Judgment rendered March 3, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,757-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
SANDRA POWELL Plaintiff-Appellant
versus
GEORGE MERRIMAN, M.D. Defendant-Appellee
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 527,835
Honorable Craig O. Marcotte, Judge
LAW OFFICE OF SUSAN E. HAMM Counsel for Appellant By: Susan E. Hamm
NELSON & HAMMONS, APLC Counsel for Appellee By: John L. Hammons Cornell R. Flournoy
Before MOORE, PITMAN, and GARRETT, JJ. PITMAN, J.
Plaintiff-Appellant Sandra Powell appeals the trial court’s judgment in
favor of Defendant-Appellee George Merriman, M.D. For the following
reasons, we affirm.
FACTS
On January 29, 2007, Ms. Powell filed a claim with the Medical
Review Panel (the “Panel”). She alleged that Dr. Merriman deviated from
the applicable standard of appropriate medical care and was negligent in her
care and treatment when he performed a laparoscopic cholecystectomy with
an intraoperative cholangiogram on her on January 20, 2006.1
On October 17, 2008, the Panel unanimously found that the evidence
did not support the conclusion that Dr. Merriman breached the applicable
standard of care as charged in Ms. Powell’s complaint. In its written reasons
for this conclusion, the Panel stated, in part:
This panel is of the opinion that Dr. Merriman injured the common bile duct during the laparoscopic cholecystectomy; however, this error is not a deviation from the standard of care. An injury to the bile duct is a well-known complication of a laparoscopic cholecystectomy. A common bile duct injury occurs in approximately 1 of every 200 cholecystectomies. The patient was informed of this risk, specifically noted in the informed consent, which was signed by Ms. Powell pre- operatively . . . . The panel is satisfied that the informed consent was appropriate. A review of Ms. Powell’s medical records reveals no breach in the standard of care. Dr. Merriman, an experienced surgeon, was satisfied with the observed anatomy and removed the gallbladder. His error of anatomical identification was not malpractice. Furthermore, the operative cholangiogram report dictated by the radiologist . . . corroborates the description given by Dr. Merriman in the operative report, wherein he describes a probable cystic duct obstruction.
1 In layman’s terms, a cholecystectomy is a surgical procedure to remove the gallbladder. An intraoperative cholangiogram is an X-ray dye test that is performed during the surgery to visualize the biliary tree. . . . The panel is satisfied that the surgery was conducted in a safe and acceptable manner. The pre and post-operative treatment of Ms. Powell was also appropriate. The panel is of the opinion that Dr. Merriman did not breach the standard of care in the treatment of Ms. Powell.
On January 15, 2009, Ms. Powell filed a petition for damages against
Dr. Merriman. She alleged that on January 20, 2006, he performed on her a
laparoscopic cholecystectomy. On February 6, 2006, she presented to his
office appearing jaundiced. An ERCP2 showed a bile duct injury, and she
underwent a procedure to repair the injury. She contended that she sustained
significant and permanent damage as a result of the treatment provided by
Dr. Merriman and that his treatment fell below the standard of care.
On April 29, 2009, Dr. Merriman filed an answer and denied the
allegations made by Ms. Powell. He stated that he was not negligent, and he
denied any and all liability and responsibility to her. He noted that the Panel
found that he did not fail to meet the standard of care. He stated that the
injury sustained by Ms. Powell is a well-known complication of the
procedure and that she was informed and assumed that risk.
A bench trial was conducted on December 3 and 4, 2019.
Ms. Powell testified that she went to the emergency room on or about
January 18, 2006, and Dr. Merriman performed gallbladder surgery on her
the next day. Following surgery, she was not in pain, but four or five days
after the procedure, she began to have stomach cramps. A week later her
skin began to itch, her eyes yellowed and her bowel movements were
abnormal. Dr. Merriman ordered tests, and she was admitted to the hospital
on February 8, 2006. On February 15, 2006, Dr. Robert McMillan
2 An ERCP, i.e., an endoscopic retrograde cholangiopancreatography, is an X-ray dye test. 2 performed surgery on her to reconstruct the bile duct, and she remained in
the hospital until February 22, 2006. She noted that while in the hospital,
she could not eat or drink, that she was fed through a tube and that she was
in pain. She testified that at the time of her surgery, she was 42 years old
and worked as the night supervisor for a linen company. She stated that
following the surgeries, she could no longer perform her job due to its
physical nature and that she had been unable to work since. She testified
that she is not as active as she used to be, she cannot lift anything, she has
abdominal pain, she cannot eat fried food and her children care for her.
