Hartman v. D'AMBROSIA

665 So. 2d 1206, 1995 WL 707897
CourtLouisiana Court of Appeal
DecidedNovember 30, 1995
Docket95-CA-0393
StatusPublished
Cited by4 cases

This text of 665 So. 2d 1206 (Hartman v. D'AMBROSIA) 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
Hartman v. D'AMBROSIA, 665 So. 2d 1206, 1995 WL 707897 (La. Ct. App. 1995).

Opinion

665 So.2d 1206 (1995)

Margaret Brignac HARTMAN
v.
Dr. Robert D'AMBROSIA.

No. 95-CA-0393.

Court of Appeal of Louisiana, Fourth Circuit.

November 30, 1995.

Michele Gaudin, Gaudin and Longoria, New Orleans, for Plaintiff.

Richard P. Ieyoub, Attorney General, Irving H. Koch, Special Assistant Attorney General, Koch & Koch, New Orleans, for Defendant.

Before LOBRANO, ARMSTRONG and WALTZER, JJ.

*1207 ARMSTRONG, Judge.

This is a medical informed consent case. The defendant, Dr. Robert D. D'Ambrosia, performed foot surgery on the plaintiff, Mrs. Margaret Brignac Hartman. Mrs. Hartman sued Dr. D'Ambrosia because, she alleges, he did not properly inform her of the risks of the surgery prior to obtaining her consent for the surgery. Thus, she alleges that she did not give informed consent for the surgery. The trial court agreed with Mrs. Hartman, found in her favor as to liability, and fixed damages at $25,000.00. Dr. D'Ambrosia appeals as to liability. There is no appeal as to quantum of damages. We affirm.

Mrs. Hartman went to see Dr. D'Ambrosia because she had a bunion on the great toe of her right foot. She had been to see another doctor previously but went to see Dr. D'Ambrosia on the recommendation of a friend who also was a friend of Dr. D'Ambrosia. There was some sort of mix up as to Mrs. Hartman's appointment time and she arrived just as Dr. D'Ambrosia was supposed to leave for a meeting. This circumstance seems to have caused the appointment to be quite brief, as little as fifteen minutes, and the time spent included some purely social conversation. This would have left little time for Dr. D'Ambrosia to give much explanation of the risks of the surgery. Also, this brief appointment was the only time Mrs. Hartman was seen by Dr. D'Ambrosia until the surgery.

The conversation that took place during the single pre-surgery office visit is important and was hotly contested at trial. Both Mrs. Hartman and Dr. D'Ambrosia, the only witnesses as to the conversation, do agree that he explained the essentials of what the surgery would entail. Dr. D'Ambrosia told her that he would remove the bunion from Mrs. Hartman's great toe of her right foot. He also diagnosed a "hammer toe" of the second toe of the right foot and told her he would perform a procedure on that toe to correct that condition. Additionally, he diagnosed a problem with a metatarsal, a bone of the foot, in her right foot but told her he would not do any procedure specifically as to that.

With respect to what Dr. D'Ambrosia told Mrs. Hartman as to the expected results of the surgery, Mrs. Hartman and Dr. D'Ambrosia sharply disagreed. Mrs. Hartman testified that Dr. D'Ambrosia told her that she would have to wear a cast for about six weeks after the surgery and use a soft canvas shoe for about six months after the surgery, but that she would be able to wear high heels at about a year after the surgery. Great controversy centers around the alleged statement that Mrs. Hartman would be able to wear high heels. Dr. D'Ambrosia emphatically denies making any such statement. It is also a fairly obvious inference from Mrs. Hartman's testimony that she came away from the appointment with Dr. D'Ambrosia with the impression that after the surgery she would have a normal right foot. She acknowledges that Dr. D'Ambrosia said that he would not operate on the metatarsal but, as she understood it, that was because the surgery on the great toe and the second toe would help with the metatarsal pain and that Dr. D'Ambrosia believed that the metatarsal was "not a problem." Dr. D'Ambrosia's testimony generally was contradictory to Mrs. Hartman's testimony and he took the view at trial that Mrs. Hartman had "unrealistic expectations" of having a normal right foot.

On the specific topic of high heels, Mrs. Hartman testified that, after a divorce, she moved to the French Quarter and bought high heels. The high heels precipitated, or at least aggravated, a bunion problem. She testified that the reason for going to see a doctor about the bunion problem was, in addition to relief from pain, to be able to wear high heels. She had friends who had bunions and, after surgical treatment, they had worn high heels. Mrs. Hartman is described in testimony as dressing in a "stylish" or "fashionable" manner and, because she is five feet two inches tall, high heels are important her. In short, from Mrs. Hartman's perspective, the question of wearing high heels was of great significance to her decision to go ahead with the surgery.

Dr. D'Ambrosia performed the surgery on Mrs. Hartman as he had described it to her. It appears that Mrs. Hartman's recovery *1208 from the surgery was slow, painful and perhaps complicated. On the other hand, Mrs. Hartman does not allege that Dr. D'Ambrosia performed the surgery incorrectly or that there was any malpractice in the actual treatment she received. Further, Dr. D'Ambrosia testified to the effect that the eventual results of the surgery were as he expected and that, from his point of view, the surgery was a success.

However, from Mrs. Hartman's point of view, the results of the surgery were a great disappointment. For some time after the surgery she was seen by other doctors, not Dr. D'Ambrosia, because he was out of the country for an extended vacation. When Mrs. Hartman eventually did see Dr. D'Ambrosia, he told her that she could not wear high heels in the future and that she should have an orthotic insert, a sort of plastic foot support, made and should wear it inside her shoe so as to relieve the pain she was continuing to have from her metatarsal. Mrs. Hartman testified that she was "stunned" by this advice from Dr. D'Ambrosia because it was directly contrary to what he had told her before the surgery as to the high heels and because he had never said anything about orthotic inserts prior to the surgery. Mrs. Hartman testified that Dr. D'Ambrosia "backtracked" and "reversed himself" relative to his pre-surgery advice.

Mrs. Hartman did try the orthotic insert, albeit in a perfunctory fashion for an hour at a time, but she received no relief from the pain in her foot which pain, Dr. D'Ambrosia testified, originated with the metatarsal. In any case, she argues, Dr. D'Ambrosia never told her before the surgery that such an orthotic insert would be necessary and she testified that she found the orthotic insert objectionable because it "meant cripple." Her testimony that nothing was said by Dr. D'Ambrosia about the orthotic insert before the surgery is unrebutted. Instead, Dr. D'Ambrosia testified (consistently with Mrs. Hartman), that he simply told Mrs. Hartman that he would not be operating on the metatarsal.[1]

There are two factual issues as to the single pre-surgery visit of Mrs. Hartman to Dr. D'Ambrosia. First, whether it was reasonable for Mrs. Hartman to conclude, based upon her conversation with Dr. D'Ambrosia, that she would be able to wear high heels a year after the surgery. Second, whether it was reasonable for Mrs. Hartman to conclude, based upon her conversation with Dr. D'Ambrosia, that she could expect her foot to be normal. This latter question, as to a "normal foot" really seems to be based on an underlying question of whether Mrs. Hartman, based upon her conversation with Dr. D'Ambrosia, reasonably should have expected the pain which originated in her metatarsal to be relieved by the surgery. The trial court resolved both of these factual issues in Mrs. Hartman's favor. We may not disturb those factual findings unless they are "manifestly erroneous" or "clearly wrong." Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, DOTD,

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Cite This Page — Counsel Stack

Bluebook (online)
665 So. 2d 1206, 1995 WL 707897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartman-v-dambrosia-lactapp-1995.