Marroy v. Hertzak

77 So. 3d 307, 2011 La.App. 1 Cir. 0403, 2011 La. App. LEXIS 1037, 2011 WL 4484598
CourtLouisiana Court of Appeal
DecidedSeptember 14, 2011
DocketNo. 2011 CA 0403
StatusPublished
Cited by6 cases

This text of 77 So. 3d 307 (Marroy v. Hertzak) 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
Marroy v. Hertzak, 77 So. 3d 307, 2011 La.App. 1 Cir. 0403, 2011 La. App. LEXIS 1037, 2011 WL 4484598 (La. Ct. App. 2011).

Opinion

McCLENDON, J.

Un this medical malpractice case, the plaintiff, Angele D. Marroy, individually and as the administrator of the estate of her minor child, Collin Andrew Marroy, appeals from the judgments of the trial court following a jury verdict that rejected her claim against the defendant, Peter H. [309]*309Hertzak, M.D., and denied her motion for judgment notwithstanding the verdict (JNOV) or alternatively for a new trial.1 For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from the obstetric care provided by Dr. Hertzak to Ms. Marroy during her pregnancy, which resulted in the birth of her second child, Collin Andrew Marroy, at Northshore Regional Medical Center in Slidell. Ms. Marroy asserts that Dr. Hertzak negligently induced delivery of her premature baby on the evening of June 25, 2000, resulting in respiratory and other complications, requiring Collin’s hospitalization for several weeks in the pediatric intensive care unit. She further contends that Collin continued to require care and treatment thereafter.

Ms. Marroy became a patient of Dr. Hertzak in 1993. In 1995, he delivered a full-term healthy baby girl to Ms. Marroy. On November 22, 1999, Ms. Marroy, again pregnant, presented to Dr. Hertzak and reported her last menstrual period to be on October 15, 1999. Based on this information, an estimated due date of July 23, 2000, was calculated. At an office visit on March 20, 2000, Dr. Hertzak performed a routine ultrasound. The ultrasound established an estimated due date of July 21, 2000.

Ms. Marroy’s pregnancy progressed without any problems until May 18, 2000, when Ms. Marroy reported decreased fetal activity to Dr. Hertzak. Dr. Hertzak ordered an ultrasound and biophysical profile, which were performed at the hospital. The ultrasound indicated no fetal distress at the time it was taken, and based on the ultrasound, the radiologist estimated a due date of June 27, |s2000. At an office visit on June 6, 2000, Ms. Marroy again reported decreased fetal activity. Dr. Hertzak ordered another ultrasound, which was again taken at the hospital and reported as normal, with an estimated due date of June 26, 2000. Dr. Hertzak also placed an order for June 9, 2000, for non-stress testing to monitor the fetus’s heart tones. On that date, the nurse reported two incidences of variable decelerations. On June 18, 2000, Ms. Marroy reported another episode of decreased fetal movement, and that evening, Dr. Hertzak decided to try to induce labor. That induction was unsuccessful and was ultimately terminated. He scheduled another induction for the evening of June 25, 2000, which resulted in Collin’s birth on June 26, 2000. Collin developed severe respiratory distress and was taken to the neonatal unit, where he remained for a month.

Ms. Marroy’s claims were presented to a medical review panel. On June 19, 2003, the panel rendered a unanimous adverse opinion finding that Dr. Hertzak failed to comply with the applicable standard of care as charged in the complaint. Specifically, the panel concluded that it was a deviation from the standard of care to change a fairly well established due date based on a third trimester ultrasound, and that the baby suffered significant damage due to its premature delivery. Thereafter, on August 7, 2003, this lawsuit was filed.

The trial of this matter began on February 22, 2010, and, at the conclusion of a four-day trial, the jury returned a verdict on February 26, 2010, finding that Ms. Marroy had not “established by a preponderance of the evidence the standard of [310]*310care ordinarily practiced by physicians with the medical specialty of obstetrics and gynecology that pertains to the conduct of the defendant Peter Hertzak, M.D.” The jury additionally found that it was not proven “by a preponderance of the evidence that defendant Peter Hertzak, M.D. breached or violated the applicable standard of care concerning the treatment of Angele Marroy and Cohn Marroy.” In response to the jury verdict, Ms. Marroy filed Plaintiffs Motion for A Judgment Notwithstanding the Verdict, or, in the Alternative, for a New Trial. The trial court denied the motions for JNOV and |4new trial, and Ms. Marroy filed this appeal.2 In her appeal, she makes the following assignment of errors:

1) The trial court erred in having the jury determine the existence of a legal duty or a medical standard of care.
2) The jury’s verdict that plaintiff had not proven the existence of an applicable standard of care by a preponderance of the evidence was manifestly erroneous.
3) The trial court erred in not granting Plaintiffs Motion for a Judgment Notwithstanding the Verdict, or, in the Alternative, for a new Trial, inasmuch as the jury’s verdict was manifestly erroneous given the evidence introduced at trial.

STANDARD OF REVIEW

An appellate court may not set aside a jury’s finding of fact absent manifest error or unless it is clearly wrong. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding; and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, Through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La.1993).

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence, the factfin-der’s choice | r,between them cannot be manifestly erroneous or clearly wrong. Id. Further, when findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Id.

Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits. Id., 549 So.2d at 844 n. 2.

DISCUSSION.

In a medical malpractice action, LSA-R.S. 9:2794 A provides that the plaintiff shall have the burden of proving:

[311]

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Bluebook (online)
77 So. 3d 307, 2011 La.App. 1 Cir. 0403, 2011 La. App. LEXIS 1037, 2011 WL 4484598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marroy-v-hertzak-lactapp-2011.