McCarter c. Lawton

44 So. 3d 342, 2009 La.App. 4 Cir. 1508, 2010 La. App. LEXIS 1063, 2010 WL 2858608
CourtLouisiana Court of Appeal
DecidedJuly 21, 2010
DocketNo. 2009-CA-1508
StatusPublished
Cited by7 cases

This text of 44 So. 3d 342 (McCarter c. Lawton) 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
McCarter c. Lawton, 44 So. 3d 342, 2009 La.App. 4 Cir. 1508, 2010 La. App. LEXIS 1063, 2010 WL 2858608 (La. Ct. App. 2010).

Opinions

PAUL A. BONIN, Judge.

| Richard McCarter, who lost the sight in one eye, sued his ophthalmologist, Dr. Andrew Lawton, for malpractice.1 The jury specially found that Mr. McCarter did not prove the standard of care owed by a specialist such as Dr. Lawton. Based on that finding, the trial judge rendered judgment dismissing with prejudice Mr. McCarter’s lawsuit. Mr. McCarter devol-utively appeals the dismissal. Because we conclude that the jury’s finding was not clearly wrong, we affirm. We explain our conclusion below.

I

Medical malpractice is defined by La. R.S. 40:1299.41(A)(8) to be:

Any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient ...

In order for a patient to prevail on a medical malpractice claim against his physician, the Legislature requires a patient to prove by a preponderance of the evidence all of the following three elements set out in La. R.S. 9:2794 (emphasis supplied):

12(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 tender 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.
[346]*346(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 Louisiana Supreme Court in Pfiffner v. Correa, 94-0992 (La.10/17/94), 643 So.2d 1228, 1232-33, summarized the statutory burden:

Thus, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiffs injuries resulting therefrom, (emphasis added)

We focus on the first element of proof in this case because the jury, in its response to an interrogatory, see La. C.C.P. art. 1812, answered “No” to the following first, and (because of its answer) dispositive, question:

Did plaintiffs prove by a preponderance of the evidence the degree of knowledge or skill possessed or the degree of care ordinarily exercised by an ophthalmologist under the same or similar circumstances as Dr. Andrew Lawton? YES _NO_

| .¡Generally, we apply the rules of proof and standards of review applicable to ordinary negligence actions to professional negligence actions such as medical malpractice claims:

The plaintiff must prove a standard of care, a breach of that standard, causation and damages. Whether alleged malpractice constitutes negligence is a question for the jury, [citation omitted]. The manifest error rule also applies in appeals of medical malpractice actions. [citations omitted].

Stamps v. Dunham, 07-0095, p. 4 (La.App. 4 Cir. 9/19/07), 968 So.2d 739, 743 (emphasis added). The manifest error rule is captured by the instruction that “[a] court of appeal may not set aside the jury’s finding of fact in absence of ‘manifest error’ or unless it is ‘clearly wrong.’ ” Stobart v. State through DOTD, 617 So.2d 880, 882 (La.4/12/93); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The process for making that determination is set forth as

... a two-prong test for reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous, [citation omitted]. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.

Stamps v. Dunham, 07-0095 (La.App. 4 Cir. 9/19/07), 968 So.2d 739, 742-43.

Specifically, we treat the jury’s response to this particular interrogatory as a finding of fact, reviewable by us under the manifest error rule. See Beaucoudray v. Walsh, 07-0818, pp. 14 and 28 (La.App. 4 Cir. 3/12/09), 9 So.3d 916, 924 and 931, and Becker v. Tampira, 04-0200, pp. 18-21 (La.App. 4 Cir. 4/13/05), 901 So.2d 1157, 1167-1168. “Each of the burdens imposed on the plaintiff by La. R.S. 9:2794 is a question of fact.... As such, they are necessarily subject to, and our preview is curtailed by, the manifest error/clearly wrong standard of review.” Barre v. Nadell, 94-1883 (La.App. 4 Cir. 6/7/95), 657 So.2d 514, 519. When we apply the Ro-sell-Stoba.rt manifest error rule to a jury’s response to this particular interrogatory, if we find that the jury was not manifestly erroneous, we affirm the dismissal of the claim, see Beaucoudray, supra, and if we [347]*347find that the jury was manifestly erroneous, we consider evidence of the other elements de novo, see Becker, supra.

At this point it is helpful to emphasize that a patient, as well as the factfinder (whether judge or jury), is typically largely dependent upon the testimony of expert witnesses to establish the specialized standard of care. La. C.E. art. 702; Pfiffner, supra, 643 So.2d at 1230. See also Samaha v. Rau, 07-1726, pp. 5-6 (La.2/26/08), 977 So.2d 880, 884, and Djorghi v. Glass, 09-461, pp. 4-5 (La.App. 3 Cir. 11/4/09), 23 So.3d 996, 999 (stating, “Expert testimony is generally required for a medical malpractice plaintiff to establish the applicable standard of care unless the ‘negligence is ... obvious’ ”).

As we stated in Serigne v. Ivker, 00-0758, pp. 5-6 (La.App. 4 Cir. 1/23/02), 808 So.2d 783, 787-88,

Expert testimony of professionals in the field is necessary to help the court determine what the standard was at the time in question and whether there has been a breach. Descant v. Administrators of Tulane Educational Fund, 95-2127 (La.App. 4 Cir. 1/21/98), 706 So.2d 618, 628.
Expert witnesses often disagree as to the standard of care applicable to a case. The amount of weight given to a particular expert’s testimony depends on the qualifications and experiences of the expert and on any studies used by the expert to render the opinion ... (citations omitted). When such a disagreement occurs, the trial court’s determination is given a great deal of deference. Jackson v. State Through Charity Hosp. of Louisiana at New Orleans, 94-2090 (La.App. 4 Cir. 5/16/95), 655 So.2d 795, 797.

The Louisiana Supreme Court in Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1277 (La.1991), has stated:

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Bluebook (online)
44 So. 3d 342, 2009 La.App. 4 Cir. 1508, 2010 La. App. LEXIS 1063, 2010 WL 2858608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarter-c-lawton-lactapp-2010.