Miranda Powell, Ms. Powell’s daughter, testified that after the
gallbladder removal surgery, her mother seemed fine at first, but in the
following two weeks, her skin yellowed and itched, her eyes yellowed and
she had nausea and was vomiting. Her mother underwent a second surgery
and was in pain afterwards. She noted that her mother’s health began to
decline—she was not as active, was not able to return to work and could not
continue living on her own.
Marco J. Bonta, M.D., was accepted as an expert in the field of
general surgery and testified that he had experience performing laparoscopic
cholecystectomies. He reviewed Ms. Powell’s medical records, the
deposition of Dr. Merriman and the Panel’s opinion. He detailed the
anatomy and functions of the gallbladder, the hepatic ducts, the cystic duct
and the common bile duct. He testified that when performing the
cholecystectomy on Ms. Powell, Dr. Merriman divided the incorrect
structure, i.e., the common bile duct rather than the cystic duct, which
obstructed Ms. Powell’s liver output so that bile could not properly drain.
He found that it is not within the standard of care to cut the common bile 3 duct in half and that this injury is not an acceptable complication. Regarding
the Panel’s data on the incidence of common bile duct injuries, he stated that
the numbers included all types of injuries, not only the transection of the
common bile duct.
Dr. Bonta testified that Ms. Powell’s medical records showed an
inflammation of the gallbladder, which complicated the cholecystectomy
because the tissues planes were swollen and more difficult to identify. He
stated that a cholangiogram, i.e., an X-ray dye test of the biliary tree, can be
used during a cholecystectomy to identify any obstructions of the common
bile duct and to identify structures in the biliary tree. He explained that in
Ms. Powell’s case, a gallstone was obstructing her cystic duct, which
prevented the dye from the cholangiogram to go beyond the stone. He
further testified that this incompletion of the cholangiogram was not itself a
violation of the standard of care by Dr. Merriman. However, he detailed
five alternative procedures Dr. Merriman could have performed to avoid
causing the injury at issue and stated that it was below the standard of care
for Dr. Merriman not to attempt one of these alternatives.
On cross-examination, Dr. Bonta noted trauma and cancer as
examples of when injuries to the common bile duct during a
cholecystectomy would not be a breach of the standard of care. He agreed
that an injury to the common bile duct is a known risk of the laparoscopic
cholecystectomy procedure. He maintained that in this case, the complete
transection of the common bile duct by Dr. Merriman was below the
standard of care.
4 Ms. Powell rested her case, and Dr. Merriman presented his witnesses.
Dr. Merriman was accepted as an expert in the field of general surgery
with a subspecialty in bariatric surgery. He testified that in 2006,
Ms. Powell presented to the emergency room with biliary colic, and a
CT scan showed evolving acute cholecystitis, i.e., inflammation of the
gallbladder. He determined that the most appropriate treatment was a
laparoscopic cholecystectomy and explained his reasoning. He detailed the
procedure he performed on Ms. Powell. He noted that during the
cholecystectomy, he performed a gallbladder cholangiogram, which is
different from a cystic duct cholangiogram on which Dr. Bonta based his
opinions and testimony. He stated that due to obstruction of the cystic duct,
the dye from the cholangiogram did not flow through the duct. He testified
that the procedure was uneventful and that Ms. Powell appeared well
postoperatively and was discharged the next day. At her follow-up
appointment two weeks later, Ms. Powell was jaundiced, which told
Dr. Merriman that there was either an obstruction of or an injury to the
common bile duct. An ERCP showed a bile duct injury, and then
Dr. Merriman consulted with Dr. McMillan for his hepatobiliary knowledge.
