Louisiana Court Holds Plaintiff’s Failure to Have Surgery Precludes Argument for Future Medical Expenses

surgery_medicine_science_1501907-1024x683Scheduling a post-accident surgery promptly may be essential to ensure complete physical recovery. Sometimes, the scheduling of post-accident surgery matters less. However, scheduling your surgery prudently may pay off when recovering damages in court, as one plaintiff found in a recent appeal discussed below. 

In 2010, Karl Kimsey was involved in a car accident in DeRidder, Louisiana. Mr. Kimsey alleged a left knee injury and underwent an arthroscopic procedure in late 2010. Kimsey filed a lawsuit against his car insurance company. In 2013, an initial judgment awarded damages, lost wages of $300 a week limited to his period of recovery and required the scheduling of a recommended reconstructive surgery. The defendant’s insurance company would pay for the surgery, provided it happened within one year of the judgment. If the surgery did not happen within one year, any party could return to court. Both parties appealed that order, but their appeals were dismissed because the judgment was conditional and thus not final. Mr. Kimsey did not have the surgery within one year and appealed the final trial court order. 

Mr. Kimsey’s main issues on appeal were that the court erred in not awarding future medical expenses, not awarding the argued lost earning capacity of Mr. Kimsey; and erred in the amount awarded of an expert fee for Mr. Kimsey’s expert. The relevant standard of review for these issues are“manifest error” or “clearly wrong”——a demanding standard to meet in Louisiana that requires the reviewing court to review the record in its entirety “to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.” Stobart v. State through Department of Transportation and Development,

To be awarded future medical expenses, a “plaintiff must show that, more probably than not, these expenses will be incurred.” Veazey v. State Farm Mut. Auto. Ins. Co. The Court noted that Kimsey’s testimony was that he failed to schedule the surgery. Based on that testimony, the court found it reasonable that Mr. Kimsey was unlikely to, and was more probable than not to, incur costs from the surgery. 

In determining loss wages, a “trial court should [] ask itself what plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition.” Batiste v. New Hampshire Ins. Co. In this case, there was conflicting testimony between experts as to what role Mr. Kimsey would be working in and what he would be earning if not for the injury.  The appellate court reviewed both expert testimonies and found that the defendant’s expert’s testimony reasonably supported the trial court’s ruling and therefore was not manifestly erroneous. Finally, the Court also decided that the expert fee awarded was reasonable. 

This case illustrates that an appellate court generally accepts a conditional judgment, with a time limit, in deciding future medical expenses. A plaintiff’s failure to meet their condition can preclude recovery for a future surgery expense they may require.


Written by Berniard Law Firm Blog Writer: Elisabeth Tidwell  

Additional Berniard Law Firm Articles on Court Judgments: Man Who Fell Through Chair Loses Case Due to Summary Judgment

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