STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
03-0466
MERVIN PRIMEAUX, INDIV. AND ELIZABETH PRIMEAUX, INDIV.
VERSUS
ST. PAUL FIRE & MARINE INS. CO. AND DR. RICHARD LABORDE
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 99-6418 HONORABLE PATRICIA MINALDI, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of Sylvia R. Cooks, John D. Saunders, and Jimmie C. Peters, Judges.
AFFIRMED.
James R. Shelton Durio, McGoffin, Stagg & Ackermann P. O. Box 51308 Lafayette, LA 70505-1308 (337) 233-0300 Counsel for Defendant/Appellee: St. Paul Fire & Marine Ins. Co. Dr. Richard Laborde
Todd A. Townsley Townsley Law Firm 3102 Enterprise Blvd. Lake Charles, LA 70601 (337) 478-1400 Counsel for Plaintiff/Appellant Mervin Primeaux Elizabeth Primeaux SAUNDERS, J.
Plaintiff appeals the judgment of the trial court finding that the partial paralysis
of his phrenic nerve was not caused by malpractice on the part of Defendant, Dr.
Richard Laborde. For the reasons stated below, we affirm.
FACTS
On September 3, 1997, Mervin Primeaux was admitted to Lake Charles
Memorial Hospital for total left shoulder replacement surgery by Dr. David Drez,
orthopedic surgeon. This is a particularly painful procedure which generally requires
large amounts of post-operative pain control narcotics. To reduce the amount of pain
medication needed after surgery, and to reduce the level of pain during and after the
procedure, Dr. Laborde, an anesthesiologist, performed an “interscalene block” on
Mr. Primeaux prior to the shoulder surgery.
An interscalene block is an anesthetic procedure involving the nerves of the
neck and shoulder region. It is used to anesthetize the upper arm and shoulder region
during shoulder surgeries. The procedure involves inserting a large needle with an
electrical current running through the tip of the needle. The procedure is a “blind”
procedure because the doctor is unable to see where the needle is positioned during
the procedure. He must instead rely on external signals created by stimulating the
nerves and adjoining muscles with the electrical current from the inserted needle. The
current will cause an externally discernable twitch or spasm for various muscle
groups, allowing the anesthesiologist to determine proper needle placement for
injection of the anesthetic. In Mr. Primeaux’s case the procedure was to anesthetize
the brachial plexus. The brachial plexus is in close proximity to the phrenic nerve,
which controls the diaphragm.
Prior to undergoing the shoulder surgery, Mr. Primeaux underwent a pre- operative exam by his internal medicine physician, Dr. James T. Shepherd. An x-ray
was taken of Mr. Primeaux, which indicated that there was no paralyzation of his
diaphragm. After the procedure, while still in the hospital, there were several
notations made in Mr. Primeaux’s chart stating, “No SOB [shortness of breath]
noted.” Three days after Mr. Primeaux’s discharge from Lake Charles Memorial
Hospital he had a follow-up appointment with Dr. Drez. At that appointment Mr.
Primeaux still had no complaints of trouble breathing or shortness of breath.
The first time Mr. Primeaux reported any complaint of shortness of breath to
Dr. Drez was September 15, 1997, twelve days after his surgery and the interscalene
block. At that time Dr. Drez felt Mr. Primeaux’s shortness of breath may be due to
a reaction to the medication Mr. Primeaux was taking. In a later office visit with Dr.
Drez, Mr. Primeaux complained of chest pain. Dr. Drez referred Mr. Primeaux to Dr.
Shepherd at the Emergency Room at Park Place Medical Center in Port Arthur, Texas.
After performing x-rays and various tests on Mr. Primeaux, Dr. Shepherd diagnosed
him with paralysis of the left hemi-diaphragm, caused by damage to the phrenic nerve.
This matter was presented to a Medical Review Panel and their opinion was
rendered on July 27, 1999. In their opinion the panel stated they found a probable
causal relationship between the perioperative events of September 3, 1997, and Mr.
Primeaux’s injuries. They also stated, however, that the medical records do not
suggest that there is anything Dr. Laborde could have done differently. Their
conclusion was there was no finding that Dr. Laborde failed to comply with the
appropriate standard of care.
This matter proceeded to trial. After a three-day trial on the merits, a jury
returned a verdict in favor of the defendant, Dr. Laborde, finding that he was not liable
for Mr. Primeaux’s injuries. The claims against the defendant were dismissed with
2 prejudice.