Dr. Merriman further testified that an injury to the common bile duct
is a recognized risk of the procedure. He estimated that in his 28-year
career, he performed 800 to 1,000 laparoscopic cholecystectomies and noted
that he only experienced a common bile duct transection in Ms. Powell’s
case. He agreed that this was a lower rate than the national rate provided in
the Panel’s opinion, i.e., approximately one injury in 200 procedures.
On cross-examination, Dr. Merriman agreed that during the
procedure, he misidentified Ms. Powell’s cystic duct. He explained his 5 decisions during the procedure, including to perform a gallbladder
cholangiogram rather than cholangiogram of the cystic duct.
Kevin C. Marler, M.D., who was accepted as an expert in the field of
general surgery and surgical oncology, testified that he has performed at
least 1,500 cholecystectomies. He served on the Panel in this case, which
unanimously found that the evidence did not support the conclusion that
Dr. Merriman failed to meet the applicable standard of care. He stated that
an injury to the common bile duct does not necessarily prove substandard
care, that such an injury is a recognized risk of the procedure, that the
misidentification of a structure by a physician is a recognized risk and that a
common bile duct injury can occur when a surgeon performs a procedure
with precision. He discussed the statistics mentioned in the Panel’s opinion
that approximately one injury occurs in every 200 procedures and noted that
Dr. Merriman’s complication rate is lower than the statistical national rate.
He stated that there were no indications in the medical records that an injury
was known during the procedure. He noted that the use of cholangiograms
is not mandated and that its use is an issue of medical judgment based upon
the circumstances of an individual patient.
On cross-examination, Dr. Marler stated that difficulty in identifying
an anatomic structure does not relieve a surgeon of providing treatment
within the standard of care. He agreed that Dr. Merriman’s transection of
the common bile duct was an error. He noted that injuries considered in the
Panel’s statistics include different kinds of injuries to the common bile duct,
not just a transection. He stated that Dr. Merriman is an experienced
surgeon who thought this was a straightforward case.
6 Robert McMillan, M.D., accepted as an expert in the field of general
surgery with a subspecialty in transplantation surgery, testified that
Dr. Merriman referred Ms. Powell to him due to a common bile duct injury.
He detailed the Roux-en-Y procedure he performed on Ms. Powell to repair
the common bile duct. He stated that there were no complications and that
Ms. Powell recovered well postoperatively. During his assessment of
Ms. Powell, he did not find any evidence of substandard surgical technique
or care by Dr. Merriman.
On cross-examination, Dr. McMillan testified that misidentification of
a structure is not a breach of the standard of care nor is it malpractice. He
stated that a surgeon has to identify the critical structures as to what he
thinks they are at the time. He agreed that difficulty in identifying a
structure does not relieve a physician from providing treatment within the
On December 16, 2019, the trial court filed a judgment. It found that
Dr. Merriman did not deviate from the standard of care and that no
malpractice occurred and dismissed the case with prejudice.
Ms. Powell appeals the judgment of the trial court.
DISCUSSION
Standard of Care
In her first assignment of error, Ms. Powell argues that the trial court
erred in finding that Dr. Merriman did not breach the standard of care. She
contends that her medical records and the credible testimony of Dr. Bonta
prove that Dr. Merriman breached the standard of care by cutting her
common bile duct during the procedure.
7 Dr. Merriman argues that the trial court did not err in finding that he
complied with the applicable standard of care in his treatment of
Ms. Powell. He contends that Ms. Powell did not carry her burden of
proving the standard of care or the breach of the standard of care.
Regarding medical malpractice actions based on the negligence of a
physician, La. R.S. 9:2794(A) provides that the plaintiff has the burden of
proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by 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 . . . 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.
