Richard v. Dupuis

649 So. 2d 718, 1994 WL 659423
CourtLouisiana Court of Appeal
DecidedNovember 23, 1994
DocketNos. 94-215, 94-216
StatusPublished
Cited by2 cases

This text of 649 So. 2d 718 (Richard v. Dupuis) 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
Richard v. Dupuis, 649 So. 2d 718, 1994 WL 659423 (La. Ct. App. 1994).

Opinions

liLABORDE, Judge.

Decedent, Mrs. Margie Mae Pickney, died after taking medicine administered by her dentist, defendant Dale Dupuis, in preparation for treatment of an abscessed tooth. A jury found no liability on the part of defendant. We affirm.

FACTS

|2On May 12, 1988, decedent, Margie Mae Pickney, was being treated by Dr. Dale Du-puis for an abscessed tooth. To prepare his patient, Dr. Dupuis gave Mrs. Pickney an injection of mepivaeaine to numb the area of the mouth surrounding the affected tooth. After the injection, he gave her four penicillin tablets and two probenecid tablets, which she ingested orally.

Within a few minutes, Dr. Dupuis found his patient standing in the hall. She was scratching her arm and appeared to be hot. Dr. Dupuis returned her to the dental chair and told her to breathe deeply. About five minutes later, her blood pressure dropped sharply and she stopped breathing. Dr. Du-puis placed her on the floor and administered CPR while waiting for previously summoned paramedics to arrive.

The Acadian Ambulance Service eventually arrived 40 to 45 minutes after receiving the call. They transported .Mrs. Pickney to Opelousas General Hospital. She died two days later, never having regained consciousness. Her autopsy indicated that she died from an anaphylactic reaction to penicillin.

Procedural History

Decedent’s spouse, Albert Pickney, and her children, Earl Richard, Angela Pickney, Ronald Richard, Tracey Richard and Curley [720]*720Richard, filed suit against defendant for wrongful death and medical malpractice.

After a jury trial, May 11-18, 1993, the jury rendered judgment in favor of defendant. On June 4, 1993, plaintiffs filed a Motion for Judgment Notwithstanding the Verdict or in the Alternative, Motion for New Trial, which was subsequently denied by the trial court. Plaintiffs appeal, alleging six assignments of error:

1. The jury erred in finding that the defendant did not deviate from the accepted standard of medical care in failing to have an oxygen bottle and/or ^failing to administer oxygen.
2. The jury erred in failing to find that defendant deviated from the accepted standard of medical care in failing to treat plaintiff for allergic reaction, shock, cardiopulmonary distress and respiratory distress.
3. The jury erred in failing to find that defendant deviated from the accepted standard of medical care in becoming “baffled” and “not knowing what to do.”
4.- The jury erred in failing to find that defendant deviated from the accepted standard of medical care in not completing his office chart and medical history prior to oral surgery.
5. The jury erred in accepting the testimony of defendant.
6. The trial judge erred in allowing the defense to introduce the depositions of Dr. Williams and Dr. Aswell.

LAW

Standard of Review

After thoroughly reviewing the record, a court of appeal may not set aside a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

LSA-R.S. 9:2794(A) imposes upon the plaintiff in a medical malpractice action the burden of proving:

(1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, or chiropractic 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 degree of care ordinarily practiced by physicians, dentists, or chiropractic 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 Ufailure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

See, Moore v. Curry, 577 So.2d 824 (La.App. 2 Cir.), writ denied, 580 So.2d 674 (La.1991).

The opinions of expert witnesses who are members of the medical profession and who are qualified to testify on the subject are necessary to determine whether or not physicians possess the requisite degree of knowledge or skill or failed to exercise reasonable care and diligence. Steinbaeh v. Barfield, 428 So.2d 915 (La.App. 1 Cir.), writ denied, 435 So.2d 431 (La.1983).

Assigned Errors

In their first four assigned errors, plaintiffs allege that the jury erred in several of its findings of fact which supported its conclusion that Dr. Dupuis did not deviate from the standard of care for dentists in the community.

Plaintiffs first allege that defendant deviated from the accepted standard of medical care in failing to have an oxygen bottle and in failing to administer oxygen to decedent. Plaintiffs contend that Dr. James Robert, a member of the medical review panel, testified that it was the standard of care of all similarly situated dentists to have an oxygen bottle as part of a dental emergency kit, [721]*721and it was a deviation from the expected standard to not have an oxygen bottle as part of this kit. However, defendant contends that it was not a deviation from the standard of care to fail to administer pure oxygen from a bottle, but rather to use CPR and mouth to mouth resuscitation to revive Mrs. Pickney.

Dr. Guy Doll and Dr. Gerald Chachere, both members of the medical review panel, stated that they believed it was a deviation of the standard of care to fail to possess and administer oxygen. However, these doctors also stated that Dr. Dupuis acted properly under the circumstances by administering mouth to mouth ^resuscitation and basic CPR.

Dr. Clay Duos testified that although he had an oxygen bottle in his office, he did not know whether or not the failure to have an oxygen bottle was a deviation from the standard of care. Further, he stated that defendant’s administration of CPR and mouth to mouth resuscitation was an acceptable method of delivering air and oxygen to his patient during her emergency. Dr. Robert also agreed that this was appropriate treatment; he further stated that an oxygen bottle may not have been effective since the patient was not breathing on her own, and that, therefore, mouth to mouth and CPR were more effective to force the air into her lungs to attempt to restart her lungs. The jury found that Dr. Dupuis’ administration of mouth to mouth resuscitation and CPR instead of the use of an oxygen bottle was not a violation of the standard of care expected of dentists in the community. We find no clear error in this regard.

In their second assigned error, plaintiffs claim that Dr. Dupuis failed to meet his standard of care because he did not administer epinephrine to Mrs. Pickney when she was obviously suffering from an anaphylactic reaction.

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Bluebook (online)
649 So. 2d 718, 1994 WL 659423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-dupuis-lactapp-1994.