Fusilier v. Dauterive

764 So. 2d 74, 2000 WL 1006940
Supreme Court of Louisiana·Decided July 14, 2000·No. 2000-C-0151·Published·Cited by 31 cases

Opinion

764 So.2d 74 (2000)

Mary FUSILIER and Lloyd Fusilier, Sr., Ind. and as Legal Guardian of the Minor Lloyd Fusilier, III
v.
Edward (Ned) DAUTERIVE, Jr., M.D., et al.

No. 2000-C-0151.

Supreme Court of Louisiana.

July 14, 2000.

*75 J. Minos Simon, Lafayette, for applicants.

Marc W. Judice, Peter T. Dazzio, Judice & Adley, Lafayette, for respondents.

JOHNSON, Justice.[*]

Plaintiffs, Mary Fusilier, Lloyd Fusilier, Sr., and Lloyd Fusilier, III, brought this medical malpractice action to recover damages for injuries Mary Fusilier sustained while undergoing surgery performed by defendant, Dr. Edward Dauterive, Jr., at Iberia General Hospital. We granted this writ of certiorari to determine whether the jury's determination that the defendant was not negligent in performing the surgery and that his negligence was not a cause of plaintiffs injuries was manifestly erroneous and whether the jury was manifestly erroneous in finding that the defendant did not fail to inform plaintiff of material risks to the surgery. After reviewing all of the evidence and testimony, we hold that the jury was manifestly erroneous in concluding that Dr. Dauterive was not negligent. Accordingly, we reverse the court of appeal's decision to affirm the jury's verdict and remand this matter to the court of appeal to assess damages.

FACTS AND PROCEDURAL HISTORY

In 1989, an ultrasound revealed that Mary Fusilier had a gallstone in her gallbladder. She elected not to have her gallbladder surgically removed at that time. On May 8, 1990, plaintiff visited Dr. Dauterive, a general surgeon, for the first time, complaining of nausea, indigestion, epigastric discomfort, and fatty food intolerance. When another ultrasound confirmed that plaintiff had a gallstone, Dr. Dauterive recommended conservative treatment, i.e., observation and symptomatic treatment, rather than surgery. When plaintiff's symptoms became more severe, she returned to Dr. Dauterive, who discussed treatment alternatives with her. Surgery was recommended, but it had to be delayed because plaintiff was diagnosed with congestive heart failure. Once the congestive heart failure had improved, plaintiff's family physician referred her back to Dr. Dauterive, and on November 9, 1990, she was admitted to Iberia General Hospital to undergo a laparoscopic cholecystectomy.[2]

*76 Dr. Dauterive was assisted in surgery by Dr. Ralph Joseph Fernandez, Jr., a gynecologist who was familiar with the use of the trocar and the varies needle, the instruments used in the procedure. Dr. Fernandez did not participate in the actual performance of the surgery. His role was to observe the technique used by Dr. Dauterive in the use of the laparoscopic instruments.

Initially, the surgery proceeded uneventfully, and the gallbladder was successfully removed. However, after the surgery was completed, the anesthesiologist noticed blood coming from Mrs. Fusilier's mouth. Dr. Dauterive opened her abdomen and discovered that, at some point during the course of the operation, he had perforated her aorta. He also realized that he had pierced her duodenum and mesentery. In his attempt to repair the perforations, he punctured plaintiff's intestine and her splenic capsule.

As a result of the injuries, plaintiff incurred a tremendous blood loss, and her blood pressure dropped on several occasions during the operation. To stabilize plaintiffs condition, the medical staff administered thirty-eight units of blood, nine units of plasma, and eight liters of Plasmalite (a blood "extender"). As a result of the perforation in Mrs. Fusilier's intestine, it was necessary for Dr. Dauterive to perform a colostomy. Eventually, the bleeding was controlled. Her abdomen was then closed, and she was taken to the recovery room in critical condition.

Still hypotensive, Mrs. Fusilier was admitted to the Intensive Care Unit. Her post-operative course was extremely complex. Plaintiffs congestive heart failure recurred, and she developed adult respiratory distress syndrome, which required extended ventilatory support. Blood loss continued over the first weeks of her recovery, requiring intermittent blood transfusions. After several failed attempts to wean plaintiff from the ventilator, the doctors performed a tracheostomy. She also had a feeding tube inserted into her abdomen to facilitate nutritional intake.

Once Mrs. Fusilier's condition improved, she was transferred from the intensive care unit. She was eventually discharged from the hospital on December 24, 1990.

Five days later, Mrs. Fusilier was readmitted to the hospital with sepsis, internal herniation with infarction of the ileum, and significant adhesions in her abdomen. She underwent an abdominal exploration, relief of the abdominal adhesions, a small bowel resection, a right hemicolectomy, and an excision of her colostomy. She remained hospitalized until January 18, 1991. She was then admitted to a skilled nursing facility, where she remained until February 14, 1991.

Plaintiffs later discovered that Dr. Dauterive had never performed a laparoscopic procedure for gallbladder surgery on a human being prior to the one he performed on Mrs. Fusilier. They also discovered that the only training Dr. Dauterive had received concerning the procedure was during a two day course entitled "Surgical Laser in Laparoscopic Cholecystectomy" in Hattiesburg, Mississippi in May, 1990. The course consisted of one day of lectures and one day of participation in handling the instruments to remove the gallbladder of a pig.

Plaintiffs filed a claim with the Medical Review Panel on October 25, 1991. On August 6, 1992, the panel concluded that plaintiff had not proven that Dr. Dauterive, Dr. Fernandez, and Iberia General Hospital deviated from the standard of care which is required of physicians, health *77 care providers, their staff and/or employees of the same speciality. The panel specifically concluded:

1. Dr. Fernandez acted as an assistant, both pre-operatively and post-operatively, was never assigned to treat plaintiff;
2. The equipment at Iberia General Hospital was adequate and appropriate; the credentialing for laparoscopic cholecystectomies was appropriate as to requiring the physician to attend a "handson" course; there is no "standard" accrediting method for all hospitals—each hospital is different, yet most have similar criteria;
3. Dr. Dauterive obtained adequate and appropriate consent; he demonstrated appropriate skill as a general surgeon; the complication experienced by plaintiff is a known complication which, once discovered, was treated and handled appropriately.

On November 6, 1992, plaintiffs filed a petition for damages, naming Dr. Dauterive, Dr. Fernandez, and Iberia General Hospital as defendants. The petition alleged that defendants "deviated from the accepted standards of medical practice for Health Care providers and caused injuries and damages to the named plaintiffs...." Plaintiffs specifically asserted that defendants:

1. Failed to comply with the appropriate standard of care;
2. Failed to have the proper training and experience to take those actions necessary so as to avoid an accident of the type which occurred to plaintiff;
3. Utilized inadequate equipment and personnel;
4. Failed to secure informed consent;
5. Failed to warn of, recognize or properly treat medical risks and emergencies.

Mrs. F

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