Shahine v. State Univ. Med. Center

680 So. 2d 1352, 1996 WL 547991
CourtLouisiana Court of Appeal
DecidedSeptember 27, 1996
Docket28691-CA
StatusPublished
Cited by7 cases

This text of 680 So. 2d 1352 (Shahine v. State Univ. Med. Center) 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
Shahine v. State Univ. Med. Center, 680 So. 2d 1352, 1996 WL 547991 (La. Ct. App. 1996).

Opinion

680 So.2d 1352 (1996)

Martha A. SHAHINE, Plaintiff-Appellant,
v.
LOUISIANA STATE UNIVERSITY MEDICAL CENTER IN SHREVEPORT, et al., Defendant-Appellee.

No. 28691-CA.

Court of Appeal of Louisiana, Second Circuit.

September 27, 1996.

*1353 James D. Caldwell, for Plaintiff-Appellant.

Booth, Lockard, Politz, Lesage & D'Anna by Bennett L. Politz, Shreveport, for Defendant-Appellee.

Before BROWN, STEWART and CARAWAY, JJ.

CARAWAY, Judge.

Plaintiff, Martha A. Shahine, appeals a judgment from the trial court dismissing her medical malpractice claim against Cleveland Waterman, M.D., an anesthesiologist, and the Louisiana State University Medical Center in Shreveport. Ms. Shahine suffered permanently debilitating ulnar nerve damage in her right arm following surgery for hip replacement. For the reasons stated herein, we affirm.

Facts and procedural background

Martha Shahine, age 47, was admitted to LSU Medical Center on September 20, 1990 for right total hip arthroplasty surgery on September 21 and left total hip arthroplasty surgery on September 27. It was documented that following the September 21 surgery, the plaintiff complained of numbness in her right hand that was not present before the *1354 operation. The numbness in her hand persisted. A neurological examination was conducted by Dr. Paul D. Ware on July 29,1991. His impression was that Ms. Shahine suffered nerve damage to the ulnar nerve of the right arm, probably secondary to pressure damage. Plaintiff contends that during the first surgery on September 21, 1990, she suffered permanent damage to the ulnar nerve in her right arm while she was under anesthesia.

The matter was presented to a Medical Review Panel pursuant to LSA-R.S. 40:1299.39 et seq., composed of Dr. Wade Allain, Dr. Robert E. Haley and Dr. Felix K. Prakasam. The panel rendered its opinion on May 7, 1992, and unanimously held that the evidence did not support the conclusion that the defendants failed to meet the applicable standard of care as charged in the complaint.

Plaintiff subsequently filed suit on June 23, 1992 naming as defendants, Louisiana State University Medical Center in Shreveport ("LSUMC") and Dr. Waterman, who cared for Ms. Shahine during the September 21, 1990 surgery. The Board of Supervisors of Louisiana State University Agricultural and Mechanical College ("Board") answered the plaintiff's petition for LSUMC as the proper party defendant.

Following a two-day bench trial, the trial judge rendered judgment and the reasons thereof from the bench on August 25, 1995. He found that the plaintiff could not prevail even when given the inference of negligence raised by the application of the doctrine of res ipsa loquitur, because the contemporaneously documented medical record showed that the defendant and medical staff had taken every precaution to prevent the injury sustained by the plaintiff. Additionally, the record supported the conclusion that this particular type of injury is not unheard of as a complication from surgery in patients such as the plaintiff who may be unsymptomatically predisposed to it, even where proper precautions and procedures are followed.

In the recent case, Robertson v. Hospital Corp. of America, 26,694 (La.App. 2d Cir. 4/5/95), 653 So.2d 1265, we discussed at length the nature of the injury to the ulnar nerve which can occur to the anesthetized patient during surgery. While we will discuss this prior ruling below, we note that the expert testimony in this case similarly described the risk in much the same detail as set forth in Robertson.

Plaintiff now appeals alleging two assignments of error, which summarized, state that the trial court erred in failing to apply the doctrine of res ipsa loquitur in finding that the plaintiff did not establish that the defendants breached the standard of care in light of the "uncontradicted" and "greatly preponderant objectively-corroborated" testimony.

Applicable law for medical malpractice

The plaintiff's burden of proof in a medical malpractice action against a physician is found in La. R.S. 9:2794(A), which provides:

`A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 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, optometrists, 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 *1355 suffered injuries that would not otherwise have been incurred."

In Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1276 (La.1991), the Supreme Court outlined the burden of proof and appellate standard of review in such cases as follows:

"In a medical malpractice action against a physician, the plaintiff carries a two-fold burden of proof. The plaintiff must first establish by a preponderance of the evidence that the doctor's treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained. LSA-R.S. 9:2794; Smith v. State through DHHR, 523 So.2d 815, 819 (La.1988); Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 723 (La.1986). Resolution of each of these inquires are determinations of fact which should not be reversed on appeal absent manifest error. Housley v. Cerise, 579 So.2d 973 (La.1991); Smith, 523 So.2d at 822; Rosell v. ESCO, 549 So.2d 840 (La.1989); Hastings, 498 So.2d at 720."
"[I]f 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." Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). "We have instructed the appellate courts that where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Rosell v. ESCO, 549 So.2d at 844; Housley, supra.

When the expert opinions contradict concerning compliance with the applicable standard of care, the trial court's conclusions on this issue will be granted great deference. It is the sole province of the factfinder to evaluate the credibility of such experts and their testimony. Arceneaux, supra

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Bluebook (online)
680 So. 2d 1352, 1996 WL 547991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shahine-v-state-univ-med-center-lactapp-1996.