Barbella v. Touro Infirmary

596 So. 2d 845, 1992 La. App. LEXIS 914, 1992 WL 57275
CourtLouisiana Court of Appeal
DecidedMarch 26, 1992
DocketNo. 91-CA-0719
StatusPublished

This text of 596 So. 2d 845 (Barbella v. Touro Infirmary) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barbella v. Touro Infirmary, 596 So. 2d 845, 1992 La. App. LEXIS 914, 1992 WL 57275 (La. Ct. App. 1992).

Opinion

ARMSTRONG, Judge.

In this medical malpractice case, plaintiffs appeal from the trial court’s judgment which found Dr. Billings breached no standard of care and was not negligent in failing to diagnose Alice Barbella’s cancer. Plaintiffs claim that the trial court manifestly erred in dismissing their claims because they sustained their burden of proof under LSA-R.S. 9:2794. We disagree and, therefore, affirm.

On August 27, 1981, Alice Barbella, the mother of the plaintiffs, was involved in an automobile accident in which she lost consciousness for five minutes. She was transported to the emergency room at Tou-ro Infirmary where it was determined that she had sustained four broken ribs and a broken clavicle. She remained at Touro until September 6, 1981, and was then discharged. Her treating physician was Dr. Ogden, a general surgeon. Because her broken clavicle was not healing properly, Dr. Ogden brought Dr. Billings, an orthopedic surgeon, in for a consultation. Due to the findings made by Dr. Billings during this consultation, Barbella was hospitalized on January 10, 1982, for surgery on her clavicle. During this period of hospitalization at Touro which continued until January 20, 1982, Dr. Billings surgically repaired Barbella’s clavicle. An x-ray was taken of her clavicle which disclosed the presence of nodules on her lungs. This x-ray report became a part of her medical record at Touro Infirmary and was viewed by Dr. Billings. At this time, Dr. Billings was only treating Barbella for her orthopedic clavicle problem. Barbella was discharged from Touro Infirmary on January 20, 1982.

Dr. Billings saw Barbella on January 22, 1982, and on February 5, 1982. On February 26,1982, Barbella complained of pain in her midposterior thoracic spine region which increased with activity. Dr. Billings found that her clavicle was progressing well based upon his examination of her x-ray, and he did not discover any tenderness nor any pain that could be produced with deep aspiration.

Dr. Billings saw Barbella on subsequent office visits on March 26, and April 8, 1982. Following the latter visit, Dr. Billings wrote a letter dated April 15, 1982 to Dr. Ogden, detailing her progress and commenting upon her complaints of left tro-chanteric bursitis. Xylocaine and steroid injections were applied, but provided incomplete relief of her symptoms. Thus, he ordered Barbella to return in one month for reinjections if similar complaints were voiced. Thereafter, he saw her on April 30, and May 17, 1982, and she complained of continued left hip pain.

On May 17, 1982, metastic cancer was diagnosed as a possible illness afflicting Barbella. In subsequent hospitalizations, it was discovered that Barbella was suffering from colon cancer on her right side, a particularly difficult cancer to diagnose [847]*847and one which masks itself in many patients. Barbella subsequently died on January 27, 1983. The death certificate showed the cause of death to be bilateral, bronchopneumonia, metastatic carcinoma of the liver, and osteolytic lesions of the spine.

On January 27, 1983, Barbella’s two children, Nicholas Barbella and Deborah Williams, instituted this wrongful death and survivor action on behalf of their mother. They claimed that Alice Barbella’s extraordinary suffering was directly caused by the professional negligence of Dr. Charles R. Billings and Dr. William Ogden. During the trial stage of this case, the plaintiff’s settled their claims against Dr. Ogden. For oral reasons assigned during the course of the trial, plaintiffs’ claims against Touro Infirmary, Dennis Porch, M.D., Robert Morales, M.D., Daniel Scullin, M.D., and Robyn Hardy, M.D., were dismissed based upon a lack of adequate evidence to establish any breach of a standard of care and/or negligence on their collective or individual part.