In other words, the plaintiff has the burden of proving, by a
preponderance of the evidence, (1) that the doctor’s treatment fell below the
standard of care expected of a physician in his medical specialty; and (2) the
existence of a causal relationship between the alleged negligent treatment
and the injury sustained. Fusilier v. Dauterive, 00-0151 (La. 7/14/00),
764 So. 2d 74, citing Gordon v. Louisiana State Univ. Bd. of Sup’rs, 27,966
(La. App. 2 Cir. 3/1/96), 669 So. 2d 736, writ denied, 96-1038 (La. 5/31/96),
674 So. 2d 263. A physician is required to exercise that degree of skill
ordinarily employed under similar circumstances by others in the profession
and also to use reasonable care, diligence and judgment. Hastings v. Baton
8 Rouge Gen. Hosp., 498 So. 2d 713 (La. 1986). A physician is not required
to exercise the highest degree of care possible; rather, his duty is to exercise
the degree of skill ordinarily employed by his professional peers under
similar circumstances. Gordon v. Louisiana State Univ. Bd. of Sup’rs,
supra. The law does not require absolute precision from a physician. Id.
The mere fact that an injury occurred does not raise a presumption that the
physician was negligent. Hays v. Christus Schumpert N. Louisiana, 46,408
(La. App. 2 Cir. 9/21/11), 72 So. 3d 955.
Appellate review of a trial court’s findings in a medical malpractice
action is limited. Van Buren v. Minor, 51,960 (La. App. 2 Cir. 4/11/18),
247 So. 3d 1040, writ denied, 18-0768 (La. 9/21/18), 252 So. 3d 911. The
manifest error standard applies to the review of medical malpractice cases,
and a court of appeal may not set aside a trial court’s finding of fact in the
absence of manifest error or unless it is clearly wrong. Moore v. Smith,
48,954 (La. App. 2 Cir. 5/21/14), 141 So. 3d 323, citing Crockham v.
Thompson, 47,505 (La. App. 2 Cir. 11/14/12), 107 So. 3d 719.
Expert witnesses who are members of the medical profession are
needed to establish the applicable standard of care, whether the standard of
care was breached by the defendant doctor’s conduct and whether that
breach resulted in injury to the plaintiff. Richardson v. Cotter, 51,637 (La.
App. 2 Cir. 9/27/17), 245 So. 3d 136; Jones v. Hernandez, 38,818 (La. App.
2 Cir. 8/18/04), 880 So. 2d 245, writ denied, 04-2319 (La. 11/19/04),
888 So. 2d 203. Where there are conflicting expert opinions concerning the
defendant’s compliance with the standard of care, the reviewing court will
give great deference to the conclusions of the trier of fact. Van Buren v.
9 Minor, supra. The effect and weight to be given to expert testimony is
within the broad discretion of the trial court. Jones v. Hernandez, supra.
The threshold element that a medical malpractice claimant must
establish in an action against a specialist such as Dr. Merriman is that the
conduct of the physician fell below the applicable standard of care. Jones v.
Hernandez, supra. To establish the standard of care applicable to general
surgeons who perform gallbladder surgeries and to prove that
Dr. Merriman’s treatment fell below the standard of care expected of a
physician in his medical specialty, Ms. Powell presented the expert
testimony of Dr. Bonta, who testified that Dr. Merriman’s transection of
Ms. Powell’s common bile duct fell below the standard of care and that the
injury was not an acceptable complication.
To the contrary, Dr. Merriman, Dr. Marler and Dr. McMillan all
testified that Dr. Merriman did not breach the standard of care in his
treatment of Ms. Powell. Dr. Merriman admitted that he misidentified
Ms. Powell’s cystic duct, but stated that the injury to the common bile duct
is a recognized risk of the cholecystectomy. Similarly, Dr. Marler testified
that an injury to the common bile duct does not necessarily prove
substandard care and that the misidentification of a structure by a physician
is a recognized risk of the procedure. Dr. McMillan also stated that
misidentification of a structure is not a breach of the standard of care.
Further, the Panel unanimously found that Dr. Merriman did not breach the
standard of care. It stated that the errors, i.e., Dr. Merriman’s anatomical
misidentification and injuring of the common bile duct, were not deviations
from the standard of care. It noted that such an injury is a well-known
10 complication of a laparoscopic cholecystectomy, that she was informed of
this risk and that Ms. Powell signed a consent form acknowledging the risk.
