Davidson v. Peden

413 So. 2d 568
CourtLouisiana Court of Appeal
DecidedApril 13, 1982
Docket14618
StatusPublished
Cited by5 cases

This text of 413 So. 2d 568 (Davidson v. Peden) 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
Davidson v. Peden, 413 So. 2d 568 (La. Ct. App. 1982).

Opinion

413 So.2d 568 (1982)

Coley DAVIDSON
v.
Robert G. PEDEN.

No. 14618.

Court of Appeal of Louisiana, First Circuit.

April 13, 1982.

*569 Dorothy Thomas, Boris F. Navratil, Baton Rouge, for plaintiff-appellant Coley Davidson.

Donald S. Zuber, Baton Rouge, for defendant-appellee Robert G. Peden.

Before LEAR, CARTER and CHIASSON, JJ.

CHIASSON, Judge.

Coley Davidson, plaintiff-appellant, appeals a jury verdict in favor of the defendants-appellees, Dr. Robert G. Peden and his insurer, St. Paul Fire and Marine Insurance Company.

Mr. Davidson brought the present medical malpractice suit against Dr. Peden and his insurer seeking $275,000 in damages. Mr. Davidson alleges that surgery known as an "endo-lymphatic shunt"[1] performed on him by Dr. Peden was not the proper medical treatment for the condition for which the plaintiff was suffering, was not needed and should not have been performed. Additionally, Mr. Davidson alleges that Dr. Peden failed to inform him such surgery may result in total and permanent hearing loss, that he did in fact lose the hearing in his right ear and that, but for the inadequate advice and information furnished by Dr. Peden, he would not have consented to the surgery, but would have chosen other methods of treatment.

Mr. Davidson had been experiencing bouts of vertigo (dizziness) since before 1973. At times, the episodes were so severe, he would fall to the floor with vomiting and nausea. Mr. Davidson testified that up until the time of surgery, his vertigo had become progressively worse during the years and, at the time of the surgical *570 procedure performed by Dr. Peden, he was totally incapacitated in that he had to hire someone to drive him around. On some days Mr. Davidson could not go to work. Without question, the vertigo had adversely affected his job performance as an insurance salesman who had to drive his car.

Dr. E. J. Herpich, an ear, nose and throat specialist in Baton Rouge, testified[2] that Mr. Davidson came to him on December 4, 1973, complaining of fullness in the ears and dizziness for the past two to three years. Dr. Herpich examined Mr. Davidson and found no evidence of apparent disease in the middle ear.

Two days later, Dr. Herpich performed an audiogram[3] on Mr. Davidson to make sure that he did not have any disease and this audiogram was noted as "normal". Mr. Davidson did not see Dr. Herpich again until March 4th and 10th in 1975. At that time, he was complaining of hoarseness and on March 15th, Dr. Herpich performed a direct laryngoscopy in which he removed a benign tumor from Mr. Davidson's right vocal cord. The next two visits to Dr. Herpich involved upper respiratory congestion and coughing. Dr. Herpich next saw Mr. Davidson on July 30, 1975 and on that visit, Mr. Davidson was complaining of itching and soreness in his right ear, which Dr. Herpich diagnosed as otitis externa.[4] On August 26, 1975, Mr. Davidson again complained to Dr. Herpich of severe dizziness. Dr. Herpich performed an audiogram at this time which indicated a fifty decibel loss in the 6000 frequency or a perceptive loss of hearing.[5]

Fullness and discomfort in his right ear precipitated Mr. Davidson's December 23rd, 1975 visit to Dr. Herpich. At this time, Dr. Herpich diagnosed Mr. Davidson's condition as middle ear disease with fluid behind the eardrum. Also, there was an indication of dysfunction with his hearing. The next day Dr. Herpich performed a tympanotomy[6] which was checked on January 9, 1976 as having perfectly healed. On January 23, 1976, Mr. Davidson complained of chest discomfort to Dr. Herpich who told him to go back and see his heart doctor.[7] Mr. Davidson testified that Dr. Herpich thought that his dizziness was probably being caused by a vascular problem. At this visit however, Dr. Herpich conducted another audiogram and noted the perceptive loss of hearing as he had before.

In February of 1976, Mr. Davidson was referred to Dr. Peden for evaluation of vertigo by Dr. Virginia Thurmon, who had been treating Mr. Davidson for his heart problems. Dr. Peden testified that Mr. Davidson complained of vertigo, fullness and pressure in the right ear and stated that he had been experiencing severe vertigo and tinnitus[8] since 1973.

Dr. Peden performed three tests on Mr. Davidson on February 6, 1976. An audiogram was conducted by Dr. Peden's certified audiologist and the audiogram indicated that Mr. Davidson had a traumatic type loss and that there was an eighty-four percent discrimination[9] in the right ear. The left ear was normal. There was a very small five or ten decibel hearing loss in the *571 250 frequency and he returned to normal at the 500 frequency and then started dipping down again as he progressed in the higher frequencies.

The tympanogram[10] indicated decay in the right ear and the electronystagmogram[11] (hereinafter referred to as "ENG") showed that Mr. Davidson's right ear was, for all practical purposes, nonfunctional or suppressed as a result of his disease process. There was a definite lack of function of the electrical system of the right ear.

Dr. Peden testified that he suspected a tumor on the eighth nerve[12] and he thereafter had Mr. Davidson admitted to Our Lady of the Lake Hospital on February 8th for tests to be run by Dr. James A. Poche, Jr., a neurosurgeon.

Dr. Poche was qualified as an expert in this case and he testified that Mr. Davidson was confined with dizziness and questionable X-ray changes. These changes concerned the eighth nerve and Dr. Poche was asked to find out whether the bones had eroded or whether the opening had been enlarged due to a tumor or a mass. Dr. Poche performed a myelogram[13] which indicated that there was no evidence of any tumor. He then concluded that Mr. Davidson was suffering from eighth nerve dysfunction.

Dr. Peden thereafter performed a second ENG on March 26, 1976, and concluded that Mr. Davidson was suffering from a disorder of the inner ear known as "Meniere's Disease or Syndrome". This is the point in the record where the testimony is split.

Dr. Peden testified that after the second ENG, he discussed the possibility of surgery with Mr. Davidson and his wife. Dr. Peden also testified that the possible complications of surgery were fully discussed and there was a detailed discussion concerning finances.

Mr. Davidson testified that Dr. Peden did not discuss any bad results of the endo-lymphatic shunt procedure with him and that he would not have consented to the surgery had he known of the risk of losing his hearing. He stated that he would have gotten another opinion.

Nevertheless, it is agreed that Dr. Peden told Mr. Davidson that he would not operate without consultation on the ENGs he had performed and would get in touch with him. Dr. Peden did call Mr. Davidson a few days later and informed him that surgery would be done. Mr. Davidson was admitted to Our Lady of the Lake Hospital on April 6, 1976; he signed a consent form to be operated on and the endo-lymphatic shunt surgery was performed on the next day. Mr. Davidson lost the hearing in his right ear and thereafter brought the present suit.

The jury found in favor of Dr. Peden and his insurer and Mr. Davidson perfected the instant appeal. On appeal, Mr. Davidson alleges that the jury's determination that Dr.

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Bluebook (online)
413 So. 2d 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davidson-v-peden-lactapp-1982.