Brown v. TULANE MED. CENTER HOS. AND CLINIC

958 So. 2d 87, 2007 WL 1574900
CourtLouisiana Court of Appeal
DecidedMay 9, 2007
Docket2004-CA-0688
StatusPublished
Cited by1 cases

This text of 958 So. 2d 87 (Brown v. TULANE MED. CENTER HOS. AND CLINIC) 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
Brown v. TULANE MED. CENTER HOS. AND CLINIC, 958 So. 2d 87, 2007 WL 1574900 (La. Ct. App. 2007).

Opinion

958 So.2d 87 (2007)

Jessie Mae BROWN
v.
TULANE MEDICAL CENTER HOSPITAL AND CLINIC, Dr. Raoul Rodriguez, and Dr. Malcolm W. Marks.

No. 2004-CA-0688.

Court of Appeal of Louisiana, Fourth Circuit.

May 9, 2007.
Rehearing Denied June 20, 2007.

*88 Robert G. Harvey, Sr., New Orleans, LA, for Plaintiff/Appellee.

Stewart E. Niles, Jr., Michelle A. Bourque, Niles, Bourque & Fontana, L.L.C., New Orleans, LA, for Defendant/Appellant.

(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).

MICHAEL E. KIRBY, Judge.

Defendant/Appellant, Raoul Rodriguez, M.D. appeals a Civil District Court Judgment of February 2, 2004 awarding the plaintiff, Ms. Jessie Mae Brown, general damages in the amount of $75,000 and medical costs associated with the injuries sustained as a result of Dr. Rodriquez's negligent follow-up care.

On September 16, 1985, the plaintiff in this matter, Ms. Jesse Mae Brown, was in a motorcycle accident that dislocated her left knee. Subsequent to the accident Ms. Brown was admitted to the emergency room at Hotel Dieu Hospital, whereupon she was evaluated and referred to Dr. Rodriguez. Following the advice she received at the Hospital, Ms. Brown sought medical treatment at Tulane Medical Center, where on September 17, 1985, Dr. Rodriguez treated her. In Dr. Rodriguez's pre-operative report he noted rotary instability of the left anteromedial knee. Ms. Brown's left knee had suffered significant structural damage to the ligament complex of the left knee joint.

Dr. Rodriguez performed surgery to repair her knee. The procedures were a left knee arthotomy, a medial and lateral meniscus repair, a repair of the tibial collateral ligament, a repair of the posterior oblique ligament, the removal of a torn anterior cruciate ligament (ACL) and an anti-lateral augmentation of the iliotibial band.

Following the surgery, Dr. Rodriguez placed Ms. Brown's leg in a fiberglass[1] cast. She was discharged from the hospital on September 21, 1985, four days after surgery. Dr. Rodriguez administered post-operative care on an out patient basis.

On October 1, 1985, the cast covering the sutures was removed and Dr. Rodriguez noted that he found a blister at the wound site on the medial part of her knee. Dr. Rodriguez treated the blister by debridement and placed a new cast on the plaintiff. On October 22, 1985 the plaintiff *89 visited with Dr. Rodriguez for another post-operative treatment. On this date Dr. Rodriguez's patient notes reflect a good post-operative course. The cast was not removed or changed on this date.

Ms. Brown then followed with her third post-operative treatment on November 5, 1985. During this treatment Dr. Rodriguez removed the cast and examined her leg. He noticed in the place of the blister an area of skin slough around the medial side of the knee. He treated the area by surgically removing the damaged tissue and advised the plaintiff to return to his office in two days.

On November 7, 1985 the plaintiff returned to Dr. Rodriguez's office for further debridement treatment. About this time she was admitted to the hospital for a skin necrosis because the skin slough remained present.

In a second surgery, Dr. Marks, a plastic surgeon, with Dr. Rodriguez's assistance, attempted to remove the necrotic tissue of the skin slough and cover the area with a skin graft. This second surgery caused additional scarring because more incisions were made. On November 12, 1985, blistering was noticed on the skin flap over the knee. Apparently the graft itself had problems and became necrotic.

On November 21, 1985, a third surgery was performed. The plaintiff underwent another treatment whereby a gastrocnemius (calf) muscle flap from the lower leg was transferred to the knee area. This was accomplished by making yet another incision around her calf muscle to move it. This use of the calf is the recommended surgical technique to help provide soft tissue coverage of exposed tendons, ligaments, and bone, in and around the knee joint. Ms. Brown was then discharged from the hospital on November 28, 1985.

Although the plaintiff does not allege any malpractice regarding the procedure she underwent immediately following the motorcycle accident injury, she does allege malpractice with her post-operative treatment. Specifically, the plaintiff contends that Dr. Rodriguez either placed the lateral and medial incisions too close, causing the death of the skin and the necessity of skin grafts; or that Dr. Rodriguez failed to follow proper protocol after noting the blister at the wound site, thereby permitting the skin to die and creating the need for the skin graft.

The plaintiff brought suit, and on February 2, 2004 the trial court ruled in her favor. Specifically, the trial court found that Dr. Rodriguez could have been more vigilant in managing the plaintiff's wound. The trial court stated that Dr. Rodriguez noticed the presence of a blister, was put on notice that the wound was not healing well, and he therefore should have periodically removed the plaintiff's cast to inspect plaintiff's wound. Plainly, the trial court found that Dr. Rodriguez should have viewed the blistered site more often than he initially did because he was put on notice that the wound was not healing normally. It was this failure, the trial court found, that led to a breach of the standard of care. The trial court awarded $75,000 in general damages to the plaintiff and reimbursement for medical expenses necessitated by Dr. Rodriguez's deviation from the standard of care.

Appellant asserts seven assignments of error. Specifically, he contends that the trial court erred because the record contains no expert testimony to support the court's conclusion that the standard of care for an orthopedic surgeon in 1985 required Dr. Rodriguez to periodically remove the plaintiff's leg cast. Also, the defendant claims that the trial court erred because the plaintiff did not provide evidence that *90 periodic removal of her leg cast would have prevented the blistering, skin slough, skin graft, and eventual scarring. Finally, the defendant asserts that the trial court erred in awarding medical expenses for cosmetic scarring that could have not been prevented, and further asserts that the award was in excess of a judgment limiting the defendant' liability to $100,000.

STANDARD OF REVIEW

In Salvant v. State, 2005-2126 (La.7/6/06), 935 So.2d 646, the Louisiana Supreme Court reiterated that the standard of review for factual findings in medical malpractice cases is the manifest error or the clearly wrong standard. In other words, in order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Rulings on law receive de novo review. A crucial mixed question of fact and law in this case was the etiology of the necrosis, the determination of which affects the standard of care. In layman's terms, the lack of blood supply caused the necrosis, but there was conflicting testimony concerning what caused the October 1, 1985 blister initially, this in turn affected whether the blister put Dr. Rodriguez on notice as to whether there was an avascular condition.

DISCUSSION

La. R.S. 9:2794 A. The state's medical malpractice statute, in pertinent part states:

A.

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Related

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Bluebook (online)
958 So. 2d 87, 2007 WL 1574900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-tulane-med-center-hos-and-clinic-lactapp-2007.