Plaintiffs appeal the judgment of the trial court and assert the following
assignments of error:
1) The jury committed manifest error in failing to find that the most likely cause of the injury was the negligence of Dr. Laborde.
2) The jury erred in not finding that Dr. Laborde breached the standard of care by causing this phrenic nerve injury.
3) The jury erred by not properly giving the treating physician’s testimony more weight than a non-treating physician acting as an expert for the defendant.
STANDARD OF REVIEW
We begin by noting the well established rules of appellate review of jury and
trial court decisions.
It is well settled that a court of appeal may not set aside a trial court's or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and 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. . . . Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. ... 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.
Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted).
[T]he appellate court’s disagreement with the trial court, alone, is not grounds for substituting its judgment for that of the trier of fact. Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081 (La.1983). If the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, supra. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. Arceneaux v. Domingue, 365
3 So.2d 1330 (La.1978).
Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
DISCUSSION
In medical malpractice cases the plaintiff’s burden and the physician’s standard
of care are set out in La.R.S. 9:2794, which states in pertinent part:
A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., . . . 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, dentists, optometrists, 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, optometrists, 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.
(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.
....
C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician, dentist, optometrist, or chiropractic physician. The jury shall be further instructed that injury alone does not raise a presumption of the physician’s, dentist’s, optometrist’s, or chiropractic physician’s negligence.
In Fusilier v. Dauterive, 00-151, p. 7 (La. 7/14/00), 764 So.2d 74, 79, the
Louisiana Supreme Court discussed the two-prong burden of proof in medical
malpractice cases, as established by La.R.S. 9:2794, stating:
In a medical malpractice action, the plaintiff has the burden of proving,
4 by a preponderance of the evidence, (1) that the doctor's treatment fell below the standard of care expected of a physician in his medical specialty; and (2) the existence of a causal relationship between the alleged negligent treatment and the injury sustained. [Gordon v. La. State Univ. Bd. of Supervisors, 27,966 (La.App. 2 Cir. 3/1/96), 669 So.2d 736; writ denied, 96-1038 (La. 5/31/96), 674 So.2d 263] (citing White v. McCool, 395 So.2d 774 (La.1981)).
In Fusilier, the supreme court stated that “[a] physician is not required to
exercise the highest degree of care possible; rather, his duty is to exercise the degree
of skill ordinarily exercised by his professional peers under similar circumstances.”
Fusilier, 764 So.2d at 79.
The plaintiff provided testimony by Dr. Shepherd, a specialist in the field of
internal medicine and Mr. Primeaux’s physician. Dr. Shepherd testified that, in his
opinion, Dr. Laborde’s performance of the interscalene block on Mr. Primeaux fell
below the appropriate standard of care and constitutes medical malpractice. Dr.
Shepherd testified that he had seen interscalene blocks being performed, but had not
ever performed one himself. On cross-examination he also acknowledged that he was
not an anesthesiologist, nor had he received any anesthesiology training. He did
establish that in the chest x-ray performed seven days before the surgery, Mr.
Primeaux’s diaphragm appeared normal and there was no evidence of any paralysis.
He stated that diaphragm paralysis would show up in the x-ray by Mr. Primeaux’s left
diaphragm being at a higher elevation than his right diaphragm.
It was also Dr. Shepherd’s testimony that Mr. Primeaux was a poor candidate
for the block procedure due to his large size, which he opined would make important
landmarks difficult to observe. Despite these statements, Dr. Shepherd admitted on
cross-examination that he had never seen an interscalene block performed on a patient
of Mr. Primeaux’s size. On cross examination Dr. Shepherd’s knowledge of the
actual events and circumstances of Mr. Primeaux’s procedure was called into
5 question. He stated repeatedly that he knew Mr. Primeaux had not received full
general anesthesia with muscle relaxation during the shoulder surgery; however, as
the record shows, Mr. Primeaux did in fact receive both full general anesthesia and
muscle relaxation for the shoulder replacement.
Dr. Robert Goldstein was the only anesthesiologist provided by Mr. Primeaux
as an expert witness. Dr. Goldstein testified via videotaped deposition, which was
played for the jury at trial. Dr. Goldstein was also the only anesthesiologist to state
that Dr. Laborde’s performance of the interscalene block fell below the appropriate
standard of care. Dr. Goldstein stated in his deposition that, when the nerve stimulator
is used correctly, the doctor should not ever come into contact with the phrenic nerve.
