By Damian D. Capozzola, Esq., and Jamie Terrence, RN
News
A Louisiana appellate court recently overturned a jury’s finding that a retired civil engineer was 75% at fault for injuries he sustained from excessive fluoroscopic radiation exposure during vascular surgery. The plaintiff underwent the procedure in 2014, but the prolonged radiation exposure caused severe burns, leading to tissue necrosis and the eventual amputation of his left hand. Although the jury found the surgeons liable for malpractice, it allocated significant comparative fault to the plaintiff, citing his post-surgical activities, such as driving a tractor and handling fertilizer, as contributing factors to his infection and amputation.
On appeal, the court rejected this allocation of fault, finding no credible evidence that the plaintiff’s activities caused or exacerbated his injuries. The court emphasized that the primary cause of his condition was the excessive radiation exposure, not his efforts to resume aspects of daily life. In addition to shifting 100% liability to the surgeons, the court substantially increased the damages award, recognizing the severity of the plaintiff’s injuries. The ruling reinforces strict evidentiary standards for comparative fault in medical malpractice cases and underscores the necessity of expert testimony to establish causation.
Background
The plaintiff, a retired civil engineer, underwent vascular surgery in February 2014 at a hospital in Louisiana to repair an endoleak — a complication from a previous aortic aneurysm repair. The procedure was performed by two surgeons and lasted for more than three and a half hours, during which the plaintiff was exposed to excessive fluoroscopic radiation.
About 10 days after the surgery, the plaintiff developed painful radiation burns on his left hand and left flank. The burns worsened over time, which led to tissue necrosis and, ultimately, the amputation of his left hand in March 2015. During this period, the plaintiff experienced chronic pain, multiple failed treatments, and addiction to narcotic pain medications.
The patient and his wife filed a medical malpractice lawsuit against the surgeons, alleging that the excessive radiation exposure constituted a breach of the standard of care. A jury found in favor of the plaintiff, determining that the surgeons had committed malpractice. However, the jury assigned 75% comparative fault to the plaintiff. The jury cited the plaintiff’s post-surgical activities — such as driving a tractor and spreading fertilizer — as contributory factors in the development of infections that led to the amputation.
However, the Louisiana Court of Appeal found that there was no credible evidence supporting the jury’s allocation of 75% fault to the plaintiff. The appellate court emphasized the plaintiff had no control over the placement of his body or the duration of the fluoroscopic exposure during surgery, which were the primary causes of his radiation burns.
The court noted that his activities after surgery, including occasional work on his property, were reasonable and did not violate any medical instructions. It also found that expert testimony established that secondary infections were a foreseeable risk of his severe burns and not necessarily caused by his actions. The appellate court ruled that the trial court erred in denying the plaintiff’s motion for a directed verdict on comparative fault. It held that the surgeons were entirely responsible for the injuries and amended the verdict to reflect 100% liability on their part.
In light of its ruling on liability, the appellate court also adjusted the damages award, which it found to be abusively low. The court increased past medical expenses from $42,000 to $704,218.68, representing the full amount of medical costs incurred because of the radiation injuries. The court increased the future medical expenses from $0 to $395,775 to cover prosthetic replacements, occupational therapy, and related care. The court increased pain and suffering damages from $30,000 to a total of $750,000 in general damages, considering the plaintiff’s extreme pain, long-term suffering, and narcotic addiction. The court increased damages for loss of enjoyment of life from $50,000 to a higher (unspecified) amount, recognizing the profound impact on the plaintiff’s quality of life, including his inability to continue professional work, travel, or engage in recreational activities, such as golfing and hunting.
What This Means for You
As an initial observation, procedures done with radiological support require concurrent monitoring for excessive exposure to radioactive material. Fluoroscopy frequently is used to locate soft tissue injuries, blood vessel patency, and other issues. Often, timeouts are called during the procedure so that radiation levels can be measured and procedural modifications can be initiated to limit additional exposure to radiation. Pre-procedure activities include setting finite time limits on surgical field exposures. These often involve discussions with radiation experts and their understanding of accepted standards of care as well as emergency handling of deviations from those standards. No procedure has a guaranteed outcome, and surgeons must be able to handle unexpected issues that may require additional time exposed to radiation. Should this occur, the patient must be notified and possible consequences discussed so that immediate treatment can be initiated to mitigate injury — and possible litigation.
More generally, medical malpractice claims often involve comparative fault. Comparative fault and contributory negligence are legal doctrines that assess the degree of responsibility each party bears for the harm experienced by the plaintiff. Under comparative fault, a plaintiff’s compensation may be reduced in proportion to their percentage of fault. For example, if a court determines that a patient contributed to their own injury, for example, by failing to follow post-operative care instructions or disregarding medical advice, their recovery may be diminished based on their share of the responsibility.
