Navarro v. Aries Marine Corp.

713 So. 2d 613, 1998 WL 207882
CourtLouisiana Court of Appeal
DecidedApril 29, 1998
Docket97-1630
StatusPublished
Cited by1 cases

This text of 713 So. 2d 613 (Navarro v. Aries Marine Corp.) 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
Navarro v. Aries Marine Corp., 713 So. 2d 613, 1998 WL 207882 (La. Ct. App. 1998).

Opinion

713 So.2d 613 (1998)

Ernesto A. NAVARRO, III, Plaintiff-Appellee,
v.
ARIES MARINE CORPORATION, Defendant-Appellant.

No. 97-1630.

Court of Appeal of Louisiana, Third Circuit.

April 29, 1998.

*614 Raymond M. Allen, William J.F. Gearheard, Lafayette, for Ernesto A. Navarro, III.

Douglas William Truxillo, Robert S. Hinyub, Lafayette, for Aries Marine Corp.

Marc W. Judice, Lafayette, for John Cobb, M.D.

Before YELVERTON, COOKS and SULLIVAN, JJ.

YELVERTON, Judge.

Ernesto Navarro suffered a back injury while working as a seaman aboard a vessel owned by his employer, Aries Marine Corporation (Aries). Maintenance and cure were paid by Aries, and Aries was still paying maintenance at trial. The issue in this case is whether Aries is liable for cure payments resulting from procedures performed by Mr. Navarro's treating physician, Dr. John Cobb, an orthopedic surgeon. Aries argues that the treatment was not medically necessary. The trial court found that the treatment, which successfully relieved the patient of his back pain, was medically necessary and ordered *615 Aries to pay the medical expenses. That finding is contained in the following portion of the trial court's reasons for judgment.

The court will not detail every medical opinion offered in this case. Suffice it to say, that no doctor disputes Plaintiff was having constant back pain at the time Dr. Gidman released him for work. None of the treatment afforded to Plaintiff by Defendant's doctors were effective. The surgery performed by Dr. Cobb has been successful. This is a case of a difference in medical treatment but the excellent result convinces the Court that the medical treatment of Dr. Cobb was medically necessary to relieve Plaintiff of his painful condition. No doctor has indicated Plaintiff was not truthful and Dr. Gidman admitted that Plaintiff had medical problems with his back when he first saw him and when he last saw him which prevented him from returning to his normal work. Finally, Dr. Gidman was unable to account for the excellent recovery of Plaintiff after his surgery except to say he was "lucky".
As a result, the Court finds the testimony of Dr. Cobb to be the most credible of the medical opinions given. Additionally, the use of a discogram [sic] as a tool by Dr. Cobb, although controversial, is not medically recognized as useless in view of the many articles introduced, the failure of the medical society to take a stand against it and the continued teaching in some medical schools (Tulane) of its correct use.

Aries appeals that decision. Aries makes three assignments of error which we will address below. After reviewing the record in its entirety, we find no manifest error in the trial court's finding that Dr. Cobb's testing and treatment was medically necessary. We find no merit to Aries' assignments of error, and for the following reasons, we affirm the trial court's judgment.

Assignment of Error 1

Aries' first assignment of error is:

Judge Aaron erred in granting Dr. Cobb's motion to quash the subpoena duces tecum requesting that Dr. Cobb produce records from his office indicating the number of patients he has treated over the last five years who were referred to him by attorneys, the number of surgeries he has performed on such patients (by percentage) and the total amount of income he received from attorneys who referred patients to him over that same period.

Aries relies on this circuit's opinion in Rowe v. State Farm Mut. Auto. Ins. Co. 95-669 (La.App. 3 Cir. 3/6/96); 670 So.2d 718, writ denied 96-0824 (La.5/17/96); 673 So.2d 611, as its license to discover the above subpoenaed information from Dr. Cobb. Aries argues that it needed that information to prepare for meaningful cross-examination of Dr. Cobb and to show Dr. Cobb's bias.

It was Dr. Cobb, not the plaintiff, who filed the motion to quash the subpoena duces tecum. Dr. Cobb gave several reasons for opposing the subpoena. His arguments were based on relevance (Dr. Cobb was the treating physician); privilege (patient identity and information may not be divulged); burden (the doctor's clinic has over 13,000 patient records that are not computerized); judge trial (a judge, not a jury, was to determine the credibility of Dr. Cobb); and on the fact that diskography has scientific proponents as well as opponents.

We start with the observation that Mr. Navarro was not referred to Dr. Cobb by his attorney. The evidence was that Mr. Navarro had heard about Dr. Cobb from friends and asked his family physician to refer him to Dr. Cobb. Regardless of that fact, we would still not find error in the trial court's determination to quash the subpoena duces tecum. The trial judge found that the plaintiff was in constant pain and is now recovered. It is difficult to argue with the cause and effect relationship between Dr. Cobb's treatment, diagnosis, and surgery, and the plaintiff's recovery. On these facts, the trial court must have decided that the allowance of such an extensive review of Dr. Cobb's records would have unjustifiably imposed an undue burden on the doctor. La. Code Civ.P. art. 1426(A)(1) allows the trial court to order that "discovery not be had" if such would impose an "undue burden or expense." Furthermore, under La.Code Civ.P. art 1354, the trial court "in its discretion may *616 vacate or modify the subpoena if it is unreasonable or oppressive."

In Rowe, 670 So.2d 718, this court held that the trial court abused its discretion in not allowing the plaintiff to subpoena, within limits, certain financial records of the defendant's expert orthopedist in order to establish the expert's possible bias. While that case contains a significant number of distinguishing features, it is only necessary that we point out a few to show it is not controlling under the facts before us. First, the court's reasoning in Rowe, 670 So.2d at 724-725, discloses that the concern was about a "retained expert" whose "apparent objectivity" might unduly influence a jury. The court believed that the trier of fact, a jury, might need to know if bias existed.

The expert in Rowe was not the plaintiff's treating physician but an expert retained by the defendant who reviewed the plaintiff's case only three weeks or so pretrial. In this case, Dr. Cobb was Mr. Navarro's treating physician, not a retained expert. Further, in this case the trier of fact is an experienced judge, not a jury.

Nevertheless, Aries argues that "[t]he situation before this court is nearly identical to that presented by Rowe ...." Aries cited 31 reported decisions[1] of this court which it argued demonstrated Dr. Cobb's "track record" and revealed excessive bias in favor of personal injury claimants, and a propensity to order diskograms and surgery.

We do not interpret Rowe to mean that every expert medical witness in every case will be subject to a subpoena duces tecum of unrelated medical records for the purpose of cross examination. We have examined the 31 cases cited by Aries and said to reflect Dr. Cobb's "track record". Of the 31, only two indicate that an attorney referred the plaintiff to him. Eight referrals were from other physicians; in one he met the patient while treating the patient in the emergency room; one patient chose Dr. Cobb on his own; one was referred by another of Dr. Cobb's patients; the opinion does not disclose in the remaining 18 citations how the parties became Dr. Cobb's patients. Dr.

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

Related

Latoya Fontenot v. Uv Insurance Risk Retention
Louisiana Court of Appeal, 2021
Campbell v. Higman Barge Lines, Inc.
838 So. 2d 80 (Louisiana Court of Appeal, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
713 So. 2d 613, 1998 WL 207882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/navarro-v-aries-marine-corp-lactapp-1998.