Guillory v. Buller

398 So. 2d 43
CourtLouisiana Court of Appeal
DecidedMarch 11, 1981
Docket8104
StatusPublished
Cited by32 cases

This text of 398 So. 2d 43 (Guillory v. Buller) 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
Guillory v. Buller, 398 So. 2d 43 (La. Ct. App. 1981).

Opinion

398 So.2d 43 (1981)

Augusta GUILLORY, Plaintiff-Appellant,
v.
Dr. D. H. BULLER and Dr. Tyler J. Kent, Defendants-Appellees.

No. 8104.

Court of Appeal of Louisiana, Third Circuit.

March 11, 1981.

*44 Simmons & Nelson, Otha C. Nelson, Baton Rouge, for plaintiff-appellant.

Pugh & Boudreaux, Charles J. Boudreaux, Sr., Lafayette, for defendants-appellees.

Before DOMENGEAUX, STOKER, and DOUCET, JJ.

DOMENGEAUX, Judge.

This is a medical malpractice suit brought by Augusta Guillory against Dr. Daniel H. Buller and Dr. Tyler T. Kent in connection with two surgical procedures performed on the plaintiff's left armpit by Doctors Buller and Kent on May 30th and July 20, 1978, respectively.

On May 29, 1978, plaintiff was admitted to Opelousas General Hospital by her doctor, Dr. August C. Terrence, for treatment of an infection in her left armpit. At Doctor Terrence's request, Doctor Buller, a general surgeon, examined plaintiff the next day, May 30th, and diagnosed her condition as the disease of axillary hidradenitis suppurativa with an abscess formation. In layman's terms, Doctor Buller described plaintiff's condition as "a nest of boils in the armpit." The condition was also described as an infection of the sweat glands in the armpit.

Doctor Buller explained that before he could provide treatment that would cure plaintiff of her disease, the infection had to be cleared. To achieve this result, he proceeded to drain the pus from the abscess. The next day, the plaintiff was discharged from the hospital and was told to return at a later date so Doctor Buller could check her progress.

Doctor Buller next examined plaintiff on July 18, 1978, and determined that her infection had been cleared by the minor surgery performed on May 30th. He felt that the chronic or long term phase of her disease would best be treated by removal of all of the diseased tissue and so recommended this to plaintiff. He also referred to her Doctor Kent for the surgery because he felt Doctor Kent was more capable than he to perform the particular operation that plaintiff needed.

On July 20, 1978, Doctor Kent removed the entire hair-bearing portion of plaintiff's left armpit, an area measuring 9 centimeters by 4 centimeters (about 6 square inches). The surgery was designed to rid plaintiff of her disease. He then closed the wound by suturing the remaining skin together. He allowed plaintiff to wear a sling to immobilize her arm while the skin healed together. Plaintiff was discharged from the hospital on July 24th but returned on July 27th, August 3rd, and August 8th, during which visits Doctor Kent performed piecemeal removal of the sutures, a common procedure for this type of operation. Doctor Kent also examined plaintiff on August *45 22nd and encouraged her to use and exercise her arm in order to restore its mobility.[1]

Doctor Kent saw the plaintiff for the last time on September 26, 1978. At this examination he was dissatisfied with the progress she had made on her own and recommended that she undergo physical therapy. However, instead of following his advice (she did not keep the physical therapy appointment made by Doctor Kent), she sought the advice of other doctors.

In her suit, filed May 3, 1979, plaintiff alleged that these other doctors advised her that corrective surgery is needed to correct the surgery performed by Doctors Buller and Kent. Apparently, plaintiff was still having difficulty in lifting her arm upward from her side, a problem she began experiencing after the July 20th surgery. In her petition, plaintiff alleged:

"VII.

Plaintiff avers that her resulting injury would not have occurred if all defendants had exercised the degree of care, skill and knowledge ordinarily exercised by physicians, registered and licensed practical nurses in this area and throughout the United States and as a result of their individual and collective failures plaintiff suffered damages that would not otherwise have occurred.

VIII.

Alternatively, plaintiff avers and specifically pleads the doctrine of res ipsa loquitur as to the defendants."

Trial on plaintiff's suit was held April 21 and April 22, 1980. Following plaintiff's evidence, the defendants moved for, and were granted, a directed verdict. From that judgment granting the directed verdict plaintiff has appealed. We affirm.

In Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979), this Court adopted the following standard to determine whether a motion for a directed verdict should be granted:

"On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence— not just that evidence which supports the non-mover's case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury."[2]

After considering all the evidence, we believe that reasonable men could not arrive at a verdict contrary to the defendants, therefore we affirm the judgment granting defendants a directed verdict.

A plaintiff's burden of proof in a medical malpractice suit is set out in La.R.S. 9:2794:

"A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily *46 exercised by physicians or dentists 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 or dentists 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, 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."

The statute also provides that injury alone does not raise a presumption of the physician's negligence. Also, by its own language, R.S. 9:2794 does not apply if the doctrine of res ipsa loquitur is found to be applicable. However, we find for reasons explained later that the doctrine of res ipsa loquitur does not apply to the instant case.

In an effort to meet her burden of proof plaintiff called as witnesses the defendants, under cross-examination; Doctors Edgar P. Breaux, Joseph G. Patton, and Gregory M. Savoy, all of whom are general surgeons; and Doctor John Finley, a plastic surgeon.

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Bluebook (online)
398 So. 2d 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillory-v-buller-lactapp-1981.