He also stated that the procedure notes made by Dr. Laborde for Mr. Primeaux’s
interscalene block are so lacking in detail as to fall below the standard of care. In
describing what he deems to be the appropriate information to include in procedural
notes he included documentation of the milliamperage the doctor dials down to in
order to get the appropriate muscle response, as well as a clear statement of what
muscle response you are looking for in the procedure and what responses the patient
gives during the procedure. He further stated that Dr. Laborde did not document
pertinent positives or negatives, or any responses from the patient. In his opinion, Dr.
Laborde’s actions during the procedure and his documentation of the procedure itself
fell below the standard of care and constitute malpractice.
Despite these statements by Dr. Goldstein, when questioned by Dr. Laborde’s
attorney he admitted that, even with nerve simulator equipment, it would not be
negligent to actually come into contact with the phrenic nerve. In fact, the paresthesia
technique, an acceptable method of performing interscalene blocks, does not use an
electrically charged needle and the doctor performing the procedure will actually
6 touch nerves with the needle during the procedure to determine correct placement of
the needle prior to injection of the anesthetic. Dr. Goldstein admitted that when using
the paresthesia technique, needle contact with the phrenic nerve is expected and is not
likely to damage the nerve. He also admitted that, if documentation in the procedural
note indicates that the procedure was done with no complication and a satisfactory
result was obtained, it would be more likely than not that the procedure was done
appropriately and properly. And finally, Dr. Goldstein acknowledged that as an
anesthesiologist you can have an adverse outcome following a procedure without
having been negligent in the performance of that procedure.
Drs. Hector Herrera and William Dedo testified as experts for Dr. Laborde.
Both doctors are anesthesiologists familiar with the interscalene block procedure,
having performed the procedure several hundred times themselves. Dr. Dedo was one
of the three anesthesiologists assigned to serve on the Medical Review Panel for this
case. Both doctors directly contradicted Dr. Goldstein’s testimony concerning the
appropriate standard of care for documentation of an interscalene block in a doctor’s
procedure notes.
In his testimony Dr. Laborde responded to Dr. Goldstein’s statements
concerning documentation of the procedure as follows:
Q: Now, He also discussed that when you’re using the nerve stimulator that you ought to say that you started at one milliamp, and that you turned down as described. You did not put that in your procedure note; is that correct?
A: I did not.
Q: Do you typically put that in your procedure note that you start at one milliamp --
A: I do not. It’s a generally accepted way to perform a block, and so by giving a description of a nerve stimulator and insulated needle technique, it assumes all of those generally accepted parts of the
7 procedure. And he did not indicate that he puts that in his note until after the fact that I had a procedure note was made aware to him.
Dr. Laborde’s contention that his procedural notes did not fall below the
appropriate standard of care was corroborated by both Dr. Herrera and Dr. Dedo.
Both anesthesiologists testified that they have a similar method for taking procedural
notes, and that the level of detail indicated by Dr. Goldstein as the appropriate
standard of care was inaccurate and overly detailed.
In his testimony Dr. Dedo stated:
A: You can document everything until the cows come home, where you were standing, where the people in the room were, what the clock time said, what your clock time said. I mean, it can get ridiculous. If the block goes uneventfully and you write down the salient features of that block, i.e., the medications you used, the type of needle you used and whether the patient tolerated the block well and any complications you actually saw or were aware of, that basically is what you need to put down.
If there’s a routine you stick with, and that’s the routine you always use, then all the things that are routine, if they’re fairly standard, then there’s no reason to list every little detail that’s just part of the routine.
Q: If you stimulate the phrenic nerve during the course of this procedure, do you need to document that you stimulated the phrenic nerve?
A: Absolutely not.
Neither Dr. Herrera nor Dr. Dedo were willing to state conclusively that Dr.
Laborde’s block was the actual cause of Mr. Primeaux’s diaphragm paralysis.
However, both doctors stated that, if it did cause the injury, based on their review of
the medical records and the deposition testimony, it is their opinion that there was
nothing Dr. Laborde could have done differently to avoid the injury. And more
specifically, they both testified that, in their opinion, there was no malpractice on the
part of the defendant, Dr. Laborde.
