Howell v. Iacona

505 So. 2d 821
CourtLouisiana Court of Appeal
DecidedApril 1, 1987
Docket18513-CA
StatusPublished
Cited by10 cases

This text of 505 So. 2d 821 (Howell v. Iacona) 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
Howell v. Iacona, 505 So. 2d 821 (La. Ct. App. 1987).

Opinion

505 So.2d 821 (1987)

Van Colon HOWELL, Appellant,
v.
Dr. Marie Ann IACONA, M.D., Appellee.

No. 18513-CA.

Court of Appeal of Louisiana, Second Circuit.

April 1, 1987.

*822 Edmund M. Thomas, Shreveport, for appellant.

Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for appellee.

Before HALL, C.J., and MARVIN and NORRIS, JJ.

NORRIS, Judge.

This is a medical malpractice suit in which the plaintiff Van Howell, age 51 when the petition was filed, appeals from a judgment that granted him some recovery but denied a significant portion of the compensation he had requested. He now appeals, urging the trial court erred in failing to find that the conduct of the defendant, Dr. Iacona, was a contributing cause in fact of his infection and resultant damages. For the reasons expressed, we reverse and render.

FACTS

Mr. Howell had come to the defendant, Dr. Marie Iacona, for treatment of irregularities in his heartbeat. Defendant's practice consists of internal medicine and noninvasive cardiology. Dr. Iacona referred the plaintiff to Dr. Mike Futrell, whose practice includes invasive and noninvasive cardiology, recommending that a pacemaker be installed. Dr. Futrell inserted a pacemaker on February 4, 1983. The pacemaker had two leads that connected to a generator. Leads were placed in two of the plaintiff's four heart chambers, and the generator was implanted in the chest. Dr. Futrell reopened the chest pocket that same day to reposition a lead that was dislodged. On March 11 the pocket was again reopened by Dr. Futrell to reposition a lead. These first three operations were done in the hospital operating room under sterile procedures. On April 1, 1983 the plaintiff saw Dr. Iacona in her office, and complained to her of minor discomfort with the pacemaker pocket. Defendant's medical report shows redness of the incision line, swelling, and slightly elevated skin temperature over the pocket. While this could have been symptomatic of a local infection, Dr. Iacona was of the opinion that there was no infection, but rather an inflammation due to retention of suture fragments. Dr. Iacona supervised as her assistant used a scalpel to make a 1.5 centimeter incision in the skin at the mid-point of the previous incision, to expose the ends of the sutures. Approximately 30 to 50 milliliters of clear, amber-colored fluid were released from the pacemaker pocket as a result of the incision. Dr. Iacona testified that the fluid did not look infected, and she took no samples to culture. Dr. Iacona felt it was not necessary to suture the incision closed, as she believed that it would heal on its own by granulating in. The area was bandaged and a prophylactic *823 antibiotic was prescribed, which was intended not to treat an already existing infection but to prevent the incision she had made from becoming infected. The next appointment Mr. Howell was to have with Dr. Iacona was April 15, 1983. The plaintiff's wife testified that on April 6 she called Dr. Iacona and said that the pocket had refilled with fluid, and the pacemaker was visible. The doctor prescribed an anti-inflammatory drug and asked that Mr. Howell call back in four or five days. When he called on April 11 Dr. Iacona referred Mr. Howell to Dr. Futrell for management of the problem. Dr. Futrell hospitalized the plaintiff on that day because of a breakdown at the suture margin of the pacemaker pocket. The pacemaker generator was visibly exposed. A culture of the area was made, but the results were negative. There were no clinical signs of infection. On April 13 Dr. Harold Brown, a plastic surgeon with whom Dr. Futrell had consulted, reimplanted the pacemaker deeper beneath the pectoral muscle on the same side of the chest. Mr. Howell was released April 16. On May 5, 1983 he was readmitted to the hospital with a high fever. The cultures were positive for staphylococcus aureus, a pathogenic bacteria, signaling an infection. Mr. Howell stayed in the hospital until June 10, 1983, receiving a course of intraveneous antibiotics. On June 23, 1983 he was again hospitalized with infection. On June 24 Dr. Futrell and Dr. Brown unsuccessfully attempted to remove the pacemaker leads, but the leads were encased in scar tissue and could not be detached. On June 28 Dr. James Ciaravella, a cardiologist brought in by Dr. Futrell, performed a thoracotomy to remove the leads and inserted a new pacemaker, implanting the generator into the abdomen. Plaintiff was released August 8, 1983 and has had no complications with the new pacemaker.

The trial court found that Dr. Iacona's conduct fell below the standard of care expected in her treatment of the plaintiff. He found that this failure to comply with the expected standard of care caused the pacemaker to extrude, necessitating the operation to reposition the generator beneath the pectoral muscle. The trial judge awarded Mr. Howell $4,836.57 for special damages and $33,500 in general damages. However, he did not find that her substandard conduct caused the staph infection and plaintiff's medical difficulties subsequent to the reimplantation, which included two additional hospitalizations and a thoracotomy. The court said that the plaintiff failed to carry his burden of proof that it was Dr. Iacona's negligence, not some other occurrence, which caused the infection. The trial judge relied greatly on Dr. Robert Leachman's explanation that contamination, but not necessarily infection, had resulted from the exposure of the generator. According to the trial court's interpretation of Dr. Leachman's testimony, it would be pure speculation to try to pinpoint when the bacteria which caused the staph infection actually entered plaintiff's body.

Defendant does not appeal nor answer the plaintiff's appeal. Plaintiff's assignments of error may be consolidated into one issue: whether the trial court erred in not finding that the defendant's negligent medical treatment was more probably than not a contributing cause in fact of the plaintiff's infection, and all the resulting medical difficulties.

DISCUSSION

In a medical malpractice action, the plaintiff must show that as a result of the defendant's negligence he suffered injuries that would not otherwise have occurred. LSA-R.S. 9:2794; Hunter v. Office of Health Services, etc., 385 So.2d 928 (La. App. 2d Cir.1960), writ denied 393 So.2d 737 (La.1980). Plaintiff need not show that defendant's conduct was the only cause of the harm, nor must he negate all other possibilities; rather, he must show by a preponderance of evidence, or more probably than not, that he suffered the injury because of defendant's conduct. R.S. 9:2794; Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977).

The recent case of Weber v. Charity Hosp. of La., 475 So.2d 1047 (La. 1985), regulates the situation where different *824 medical procedures or different health care providers may have concurred to create or worsen the harm. Under Weber, a tortfeasor is responsible not only for injuries directly resulting from her substandard conduct, but for subsequent treatment by health care providers who seek to resolve the original harm. This is so whether or not the subsequent treatment is rendered negligently; however, if the subsequent treatment is deemed negligent, then the original physician and the subsequent ones are solidarily liable for the total harm. Weber, supra. Naturally, a plaintiff may enforce his right against any of the solidarily bound health care providers, regardless of their relative fault. LSA-C.C. art. 1795; Thomas v. W & W Clarklift, Inc., 375 So.2d 375 (La.1979).

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Bluebook (online)
505 So. 2d 821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howell-v-iacona-lactapp-1987.