Mladenoff v. Louisiana Medical Mutual Insurance Co.

139 So. 3d 8, 13 La.App. 5 Cir. 477, 2014 WL 1238530, 2014 La. App. LEXIS 811
CourtLouisiana Court of Appeal
DecidedMarch 26, 2014
DocketNo. 13-CA-477
StatusPublished
Cited by4 cases

This text of 139 So. 3d 8 (Mladenoff v. Louisiana Medical Mutual Insurance Co.) 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
Mladenoff v. Louisiana Medical Mutual Insurance Co., 139 So. 3d 8, 13 La.App. 5 Cir. 477, 2014 WL 1238530, 2014 La. App. LEXIS 811 (La. Ct. App. 2014).

Opinions

HANS J. LILJEBERG, Judge.

|2In this medical malpractice case, plaintiff, Rommel Mladenoff, appeals the trial court’s judgment, rendered in accordance with the jury’s verdict, finding that plaintiff failed to establish the applicable standard of care by a preponderance of the evidence and dismissing plaintiffs case against defendants. For the following reasons, we vacate the trial court’s judgment and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

At approximately 9:05 p.m. on June 22, 2007, Rommel Mladenoff, a 34-year-old male, presented to the emergency room at East Jefferson General Hospital complaining of right side lower abdominal pain for the previous three days, as well as nausea, vomiting, and diarrhea. The emergency room physician diagnosed acute appendicitis, and the diagnosis was confirmed by a [10]*10CT scan. Dr. Henry Pretus, the on-call surgeon, was consulted via telephone. Dr. Pretus confirmed the | .-¡diagnosis of appendicitis at 1:00 a.m. on June 23, 2007, and he ordered that Mr. Mladenoff be admitted to the hospital for an open appendectomy.

Dr. Pretus, who lived in Baton Rouge, arrived at the hospital at approximately 4:00 a.m. and evaluated Mr. Mladenoff. Mr. Mladenoff executed consent forms for the appendectomy procedure at 4:30 a.m. However, Mr. Mladenoff was not taken to surgery until just after 2:00 p.m. on June 23, 2007.

During the surgical procedure, Dr. Pre-tus observed that Mr. Mladenoffs appendix had ruptured, causing fecal content to spill into his abdomen. His abdominal cavity was cleaned and drains were placed in an effort to avoid infection. Nevertheless, Mr. Mladenoff developed a severe infection and abdominal abscesses, requiring continued care. He also developed secondary complications including pulmonary emboli in his lungs, which required further treatment and monitoring. Mr. Mladenoff was discharged on August 13, 2007, but he continued with home wound care, and he claims that he still suffers from the injuries he sustained due to the rupture of his appendix.

A medical review panel was convened at Mr. Mladenoffs request, and in its opinion dated September 8, 2010, the panel concluded that Dr. Pretus failed to comply with the appropriate standard of care due to the 13-hour delay between the diagnosis of an acute appendicitis and the commencement of surgery. The medical review panel also stated that it was unable to answer the questions of causation and damages, finding that Mr. Mladenoffs appendix had likely ruptured prior to his arrival at the hospital and noting Mr. Mla-denoffs delay in seeking hospital attention after being informed of his suspected appendicitis.

On January 6, 2011, Mr. Mladenoff filed this lawsuit against Dr. Pretus, his professional liability insurer, Louisiana Medical Mutual Insurance Company (“LAMMICO”), and Henry R. Pretus, M.D., Ph.D., APMC, as Dr. Pretus’ |4employer. In his petition, Mr. Mladenoff asserts that Dr. Pretus was negligent and breached the standard of care by allowing a 13-hour delay between the diagnosis of appendicitis and the commencement of surgery, resulting in the rupture of his appendix, a severe infection, and further complications.

A jury trial began on February 19, 2013, and concluded on February 22, 2013, with a verdict rendered in favor of defendants, Dr. Pretus, LAMMICO, and Henry R. Pretus, M.D., Ph.D., APMC. The first question on the jury interrogatory form asked if plaintiff “established by a preponderance of the evidence the standard of care applicable to this case.” The jury replied, “No.” Thus, no further questions on the jury interrogatory form were reached, such as breach or causation. On March 4, 2013, the trial judge rendered a judgment in accordance with the jury’s verdict, dismissing Mr. Mladenoffs claims against defendants with prejudice. Mr. Mladenoff appeals.

LAW AND DISCUSSION

On appeal, Mr. Mladenoff contends that the jury was manifestly erroneous in finding that he did not prove the applicable standard of care by a preponderance of the evidence. He asserts that he presented competent expert testimony of the applicable standard of care at trial and that no competent evidence was offered to challenge the standard of care proven by plaintiff in this matter. Defendants respond that the jury correctly found that plaintiff did not establish the appropriate standard of care. They claim that plaintiffs pro[11]*11posed standard of care, “as soon as possible,” is merely a platitude, which is a general statement that has no meaning.

A jury’s finding of fact may not be set aside unless it is manifestly erroneous or clearly wrong. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990); Jackson v. Tulane Medical Center Hosp. and Clinic, 05-1594, p. 5 (La.10/17/06), 942 So.2d 509, 512. In order to reverse a jury’s determination of fact, |san appellate court must review the record in its entirety and find that: 1) a reasonable factual basis does not exist for the jury’s finding; and 2) the record establishes that the fact finder is clearly wrong. Stobart v. State, through Department of Transp. and Dev., 617 So.2d 880, 882 (La.1993). The manifest error rule applies in appeals of medical malpractice actions. Sumter v. West Jefferson Medical Center, 02-1103, p. 4 (La.App. 5 Cir. 4/29/03), 845 So.2d 1179, 1181, writ denied, 03-1484 (La.9/26/03), 854 So.2d 367; Rebstock v. Hospital Service Dist. No. 1, 01-659, p. 4 (La.App. 5 Cir. 11/27/01), 800 So.2d 435, 437, writ denied, 02-0077 (La.3/15/02), 811 So.2d 914.

LSA-R.S. 9:2794(A) provides that in order to establish a medical malpractice claim, the plaintiff has the burden of proving:

(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.
(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.

Thus, the plaintiff must establish by a preponderance of the evidence the defendant’s standard of care, a violation by the defendant of that standard of care, and a causal connection between the defendant’s breach of the standard of care and the plaintiffs injuries. Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.10/17/94), 643 So.2d 1228, 1233; Newsom v. Lake Charles Memorial Hosp., 06-1468, p. 3 (La.App. 3 Cir. 4/4/07), 954 So.2d 380, 384, writ denied, 07-0903 (La.6/15/07), 958 So.2d 1198; Marroy v. Hertzak, 11-0403, p. 5 (La.App. 1 Cir. 9/14/11), 77 So.3d 307, 311.

In the present case, plaintiff presented the testimony of Dr. Michael Leitman, a board-certified general surgeon with added qualifications in surgical critical care. Dr.

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Bluebook (online)
139 So. 3d 8, 13 La.App. 5 Cir. 477, 2014 WL 1238530, 2014 La. App. LEXIS 811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mladenoff-v-louisiana-medical-mutual-insurance-co-lactapp-2014.