Primeaux v. St. Paul Fire & Marine Ins. Co.

862 So. 2d 496, 2003 WL 22956434
CourtLouisiana Court of Appeal
DecidedDecember 17, 2003
Docket03-0466
StatusPublished
Cited by3 cases

This text of 862 So. 2d 496 (Primeaux v. St. Paul Fire & Marine Ins. 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
Primeaux v. St. Paul Fire & Marine Ins. Co., 862 So. 2d 496, 2003 WL 22956434 (La. Ct. App. 2003).

Opinion

862 So.2d 496 (2003)

Mervin PRIMEAUX, Indiv. and Elizabeth Primeaux, Indiv.
v.
ST. PAUL FIRE & MARINE INS. CO. and Dr. Richard Laborde.

No. 03-0466.

Court of Appeal of Louisiana, Third Circuit.

December 17, 2003.

*498 James R. Shelton, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendant/Appellee, St. Paul Fire & Marine Ins. Co., Dr. Richard Laborde.

Todd A. Townsley, Townsley Law Firm, Lake Charles, LA, for Plaintiff/Appellant, Mervin Primeaux, Elizabeth Primeaux.

Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.

SAUNDERS, J.

Plaintiff appeals the judgment of the trial court finding that the partial paralysis of his phrenic nerve was not caused by malpractice on the part of Defendant, Dr. Richard Laborde. For the reasons stated below, we affirm.

FACTS

On September 3, 1997, Mervin Primeaux was admitted to Lake Charles Memorial Hospital for total left shoulder replacement surgery by Dr. David Drez, orthopedic surgeon. This is a particularly painful procedure which generally requires large amounts of post-operative pain control narcotics. To reduce the amount of pain medication needed after surgery, and to reduce the level of pain during and after the procedure, Dr. Laborde, an anesthesiologist, performed an "interscalene block" on Mr. Primeaux prior to the shoulder surgery.

An interscalene block is an anesthetic procedure involving the nerves of the neck and shoulder region. It is used to anesthetize the upper arm and shoulder region during shoulder surgeries. The procedure involves inserting a large needle with an electrical current running through the tip of the needle. The procedure is a "blind" procedure because the doctor is unable to see where the needle is positioned during the procedure. He must instead rely on external signals created by stimulating the nerves and adjoining muscles with the electrical current from the inserted needle. The current will cause an externally discernable twitch or spasm for various muscle groups, allowing the anesthesiologist to determine proper needle placement for injection of the anesthetic. In Mr. Primeaux's case the procedure was to anesthetize the brachial plexus. The brachial plexus is in close proximity to the phrenic nerve, which controls the diaphragm.

Prior to undergoing the shoulder surgery, Mr. Primeaux underwent a pre-operative exam by his internal medicine physician, Dr. James T. Shepherd. An x-ray was taken of Mr. Primeaux, which indicated that there was no paralyzation of his diaphragm. After the procedure, while still in the hospital, there were several notations made in Mr. Primeaux's chart stating, "No SOB [shortness of breath] noted." Three days after Mr. Primeaux's discharge from Lake Charles Memorial Hospital he had a follow-up appointment with Dr. Drez. At that appointment Mr. Primeaux still had no complaints of trouble breathing or shortness of breath.

The first time Mr. Primeaux reported any complaint of shortness of breath to Dr. Drez was September 15, 1997, twelve days after his surgery and the interscalene block. At that time Dr. Drez felt Mr. Primeaux's shortness of breath may be *499 due to a reaction to the medication Mr. Primeaux was taking. In a later office visit with Dr. Drez, Mr. Primeaux complained of chest pain. Dr. Drez referred Mr. Primeaux to Dr. Shepherd at the Emergency Room at Park Place Medical Center in Port Arthur, Texas. After performing x-rays and various tests on Mr. Primeaux, Dr. Shepherd diagnosed him with paralysis of the left hemi-diaphragm, caused by damage to the phrenic nerve.

This matter was presented to a Medical Review Panel and their opinion was rendered on July 27, 1999. In their opinion the panel stated they found a probable causal relationship between the perioperative events of September 3, 1997, and Mr. Primeaux's injuries. They also stated, however, that the medical records do not suggest that there is anything Dr. Laborde could have done differently. Their conclusion was there was no finding that Dr. Laborde failed to comply with the appropriate standard of care.

This matter proceeded to trial. After a three-day trial on the merits, a jury returned a verdict in favor of the defendant, Dr. Laborde, finding that he was not liable for Mr. Primeaux's injuries. The claims against the defendant were dismissed with prejudice.

Plaintiffs appeal the judgment of the trial court and assert the following assignments of error:

1) The jury committed manifest error in failing to find that the most likely cause of the injury was the negligence of Dr. Laborde.

2) The jury erred in not finding that Dr. Laborde breached the standard of care by causing this phrenic nerve injury.

3) The jury erred by not properly giving the treating physician's testimony more weight than a non-treating physician acting as an expert for the defendant.

STANDARD OF REVIEW

We begin by noting the well established rules of appellate review of jury and trial court decisions.

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.... Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said.

Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989) (citations omitted).

[T]he appellate court's disagreement with the trial court, alone, is not grounds for substituting its judgment for that of the trier of fact. Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081 (La.1983). If the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, supra. Where there are two permissible *500 views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

DISCUSSION

In medical malpractice cases the plaintiff's burden and the physician's standard of care are set out in La.R.S. 9:2794, which states in pertinent part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving:

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