Benjamin v. Zeichner

94 So. 3d 1005, 11 La.App. 3 Cir. 1524, 2012 WL 2400630, 2012 La. App. LEXIS 911
CourtLouisiana Court of Appeal
DecidedJune 27, 2012
DocketNo. 11-1524
StatusPublished
Cited by1 cases

This text of 94 So. 3d 1005 (Benjamin v. Zeichner) 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
Benjamin v. Zeichner, 94 So. 3d 1005, 11 La.App. 3 Cir. 1524, 2012 WL 2400630, 2012 La. App. LEXIS 911 (La. Ct. App. 2012).

Opinion

COOKS, Judge.

|2The plaintiffs-appellants appeal the trial court’s ruling that excluded its expert witness from testifying in this medical malpractice casé. For the reasons that follow, we find the trial court erred in not allowing the plaintiffs’ expert to testify and in granting defendant’s motion for directed verdict.

FACTS AND PROCEDURAL HISTORY

On August 25, 2000, Margaret Benjamin was treated by Dr. William Zeichner in the emergency room at Natchitoches Parish Hospital. Ms. Benjamin was complaining of abdominal pain which she related had been bothering her for two to three days. Ms. Benjamin was 62 years old and was a resident of California.

Dr. Zeichner admitted her for observation and antibiotic treatment. He also ordered CT scans of Mrs. Benjamin’s abdomen and pelvis. The tests revealed no indication of the source of Mrs. Benjamin’s pain. Dr. Zeichner continued to observe the patient, and determining she could not travel back to California in her present state, Dr. Zeichner elected to perform an exploratory abdominal laparotomy on August 29, 2000. According to Plaintiffs (Mrs. Benjamin’s husband and children), while exploring the abdominal cavity, Dr. Zeichner manipulated Mrs. Benjamin’s entire bowel by “running” it. Dr. Zeichner stated he took down multiple sigmoid adhesions and omental adhesions on the midline, and believed Mrs. Benjamin tolerated the surgery well.

According to the medical records, in the days following surgery, Mrs. Benjamin was running a fever. Dr. Zeichner consulted with Dr. Michelle Mayeaux, an internal medicine physician, to determine the source of the fever. Dr. Mayeaux was unable to determine the specific etiology of the fever. When the fever subsided, Mrs. Benjamin was discharged from the hospital. At discharge, which was three days after surgery, Mrs. Benjamin’s temperature was 99 degrees. |3She was advised to follow up with Dr. Zeichner and Dr. May-eaux before returning to California.

Mrs. Benjamin returned to see Dr. Zeichner four days after discharge (seven days post-surgery). Dr. Zeichner noted her temperature was 98.8 degrees and she had no complaints. She was told to return for another follow-up visit, but she did not keep that appointment and returned home to California on September 8, 2000.

Upon her return to California, Mrs. Benjamin felt weak and tired. Her skin lost color, and she endured frequent bouts of vomiting. She was scheduled to see her internist the following week, but on September 10, 2000, Mrs. Benjamin had a mental status change and was obtunded. Emergency personnel were summoned, [1008]*1008and she was taken to St. Francis Medical Center in Lynwood, California. She was immediately admitted into the Intensive Care Unit (ICU) of the hospital. Imaging studies confirmed she had a small bowel obstruction. She remained in ICU until she died on October 28, 2000.

Plaintiffs maintain the small bowel obstruction developed as a result of the surgery and manipulation of the bowel performed by Dr. Zeichner. They allege that had Mrs. Benjamin not developed the small bowel obstruction, which was a direct result of the manipulation of her bowel by Dr. Zeichner, she would not have died. Plaintiffs argued that surgery and manipulation of the bowel were not necessary to effectively treat Mrs. Benjamin. They also contend the surgical procedure performed by Dr. Zeichner was below the applicable standard of care.

In accordance with Louisiana law, the claim was initially presented to a Medical Review Panel, which unanimously found that Dr. Zeichner’s treatment of Mrs. Benjamin did not deviate below the applicable standard of care. Following the decision by the Medical Review Panel, Plaintiffs filed this medical malpractice lawsuit against Dr. Zeichner.

In May of 2004, in response to a Motion for Summary Judgment filed by Dr. 14Zeichner, Plaintiffs filed the expert affidavit of James Shamblin, M.D. At trial of the case in April, 2011, Plaintiffs sought to introduce the testimony of James Sham-blin, M.D., and proffered him to the court as an expert witness in general surgery with specific expertise in bariatric surgery. Dr. Zeichner objected to allowing Dr. Shamblin to testify at the trial because he did not meet the mandatory requirements for expert medical witnesses as set forth in La.R.S. 9:2794(D)(1).

The objections concerning the qualifications of Dr. Shamblin were raised in motions in limine. A hearing was held and evidence was taken concerning Dr. Sham-blin’s qualifications to be an expert witnesses.

It was established that Dr. Shamblin had given up his license to practice medicine in Louisiana in March 2007 and did not renew his license to practice medicine in Alabama effective December 31, 2010. Plaintiffs’ counsel was aware of Dr. Sham-blin’s intention of surrendering his license to practice medicine. Because Dr. Sham-blin was not licensed to practice medicine in any jurisdiction in the United States at the time of trial, La.R.S. 9:2794(D)(l)(d) requires that he be a graduate of “a medical school accredited by the American Medical Association’s Liaison Committee on Medical Education or the American Osteopathic Association.”

There was no question that Dr. Sham-blin was a 1958 graduate of Tulane Medical School; however, the trial court determined there was no competent evidence presented concerning the accreditation status of that school in 1958. Plaintiffs attempted to introduce a faxed letter from Tulane University which purported to establish Tulane Medical School’s accreditation status. The trial court found the letter and accompanying attachments were inadmissible hearsay. Finding no evidence that Dr. Shamblin graduated from a properly accredited medical school, the trial court refused to qualify him as an expert witness.

|sAt the conclusion of the hearing, counsel for Plaintiffs informed the trial court of their intent to seek supervisory relief from the ruling excluding Dr. Shamblin’s testimony. Writs were taken to this Court, which were denied by a 2 to 1 vote, finding “[biased on the showing made, we find no error in the trial court’s ruling.” Plaintiffs then sought writs to the Louisiana Supreme Court. However, prior to the supreme court entertaining the writ, the trial [1009]*1009court granted a directed verdict in favor of Defendant, dismissing Plaintiffs’ malpractice claim. The Supreme Court then denied the writ, declaring it moot.

This appeal followed. Plaintiffs contend the trial court erred in prohibiting Dr. Shamblin from testifying as an expert in this case and in granting the directed verdict in favor of Defendant.

ANALYSIS

Admissibility of expert testimony in Louisiana is governed by La.Code Evid. art. 702, which provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

A district court has broad discretion in whether or not an expert’s testimony is admissible and who should or should not be permitted to testify as an expert. Cheairs v. State Dep’t. of Transp. & Dev., 03-0680 (La.12/3/03), 861 So.2d 536.

Louisiana Revised Statute 9:2794(D)(1) supplements La.Code Evid. art.

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Related

Benjamin v. Zeichner
113 So. 3d 197 (Supreme Court of Louisiana, 2013)

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Bluebook (online)
94 So. 3d 1005, 11 La.App. 3 Cir. 1524, 2012 WL 2400630, 2012 La. App. LEXIS 911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-v-zeichner-lactapp-2012.