Pines v. Dr. Carlos D. Moreno, Inc.

569 So. 2d 203, 1990 WL 157583
CourtLouisiana Court of Appeal
DecidedOctober 16, 1990
Docket89 CA 1147
StatusPublished
Cited by11 cases

This text of 569 So. 2d 203 (Pines v. Dr. Carlos D. Moreno, Inc.) 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
Pines v. Dr. Carlos D. Moreno, Inc., 569 So. 2d 203, 1990 WL 157583 (La. Ct. App. 1990).

Opinion

569 So.2d 203 (1990)

Rose Mary PINES[1] and Lisa Pines, in her individual capacity and as tutrix for Roshondra Pines
v.
DR. CARLOS D. MORENO, INC. (A Professional Medical Corporation), d/b/a Hammond Diagnostic Clinic, Carlos D. Moreno, M.D., Glenda Solomon, Owen D. Linder, M.D., Gibraltor Insurance Company and Louisiana Medical Malpractice Insurance Company.

No. 89 CA 1147.

Court of Appeal of Louisiana, First Circuit.

October 16, 1990.

*204 Trevor G. Bryan, New Orleans, for plaintiffs-appellants Rosemary Pines, et al.

Franklin D. Beahm, New Orleans, for defendant-appellee Dr. Carlos Moreno.

John Litchfield, New Orleans, for defendant-appellee Dr. Owen Linder.

Before EDWARDS, WATKINS and LeBLANC, JJ.

WATKINS, Judge.

Plaintiff, Lisa Pines, filed this medical malpractice suit individually and on behalf of her minor daughter, Roshondra[2] Pines, seeking damages against defendants Dr. Carlos D. Moreno, Inc., Dr. Carlos D. Moreno, Glenda Solomon, Dr. Owen Linder, Louisiana Medical Mutual Insurance Company (LAMMICO), and Prudential Property and Casualty Insurance Company, for failure to diagnose her pregnancy. Plaintiff alleges that this failure prevented her from considering the option of aborting the fetus, which was afflicted with Cornelia DeLange Syndrome. Plaintiff also alleges that defendants' failure to diagnose her pregnancy denied her the opportunity to provide proper prenatal care, leading to the aggravation of the child's Cornelia DeLange Syndrome, or alternatively causing independent mental and physical retardation.

FACTS

Plaintiff's petition alleges that on March 12, 1982, she was taken by her mother to the Hammond Diagnostic Clinic[3] for a suspected pregnancy. She alleges that during her visit to the clinic she was examined by staff nurses and by Dr. Owen Linder;[4] however, no pelvic examination was performed. Furthermore, she contends that during her clinic visit a urine pregnancy *205 test, which read negative, was negligently performed by Glenda Solomon, a laboratory technician employed by the clinic. Plaintiff was informed by Dr. Linder that she was not pregnant and was given a new prescription for birth control pills. Plaintiff's third amending petition alleges that at the time she visited the clinic she was in fact pregnant with a fetus that was not viable. On May 1, 1982, plaintiff gave premature birth to Roshondra Pines, at the Lallie Kemp Charity Hospital. Roshondra Pines was born with the congenital birth defect known as Cornelia DeLange Syndrome.

Plaintiff's third amending petition also contains the following pertinent allegations:

XXC.
Under the circumstances of the lack of pre-natal [sic] care, the use of birth control pills during early pregnancy and the defects that could be observed with an ultrasound, the standard of care would have been to advise plaintiff Lisa Pines of the risk of deformity presented to the fetus and plaintiff would have been granted the option to terminate the pregnancy, which she would have chosen to do had she been advised of her pregnancy and the risk of a defective offspring.
. . . . .
XXI.
In the alternative, should this court find that defendants were not liable to plaintiffs for their failure to advise plaintiff of her pregnancy and the options she faced considering the likelihood of a defective offspring or refer her to a specialist who would properly advise her, defendants are nonetheless liable to plaintiff for failing to diagnose the pregnancy and failing to advise plaintiff to obtain proper pre-natal [sic] care. Said failure to provide proper pre-natal [sic] care aggravated the mental and physical retardation of Rashondra Pines which is associated with the congenital abnormality of Cornelia DeLange Syndrome.
. . . . .
XXVII.
Defendants had a duty to properly diagnose the pregnancy and advise Lisa Pines of it and that duty was owed to both plaintiffs Lisa Pines and Roshondra Pines, the failure to perform which duty led to the foreseeable consequence of an unwanted pregnancy and the birth of a severely physically and mentally retarded child which foreseeably places a severe burden on the financial, physical and emotional wherewithal of both parties above and beyond that ordinarily encountered in the rearing of a normal child into adulthood and the passage of life from adulthood to death.

Lisa Pines seeks damages individually for expenses incurred during pregnancy and delivery, pain and suffering, emotional and mental distress associated with the birth of an unplanned and unwanted child, economic costs of rearing a handicapped child, loss of society and companionship and mental pain and suffering associated with the rearing of and caring for a severely deformed and retarded child. Lisa Pines seeks damages on behalf of Roshondra for medical expenses, vocational training expenses, loss of earning capacity, expenses for institutional care, physical pain and suffering, and mental pain and suffering associated with her handicap.

The defendants filed an exception of no cause of action which the trial court sustained in part. The court gave the following pertinent reasons for its decision:

A.
The petition does not state a cause of action, under the Pitre decision, [Pitre v. Opelousas General Hosp., 530 So.2d 1151 (La.1988)] on behalf of Lisa Pines, for the loss of society and companionship with her daughter;
B.
The petition under Pitre, does not state a cause of action on behalf of Lisa Pines for any general medical expenses, or any general claims for mental anguish, based on the birth of a child with a *206 deformity, unless plaintiff can prove that the Cornelia de Lange [sic] Syndrome could have been properly diagnosed by defendants as of the time of Lisa Pines' consultation and could have been mitigated, or minimized through proper medical treatment if a correct diagnosis of the congenital defect could have been reasonably made at the time of such consultation;
C.
The petition does not state a cause of action, under Pitre, as to any claims of Roshondra Pines for loss of future earning capacity;
D.
The petition does not set forth a cause of action, under Pitre, on behalf of Rashondra Pines for any general claim for pain and suffering, permanent disability and disfigurement, or future medical expenses, unless it can be established that Cornelia de Lange Syndrome could be diagnosed and the effects eliminated, mitigated, or minimized, through reasonable medical treatment as of the date of consultation of Lisa Pines with defendants;
E.
The petition does not state a cause of action, under Pitre, and under the provisions of R.S. 40:1299.35.4(A) on behalf of Lisa Pines (if any is in fact claimed in the pleadings) for any consequential damages of any nature to which she may claim to be entitled on the basis of a decision to abort the fetus, had a proper diagnosis of pregnancy been made at the time of her consultation with defendant.

The plaintiff appealed, alleging the trial court erred in granting the defendants' exception of no cause of action with respect to certain portions of the damages or demand claimed by the plaintiff. We agree.

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Cite This Page — Counsel Stack

Bluebook (online)
569 So. 2d 203, 1990 WL 157583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pines-v-dr-carlos-d-moreno-inc-lactapp-1990.