Lovelace v. Giddens

740 So. 2d 652, 1999 La. App. LEXIS 442, 1999 WL 92609
CourtLouisiana Court of Appeal
DecidedFebruary 24, 1999
DocketNo. 31,493-CA
StatusPublished
Cited by6 cases

This text of 740 So. 2d 652 (Lovelace v. Giddens) 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
Lovelace v. Giddens, 740 So. 2d 652, 1999 La. App. LEXIS 442, 1999 WL 92609 (La. Ct. App. 1999).

Opinions

I! GASKINS, J.

In this medical malpractice action, the plaintiffs appeal from a jury verdict rejecting their claim that the defendant doctor’s negligence contributed to the, death of their elderly mother or caused her to lose a chance of survival. For the reasons assigned below, we affirm.

FACTS

At the time of her death, Ann V. Lovelace had been under the medical care of the defendant, Dr. William Giddens, for [653]*653approximately 17 years. On Tuesday, August 17,1993, Mrs. Lovelace — age 82 — was seen by Dr. Giddens for an annual exam. She was accompanied to her appointment by her niece. When Dr. Giddens was taking down her history, Mrs. Lovelace reported several symptoms of brief duration, including shortness of breath, weak knees, and a temperature of 101.5 the previous day. She told Dr. Giddens that she “felt bad” after going to the beauty shop the previous Friday but stated that she felt “better today.” They also discussed her various medications. The doctor conducted a general physical examination of Mrs. Lovelace. As part of her checkup, Mrs. Lovelace’s temperature was taken but not recorded.1

Dr. Giddens also ordered a chest x-ray, an EKG, and blood work. Most of these tests were conducted in-house, including the chest x-ray. Some of the blood work was sent to a reference laboratory in Dallas, Texas; the results of these tests were not available until the following day. At the conclusion of the office visit, Dr. Gid-dens sent Mrs. Lovelace home.

Prior to Mrs. Lovelace’s departure, Dr. Giddens did not review the test results that were then available. However, he intended to call her after he had | ¡.obtained and reviewed the results of all of her tests. As he was not scheduled to be in the office on the following day, the earliest he would have called her with the results was Thursday, August 19.

After leaving the doctor’s office, Mrs. Lovelace and her niece went for yogurt. Then, apparently not alarmed by her aunt’s appearance, her niece took Mrs. Lovelace home and left her alone.

The next day, Mrs. Lovelace was found in her home, confused and disoriented. She was seen in the emergency room of the Schumpert Medical Center by Dr. Paul Wilson, one of Dr. Giddens’ partners. Also that day, Dr. Samuel Lieber, another one of Dr. Giddens’ partners, examined the chest x-ray from Mrs. Lovelace’s annual exam and diagnosed severe bilateral pneumonia. Mrs. Lovelace was admitted to the medical center, where she remained until her death on August 23, 1993. The cause of death was listed by Dr. Giddens on her-death certifícate as: (1) respiratory failure and (2) “diffuse alvolar damage with organization [healing] and bronchiolitis obliter-ans, etiology unknown.”

Mrs. Lovelace’s two sons pursued claims of negligence against Dr. Giddens before a medical review panel which ruled in the doctor’s favor. Specifically, the panel found that Dr. Giddens’ conduct in connection with the office visit of August 17,1993, did not breach the applicable standard of care and that the conduct complained of was not a factor in causing her harm. In written reasons, the panel stated that, based upon Dr. Giddens’ notes, Mrs. Lovelace did not appear acutely ill and “[m]any physicians read routine chest X-rays at a later date in patients who do not appear acutely ill.” Thereafter, the present medical malpractice suit against Dr. Giddens was filed by Mrs. Lovelace’s sons.

| aPrior to trial, Dr. Giddens filed a motion in limine. ■ He sought to exclude or restrict the testimony of Dr. Carl Schoen-berger, a pulmonologist and critical care specialist who had recently been named as the plaintiffs’ expert witness and deposed by defense counsel. Dr. Giddens moved to exclude Dr. Schoenberger’s negative opinions pertaining to the care rendered to Mrs. Lovelace after her hospitalization by Dr. Giddens. The motion was granted in part and denied in part. The testimony of Dr. Schoenberger was not excluded; however, it was restricted. The trial court ruled that testimony would be excluded as to any breach of care by other doctors and any breaches committed after August 17, 1993; this restriction of testimony was ap[654]*654plied to all witnesses, not just Dr. Schoen-berger. The focus of trial testimony was confined to the office visit of August 17 only. Dr. Giddens objected to the trial court’s ruling.

