Jones v. Hernandez

880 So. 2d 245, 2004 La. App. LEXIS 1996, 2004 WL 1837546
CourtLouisiana Court of Appeal
DecidedAugust 18, 2004
DocketNo. 38,818-CA
StatusPublished
Cited by4 cases

This text of 880 So. 2d 245 (Jones v. Hernandez) 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
Jones v. Hernandez, 880 So. 2d 245, 2004 La. App. LEXIS 1996, 2004 WL 1837546 (La. Ct. App. 2004).

Opinion

hBROWN, C.J.

This medical malpractice action was instituted by plaintiff, Robert Jones, Jr., a 23-year-old airman stationed at Barksdale Air Force Base, against defendants, Dr. Victor Hernandez and Louisiana Mutual Insurance Company (“LAMMICO”). On [247]*247the night of October 30, 1999, plaintiff went to the emergency room at Christus Schumpert Medical Center in Shreveport, Louisiana. Dr. Hernandez was the general surgeon on call. After explaining the situation to plaintiff and to plaintiffs father in Kentucky by telephone, Dr. Hernandez removed plaintiffs gallbladder by performing an emergency laparoscopic cholecystectomy1 early the next morning.

About a month after being discharged from the hospital, Jones went to the clinic at Barksdale reporting nausea, vomiting, orange urine, pale gray stools, and yellow eyes. Thereafter, on November 30, 1999, he was readmitted to Christus Schumpert. On December 1, 1999, tests2 revealed a near obstruction of the common hepatic duct3 near the site of surgical clips used by Dr. Hernandez in the cholecystectomy.

On December 3, 1999, Jones underwent an exploratory laparotomy performed by Drs. Gazi Zibari and Earl Walker. The cause of obstruction [¿was determined to be a surgical clip blocking the common hepatic duct. This obstruction was corrected with a Roux-en-y 4 procedure.

Jones filed a request for a medical review panel on October 10, 2000, asserting negligence on the part of Dr. Hernandez. On January 15, 2002, the panel rendered an opinion in favor of Dr. Hernandez, finding no malpractice on his part in performance of the emergency laparoscopic chole-cystectomy on claimant. Thereafter, on April 16, 2002, Jones filed a petition seeking damages from Dr. Hernandez and LAMMICO. The matter was tried in June 2003. The issues presented at trial were whether the common duct was clipped, and if so, whether this was a recognized risk of the procedure; and whether defendant breached the standard of care by not converting from a laparoscopic to an open procedure.

The trial court issued written reasons on September 23, 2003, and rendered judgment in favor of defendants on October 9, 2003. It is from this judgment that Jones has appealed, claiming manifest error. We affirm.

Discussion

Plaintiff asserts that the trial court erred in failing to find that Dr. Hernandez deviated from the applicable standard of care by: (1) placing a clip on the common hepatic duct; (2) failing to convert from a laparoscopic cholecystectomy to an open procedure; and (3) failing to recognize and correct the improperly placed clip.

La. R.S. 9:2794 requires that in a medical malpractice action against a specialist, the plaintiff must prove by a preponderance of the evidence: (1) |3that the physician’s treatment fell below the standard of care applicable to a doctor in his medical specialty; and (2) the existence of a causal relationship between the alleged negligent treatment and the injury sustained. Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La.1991); Powell v. Fuentes, 34,666 (La.App.2d Cir.05/09/01), 786 So.2d [248]*248277, writ denied, 01-1675 (La.09/21/01), 797 So.2d 674; Marks v. Jones, 29,881 (La.App.2d Cir.12/10/97), 705 So.2d 262; Roberts v. Cox, 28,094 (La.App.2d Cir.02/28/96), 669 So.2d 638.

An unsuccessful course of treatment is not per se an indication of malpractice. Wainwright v. Leary, 623 So.2d 233 (La.App. 2d Cir.1993), writ denied, 629 So.2d 1127 (La.1993). A physician is required to exercise that degree of skill ordinarily employed under similar circumstances by others in the profession, and to use reasonable care, diligence, and judgment. Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986); Hughes v. Bailey, 29,314 (La.App.2d Cir.04/02/97), 691 So.2d 359. A physician is not required to exercise the highest degree of care possible. Instead, his duty is to exercise the degree of skill ordinarily employed by his professional peers under similar circumstances. The law does not require absolute precision from a physician. A physician’s conduct and professional judgment are to be evaluated in terms of reasonableness under the existing circumstances and are not to be viewed in hindsight, in terms of results, or in light of subsequent events. Campbell v. Hospital Service District No. 1 Caldwell Parish, 37,876 (La.App.2d Cir.12/10/03), 862 So.2d 338, writ denied, 04-0069 (La.03/19/04), 869 So.2d 852; |4Marks, supra; Iseah v. E.A. Conway Memorial Hospital, 591 So.2d 767 (La.App. 2d Cir.1991), writ denied, 595 So.2d 657 (La.1992).

The assistance of expert testimony is needed to establish the applicable standard of care, whether the standard of care was breached by the defendant doctor’s conduct, and whether that breach resulted in injury to the plaintiff. Edwards v. Raines, 35,284 (La.App.2d Cir.10/31/01), 799 So.2d 1184; Pugh v. Beach, 31,361 (La.App.2d Cir.12/11/98), 722 So.2d 442. The effect and weight to be given to expert testimony is within the broad discretion of the trial judge. Green v. K-Mart Corporation, 03-2495 (La.05/25/04), 874 So.2d 838; Bolton v. Louisiana State University Medical Center, 601 So.2d 677 (La.App. 2d Cir.1992); Sawyer v. Niagara Machine and Tool Works, 535 So.2d 1057 (La.App. 2d Cir. 1988), writ denied, 536 So.2d 1222 (La.1989). The importance placed upon such testimony is largely dependent upon each expert’s qualifications and the facts that form the basis of each opinion. Solito v. Horseshoe Entertainment, 36,667 (La.App.2d Cir.12/18/02), 834 So.2d 610; Bolton, supra; Winford Co., Inc. v. Webster Gravel and Asphalt, 571 So.2d 802 (La.App. 2d Cir.1990). Where there are contradictory expert opinions concerning compliance with the standard of care, the reviewing court will give great deference to the conclusions of the trier of fact. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Lyons v. J.A. Auger, Inc., 35,691 (La.App.2d Cir.06/12/02), 821 So.2d 536, writ denied, 02-2337 (La.11/15/02), 829 So.2d 437; Marks, supra; Wainwright, supra.

[(¡The threshold element that a medical malpractice claimant must establish in an action against a specialist such as Dr. Hernandez is that the conduct of the defendant physician fell below the applicable standard of care. Edwards, supra; Hinson v. Glen Oak Retirement Home, 34,281 (La.App.2d Cir.12/15/00), 774 So.2d 1134.

To establish the standard of care applicable to general surgeons who perform gallbladder surgeries, plaintiff presented the expert testimony of Earl Walker, M.D., and introduced into evidence the deposition testimony of David Rayburn, M.D., a general surgeon practicing in the [249]*249Alexandria/Pineville area and a member of the medical review panel in this case.

Earl Walker, M.D., is a retired general surgeon who, after years of private practice, enlisted in the Air Force. During that time, he served as chief of the medical staff at Barksdale Air Force Base. Dr. Walker noted that for the first two years he was stationed at Barksdale, there were on-base facilities for surgeries, including gallbladder removals, but because of cutbacks, beginning in 1997 the base was restricted to providing only clinic services.

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