Roberts v. Cox

669 So. 2d 633, 1996 WL 83206
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1996
Docket28094-CA
StatusPublished
Cited by21 cases

This text of 669 So. 2d 633 (Roberts v. Cox) 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
Roberts v. Cox, 669 So. 2d 633, 1996 WL 83206 (La. Ct. App. 1996).

Opinion

669 So.2d 633 (1996)

David A. ROBERTS, et al., Plaintiffs-Appellants,
v.
Dr. Jack COX, et al., Defendants-Appellees.

No. 28094-CA.

Court of Appeal of Louisiana, Second Circuit.

February 28, 1996.

*635 Bruscato, Tramontana & Underwood by Anthony J. Bruscato, Monroe, for Appellants.

Dollar, Price, Noah & Laird by Elmer G. Noah II, Monroe, Hayes, Harkey, Smith & Cascio by Haynes L. Harkey, Jr., Monroe, for Appellees.

Before MARVIN, SEXTON and WILLIAMS, JJ.

WILLIAMS, Judge.

In this medical malpractice action, the plaintiffs, David and Carla Roberts, appeal a jury verdict finding that the defendants, Dr. Jack Cox and Lincoln General Hospital, were not negligent in their treatment of the Roberts' son. For the following reasons, we affirm.

FACTS

David and Carla Roberts ("Roberts") are the parents of Austin, who was born on August 16, 1988. Since birth, the child suffered from numerous ear infections and sinus problems. As a result, Dr. David McGehee, Austin's pediatrician, recommended surgery and referred him to Dr. C. Lawrence Neal, an ear, nose and throat specialist in Ruston. Dr. Neal met with the Roberts and discussed the surgical procedure he would perform.

On the morning of April 5, 1990, the Roberts brought Austin, who was then nineteen months old, to Lincoln General Hospital *636 ("Lincoln") for out-patient surgery. Nurse Donna Fuller received the patient in the unit, performed a pre-operative nursing evaluation and gave David Roberts a consent form to sign. The form listed the possible risks of surgery, including anesthesia, and described the procedure as an incision of tympanic membrane, removal of middle ear fluid, insertion of ventilation tube, removal of adenoid tissue and clearing of maxillary sinuses by needle puncture. The Roberts stated that the nurse did not discuss or explain the risks associated with anesthesia. David Roberts said he did not read the consent form because he knew that it had to be signed before surgery could be performed. Shortly after 8:00 a.m., Dr. Jack Cox, the anesthesiologist, met briefly with the Roberts and asked if anyone in their family had experienced a problem with anesthesia, but did not discuss any potential risks. Austin was then taken to the operating room and put to sleep with oxygen, nitrous oxide and halothane.

Dr. Neal, Dr. Cox, Betty Jo Fitzgerald, the circulating nurse, and Gayle Smith, the scrub nurse, were present in the operating room. Dr. Cox attempted to insert an intravenous ("IV") line into four different locations, Austin's left hand and elbow and his right hand and elbow, without success. Dr. Cox and Dr. Neal discussed the inability to insert the IV line. Because the procedure was expected to be brief, with little blood loss, they mutually decided to proceed with the surgery without an IV line in place. Dr. Cox then administered 30 milligrams of succinylcholine, a drug that paralyzes the patient's muscles and allows insertion of an endotracheal tube, through which the anesthesiologist ventilates the patient during surgery. Dr. Cox inserted and secured the tube, then rotated the operating table so that Austin's head was at Dr. Neal's position.

Dr. Neal turned the child's head to the left in order to look into the right ear. At that point, approximately 8:40 a.m., Austin's pulse slowed from 140 beats per minute to 40 beats, and then he suffered complete cardiac arrest. A Code was called, the endotracheal tube was removed and replaced to make sure it was in the right position and Dr. Neal began CPR. Dr. Butler, Dr. McGehee and a nurse anesthetist, Walter Kennedy, responded to provide assistance. Epinephrine and Atropine were given through the tube. Dr. Butler placed an IV in the saphenous vein of the child's right ankle, but this did not work properly. At 8:56 a.m., Dr. McGehee successfully started an IV in Austin's jugular vein and gave him additional medication. Austin's heart rate was restored at 9:05 a.m., approximately 25 minutes after his heart stopped beating. He was transferred to the intensive care unit, where he remained for three days. Initially, Dr. Cox and Dr. Neal theorized that the cardiac arrest was caused by a vagal reflex response. They thought that when Dr. Neal turned Austin's head, the endotracheal tube moved and stimulated the vagus nerve, causing the heart to stop.

Prior to his cardiac arrest, Austin was able to walk, run and speak in simple sentences. After his discharge from the hospital, several weeks passed before Austin resumed walking, talking and eating as he had previously. In April 1991, Austin underwent the operation that had been attempted one year earlier. Anesthesia was administered and the procedure was performed without incident. In September 1992, Austin was seen by Dr. Bruce Everist, who reported that Austin was possibly suffering from muscular dystrophy. Dr. Everist recommended testing, and a muscle biopsy was performed at Children's Hospital in New Orleans. The pathology report confirmed muscular dystrophy of the Duchenne or Becker type. In 1994, Dr. Joseph Sheller examined Austin and diagnosed the child as suffering from Becker's muscular dystrophy.

In April 1991, the Roberts filed a complaint against defendants, Lincoln General Hospital, Dr. Cox and their respective liability insurers. The Roberts requested the formation of a medical review panel. The complaint alleged that Dr. Cox and hospital employees failed to follow accepted medical standards in their treatment of Austin. In December 1992, the medical review panel found that the defendants were not negligent. The Roberts then filed a petition individually and on behalf of their minor son, alleging that the defendants' medical treatment of Austin was negligent. After a two *637 and one-half week jury trial, the jury rendered a verdict finding that the defendants were not negligent in their treatment of Austin Roberts. The trial court signed the final judgment in accordance with the jury's verdict. The Roberts appealed.

DISCUSSION

Assignment of Error No. 1: Causation

The Roberts contend the jury was clearly wrong in finding that Dr. Cox was not negligent in his treatment of Austin. They argue that the only conclusion a reasonable juror could have reached was that Dr. Cox improperly inserted a breathing tube into the child's esophagus, rather than the trachea, and the resulting lack of oxygen caused Austin's cardiac arrest.

In a malpractice action based on the negligence of a physician licensed to practice in Louisiana, where the defendant practices in a particular specialty and the alleged acts of medical negligence raise issues peculiar to that specialty, the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the same medical specialty. The plaintiff must also prove that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence in applying that skill, and that defendant's failure to exercise this degree of care caused plaintiff to suffer injuries that would not otherwise have occurred. LSA-R.S. 9:2794A; Smith v. Lincoln General Hospital, 27,133 (La.App. 2d Cir. 6/21/95), 658 So.2d 256, writ denied, 95-1808 (La. 10/27/95), 662 So.2d 3. The mere fact that an injury occurred does not raise a presumption that the physician was negligent. R.S. 9:2794C. The jury's findings of fact should not be disturbed on appeal absent manifest error. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Martin v. East Jefferson General Hospital,

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Bluebook (online)
669 So. 2d 633, 1996 WL 83206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-cox-lactapp-1996.