Louisiana follows a pure comparative fault system, meaning that even if a plaintiff is found to be 99% at fault, they still can recover damages, although reduced by their percentage of fault. Other states apply modified comparative fault, which bars recovery if the plaintiff is found to be at or above a certain threshold of fault — often 50% or 51%. This distinction is important because it determines whether a plaintiff still can seek damages even if they were partially responsible for the outcome. Be sure to consult with informed counsel to understand how these doctrines may apply in your jurisdiction.
In the plaintiff’s case, comparative fault could arise if the defense argues that he should have been aware of the risks of fluoroscopic radiation or that he failed to report symptoms early enough to mitigate the severity of his injuries. However, the key legal issue is whether the physicians breached the standard of care by exposing him to excessive radiation, leading to severe burns and, ultimately, amputation.
The ruling is a reminder that comparative fault in medical malpractice cases cannot be based on speculative theories of patient negligence. The court’s determination that the plaintiff’s post-surgical activities did not contribute to his injuries underscores that patients who sustain injuries as a direct result of medical malpractice should not be held responsible simply for attempting to resume aspects of their normal lives. The appellate court made it clear that, to allocate comparative fault to a plaintiff, there must be credible evidence demonstrating that the plaintiff’s actions were a direct, foreseeable, and proximate cause of the injury. In this case, the evidence showed that the excessive radiation exposure during surgery was the primary cause of the plaintiff’s condition. Any subsequent infections he developed were not caused by any negligence on his part.
The defendant has the burden of proof in establishing comparative fault. The defense argued that the plaintiff’s decision to engage in activities such as using his tractor and handling fertilizer contributed to his infections and eventual amputation. However, the court determined that this argument rested on a foundation of speculation rather than fact. Expert testimony presented at trial established that secondary infections were a foreseeable risk of the severe radiation burns the plaintiff experienced, not a consequence of his personal conduct. The appellate court emphasized that medical malpractice defendants must do more than merely suggest a hypothetical alternative cause of injury. They have to provide convincing evidence that the plaintiff’s own actions were an actual and substantial contributing factor.
The ruling also shows how courts will ensure that damages awards reflect the severity of injuries experienced. The jury’s initial damages determination — awarding the plaintiff only $30,000 for physical pain and suffering and nothing for permanent disability — was deemed abusively low by the appellate court. The court cited Louisiana’s well-established jurisprudence on damages, emphasizing that compensatory damages are designed to restore the plaintiff to the position he would have been in but for the tortious conduct. Applying this standard, the appellate court determined that the jury’s awards for pain and suffering ($30,000), loss of enjoyment of life ($50,000), and permanent disability ($0) were far too low, given the plaintiff’s injuries. The plaintiff experienced severe, narcotic-resistant pain for more than a year, underwent multiple failed treatments, and ultimately had to endure the amputation of his left hand above the wrist. He also developed opioid addiction because of the extreme pain and experienced long-term emotional and psychological trauma. General damages must account for the totality of a plaintiff’s suffering. The court noted that verdicts in similar cases ranged from $400,000 to $4 million, making the jury’s award clearly an abuse of discretion. By increasing the award to $750,000 in general damages, the court recognized the profound and life-altering impact of the plaintiff’s injuries. This signals to future plaintiffs and courts that appellate review remains an essential mechanism for ensuring that damages awards are commensurate with the harm suffered. Plaintiffs who receive inadequate jury awards can consider appellate relief when awards fail to account for the full extent of their suffering.
The case also highlights the important role of expert testimony in medical malpractice litigation. The appellate court credited expert opinions that linked the excessive radiation exposure directly to the plaintiff’s eventual amputation. In medical malpractice cases, establishing causation often is one of the most contested issues. Plaintiffs must present well-supported expert opinions that not only explain the causation of injuries but also rebut speculative defense arguments that attempt to shift blame.
Finally, the case reinforces the judiciary’s role in protecting patient rights and ensuring that liability is properly assigned to negligent medical professionals. The court’s rejection of the defense’s attempt to deflect liability through speculative comparative fault claims ensures that patients who suffer catastrophic injuries due to medical negligence are not unfairly burdened with blame.
Reference
- Decided on Nov. 7, 2024, in the Court of Appeal of Louisiana, Fifth Circuit, Case No. 23-CA-419.
Damian D. Capozzola, Esq., The Law Offices of Damian D. Capozzola, Los Angeles
Jamie Terrence, RN, President and Founder, Healthcare Risk Services, Former Director of Risk Management Services (2004-2013), California Hospital Medical Center, Los Angeles
A Louisiana appellate court recently overturned a jury’s finding that a retired civil engineer was 75% at fault for injuries he sustained from excessive fluoroscopic radiation exposure during vascular surgery.
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