded a lump sum

general damages award, after considering all the evidence of damages presented by

the plaintiffs. There was no jury confusion here, and as the trial judge had



the court of appeal noted, there was also conflicting testimony among the experts as to whether
Mr. Burchfield would have even been a candidate for a heart bypass at the time of the
gallbladder surgery. Though the plaintiffs’ various experts testified Mr. Burchfield might have
been a candidate for heart bypass had a cardiac consult been requested prior to the surgery, the
defendant’s expert testified otherwise, believing Mr. Burchfield’s heart was already too damaged
prior to the surgery to be suitable for heart bypass surgery and that only a heart transplant was
available to him at that time. See Burchfield, 51,459, pp. 8-9, 224 So.3d at 1175. The plaintiffs
have argued that the testimony of the defendant’s expert was not credible, while the defendant
has pointed out that its expert was the only witness who had performed coronary artery bypass
surgeries and also the only witness to have reviewed the heart necropsy report. Regardless, even
the court of appeal ultimately reviewed this case under the theory of lost chance of a better
outcome rather than a statutory malpractice case. Accordingly, because the testimonial evidence
was conflicting as to whether Dr. Wright’s negligence caused Mr. Burchfield to have a
subsequent heart attack requiring a heart transplant rather than a heart bypass, we find no
manifest error in the jury’s determination that the plaintiffs failed to carry their burden of proof
in that regard.
                                                  15
anticipated, the jury was able to understand and resolve the issues presented to it.

Moreover, as the court of appeal itself specifically concluded, the record clearly

supports the jury’s determination that Mr. Burchfield suffered a lost chance of a

better outcome. Burchfield, 51,459, p. 6, 224 So.3d at 1174. The Patient’s

Compensation Fund essentially concedes there was sufficient proof of a loss of a

chance of a better outcome, though it has argued for a reduced lump sum award.

      Where the court of appeal further erred, which prompted our grant of

supervisory writs, was in the determination of damages allowed for lost chance of a

better outcome. The court of appeal declined to follow clear and established

jurisprudence from this court, set forth in Smith and Graham, supra. Instead of

reviewing the jury’s award under that jurisprudence, the court of appeal instead

conducted a de novo review based upon a faulty premise regarding the jury

interrogatories, and awarded not only general damages, but also separate awards of

past medical expenses, lost wages, and future medical expenses.

      The court of appeal found the jury had not been given adequate instructions

on the verdict form or in the jury charge on how to quantify the damages for lost

chance of a better outcome, and questioned whether any part of the award was

intended to compensate emotional distress, lost wages, loss of consortium, or past

medical expenses. Burchfield, 51,459, pp. 7-8, 224 So.3d at 1175-76. The appellate

court, though it properly referred to this court’s opinion in Smith, supra, nonetheless,

relied on Bianchi v. Kufoy, 2010-0607 (La. App. 3 Cir. 12/08/10), 53 So.3d 530, for

the premise that in calculating an award for lost chance of a better outcome, a jury

may consider what otherwise would be elements of special damages, such as lost

wages, and past, present and future medical expenses. Consideration of such

damages may be appropriate, keeping in mind that a lost chance of a better outcome

envisions a less than 50% chance, and thus not full recovery. But the court of appeal

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did not stop there. Despite jurisprudence from its own circuit, see Hargroder v.

Unkel, supra, note 2, it opined that lump sum damages for a lost chance of a better

outcome “may include special damages to adequately compensate a patient, and that

‘lump sum’ damages should not be limited to the cap for general damages

established by the Medical Malpractice Act.” Burchfield, 51,459, p. 8, 224 So.3d at

1175.

        There is no support for such a conclusion in this court’s specific jurisprudence

on the issue of the calculation of damages for lost chance of a better outcome.

Moreover, to the extent that the Bianchi court’s decision might support the court of

appeal’s approach, we disapprove of that rationale. 5 As we explained in Graham:

              When the chance of survival (or in this case of saving the leg
        from amputation) is less than fifty percent, the court may not award full
        damages for the loss of life (or loss of the leg). Smith v. State, Dept. of
        Health and Hosp., 95–0038 (La. 6/25/96); 676 So.2d 543 (1996).
        Rather, the factfinder, judge or jury, focuses on the chance of survival
        (or the chance of saving the leg) that has been lost because of the
        malpractice and “value[s] the lost chance as a lump sum award based
        on all the evidence in the record, as i[s] done for any other item of
        general damages.” 95-0038 at 7; 676 So.2d at 547. The “loss of a less-
        than-even chance of survival [or chance of saving a limb] is a distinct
        injury compensable as general damages which cannot be calculated
        with mathematical certainty, ... [and] the factfinder should make a
        subjective determination of the value of that loss, fixing the amount of
        money that would adequately compensate the claimants for that

