Ricker v. Hebert

655 So. 2d 493, 1995 WL 271971
CourtLouisiana Court of Appeal
DecidedMay 5, 1995
Docket94 CA 1743
StatusPublished
Cited by10 cases

This text of 655 So. 2d 493 (Ricker v. Hebert) 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
Ricker v. Hebert, 655 So. 2d 493, 1995 WL 271971 (La. Ct. App. 1995).

Opinion

655 So.2d 493 (1995)

James RICKER, Jr.
v.
Aynaud F. HEBERT, M.D., and Slidell Memorial Hospital, a/k/a St. Tammany Hospital District # 2.

No. 94 CA 1743.

Court of Appeal of Louisiana, First Circuit.

May 5, 1995.

*494 Gregory F. Gambel, New Orleans, for plaintiff-appellee.

C. William Bradley, Jr., New Orleans, for defendant-appellant.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

SHORTESS, Judge.

James Ricker, Jr. (plaintiff), injured his teeth and jaw in an automobile accident on April 26, 1987. He was admitted to Slidell Memorial Hospital and Medical Center (SMH)[1] for emergency treatment. Dr. Aynaud F. Hebert (defendant), an otolaryngologist (ear, nose, and throat specialist, or ENT), was called by SMH to treat plaintiff and performed surgery on plaintiff. After plaintiff's discharge from SMH, the surgery was completely redone by a maxillofacial (oral) surgeon, Dr. Carroll L. Wood, III, and his partner, Dr. James A. Loyola.[2]

Plaintiff sued defendant and SMH, contending defendant negligently performed the surgery and SMH negligently allowed defendant to operate outside his specialty. A medical review panel composed of three ENT's found the evidence submitted to it did not support the conclusion that either defendant or SMH failed to meet the applicable standard of care as charged in the complaint. Plaintiff then proceeded to trial. The case was tried to a judge after plaintiff stipulated his damages were less than $20,000.00. The trial court found defendant breached the standard of care required of ENT's and awarded plaintiff $14,000.00 in general damages and $5,960.00 in medical expenses. Defendant appeals.[3]

Defendant contends the trial court erred in allowing the testimony of two oral surgeons to establish the standard of care *495 applicable to an ENT. Plaintiff did not call an ENT but relied on the testimony of Wood and Loyola. Defendant contends that only a medical doctor can testify as to the standard of care required of another medical doctor.

Louisiana Revised Statute 9:2794(A) sets forth the burden of proof in a medical malpractice action:

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:
(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 failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

(Emphasis added.)

Our courts have held that where medical disciplines overlap, it is appropriate to allow a specialist in one field to give expert testimony as to the standard of care applicable to performing a particular procedure common to both disciplines. See, e.g., Leyva v. Iberia General Hospital, 94-0795 (La. 10/17/94), 643 So.2d 1236 (obstetrician/gynecologist testified as to standard required of general practitioner in performing tubal litigation); Soteropulos v. Schmidt, 556 So.2d 276 (La.App. 4th Cir.1990) (orthopedist testified as to standard of care required of vascular surgeon in smoothing edges of tibia during amputation); Steinbach v. Barfield, 428 So.2d 915 (La.App. 1st Cir.), writ denied, 435 So.2d 431 (La.1983) (specialists in colon and rectal cancer, family practice, and diagnostic radiology testified as to standard of care required of specialist in internal medicine in diagnosing colon cancer); Fairchild v. Brian, 354 So.2d 675 (La.App. 1st Cir.1977), writ denied, 356 So.2d 437 (La.1978) (ophthalmologists testified as to standard of care required of optometrist in diagnosing eye disease). In determining whether testimony regarding the standard of care will be limited under Revised Statute 9:2794(A) to a specialist who practices the same specialty as the defendant, the operative statutory phrase is "where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved." Where the procedure alleged to be negligently performed is one that is not limited to a particular specialty, and where there is no showing that the standard of care is different for different medical disciplines, an expert with knowledge of the requisite procedure should be allowed to testify regarding the standard of care for performing that procedure. Steinbach, 428 So.2d at 920-921. Of course, the party offering such an expert must show the witness's expertise, skill, and training in the procedure.[4]

In this case, Loyola, plaintiff's expert, testified there is a standard procedure for treatment of a fractured mandible which is used by both oral surgeons and ENT's. Wood testified ENT's and oral surgeons perform the same procedure, although oral surgeons treat at least 95% of mandibular fractures. Defendant's expert, Dr. John A. White, an ENT who was a member of the medical review panel in this case, testified the panel found the technique used by defendant was *496 the same as that used by Wood. This testimony shows that treatment of a mandibular fracture is not "peculiar" to the specialty of otolaryngology. Thus, we find that testimony of an ENT regarding the standard of care was not necessary in this case.

Defendant contends, however, that even if ENT's and oral surgeons perform the same treatment for the same condition, an oral surgeon cannot offer expert testimony against a medical doctor. We disagree. When the same treatment for the same condition is performed by members of more than one health care discipline, an expert health care professional having training, knowledge, and experience in performing the procedure in question may testify regarding the standard of care for performing the procedure. There was no evidence that the standard of care required of an oral surgeon was either higher or lower than that required of an ENT. Thus, either an oral surgeon or an ENT could testify as to the standard of care in treating a fractured mandible.

Defendant contends that even if Wood and Loyola were properly permitted to testify, plaintiff failed to carry his burden of proof by showing defendant failed to meet the national standard of care required of ENT's. Wood and Loyola were not asked specifically to state the standard of care required of ENT's in treating mandibular fractures. Both explained in detail, however, how plaintiff's fracture should have been treated by any health care professional performing that procedure.

Furthermore, while Wood and Loyola were not asked the precise question of whether defendant violated the standard of care required of ENT's in treating plaintiff's fracture[5]

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Cite This Page — Counsel Stack

Bluebook (online)
655 So. 2d 493, 1995 WL 271971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ricker-v-hebert-lactapp-1995.