LaCombe v. Dr. Walter Olin Moss Reg. Hosp.

617 So. 2d 612, 1993 La. App. LEXIS 1447, 1993 WL 105693
CourtLouisiana Court of Appeal
DecidedApril 7, 1993
Docket92-573
StatusPublished
Cited by15 cases

This text of 617 So. 2d 612 (LaCombe v. Dr. Walter Olin Moss Reg. Hosp.) 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
LaCombe v. Dr. Walter Olin Moss Reg. Hosp., 617 So. 2d 612, 1993 La. App. LEXIS 1447, 1993 WL 105693 (La. Ct. App. 1993).

Opinion

617 So.2d 612 (1993)

Elaine LACOMBE, et al., Plaintiffs-Appellees,
v.
DR. WALTER OLIN MOSS REGIONAL HOSPITAL, Defendant-Appellant.

No. 92-573.

Court of Appeal of Louisiana, Third Circuit.

April 7, 1993.
Rehearing Denied May 25, 1993.

*613 DeAnn Gibson, Clayton Arthur Larsh Davis, Lake Charles, for defendant-appellant.

Steven Broussard, Lake Charles, Kermit A. Doucet, Lafayette, for plaintiff-appellee.

Before DOUCET, YELVERTON and COOKS, JJ.

DOUCET, Judge.

Defendant, Dr. Walter Olin Moss Regional Hospital (Moss), appeals a trial court judgment awarding damages in a malpractice suit.

On May 31, 1988, the 37-year-old plaintiff, Elaine LaCombe, was admitted to Moss for a bladder suspension operation. The surgery was performed by Dr. Dicey Gay Lee, a third-year resident. She was supervised by Dr. James Walker, a fourth-year resident. The Staff Gynecologist who oversaw the residents during the surgery, was Dr. Leon Gillard. Upon regaining consciousness in the recovery room, Mrs. LaCombe began complaining of severe pain in her right buttock, shooting down the back of her right leg. A specialist was called in to determine the source of the pain. Sciatic nerve injury was diagnosed. Mrs. LaCombe underwent a CAT scan, an MRI, and a myleogram. All tests showed normal results, and back injury was ruled out as a cause of the problem. It is undisputed that Mrs. LaCombe still suffers from nerve damage and that the injury is permanent.

Mrs. LaCombe filed a medical malpractice claim against Moss and the doctors involved in the surgery. On June 6, 1990, a medical review panel rendered a decision finding no breach of the appropriate standard of care by the defendants. On August 31, 1990, Mrs. LaCombe filed this malpractice suit against Moss and the doctors. By the time of trial all defendants except Moss had been dismissed from the litigation.

After a trial on the merits, the trial judge rendered judgment in favor of the plaintiff. The court awarded $200,000 in general damages, $24,128 in past lost earnings, $120,000 in future loss of earning capacity, and $20,086.98 in past medical expenses. He denied the plaintiff's claim for future medical expenses.

The plaintiff moved for and was granted a new trial on the issue of future medical expenses. As a result, the trial judge, citing La.R.S. 40:1299.39(F)(4), rendered an *614 amended judgment awarding future medical expenses in an indefinite amount to be paid as incurred.

Moss appeals.

RES IPSA LOQUITUR

The trial judge found that, applying the doctrine of res ipsa loquitur to the evidence, the plaintiff had proven her case. Accordingly, he found Moss responsible under a theory of respondeat superior for the negligent conduct of its agents (the personnel who prepared the plaintiff for surgery and the doctors who conducted the operation).

By two of its assignments of error, Moss contends that the trial court incorrectly applied the doctrine of res ipsa loquitur and that the plaintiff failed to carry her burden of proving her case, either by direct evidence or by circumstantial evidence, through the use of the doctrine of res ipsa loquitur.

If res ipsa loquitur is used then the requirement of La.R.S. 9:2794, that the plaintiff in a malpractice action prove a breach of the standard of care, is inapplicable. La.R.S. 9:2794(C). The Louisiana Supreme Court, in Cangelosi v. Our Lady of Lake Med. Ctr., 564 So.2d 654, 665-666 (La.1989) outlined the proper application of the doctrine of res ipsa loquitur in a medical malpractice case:

Negligence on the part of the defendant may be proved by circumstantial evidence alone when that evidence establishes, more probably than not, that the injury was of a kind which ordinarily does not occur in the absence of negligence, that the conduct of the plaintiff or of a third person was sufficiently eliminated by the evidence as a more probable cause of the injury, and that the indicated negligence was within the scope of the defendant's duty to the plaintiff. Restatement, supra, § 328D. Although the fact that an accident has occurred does not alone raise a presumption of the defendant's negligence, the doctrine of res ipsa loquitur (the thing speaks for itself) permits the inference of negligence on the part of the defendant from the circumstances surrounding the injury.6 S. Speiser, Res Ipsa Loquitur § 1:1 (1972). The doctrine of res ipsa loquitur involves the simple matter of a plaintiff's using circumstantial evidence to meet the burden of proof by a preponderance of the evidence.7 McCormick on Evidence § 342, at 966-67 (E. Cleary 3d ed. 1984). The doctrine merely assists the plaintiff in presenting a prima facie case of negligence when direct evidence is not available. J. Lee & B. Lindahl, supra, § 1522 n. 4. The doctrine permits, but does not require, the trier of fact to infer negligence from the circumstances of the event.8 McCormick on Evidence, supra, § 342, at 967; Boudreaux v. American Insurance Co., supra[, 262 La. 721, 264 So.2d 621 (1972) ]; Larkin v. State Farm Mutual Automobile Insurance Co., supra [233 La. 544, 97 So.2d 389 (1957) ].
In order to utilize the doctrine of res ipsa loquitur the plaintiff must establish a foundation of facts on which the doctrine may be applied. S. Speiser, supra, § 2:1, at 30. The injury must be of the type which does not ordinarily occur in the absence of negligence. Restatement, supra, § 328D(1)(a). In other words, "the event must be such that in light of ordinary experience it gives rise to an inference that someone must have been negligent". W. Prosser & W. Keeton, supra, § 39, at 244. The basis on which this conclusion is drawn is usually knowledge common to the community as a whole, although in cases such as medical malpractice expert testimony may be used to establish this principle. Id. at 247; Restatement, supra, § 328D, comment d. The plaintiff does not have to eliminate all other possible causes or inferences, but must present evidence which indicates at least a probability that the injury would not have occurred without negligence. W. Prosser & W. Keeton, supra, § 39, at 248; S. Speiser, supra, § 2:4.
The facts established by plaintiff must also reasonably permit the jury to discount other possible causes and to conclude it was more likely than not that the *615 defendant's negligence caused the injury. Restatement, supra, § 328D(1)(b); S. Speiser, supra, § 2:5. Again, the plaintiff does not have to eliminate completely all other possible causes, but should sufficiently exclude the inference of his own responsibility or the responsibility of others besides the defendant in causing the accident.9 The inference of negligence points to the defendant when the conduct of others is eliminated as a more probable cause. Restatement, supra, § 328D, comment i; W. Prosser & W. Keeton, supra, § 39, at 254. The plaintiff must show not only that an accident occurred or that the accident was caused by the negligence of someone, but also that the circumstances warrant an inference of defendant's negligence.
The plaintiff must also establish that the defendant's negligence indicated by the evidence falls within the scope of his duty to the plaintiff. Restatement, supra, § 328D(1)(c).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Battle v. Watson Investments, Inc.
946 So. 2d 226 (Louisiana Court of Appeal, 2006)
Axelrad v. Jackson
142 S.W.3d 418 (Court of Appeals of Texas, 2004)
Conques v. Wal-Mart Stores, Inc.
779 So. 2d 1094 (Louisiana Court of Appeal, 2001)
Bailey v. Descendants of Fowler
746 So. 2d 130 (Louisiana Court of Appeal, 1999)
Richardson v. State
726 So. 2d 417 (Louisiana Court of Appeal, 1998)
Pommier v. ABC Ins. Co.
715 So. 2d 1270 (Louisiana Court of Appeal, 1998)
Dardeau v. Ardoin
703 So. 2d 695 (Louisiana Court of Appeal, 1997)
Thompson v. Coates
694 So. 2d 599 (Louisiana Court of Appeal, 1997)
Boutte v. Winn-Dixie Louisiana, Inc.
674 So. 2d 299 (Louisiana Court of Appeal, 1996)
Rowe v. State Farm Mut. Auto. Ins. Co.
670 So. 2d 718 (Louisiana Court of Appeal, 1996)
Stevens v. Hartford Ins. Co. of Midwest
646 So. 2d 981 (Louisiana Court of Appeal, 1994)
Muller v. Muller
643 So. 2d 478 (Louisiana Court of Appeal, 1994)
Lacombe v. Dr. Walter Olin Moss Regional Hospital
626 So. 2d 1187 (Supreme Court of Louisiana, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
617 So. 2d 612, 1993 La. App. LEXIS 1447, 1993 WL 105693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lacombe-v-dr-walter-olin-moss-reg-hosp-lactapp-1993.