5
  In Bianchi, the trial court had determined the physician had breached the standard of care, but
that the plaintiff had failed to prove causation. On appeal, the court concluded the plaintiff had
proven the physician’s negligence had caused the plaintiff a lost chance of a better outcome. The
Bianchi court quoted Hargroder v. Unkel, supra, which had relied on our decision in Smith to
explain how to value a lost chance as a lump sum award. The plaintiffs sought $176,333.84 in
past and future medical expenses and $2,150,000.00 in general damages “subject to the Medical
Malpractice cap of $500,000.00.” Bianchi, 10-0607, pp. 8-9, 53 So.3d 530. Nevertheless, without
specifically discussing the imposition of a “lump sum” general damage award for lost chance of
a better outcome, the Bianchi court, in calculating damages, reviewed previously incurred
medical expenses, as well as the possibility of future medical expenses, and awarded $100,000 in
past and future medical care and related expenses. It then awarded $300,000 in general damages
and loss of consortium damages. Thus, the court awarded $400,000 for special and general
damages. The Bianchi court did not address whether the Medical Malpractice Act’s limitation on
recoverable damages would apply, presumably because the total award did not exceed the
Medical Malpractice Act’s limitation. The Bianchi court certainly did not award the full damages
requested by the plaintiffs, and thus may have implicitly accounted for the lost percentage of a
better recovery in fashioning its ultimate “lump sum” award of $400,000. Nevertheless, to the
extent the Bianchi decision may be interpreted contrary to our holdings in Smith and Graham, we
disapprove of that decision.
                                                  17
      particular cognizable loss.” 95-0038 at 9; 676 So.2d at 548. “The jury’s
      verdict of a lump sum amount of damages can be tested on appeal for
      support in the record by reviewing the percentage chances and the
      losses incurred by the tort victim and his or her heirs, and any other
      relevant evidence, thus providing assurance against speculative
      verdicts.” 95-0038 at 11; 676 So.2d at 549.

      Graham, 97-0188, p. 17, 699 So.2d at 373.

      The court of appeal in this case failed to apply our jurisprudence in reviewing

the jury’s lump sum award. The jury was properly charged that it could consider all

factors of damages in fashioning a lump sum award for lost chance of a better

outcome, including past and future medical expenses and general damages. That

charge included:

      In a medical malpractice action in which damages are sought for loss
      of any chance of a better outcome, the fact finder should make a
      subjective determination of the valuable [sic] of that loss, fixing the
      amount of money that would adequately compensate the claimants,
      which may include considering all the evidence of percentages of
      chance of a better outcome.

The court of appeal was correct that the record contains evidence of the total

damages incurred by the plaintiffs: medical expenses for the transplant totaled

$692,850.64; medications as a result of the transplant total $1,718.78 per month,

with $1,202.77 per month for anti-rejection medication; future medical protocols as

necessary for heart transplant recipients; and lost wages of $493,020.00. The court

of appeal “affirmed” the trial court’s award of general damages of $400,000.00,

noting in detail the suffering of the plaintiff and his wife, but recognizing the trial

court’s application of the Louisiana Medical Malpractice Act’s limitation on the total

amount recoverable by the plaintiffs. In closing argument, the plaintiffs had argued

that general damages for Mr. Burchfield should be between $750,000.00 to

$1,000.000 and loss of consortium for Mrs. Burchfield should be between $50,000

and $75,000. As for the value of the lost chance of a better outcome, the plaintiffs

argued to the jury that it should be 49% of the total damages, or roughly $1,000,000.

                                          18
Although the jury did not specifically determine a percentage of a better outcome

lost by the plaintiffs due to the defendant’s failure to review the pre-operative tests,

nor was it required to do so, it obviously found a significant percentage for a better

outcome was lost when it valued the lost chance of a better outcome at some 35% of

the total of the damages award sought by the plaintiffs. Given our review of the

record testimony, we cannot say that the amount of $680,000.00 awarded by the jury

as a “lump sum” in the nature of general damages was an abuse of the jury’s

discretion in making such an award. See Graham, supra.

CONCLUSION

        For the reasons set forth above, we reverse the decision of the court of appeal

and reinstate the jury verdict and the judgment of the district court, awarding the

plaintiffs $680,000.00 for the lost chance of a better outcome, and applying the

Louisiana Medical Malpractice Act’s limitation on the total amount recoverable by

the plaintiffs to reduce that amount to $500,000.00, plus judicial interest and costs,

subject to a credit for the $100,000.00 paid by the defendant physician.

REVERSED; JUDGMENT OF THE DISTRICT COURT REINSTATED

AND AFFIRMED




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