On March 19-21, 1990, this matter came up for trial. The trial court issued judgment in favor of Dr. Charles Billings, dismissing plaintiffs’ claims against him. The trial court concluded that Dr. Billings had not breached any standard of care, nor was he negligent in this matter for the following reasons: First, Dr. Billings was only a consulting physician, while Dr. Ogden was her regular physician. Second, the autopsy report confirmed that the nodules discovered on Barbella’s lungs were not cancer related but were instead abscesses. Third, Dr. Hoffman, the plaintiffs’ expert, incorrectly concluded that Dr. Billings should have acted upon seeing the x-ray report of the nodules, as that duty lay with Dr. Ogden. Finally, Dr. Billings’ testimony that a low number for the MCV and MCH on a blood test is not unusual for patients of Barbella’s age was accepted as correct.

From this adverse judgment, plaintiffs devolutively appeal. They argue that Dr. Billings violated the standard of practice by failing to examine x-rays and laboratory test results and act thereon. Plaintiffs contend that Dr. Billings owed Barbella a duty to take reasonable care to avoid acts or omissions which he could have reasonably foreseen would be likely to cause injury to her, unless there is some justification or valid explanation for his behavior. Pitre v. Opelousas General Hosp., 530 So.2d 1151, 1157 (La.1988).

Plaintiffs claim that Dr. Billings breached his duty to Barbella by failing to inform her of the abnormal x-rays and to seek additional consultation upon these findings. They cite Dowling v. Mutual Life Ins. Co. of New York, 168 So.2d 107 (La.App. 4th Cir.1964), writ den., 170 So.2d 508 (La.1965), which held that a doctor owed a duty to inform the patient of the substance of a radiologist’s warning and that his failure to do so was actionable in tort.

Plaintiffs further argue that Dr. Billings’ role as a consultant does not relieve him of any duty to Barbella. They cite Favalora v. Aetna Casualty and Surety Co., 144 So.2d 544, 551 (La.App. 1st Cir.1962), for the proposition that where a physician fails to exercise reasonable care and diligence along with his best judgment in his application to the patient of the skill he possesses, he is liable when such care is shown to fall below that required by his profession.

As a consultant to Dr. Ogden, plaintiffs claim that Dr. Billings ordered x-rays on Barbella but chose not to read nor act upon them. Also, plaintiffs argue that Dr. Billings operated on and followed Barbella’s care for over five months, but now seeks to avoid any responsibility.

Plaintiffs prima facie case is based upon the testimony of their expert, Dr. Stuart Hoffman, who stated that Dr. Billings breached his duty as a physician to Barbel-la, when he failed to respond to her blood abnormalities and the changes on her chest x-rays. Plaintiffs claim that these errors directly contributed to her injuries. Their claim of breach of duty centers around Dr. Billings failure to address the multiple pulmonary nodules which showed up on her x-rays. Thus, plaintiffs argue, Dr. Billings was guilty of medical malpractice in breaching the standard of care of a physi[848]*848cian which was causally related to a failure to diagnose Barbella’s cancer.

Dr. Billings responds that the plaintiffs failed to call an orthopedic surgeon to the stand to establish the proper care applicable to him. He claims that this failure was fatally defective to the plaintiffs’ case. Plaintiffs’ expert, Dr. Hoffman’s, sole complaint was that Dr. Billings failed to respond to the pulmonary nodules on the x-ray. Dr. Billings counters that the trial court disregarded Dr. Hoffman’s testimony.

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Related

Pitre v. Opelousas General Hosp.
530 So. 2d 1151 (Supreme Court of Louisiana, 1988)
Dowling v. Mutual Life Insurance Co. of New York
168 So. 2d 107 (Louisiana Court of Appeal, 1965)
Favalora v. Aetna Casualty & Surety Company
144 So. 2d 544 (Louisiana Court of Appeal, 1962)
Dowling v. Mutual Life Insurance Co. of New York
170 So. 2d 508 (Supreme Court of Louisiana, 1965)

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Bluebook (online)
596 So. 2d 845, 1992 La. App. LEXIS 914, 1992 WL 57275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barbella-v-touro-infirmary-lactapp-1992.