LeBlanc v. Krupkin

555 So. 2d 600, 1989 WL 159284
CourtLouisiana Court of Appeal
DecidedDecember 19, 1989
DocketCA 88 1650, CA 88 1651
StatusPublished
Cited by6 cases

This text of 555 So. 2d 600 (LeBlanc v. Krupkin) 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. Krupkin, 555 So. 2d 600, 1989 WL 159284 (La. Ct. App. 1989).

Opinion

555 So.2d 600 (1989)

Jeannette Yvette LeBLANC
v.
Dr. Robert H. KRUPKIN and St. Paul Insurance Company.
Billy Joseph LeBLANC
v.
Dr. Robert H. KRUPKIN and his Owners, Landlord and Tenants Insurance Company.

Nos. CA 88 1650, CA 88 1651.

Court of Appeal of Louisiana, First Circuit.

December 19, 1989.
Writ Denied March 30, 1990.

*601 Arthur Cobb, Baton Rouge, for plaintiffs-appellants Billy Joseph LeBlanc, Jeannette Yvette LeBlanc.

Donald S. Zuber, Baton Rouge, for defendant-appellee Dr. Robert H. Krupkin.

Before CARTER, SAVOIE and ALFORD, JJ.

ALFORD, Judge.

These consolidated suits for damages were brought by appellants, Jeannette Yvette LeBlanc and Billy Joseph LeBlanc, for the alleged malpractice of the defendant/appellee, Dr. Robert H. Krupkin, relating to procedures performed on Mrs. LeBlanc consisting of a bilateral subcutaneous mastectomy and subsequent reconstruction. Trial by jury resulted in a judgment in favor of defendants and dismissal of the cases. Mr. and Mrs. LeBlanc bring the present appeal assigning as error the trial court finding of informed consent to the procedures. Appellants also assign as error the jury instruction that plaintiffs had to prove standard of care, rather than, instructing on the application of res ipsa loquitur; alternatively, appellants assert that the jury erred in not finding that Dr. Krupkin deviated below the standard of care proven.

FACTS

Mrs. LeBlanc was first examined by Dr. Krupkin on September 20, 1983. At the time, Dr. Krupkin was employed by Dr. Robert L. Elliot, Jr. at the Breast Clinic.[1] Both doctors are general surgeons who concentrate their practices in the area of disease and surgery of the breast. Mrs. LeBlanc complained to Dr. Krupkin of a lump in her breast and of having a discharge from her breasts. Dr. Krupkin testified that a sonogram revealed a diffuse area of thickening in Mrs. LeBlanc's breast, which he termed a fibrocystic change. Dr. Krupkin prescribed: abstinence from caffeine, salt, and tobacco;[2] dosages of vitamin E; and, a wireless support bra. Mrs. LeBlanc was next examined by Dr. Elliot on January 26, 1984. Dr. Elliot found a lack of understanding of her physical problem and a lack of strict adherence to the previously prescribed diet, for which further instruction was given. Dr. Elliot did not find any real clinical problem on examination.

On September 6, 1984, Mrs. LeBlanc was again examined by Dr. Krupkin; he found minimal fibronodularity and persistence of discharge. During this visit, Mrs. LeBlanc indicated that she desired to have the lump removed and also was interested in breast augmentation. Dr. Krupkin offered her four treatment options: 1) a biopsy of the *602 lump; 2) augmentation surgery, which he noted was not covered by insurance; 3) a biopsy combined with augmentation surgery, noting that insurance would probably not cover the augmentation; and, 4) bilateral subcutaneous mastectomy and reconstruction surgery, which he noted would reduce her cancer risk. On September 26, 1984, Mrs. LeBlanc scheduled surgery to have a bilateral subcutaneous mastectomy; it was performed by Dr. Krupkin on October 9, 1984. On January 24, 1985, the reconstructive surgery, which consisted of the implantation of breast prostheses, was performed.

Mrs. LeBlanc was displeased with the results of her surgeries. She testified at trial that she has disfiguring scars and considers herself to be deformed-looking; that certain movements cause one of the implants to slide underneath one of her arms or to flatten; and that she has problems with numbness. Additionally, Mrs. LeBlanc is unsatisfied because the size of the implants were not as large as she had wanted. Both Mr. and Mrs. LeBlanc testified that her difficulties resulting from the surgeries have greatly affected family relationships.

RES IPSA LOQUITUR

Appellants argue that Dr. Krupkin "amputated both of her [Mrs. LeBlanc's] breasts as a `prophylactic measure' "[3] when she did not need the surgery, and that, this constituted a situation to which the doctrine of res ipsa loquitur could be applied. Res ipsa loquitur is a rule of circumstantial evidence which applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the injury. McCann v. Baton Rouge Gen. Hosp., 276 So.2d 259 (La.1973). The doctrine of res ipsa loquitur applies when: (1) the accident would not normally occur in the absence of negligence; (2) there exists an absence of direct evidence to explain the activities leading to the injury; and (3) the accident or injury was caused by an agency or instrumentality within the actual or constructive control of the defendant. Galloway v. Ioppolo, 464 So.2d 386 (La.App. 1st Cir. 1985).

Res ipsa loquitur is irrelevant when a body of direct evidence is available explaining the activity leading to injury. Cangelosi v. Our Lady of the Lake Regional Medical Center, 551 So.2d 1296 (La. 1989); Montgomery v. Opelousas Gen. Hosp., 540 So.2d 312 (La.1989); McCann, 276 So.2d at 261. In the case sub judice, there is no dispute that the present condition of Mrs. LeBlanc's breasts results from the subcutaneous mastectomy and reconstructive procedures performed by Dr. Krupkin. Likewise, it is not asserted that negligence occurred during the operation, but rather, appellants contend that Dr. Krupkin was negligent in deciding to perform this drastic of a procedure considering Mrs. LeBlanc's physical complaints. Since there is ample direct evidence explaining the activities leading up to the surgeries complained of, res ipsa loquitur is not applicable.

STANDARD OF CARE

Appellants argue that Dr. Krupkin deviated below the standard of care imposed on his profession when he performed the bilateral subcutaneous mastectomy on Mrs. LeBlanc. The burden of proof imposed on a plaintiff in a malpractice action is governed by La.R.S. 9:2794(A):

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
*603 (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, or chiropractic 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, dentists, or chiropractic 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, and
(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.

The opinions of expert witnesses who are members of the medical profession and who are qualified to testify on the subject are necessary to determine whether or not physicians possess the requisite degree of knowledge or skill, or failed to exercise reasonable care and diligence.

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Cite This Page — Counsel Stack

Bluebook (online)
555 So. 2d 600, 1989 WL 159284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leblanc-v-krupkin-lactapp-1989.