Ortego v. Jurgelsky

732 So. 2d 683, 1999 WL 182345
CourtLouisiana Court of Appeal
DecidedMarch 31, 1999
Docket98-1622
StatusPublished
Cited by8 cases

This text of 732 So. 2d 683 (Ortego v. Jurgelsky) 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
Ortego v. Jurgelsky, 732 So. 2d 683, 1999 WL 182345 (La. Ct. App. 1999).

Opinion

732 So.2d 683 (1999)

Rick and Venise ORTEGO, individually and on behalf of their minor child, John Richard Ortego, Jr., Plaintiff-Appellant,
v.
Debbie JURGELSKY, Defendant-Appellee.

No. 98-1622.

Court of Appeal of Louisiana, Third Circuit.

March 31, 1999.

*684 Maury A. Herman, New Orleans, Leslie J. Schiff, Opelousas, Joseph A. Knott, for Rick Ortego et al.

Marc W. Judice, Lafayette, for Debbie Jurgelsky et al.

BEFORE: DOUCET, C.J., SAUNDERS AND SULLIVAN, JJ.

SAUNDERS, Judge.

This appeal arises from a medical malpractice suit wherein the lower court found in favor of Dr. Debbie Jurgelsky, hereinafter "Defendant," and against Rick and *685 Venise Ortego, individually and on behalf of their minor child, John Richard Ortego, Jr., hereinafter "Plaintiffs." Plaintiffs alleged that Defendant acted negligently and breached the standard of care during the delivery of their child, John Richard Ortego, Jr., and, consequently, caused the injuries which lead to the baby's death nine days later. A medical review panel and the lower court found that Defendant acted within the standard of care. We affirm.

I. FACTS

On July 22, 1989, John Richard Ortego, Jr. was born at the Doctors' Hospital in Opelousas, Louisiana and died nine days later. His mother, Venise, had delivered two babies before this delivery. Defendant was not Venise's treating physician on either of these earlier occasions. Each prior delivery was initially attempted as vaginal births but failed for different reasons, with Caesarean sections being the ultimate result. For her third delivery, Plaintiff again wanted to attempt a vaginal delivery, and she insisted that she be allowed a trial of labor. After being evaluated by Defendant and reviewing the options with Plaintiff, Defendant allowed Venise to attempt a "vaginal delivery after Caesarean," (VBAC). The vaginal delivery attempt failed, and John Richard was delivered via Caesarean section.

Plaintiffs brought a medical malpractice claim against Defendant and the Commissioner of Insurance. On September 5, 1991, a medical review panel found that Defendant had not deviated from the standard of care since Defendant's decision to perform a Caesarean section was based on failure to progress, not fetal distress, and that there was no documented evidence of acute asphyxial injury, either in an autopsy or otherwise. Plaintiffs then brought a civil action against Defendant and the Doctors' Hospital. A settlement was reached with the hospital, and a jury found that Defendant did not breach the standard of care.

II. LAW AND ANALYSIS

A. Standard of Review

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.

Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989), reh'g denied 561 So.2d 105 (La.5/11/90) citing Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973). The role of an appellate court is not to review factual issues de novo. Id. Virgil v. American Guar. and Liab. Ins., Co., 507 So.2d 825, 826 (La.1987), explains:

Louisiana's three-tiered court system allocates the fact finding function to the trial courts. Because of that allocation of function (as well as the trial court's normal procedure of evaluating live witnesses), great deference is accorded to the trial court's factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review of the trial court's judgment.

La.R.S. 9:2794(A) provides that in a malpractice action against a physician, the plaintiff has the burden of proving:

(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 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 *686 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.
(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.

Hence, the inquiry is three-fold. In the matter sub judice, Plaintiff must establish the standard of care, that Defendant's treatment fell below the standard of care, and the causal connection between the alleged negligent treatment and the infant's death. "Credibility determinations, including the evaluation of expert testimony, together with the ultimate issue of whether a plaintiff has satisfied his burden of proof are factual issues to be resolved by the trier of fact and will not be disturbed on appeal in the absence of manifest error." Ferrell v. Minden Family Care Center, 30,088, p. 3 (La.App. 2 Cir. 12/19/97); 704 So.2d 969, 972, writ denied, 98-0392 (La.3/27/98); 716 So.2d 891, citing Iseah v. E.A. Conway Mem'l Hosp., 591 So.2d 767 (La.App. 2d Cir.1991), writ denied, 595 So.2d 657 (La.1992); Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272 (La.1991).

B. Patient History

Plaintiff first assigns as error the jury's failure to find for Plaintiff where Defendant did not obtain records and/or inquire of other doctors about Plaintiff's obstetrical history regarding her two previous Caesarean sections. Plaintiff asserts that the standard of care requires acquisition of a patients medical history, to the greatest extent possible, and that Defendant's failure to acquire the medical records from Plaintiff's previous doctors breached this standard of care. Defendant answers this argument with the assertion that she received detailed information about the prior births from Plaintiff, who was very articulate and knowledgeable. Additionally, Defendant asserts that all historical medical information that she received from Plaintiff was both accurate and adequate. Plaintiff argues that she was unaware of and should have been informed of the likelihood of C.D., Cephalopelvic Disproportion, which was the cause of her other Caesarean deliveries. Testimony at trial indicated that C.D. is a term describing more than one set of circumstances which might arise during an attempted vaginal delivery. It was also explained that the condition is non-recurrent and is unique to each mother and baby. The record indicates that C.D. literally describes a disproportion in the size of the mother's pelvis as related to the size of the infant's head, thereby making vaginal delivery impossible. Additionally, testimony was given explaining that the term C.D.

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Cite This Page — Counsel Stack

Bluebook (online)
732 So. 2d 683, 1999 WL 182345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortego-v-jurgelsky-lactapp-1999.