Jury trial was held in July 1997. Although the jury found that Dr. Giddens had failed to meet the standard of care required of him in his treatment of Mrs. Lovelace on August 17, 1993, it also found that the plaintiffs failed to prove by a preponderance of evidence that his medical malpractice was the cause or a substantial factor in either bringing about Mrs. Lovelace’s death or causing her a lost chance of survival. Consequently, judgment was rendered by the trial court rejecting the plaintiffs’ demands at plaintiffs’ cost.

LOSS OF CHANCE OF SURVIVAL

The plaintiffs appeal the jury’s determination that Dr. Giddens’ negligence did not contribute to the death of their mother or cause a lost chance of survival.

Law

Against a medical malpractice defendant, the “lost chance of survival” concept permits recovery of damages resulting from a medical provider’s failure to alter the course of a pre-existing condition by providing adequate care or | ¿treatment. See, e.g., Smith v. State, Department of Health and Hospitals, 95-0038 (La.6/25/96), 676 So.2d 543; Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986). And, while recognizing that there may be more than one cause-in-fact of a death, a plaintiff claiming that the deceased lost a chance of survival must establish that the defendant’s negligence substantially contributed to the patient’s demise, i.e., lessened the chance of survival. Hastings, supra; Rowsey v. Jones, 26,823 (La.App.2d Cir.5/10/95), 655 So.2d 560; Clark v. City of Shreveport, 31,407 & 31,649 (La.App.2d Cir.1/20/99), 726 So.2d 1042. Said differently, there must be a causal connection between the death and the alleged acts of professional negligence, and the plaintiff must prove that the deceased had a chance of survival, prior to the complained-of act, which was then lost as a result of that negligence. Smith, supra; Rowsey, supra; Clark, supra.

The issue of causation in medical malpractice cases is subject to the manifest error standard of review. Hoot v. Woman’s Hospital Foundation, 96-1136 (La. App. 1st Cir.3/27/97), 691 So.2d 786, writ denied, 97-1651 (La.10/3/97), 701 So.2d 209. In a medical malpractice case, the reviewing court must give great deference to the jury’s findings when medical experts express different views, judgments, and opinions on whether the breach of the standard of care caused plaintiffs damages. Such expert opinions are necessary sources of proof whose views are persuasive, although not controlling, and any weight assigned to their testimony by the jury is dependent upon the expert’s qualifications and experience. Davis v. Sonnier, 96-515 (La.App. 3rd Cir.11/6/96), 682 So.2d 910; Hoot, supra.

Credibility determinations, including the evaluation of expert testimony, together with the ultimate issue of whether a plaintiff has satisfied his burden of proof, are factual issues to be resolved by the trier of fact and will not be disturbed |Bon appeal in the absence of manifest error. Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La.1991).

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

Related

Glasscock v. Board of Supervisors
174 So. 3d 757 (Louisiana Court of Appeal, 2015)
Coody v. Barraza
111 So. 3d 485 (Louisiana Court of Appeal, 2013)
Farmer v. Willis-Knighton Medical Center
109 So. 3d 15 (Louisiana Court of Appeal, 2012)
Patten v. Gayle
69 So. 3d 1180 (Louisiana Court of Appeal, 2011)
Prine v. Bailey
56 So. 3d 330 (Louisiana Court of Appeal, 2010)
Greer v. Lammico
779 So. 2d 894 (Louisiana Court of Appeal, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
740 So. 2d 652, 1999 La. App. LEXIS 442, 1999 WL 92609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lovelace-v-giddens-lactapp-1999.