The record in this case supports the trial court’s finding of no breach
of the applicable standard of care. Because there were conflicting expert
opinions concerning Dr. Merriman’s compliance with the standard of care,
the trial court made inferences of fact and determined which expert opinions
and testimonies were most credible. The trial court’s choice between
conflicting expert opinions was reasonable; and, therefore, its finding is not
manifestly erroneous or clearly wrong. The evidence in this case justifies
the trial court’s determination that Ms. Powell failed to carry her burden of
proof under La. R.S. 9:2794(A) that Dr. Merriman breached the applicable
standard of care in his treatment of her.
Accordingly, this assignment of error lacks merit.
Expert Witnesses
In her second assignment of error, Ms. Powell argues that the trial
court erred in giving weight to the testimony of Dr. Merriman’s experts. She
contends that the defense’s presentation of expert testimony that
Dr. Merriman is an “experienced surgeon” is not sufficient to support the
conclusion that he did not breach the standard of care. She contends that
Dr. Bonta’s testimony and her medical records are adequate objective
evidence to meet her burden of proof.
Dr. Merriman details the testimony of Dr. Marler, which supports the
contention that he was not negligent in his care and treatment of Ms. Powell
and that his actions complied with the standard of care. He also refutes
portions of Dr. Bonta’s testimony and contends that Dr. McMillan’s
testimony should be given greater weight as a treating physician. 11 As discussed above, the trial court did not err in its determination that
Ms. Powell failed to meet her burden of proof that Dr. Merriman breached
the standard of care. The trial court reviewed all the evidence in this case,
including hearing the testimony of each witness. It is within the trial court’s
discretion to determine the effect and weight given to expert testimony.
Jones v. Hernandez, supra.
Opinion of the Panel
In her third assignment of error, Ms. Powell argues that the trial court
erred in admitting into evidence portions of the Panel’s opinion. She states
that the statistic regarding the number of common bile duct injuries
occurring in gallbladder surgeries was not relevant because the Panel cited
no authority for it and the defense laid no foundation for the evidence.
Dr. Merriman contends that the Panel’s opinion complies with
statutory requirements and is admissible evidence. He states that there is no
requirement that the Panel identify the specific source of its statistics.
Any report of the expert opinion reached by the medical review panel
shall be admissible as evidence in any action subsequently brought by the
claimant in a court of law. La. R.S. 40:1231.8(H). Such expert opinion,
however, shall not be conclusive, and either party shall have the right to call,
at his cost, any member of the medical review panel as a witness. Van
Buren v. Minor, supra. As with any expert testimony or evidence, the
medical review panel opinion is subject to review and contestation by an
opposing viewpoint. Id. The opinion, therefore, can be used by either the
patient or the physician, and the trier of fact is free to accept or reject any
12 portion or all of the opinion. Id., citing McGlothlin v. Christus St. Patrick
Hosp., 10-2775 (La. 7/1/11), 65 So. 3d 1218.
The Panel’s opinion was admissible in this case pursuant to La.
R.S. 40:1231.8(H). Ms. Powell had the opportunity to contest the Panel’s
opinion and did so through the testimony of Dr. Bonta. It was within the
trial court’s discretion to accept the Panel’s opinion, and it did not err in
doing so.
Damages
In her fourth assignment of error, Ms. Powell argues that because she
proved that Dr. Merriman breached the standard of care in his treatment of
her and that breach caused damages, this court on appeal should award
damages. She contends that the record details her lost wages and/or lost
earning potential, medical costs, and pain and suffering.
Dr. Merriman argues that Ms. Powell did not meet her burden of
proving that any damages resulted from a breach of the standard of care.
As this court has determined that the trial court did not err in its
determination that Ms. Powell did not meet her burden of proof that
Dr. Merriman breached the standard of care, Ms. Powell is not entitled to
damages.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment in
favor of Defendant-Appellee George Merriman, M.D. Costs of appeal are
assessed to Plaintiff-Appellant Sandra Powell.
AFFIRMED. 13