8 In his testimony, Dr. Dedo also read an excerpt of medical literature from the
Cleveland Clinic Foundation, Department of General Anesthesiology, which was
provided to the Medical Review Panel by Mr. Primeaux’s attorney. That literature
stated: “When a nerve stimulator technique is chosen, a 22-gauge blunt insulated
regional needle is selected to be used with a variable voltage nerve stimulator. The
landmarks and approach are the same, and the end point is either a motor-evoked
response in the arm which persists or a good parenthesis, whichever comes first.”
This document, provided by the plaintiff, clearly indicates that coming into contact
with the phrenic nerve is acceptable, and in fact expected, in the proper performance
of an interscalene block of the brachial plexus, even where the nerve stimulation
technique is used.
Both Dr. Herrera and Dr. Dedo testified that, despite Mr. Primeaux’s size, and
the opinion of Dr. Shepherd, he was a good candidate for the interscalene block
procedure. Dr. Herrera testified as follows:
Q: Now, Dr. Shepherd, the internal medicine guy who talked yesterday said in a patient the size of Mr. Primeaux that it’s going to be hard to see that response, the diaphragm response, when the phrenic nerve is stimulated. Do you agree with his position on that?
A: No, I do not agree.
Q: Why not?
A: Patients are going to notice this. It’s just something that patients will notice, regardless of their size, a small person, large person, whatever. You stimulate the phrenic nerve, it’s going to contract the diaphragm, and they’re going to notice it.
Q: The physician, if you’re the one doing the interscalene block, is it something as you’re sitting there watching the patient that you’re going to miss as a physician?
A: No, you’re not.
Q: Is it conceivable to you that a doctor who’s sitting there doing the
9 procedure watching the patient is going to miss that sort of response in a patient?
A: No. No, it’s not.
The testimony by the expert witnesses in this case is clearly contradictory. This
court has previously addressed the issue of credibility of expert witnesses in cases
where medical specialists’ actions are questioned.
The law does not require perfection in medical diagnoses and treatment. On the contrary, a doctor's professional judgment and conduct must be evaluated in terms of reasonableness under the then existing circumstances, not in terms of results or in light of subsequent events. Broadway v. St. Paul Insurance Co., 582 So.2d 1368 (La.App.2d Cir.1991), and the cases cited therein. When the alleged negligence of a specialist is at issue, only those qualified in that specialty may offer expert testimony and evidence of the applicable standard of care. Fox v. Our Lady of Lourdes Regional Medical Center, 550 So.2d 379 (La.App. 3rd Cir.1989), writs denied, 556 So.2d 1263 and 556 So.2d 1264 (La.1990). When the expert opinions contradict concerning compliance with the applicable standard of care, the trial court's conclusions on this issue will be granted great deference. It is the sole province of the factfinder to evaluate the credibility of such experts and their testimony. Arceneaux, supra; Broadway, supra.
Charpentier v. Lammico Ins. Co., 606 So.2d 83, 87 (La.App. 3 Cir. 1992).
The plaintiffs contend that the jury committed manifest error in failing to find
that the most likely cause of Mr. Primeaux’s injury was the negligence of Dr. Laborde.
They argue that the most likely cause of Mr. Primeaux’s injuries is the interscalene
block performed by Dr. Laborde. They contend that the defendant only offered
unlikely and speculative possibilities to explain Mr. Primeaux’s injuries. Therefore,
under the precedent established by the Louisiana Supreme Court in Fusilier, 764
So.2d 74, they argue the jury committed manifest error in failing to find that the most
likely cause of Mr. Primeaux’s injury was the negligence of Dr. Laborde.
The supreme court made the following statement in Fusilier:
Although we are always reluctant to overrule a jury's verdict, the jury's decision in this case was manifestly erroneous. None of the
10 experts testifying at the trial offered any plausible explanation for the injuries plaintiff suffered. The perforations of plaintiff's aorta, duodenum, and mesentery were all dismissed as unfortunate "complications" of the procedure. The only explanation offered by defendant for perforating plaintiff's aorta, duodenum, and mesentery, is an unsupported allegation that plaintiff's aorta must have been displaced. However, the operative report does not reflect that observation, and none of plaintiff's medical records support defendant's contention that plaintiff had any anatomic abnormality or variation. The only logical conclusion is that Dr. Fusilier negligently inserted the needles, either by location or angle, and perforated Mrs. Fusilier's aorta, duodenum, and mesentery.
