Davis v. Barre

192 So. 3d 280, 15 La.App. 5 Cir. 706, 2016 WL 2841993, 2016 La. App. LEXIS 914
CourtLouisiana Court of Appeal
DecidedMay 12, 2016
DocketNo. 15-CA-706
StatusPublished
Cited by1 cases

This text of 192 So. 3d 280 (Davis v. Barre) 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
Davis v. Barre, 192 So. 3d 280, 15 La.App. 5 Cir. 706, 2016 WL 2841993, 2016 La. App. LEXIS 914 (La. Ct. App. 2016).

Opinion

ROBERT A. CHAISSON, Judge.

|Jn this medical malpractice suit, plaintiff Keyoka Davis appeals two judgments of the trial court: the first, signed on March 9, 2015, adopts the judgment of the jury which found that defendants, Dr. Barton Barre, D.D.S. and Barre Dental Care, Inc., did not fail to use reasonable care and diligence when treating Ms. Davis and decreed that Ms. Davis would bear costs. The second judgment, signed on August 5, 2015, granted defendants’ Rule to Tax Costs in the amount of $19,592.26. For the reasons that follow, we affirm both judgments of the trial court.

FACTS AND PROCEDURAL HISTORY

On September 22, 2011, Ms. Davis went to Barre Dental Care for jaw and tooth pain. During the initial consultation, Ms. Davis informed Dr. Barre that she heard a “pop” while eating. An initial periapical x-ray was taken which indicated a broken, split in half # 18 tooth, infection, and bone loss around the tooth. Dr. Barre ^attempted an extraction of the broken tooth. In the process of the extraction, he noticed movement in the mandible. Dr. Barre stopped the extraction procedure and took another radiograph which indicated a fractured jaw most likely displaced by extraction efforts. Ms. Davis was immediately referred to the emergency room at LSU Medical Center where she was admitted and treated that same day. Oral surgeons attempted unsuccessfully to extract the broken # 18 tooth. Ms. Davis’ jaw was wired shut.- Subsequent surgery [282]*282on September-29, 2011, resulted in a successful extraction of the broken tooth and internal fixation of the mandibular fracture. ■

On August 20, 2012⅛ Ms, Davis filed a complaint with the Louisiana Division of Administration against Dr. Barre and Barre Dental Care, Inc. alleging medical malpractice. A medical review panel was thereafter convened. * On February 24, 2014, the medical review -panel rendered its unanimous opinion in which it found that neither Dr. Barre nor Barre Dental Care, Inc. failed to comply with the appropriate standard of care. The panel members -determined that Dr. Barre’s diagnosis of non-restorable # 18 tooth. with a chronic periapical abscess and bone, loss was reasonable. The panel also found that extraction of the booth was a reasonable treatment option, and that the patient’s reported history did not present any contraindications to that treatment plan. Dr. Barre’s actions in stopping the extraction upon noticing abnormal movement of the mandible, taking a second x-ray, and subsequently referring the patient to a specialist were all within the standard of care, according to the medical review panel.

On March 11, 2014, Ms. Davis filed a petition, for damages. against Dr. Barre and Barre Dental Care, Inc. The case proceeded to jury trial on January 13, 2015. On the third day of the trial, the jury returned.a unanimous verdict in favor of defendants.

I ¿On appeal, Ms, Davis raises two assignments of error: (1) the jury was. clearly wrong in answering “no” to the question “Do you find by a preponderance of the evidence that Dr. Barre and Barre Dental Care failed to use reasonable care and diligence when treating Keyoka;” and, (2) the trial court abused its discretion in awarding costs to a non-party.

LAW AND ANALYSIS

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). In order to reverse the factfinder’s determinations, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of-the trial court,- and that the record establishes that the finding is clearly wrong. Id, Where there' is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Where 'there are - two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id,

In a malpractice action based on the negligence of a dentist, the plaintiff shall have the burden of proving: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale, and under similar circumstances;' (2) that the defendant lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and (3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred. La. R.S. 9:2794(A). [KAs this court has previously noted, “[a] physician’s judgment is evaluated' in light of the facts known at the-tim'e of the patient’s treatment, not on the basis of hindsight or information later learned. A physician is not required to exercise the highest degree [283]*283of care possible, nor is he held to an absolute standard of precision.” Boudoin v. Crawford & Marshall, Ltd., 97-224 (La. App. 5 Cir. 01/14/98), 709 So.2d 798, 808. This statement is equally applicable to dentists. La. R.S. 40:1299.41(A)(7) states:

The standard of care required of every health care provider,- except a hospital, in rendering professional services or health care to a patient, shall be .to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of the profession in good standing in the same community or locality, and to use reasonable care and diligence along with his best judgment, in the application of his skill.

The jury was presented two theories of how Dr. Barre may have breached the standard of care in his treatment of Ms. Davis. First, the standard of care was breached when Dr. Barre failed to diagnose an 'obvious, visible hairline fracture on the first x-ray. Alternatively, the standard of care was breached when Dr. Barre failed to diagnose the hairline fracture on the first x-ray after the patient, (Ms. Davis), had reported recent jaw trauma.

Multiple expert witnesses offered conflicting testimony as to whether the first x-ray shows an obvious hairline fracture. Three witnesses testified for Ms. Davis. Dr, Bernard Landry, a New Orleans-based radiologist, testified that the artifact or lucency on the x-ray is an obvious fracture, but he could not testify that the fracture would have been obvious to a general dentist or oral surgeon. Dr, Edward Levy, a New Orleans-based general dentist, testified that he was able to see the hairline fracture on the first x-ray, and that he believed Dr. Barre did breach the standard of care for a general dentist. Dr. Trevor Treasure, a Houston-based oral and maxillofacial surgeon, testified that he also identified the hairline fracture |fiin the first x-ray, and that nothing else besides a fracture could have caused the straight-line lucency on the x-ray.' Dr. Treasure testified that Dr. Barre did' breach the standard of care by failing to identify the hairline fracture in the-first x-ray.

Three expert witnesses testified for the defense. Dr. Jerome Smith, a general dentist from Lafayette, testified that he did not see a hairline fracture on the first x-ray,and that he believed it was not a breach of the standard of care for Dr. Barre, to have not detected the hairline fracture in the initial x-ray. Dr.

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Bluebook (online)
192 So. 3d 280, 15 La.App. 5 Cir. 706, 2016 WL 2841993, 2016 La. App. LEXIS 914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-barre-lactapp-2016.