Filasek v. Doctor's Hospital of Jefferson

673 So. 2d 1263, 96 La.App. 5 Cir. 69, 1996 La. App. LEXIS 948, 1996 WL 207412
CourtLouisiana Court of Appeal
DecidedApril 30, 1996
DocketNo. 96-CA-69
StatusPublished
Cited by1 cases

This text of 673 So. 2d 1263 (Filasek v. Doctor's Hospital of Jefferson) 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
Filasek v. Doctor's Hospital of Jefferson, 673 So. 2d 1263, 96 La.App. 5 Cir. 69, 1996 La. App. LEXIS 948, 1996 WL 207412 (La. Ct. App. 1996).

Opinion

IzCANNELLA, Judge.

Appedant, Connie Fdasek, appeals from a judgment which dismisses her medical malpractice action against defendant, Doctor’s Hospital of Jefferson (Doctor’s Hospital). We affirm.

Appedant entered Doctor’s Hospital on February 1, 1989 to undergo surgery for endometriosis. Her physician was Dr. Jo[1264]*1264seph Beilina. Surgery was uneventful and she was discharged on February 4,1989. On February 5,1989, she alleges that she discovered a blister above the incision on her abdomen and called Doctor’s Hospital for advice because it was Sunday and Dr. Beilina’s office was closed. Appellant claims that she spoke to a nurse who told her to treat the problem with an antibiotic ointment and warm compresses. Appellant contends that she continued to do this for some months and it eventually scabbed over. However, she was left with an approximately ten centimeter wide and three centimeter high unsightly sear, which is sensitive to cold and heat. Also, she experiences varying degrees of numbness in the scar area.

laAppellant filed a medical malpractice claim against Doctor’s Hospital on January 16, 1990, alleging that Doctor’s Hospital or its’ employees were negligent in causing a bum to occur dining or after surgery. On April 16, 1992, a medical malpractice panel was convened and, following presentation of evidence, concluded that Doctor’s Hospital did not breach the applicable standard of care.

Appellant filed suit against Doctor’s Hospital on July 14, 1992. A judge trial was held on June 19, 1995. Appellant and her husband testified, medical records were admitted and several doctors testified by deposition. On August 30, 1995, the trial judge rendered judgment in favor of Doctor’s Hospital and dismissed appellant’s suit. On December 19, 1995, the trial judge provided reasons for judgment after appellant’s request. In his reasons, the trial judge determined that appellant failed to prove that Doctor’s Hospital breached the applicable standard of care in the performance of medical procedures rendered to her.

On appeal, appellant first contends that the trial judge erred in finding that she failed to prove that Doctor’s Hospital breached the applicable standard of care in the performance of the medical procedures. Second, she asserts that the trial judge erred in failing to make a determination of whether the scar was a keloid or the result of a bum. Third, appellant contends that the trial judge erred in failing to apply the doctrine of res ipsa loquitur to find liability.

The Court of Appeal may not upset the factual findings of a trial court absent manifest error or unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La. 7/15/94), 639 So.2d 216, 220, 221; Goodliffe v. Parish Anesthesia Associates, 95-357 (La. App. 5 Cir. 10/18/95); 663 So.2d 769, 774 (La.App. 5 Cir.1995). Where two permissible views of the evidence exist, the factfin-der’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through DOTD, 617 So.2d 880 (La. 1993). However,

14“... Although deference to the factfinder should be accorded, the court of appeal, and the Louisiana Supreme Court, nonetheless have a constitutional duty to review facts. Of course, the reviewing court may not merely decide if it would have found the facts of the case differently. Rather, notwithstanding the belief that they might have decided it differently, the court of appeal should affirm the trial court where the latter’s judgment is not clearly wrong or manifestly erroneous.”

Ambrose v. New Orleans Police Dept. Ambulance Service, 639 So.2d at 221; Goodliffe v. Parish Anesthesia Associates, 663 So.2d at 774.

A party who alleges the malpractice of a hospital must prove its negligence by a preponderance of the evidence. La.R.S. 2794(C). A hospital must exercise “that amount of care required by a particular patient, and must protect that patient from external circumstances peculiarly within the hospital’s control.” Hunt v. Bogalusa Community Medical Center, 303 So.2d 745, 747 (La.1974); Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 659 (La.1989).

Appellant first argues that the trial judge, referring to “he” instead of “it” in finding that appellant failed to prove her burden, indicates that he was confused as to who was being sued, perhaps referring to Dr. Beilina, who was not a party.

[1265]*1265After our review of the record, the judgment and the reasons for judgment, we do not agree with appellant that the trial judge may have been confused regarding the identity of the defendant. The reference to “he” was an inadvertent misstatement and harmless.

Appellant also asserts that the trial judge erred in not determining whether the scar was a keloid or the result of a bum because a bum would indicate negligence on the part of Doctor’s Hospital, whereas a kel-oid is a naturally occurring scar formation phenomenon. She notes that Dr. Beilina stated that the scar was a keloid, although the sear was above the actual incision point. Appellant argues that this does not fit the definition of keloid. Appellant contends that the sear resulted from a blister caused from a bum.

Appellant testified that she received morphine after surgery. She [¿remembers that someone removed the bandage, “which hurt.” Otherwise, she had no other problems. Appellant stated that the morning after she got home, she noticed the blister on her stomach area, approximately three-fourths of an inch above the pubic area and the incision. She contacted Doctor’s Hospital and was told by a nurse to put Neosporin and wet compresses on the area. She testified that there was no dressing on the area when she left Doctor’s Hospital and she denied telling Dr. Bei-lina that she removed tape that was stuck to her abdomen when she got home. On cross-examination, appellant does not remember the heating pad or the whirlpool being too hot in Doctor’s Hospital. She contended that she had some drainage in the incision and that a nurse put Neosporin and a steri-strip on the area. However, she could not remember if the steri-strip was still on when she left Doctor’s Hospital. When she visited Dr. Beilina, she stated that he told her it could have been from the tape or diabetes, but noted that she had several blood tests when she was preparing for surgery and diabetes was not indicated. On recall to the witness stand, appellant added that Dr. Beilina did not see her every day after surgery and that his associate discharged her from Doctor’s Hospital. Appellant’s husband testified, but did not add any additional information.

Dr. John McCabe, a Plastic and Reconstructive surgeon, testified that he saw appellant on April 16, 1990. The history given to him by appellant was that the blister appeared when she removed the dressing from her surgery. He stated that a blister is a reaction caused by stress to the skin. This source can be infection, pressure, burn or from any of numerous other reasons. Dr. McCabe noted that appellant had been treating the area with antibiotic ointments and moist soaps, bathing it daily. Dr. McCabe stated that an adverse tape reaction can cause blistering, but he hesitated to speculate whether that was the cause of the blister. In addition, he stated that he would not dispute Dr. Beilina’s notes. However, in his opinion, the scar did not appear to be a keloid.

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673 So. 2d 1263, 96 La.App. 5 Cir. 69, 1996 La. App. LEXIS 948, 1996 WL 207412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/filasek-v-doctors-hospital-of-jefferson-lactapp-1996.