Orgeron v. Louisiana Medical Mutual Insurance Co.

1 So. 3d 576, 2008 La.App. 4 Cir. 0179, 2008 La. App. LEXIS 1673, 2008 WL 5192074
CourtLouisiana Court of Appeal
DecidedDecember 3, 2008
DocketNo. 2008-CA-0179
StatusPublished
Cited by4 cases

This text of 1 So. 3d 576 (Orgeron 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
Orgeron v. Louisiana Medical Mutual Insurance Co., 1 So. 3d 576, 2008 La.App. 4 Cir. 0179, 2008 La. App. LEXIS 1673, 2008 WL 5192074 (La. Ct. App. 2008).

Opinion

PATRICIA RIVET MURRAY, Judge.

| [The plaintiff, Patricia Orgeron, appeals the trial court’s judgment finding the defendants, Dr. Kelvin Contreary and his malpractice insurer, Louisiana Medical Mutual Insurance Company, not liable for the death of plaintiffs sister. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

The plaintiffs sister, Nelmar Hainley, was examined by Dr. Contreary, a general surgeon, on May 11, 2000. Ms. Hainley complained to Dr. Contreary of abdominal pain for which her internist, Dr. Paul Ver-rette, had been unable to determine the cause.1 Upon examination, Dr. Contreary noted tenderness in the left lower quadrant of Ms. Hainley’s abdomen and felt something which he alternately described as a thickening or a mass. Suspecting that Ms. Hainley had a ventral hernia, Dr. Contreary ordered a CT scan and a barium enema. Neither test indicated the presence of a hernia. Still believing Ms. Hainley had a hernia or ^possibly scar tissue that was causing her pain, Dr. Con-treary scheduled her for exploratory abdominal surgery.

On June 7, 2000, Dr. Contreary performed a 26-minute laparoscopic surgery on Ms. Hainley at Chalmette Medical Center. Dr. Contrary did not find a hernia, but he did find intestinal tract adhesions, which he lysed.2 Ms. Hainley initially recovered well from the surgery and was released the next day, June 8. However, in the early morning hours of June 19, Ms. Hainley came to the emergency room of [579]*579Chalmette Medical Center complaining of severe abdominal pain, fever and a greenish discharge from her incision. Dr. Con-treary determined that Ms. Hainley had developed a wound dehiscence, or splitting open of her incision. He immediately took her into surgery to repair the damage.

Following the June 19 surgery, Dr. Con-treary put Ms. Hainley on antibiotics and consulted an infectious disease specialist to assist in her hospital treatment. However, Ms. Hainley developed further complications that ultimately resulted in her death on October 26, 2000.

Ms. Orgeron, who is sole surviving relative, timely filed a medical malpractice complaint against Dr. Contreary alleging that his treatment of Ms. Hainley fell beneath the standard of care. Pursuant to La. R.S. 40:1299.47, the complaint was submitted to a medical review panel, which unanimously concluded that Dr. Contreary had breached the standard of care resulting in the complainant’s ^damages. The reason given by the panel was “a lack of documentation in the record to support the indications for the June 7 operation.”

On May 12, 2003, the plaintiff filed the instant action against Dr. Contreary and his professional liability insurer alleging that Dr. Contreary’s decision to perform the June 7 surgery was inappropriate and fell beneath the applicable standard of care, causing Ms. Hainley further pain and suffering, medical expenses and ultimately her death. A bench trial was held in the district court on January 23-25, 2007. Fact witnesses included the plaintiff, her husband and her son. Expert witnesses testifying for the plaintiff included Dr. James Balliro and Dr. Ronald Nichols.3 Besides Dr. Contreary himself and Dr. Yerrette (Ms. Hainley’s internist), all three members of the medical review panel, namely, Dr. James Dowling, Dr. Thomas Brown, and Dr. Julius Levy, gave expert testimony in favor of the defendants, each having changed his opinion since the rendering of the panel’s decision.

The trial court took the case under advisement and issued a written judgment on April 18, 2007, holding that Dr. Contreary did not violate the standard of care, and dismissing all the plaintiffs claims. In written reasons for judgment, the trial court noted that she had particularly relied upon the testimony of Dr. Contreary and of Dr. Julius Levy. The plaintiff timely filed a motion for new trial, which was denied May 22, 2007. This appeal followed.

IJSSUES

The plaintiff essentially raises two issues on appeal:

(1) The trial court committed manifest error by ruling in favor of the defendants because:
(a) The trial court erroneously relied upon Dr. Contreary’s testimony, which was inconsistent;
(b) The trial court erroneously chose to believe Dr. Levy, whose testimony was contradictory;
(c) The trial court mischaracterized and ignored Dr. Balliro’s testimony;
(d) The trial court disregarded the medical review panel’s opinion; and
(e) The trial court in its reasons for judgment misquoted and distorted the testimony of the plaintiff;
(2) The trial court’s misquoting in its reasons for judgment of the language in the surgical consent form signed by [580]*580Ms. Hainley warrants reversal of the judgment.

APPLICABLE LAW

In a medical malpractice action, the plaintiff must prove three elements: (1) the degree of knowledge or skill required by doctors in the same field in a similar locale; (2) that the defendant physician lacked or failed to utilize that standard of care; and (3) that the defendant’s conduct was the proximate cause of the plaintiffs injury. See La. R.S. 9:2794; Serigne v. Ivker, 00-0758, 0759, pp. 4-5 (La.App. 4 Cir. 1/23/02), 808 So.2d 783, 787. Determinations of the requisite level of skill required, whether the standard of care has been breached and whether causation exists are findings of fact, which can be reversed only upon a finding of manifest error. Id. (citing Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1276 (La.1991)). Therefore, 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 its own evaluations and inferences are as reasonable. Arceneaux v.Domingue, 365 So.2d 1330, 1333 (La.1978).

When the trial court’s findings are based upon the credibility of witnesses, the manifest error standard requires that the appellate court give great deference to the trial court because only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily upon the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Canter v. Koehring, 283 So.2d 716, 724 (La.1973). Nevertheless, the reviewing court may find manifest error in a credibility determination if the witness’s testimony is so internally inconsistent or implausible on its face, or is so contradicted by documents or other objective evidence, that a reasonable fact finder would not credit it. However, where such factors are absent, and the trial court’s finding is based upon a decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844-45 (citations omitted).

| ^Louisiana jurisprudence has held that expert witnesses who are members of the medical profession are necessary sources of proof in medical malpractice actions. Martin v. East Jefferson General Hospital, supra, at 1277. Determinations of the credibility of expert witnesses are subject to the same manifestly erroneous/clearly wrong standard of review as are credibility determinations concerning fact witnesses. Id.

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1 So. 3d 576, 2008 La.App. 4 Cir. 0179, 2008 La. App. LEXIS 1673, 2008 WL 5192074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orgeron-v-louisiana-medical-mutual-insurance-co-lactapp-2008.