LeBlanc v. Barry

790 So. 2d 75, 2001 WL 197856
CourtLouisiana Court of Appeal
DecidedFebruary 28, 2001
Docket00-709
StatusPublished
Cited by5 cases

This text of 790 So. 2d 75 (LeBlanc v. Barry) 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
LeBlanc v. Barry, 790 So. 2d 75, 2001 WL 197856 (La. Ct. App. 2001).

Opinion

790 So.2d 75 (2001)

Edward LeBLANC, Plaintiff/Appellee,
v.
Dr. Richard BARRY, M.D. Louisiana Patient's Compensation Fund, Defendant/Appellant.

No. 00-709.

Court of Appeal of Louisiana, Third Circuit.

February 28, 2001.
Writ Denied June 15, 2001.

*77 John L. Hammons, Shreveport, LA, Counsel for Plaintiff/Appellee.

Henry D. Salassi, Jr., Keith C. Armstrong, New Orleans, LA, Counsel for Defendant/Appellant.

Court composed of DOUCET, Chief Judge, PETERS, and AMY, Judges.

DOUCET, Chief Judge.

The Patient's Compensation Fund (PCF) appeals the trial court's judgment in this medical malpractice action.

Dr. Richard Barry was Mrs. Odessa LeBlanc's primary care physician for over 17 years. Although he is a gynecologist, it is undisputed that he chose to become Mrs. LeBlanc's primary care physician. Mrs. LeBlanc died on March 4, 1994 of pulmonary fibrosis and kidney failure.

Her husband made a claim for medical malpractice. He submitted the matter to a medical review panel. The panel in its opinion stated that:

The evidence supports the conclusion that the defendant, Dr. Richard Barry, failed to comply with the appropriate standard of care as charged in the complaint, however the conduct complained of was not a factor of the resultant damages or the conduct complained of cannot be determined to be a factor of the resultant damages by this panel.

In its reasons, the panel explained that: "whether the disease process would have been treatable or not, or would have resulted in the patient's demise is impossible for this panel to determine. As a result of this dilemma, we cannot make a causal connection between the deviation and the eventual demise of the patient."

Mr. LeBlanc brought this suit alleging that Dr. Barry breached appropriate medical standards in the treatment of his wife, with the result that he failed to diagnose and treat her progressively worsening pulmonary fibrosis and kidney disease. After a trial on the merits, the trial court rendered judgment in favor of the Plaintiff, finding that:

*78 [T]he Court finds that the plaintiff has carried his burden of proving not only that Dr. Barry deviated from applicable medical standards but also that his medical negligence was a substantial contributing cause to Mrs. LeBlanc's death, hospitalization, and general damages including physical pain and suffering, mental anguish and distress, fear of death, disability, and inconvenience. This Court further finds that Mrs. LeBlanc's hospitalization at Lake Charles Memorial Hospital from December 21, 1993, through March 4, 1994, and the medical expenses related thereto, were directly caused by the medical malpractice of the defendant.

The trial court awarded damages to Edward LeBlanc for wrongful death and survival in the amount of $500,000.00 plus past medical expenses of $519,719.35. Further, the court limited the portion of the judgment owed by Dr. Barry to $100,000.00 pursuant to the Louisiana Medical Malpractice Act, leaving the balance of the judgment to be paid by the PCF. The PCF appeals.

MOTION TO DISMISS APPEAL

The Plaintiff has moved to dismiss the PCF's appeal. This court has already dealt with the Plaintiff's argument in this regard:

The statute and jurisprudence clearly contemplate that the PCF has an interest in the appellate process. See R.S. 40:1299.44(c)(6). In order for this interest to be meaningful, the PCF must receive notice of the judgment to trigger their appeal delays. In the present case the PCF did not receive Notice of Judgment by the clerk's office, and did not receive notice until the plaintiff's counsel sent the certified copy of the judgment pursuant to R.S. 40:1299.44(B)(7)(b) on April 26, 2000. Within two weeks the PCF obtained a motion and order for suspensive appeal. We find under these circumstances the motion for suspensive appeal was filed timely.

LeBlanc v. Barry, 00-709, p. 7 (La.App. 3 Cir. 8/30/00); 771 So.2d 696, 700, writ denied, 00-2638 (La.11/17/00); 774 So.2d 977.

This finding is the law of the case. Accordingly, the appeal will be maintained.

CAUSAL CONNECTION

The Appellant first argues that the Plaintiff failed to carry his burden of showing that Dr. Barry's breach of the standard of care resulted in Mrs. LeBlanc's death.

The burden of proof for a Louisiana medical malpractice action is stated in La. R.S. 9:2794. It provides that in a malpractice action based on the negligence of a physician, the plaintiff shall have the burden of proving: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty; (2) that the defendant either lacked 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.
In other words, in suits alleging medical malpractice, the plaintiff must *79 prove the applicable standard of care, the breach of that standard, and that the substandard care caused an injury that the plaintiff otherwise would not have suffered. The plaintiff need not show that the doctor's conduct was the only cause of harm, nor must all other possibilities be negated, but the plaintiff must show by a preponderance of the evidence that she suffered injury because of the doctor's conduct. The test for determining the causal connection is whether the plaintiff proved through medical testimony that it is more probable than not that the injuries were caused by the substandard care.
Hoot v. Woman's Hosp. Foundation, 96-1136 (La.App. 1st Cir.3/27/97), 691 So.2d 786, 789, writ denied, 97-1651 (La.10/3/97), 701 So.2d 209 (citations omitted).

Dumont v. Maaliki, 99-1850, p. 4 (La.App. 1 Cir. 9/22/00); 769 So.2d 1230, 1232-33.

It is undisputed that Dr. Barry failed to exercise the applicable standard of care. However, we must determine whether the trial court correctly found that the breach of the standard of care was a cause in fact of Mrs. LeBlanc's death.

Lorraine Thomas, the LeBlanc's granddaughter, testified that she visited her grandmother daily during the last four of five years of her life. She stated that she saw a drastic drop in her grandmother's weight and that from 1990 on her grandmother had a progressively worsening dry hacking cough. She stated that her grandmother complained of fatigue and had chest pain. Ms. Thomas testified that Dr. Barry had given her grandmother cough syrup for the cough but nothing more.

The medical experts agreed that Dr. Barry's care of Mrs. LeBlanc was inadequate and that he deviated from the standard of care. Dr. Samuel F. Burke was a member of the medical review panel and testified via deposition.

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Cite This Page — Counsel Stack

Bluebook (online)
790 So. 2d 75, 2001 WL 197856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leblanc-v-barry-lactapp-2001.