Dumont v. Maaliki

769 So. 2d 1230, 99 La.App. 1 Cir. 1850, 2000 La. App. LEXIS 2589, 2000 WL 1389684
CourtLouisiana Court of Appeal
DecidedSeptember 22, 2000
DocketNo. 99 CA 1850
StatusPublished
Cited by3 cases

This text of 769 So. 2d 1230 (Dumont v. Maaliki) 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
Dumont v. Maaliki, 769 So. 2d 1230, 99 La.App. 1 Cir. 1850, 2000 La. App. LEXIS 2589, 2000 WL 1389684 (La. Ct. App. 2000).

Opinion

I «GANUCHEAU, Judge Pro Tem.

This action arises out of a wrongful death/medical malpractice claim brought by the husband and children of Mrs. Dyann Dumont against the Cardiovascular Institute of the South (CIS) and its employee, Dr. Salem Maaliki. After the trial court rendered judgment in favor of the plaintiffs, the Louisiana Patients’ Compensation Fund intervened in the suit and appears as an appellant. The defendants, Dr. Salem Maaliki, CIS, and the interve-nor, Louisiana Patients’ Compensation Fund, appealed the trial court’s judgment.

There are three issues before the court for determination. We are asked to determine whether the trial court’s decision that Dr. Maaliki was negligent in his treatment of Mrs. Dumont was manifestly erroneous and/or clearly wrong. The second issue is whether the trial court erred in finding that Mrs. Dumont’s death was caused by Dr. Maaliki’s' fault. The third issue for determination is whether the trial court [1232]*1232erred in not allowing Dr. Fitzpatrick to testify regarding the cause of Mrs. Du-mont’s death. Finding no error in the trial court’s judgment, we affirm.

FACTS

This claim arises out of Mrs. Dumont’s visit to CIS on November 15, 1995, three days before her death on November 18, 1995. Prior to her visit, Mrs. Dumont had been experiencing shortness of breath. Because she was unable to get an appointment with her treating physician until November 20th, she went to CIS for treatment. Mrs. Dumont was dropped off at the door and entered the clinic without assistance. She was first assessed by a CIS nurse, who found a |3normal blood pressure, stable pulse and a weight of 255 pounds. Her chief complaint was shortness of breath (dyspnea) on exertion. Dr. Maaliki reviewed the chart and discovered that Mrs. Dumont was a prior patient at CIS. She had past complaints of chest pains, shortness of breath on exertion, sweating, palpitations and weakness. She was also an insulin-dependent diabetic. Dr. Maaliki’s history taken from Mrs. Du-mont revealed that she had shortness of breath on exertion, a dry cough and headaches. She also informed Dr. Maaliki that she had been in the emergency room for hip trouble several weeks earlier. In his examination of Mrs. Dumont, Dr. Maaliki noted that her vital signs were stable and she did not exhibit any swelling in her arms or legs. Mrs. Dumont’s lungs were clear and her heart sounds were normal. She had no signs of shortness of breath at rest. Dr. Maaliki observed that she was obese, but otherwise normal. Dr. Maaliki diagnosed Mrs. Dumont with bronchitis, prescribed an antibiotic and scheduled a follow-up visit for November 21st. Mrs. Dumont left the clinic unassisted. In the days following her visit to CIS, Mrs. Du-mont’s condition worsened until her death on November 18, 1995. At no time prior to her death did she seek further treatment.

DISCUSSION

The burden of proof for a Louisiana medical malpractice action is stated in La. R.S. 9:2794. It provides that in a malpractice action based on the negligence of a physician, the plaintiff shall have the burden of proving: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the state of Louisiana and actively practicing in a similar | ¿community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty; (2) that the defendant either 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; (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.

In other words, in suits alleging medical malpractice, the plaintiff must prove the applicable standard of care, the breach of that standard, and that the substandard care caused an injury that the plaintiff otherwise would not have suffered. The plaintiff need not show that the doctor’s conduct was the only cause of harm, nor must all other possibilities be negated, but the plaintiff must show by a preponderance pf the evidence that she suffered injury because of the doctor’s conduct. The test for determining the causal connection is whether the plaintiff' proved through medical testimony that it is more probable than not that the injuries were caused by the substandard care.

Hoot v. Woman’s Hosp. Foundation, 96-1136 (La.App. 1st Cir.3/27/97), 691 So.2d [1233]*1233786, 789, writ denied, 97-1651 (La.10/3/97), 701 So.2d 209 (citations omitted).

In the case of Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court set forth the standard of appellate review of a trial court’s factual findings. The Court in Rosell noted,

It is well settled that 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,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact IsShould not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable... .The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous-clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable [factfinder] would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a [factfinder’s]finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Id. at 844-845 (citations omitted).

After considering the record in its entirety, we conclude that there are no manifest errors in the trial court’s judgment.

The trial court’s finding that Dr. Maaliki was negligent

Mrs.

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769 So. 2d 1230, 99 La.App. 1 Cir. 1850, 2000 La. App. LEXIS 2589, 2000 WL 1389684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dumont-v-maaliki-lactapp-2000.