Hughes v. Bailey

691 So. 2d 359, 1997 WL 175115
CourtLouisiana Court of Appeal
DecidedApril 2, 1997
Docket29314-CA
StatusPublished
Cited by5 cases

This text of 691 So. 2d 359 (Hughes v. Bailey) 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
Hughes v. Bailey, 691 So. 2d 359, 1997 WL 175115 (La. Ct. App. 1997).

Opinion

691 So.2d 359 (1997)

Patsy A. HUGHES, Plaintiff-Appellant,
v.
Myron B. BAILEY, Jr., M.D., Defendant-Appellee.

No. 29314-CA.

Court of Appeal of Louisiana, Second Circuit.

April 2, 1997.

*360 Patsy A. Hughes, in Proper Person.

David E. Verlander, for Defendant-Appellee.

Before MARVIN, C.J., and WILLIAMS and STEWART, JJ.

STEWART, Judge.

Patsy A. Hughes sued Dr. Myron B. Bailey, Jr. for medical malpractice. The trial court rendered judgment in favor of the defendant. Plaintiff appeals, asserting that she proved all elements of her claim, that the trial court made several substantive and procedural errors, and the assessment of costs and expert fees are an abuse of discretion. We affirm.

FACTS

On December 24, 1990, while attending a family gathering, Patsy Hughes injured her right pinky finger. She was taken to the emergency room at West Carroll Memorial Hospital, and seen by a Dr. Guinigundo. An x-ray revealed two fractures of the right pinky. Dr. Guinigundo splinted her finger and advised Mrs. Hughes to seek the treatment of an orthopaedic specialist. Dr. Guinigundo recommended a physician in Bastrop. Mrs. Hughes sought a specialist in Monroe.

On December 26, 1990, Mrs. Hughes saw Dr. Bailey at his office. Hughes was a current patient of Dr. Rifat Nawas, the defendant's partner at a minor emergency clinic that they both operated. Mrs. Hughes came as a walk-in patient. She brought the x-ray taken at West Carroll. Based upon this film, Dr. Bailey determined his method of treatment. She suffered from two fractures. One was a proximal phalangeal fracture that was angulated, and the second was a small non-displaced fracture of the middle phalanx. Dr. Bailey performed his standard management that consisted of: manipulating the fracture, correcting the position, and immobilization. The fracture site was prepped with betadine, then Dr. Bailey administered a local injection of anesthesia at the fracture site, and he performed a closed manipulation. Dr. Bailey took additional x-rays from which he determined that the deviation of fracture site had been corrected. The second fracture site did not require manipulation. Dr. Bailey splinted the finger, and buddy-taped it to the adjacent finger. He requested that Mrs. Hughes return in twelve to fourteen days.

Mrs. Hughes returned on January 14, 1991. Again, Dr. Bailey x-rayed her hand. *361 The first fracture was healing properly. However, the second fracture at the middle phalanx was displaced 2-3 millimeters, and the fracture site, as well as the entire finger had a considerable amount of soft tissue swelling. Dr. Bailey diagnosed a partially healed fracture of which the subchondral bone and joint were aligned. According to the records from the Orthopaedic Clinic, Dr. Bailey noted that Hughes may have additional problems with her finger. He stated that had the second fracture been displaced initially, surgery may have been his top option. However, he decided to splint the finger since it was three weeks post trauma. Dr. Bailey determined that surgery was not a present option due to the expense and the associated risks: loss of motion, potential of infection, or nerve injury. Dr. Bailey made an appointment for Mrs. Hughes on February 11, 1991. She did not appear.

Mrs. Hughes sought review of Dr. Bailey's treatment. She convened a medical review panel. The panel consisted of three physicians William L. Overdyke, Clinton McAlister, and Edward L. Anglin. The attorney chairperson was Larry Arbour. On May 26, 1993, the panel issued an opinion. They concluded that the evidence failed to support the conclusion that Dr. Bailey failed to meet the applicable standard of care in his treatment of Patsy Hughes. After Dr. Bailey performed the reduction, x-rays of her finger while splinted revealed a satisfactory position of the fractures of the proximal phalanx and middle phalanx.

While the panel convened, Mrs. Hughes was represented by counsel. On August 26, 1993, Hughes, in proper person, filed a petition at the district court for damages. On April 18, 1996, seven days before trial, she sought the issuance of subpoenas for the three physicians. The physicians received the subpoenas 1 and one-half to two days before trial. Two physicians notified the trial court of scheduling conflicts and they were excused.

The trial was held on April 25, 1996. Mrs. Hughes listed but failed to call several family members and friends. Also, she listed all physicians on the medical review panel. As a result, the only persons that testified were the plaintiff, defendant, and Dr. McAlister. The trial court offered Hughes additional time to take the physicians depositions. Hughes declined on the record. At the close of taking evidence, the trial court ruled that plaintiff failed to carry her burden of proof, and there had been no deviation from the standard of care. The trial court entered judgment for the defendant. Costs and a $500.00 expert witness fee with tax, subject to a credit of $300.00, for Dr. McAlister was assessed against the plaintiff. Plaintiff appeals.

ASSIGNMENTS OF ERROR

Plaintiff-appellant lists several assignments of error for this court's review. The defendant-appellee has addressed plaintiff's assignments classifying them as substantive or procedural. For the sake of clarity, this court will similarly address Hughes' assignments.

SUBSTANTIVE:

1. The trial court erred in determining that the plaintiff failed to prove the degree of knowledge, skill, or care exercised by physicians licensed to practice in Louisiana.
2. The trial court erred in finding that Hughes failed to prove her case since the defendant and an additional physician testified that surgery was an option, which could have resulted in a better outcome.

PROCEDURAL:

1. The trial court erred in not continuing the trial, or holding the record open for the testimony of Drs. Anglin and Overdyke.
2. The trial court erred when it failed to place Drs. Anglin and Overdyke in contempt of court for failing to appear as subpoenaed.
3. The trial court erred in assessing costs to Hughes.
4. The trial court erred in ruling from the bench rather than taking the case under advisement.

LAW

La.R.S. 9:2794 provides in pertinent part:

*362 A. In a malpractice action based on the negligence of a physician ... the plaintiff shall have the burden of proving:
(1) ... [W]here the defendant practices in a particular speciality and where the alleged acts of medical negligence raise issues peculiar to the particular medical speciality involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical speciality.
(2) That the defendant either laced 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.
(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.

La.R.S.

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Cite This Page — Counsel Stack

Bluebook (online)
691 So. 2d 359, 1997 WL 175115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughes-v-bailey-lactapp-1997.