Id. at 81 (emphasis added).
This court has studied the above quote from Fusilier in great detail, and at great
length. The opinion clearly seems to require not only that the plaintiff show that the
defendant failed to comply with the appropriate standard of care in performing the
procedure, and this failure to exercise that degree of care was the proximate cause of
the plaintiff’s injuries, but also that the defendant’s experts show that there is some
plausible cause for the plaintiff’s injuries other than negligence on the part of the
defendant doctor. This requirement would appear to require a res ipsa loquitur
analysis, even though no mention was made in the Fusilier opinion that res ipsa
loquitur was applied in that case.
In Fusilier v. Dauterive, 99-0692 (La.App. 3 Cir. 12/22/99), 759 So.2d 821,
this court determined that res ipsa loquitur did not, and could not, apply under the
facts of the case. Judge Peters addressed the issue of res ipsa loquitur in his dissent
and felt it was applicable. Although the supreme court discussed Judge Peters’ dissent
to our opinion, and then appeared to apply the res ipsa loquitur analysis in the final
paragraph of their decision, they did not explicitly find res ipsa loquitur applicable in
their analysis of the facts and circumstances of the case. The supreme court’s
requirement in the quote above, that the expert witnesses provide a non-negligent
cause for the accident, adds an additional point of analysis which we have not,
11 heretofore, undertaken in medical malpractice cases.
All medical testimony at trial acknowledged that the very nature of this
procedure is such that the danger of coming into contact with the phrenic nerve is
high. In fact coming into contact with that nerve is an expected event during this
procedure. The medical experts all testified as to the extremely close proximity of
these two sets of nerves, and the high probability that there will be some involvement
of the phrenic nerve in a correctly performed interscalene block.
In addition to the expected interaction with the phrenic nerve in this procedure,
the evaluation of this matter is further complicated by the fact that there is no clear
consensus as to what actually caused Mr. Primeaux’s diaphragm paralysis. There was
no clear evidence that the nerve was actually severed, or even pierced, by Dr.
Laborde’s needle during the procedure. Even if it is assumed that the injury occurred
during the interscalene block procedure, this failure to identify the actual damage to
Mr. Primeaux’s phrenic nerve that caused his left diaphragm paralysis makes it
exceedingly difficult to say that Dr. Laborde could have prevented the injury.
No evidence was presented by any witness indicating that Dr. Laborde actually
saw and ignored objective signals that he was near the phrenic nerve. While on the
stand Mr. Primeaux never indicated that Dr. Laborde was not paying attention during
the procedure, or that he was given objective evidence by the patient during the
procedure that he was near the phrenic nerve and ignored such evidence. Both Dr.
Laborde and Mr. Primeaux testified that there was also an assistant in the room
watching for the patients’ objective responses during the procedure. The interscalene
block procedure was completed in approximately twenty-five minutes, and the block
Dr. Laborde was attempting to perform was successful, meaning the appropriate block
result was obtained. Dr. Laborde’s procedural notes indicate that the procedure was
12 tolerated well by Mr. Primeaux and do not indicate difficulties or complications
occurred during the procedure. According to expert testimony, these factors all
indicate that there were no known complications or difficulties. There was no
immediate indication during the procedure, or while in the hospital post operatively,
that the patient was experiencing any difficulty breathing or any shortness of breath.
In light of these considerations, we conclude that sufficient evidence was
presented showing Mr. Primeaux’s injuries could have occurred without any
negligence on the part of Dr. Laborde and that his actions during the interscalene
block were within the appropriate standard of care for anesthesiologists performing
this procedure.
As stated above, the trier of fact’s determinations regarding credibility of
witnesses and the weight to be given their testimony at trial are entitled to great
discretion. Therefore, in light of our discussion above, it was not error for the jury to
give the testimony of Dr. Shepherd less weight than the testimony of the expert
anesthesiologists who took the stand. We also find no error in the jury’s
determination that Drs. Herrera and Dedo were more credible expert anesthesiologist
witnesses than Dr. Goldstein.
DECREE
We affirm the jury’s finding that Dr. Laborde did not commit malpractice. All
costs of this appeal are assigned to the plaintiffs.