Simar v. Hartford Fire Insurance Co.

483 So. 2d 196, 1986 La. App. LEXIS 6051
CourtLouisiana Court of Appeal
DecidedFebruary 5, 1986
DocketNo. 84-995
StatusPublished
Cited by3 cases

This text of 483 So. 2d 196 (Simar v. Hartford Fire Insurance Co.) 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
Simar v. Hartford Fire Insurance Co., 483 So. 2d 196, 1986 La. App. LEXIS 6051 (La. Ct. App. 1986).

Opinion

FORET, Judge.

This is a medical malpractice suit brought by plaintiff, Charles W. Simar1 against defendant, Dr. Robert J. Rivet and his professional liability insurer, the Hartford Insurance Group. The alleged malpractice involves the medical care rendered for the treatment of a worker’s compensation claim. Travelers Insurance Company, the worker’s compensation insurer, intervened for worker’s compensation benefits paid to the plaintiff because of alleged extension and compounding of his disability by malpractice of the treating surgeon.

Following trial on the merits, a split2 jury found that Dr. Rivet was not negligent. The plaintiff has appealed this decision, alleging several specifications of error. The issues before us for review are:

1. Did Dr. Rivet’s conduct fall below the standard of care of neurosurgeons in 1975?
2. Was there a lack of informed consent on the part of the plaintiff?
3. Did the trial court abuse its discretion in failing to grant the motion for a new trial or for judgment notwithstanding the verdict?
4. Did the trial court err in refusing to give a res ipsa charge to the jury?

FACTS

Charles W. Simar was injured in an accident which occurred on December 24,1974. Consequently, he experienced weakness of the arms and legs, and footdrop, rendering walking a painful and difficult experience. Plaintiff continued to work for four or five weeks after this injury until he was referred to Dr. Robert Martinez, a Lafayette area neurologist, on February 4,1975. Dr. Martinez thoroughly examined the plaintiff and found that he had spasticity in the lower extremities, bowel and bladder problems, and cervical injury between the C-5 and C-7 levels. Dr. Martinez confined [198]*198plaintiff to a hospital for testing and then referred him to defendant, Dr. Robert J. Rivet, for a cervical laminectomy. Plaintiff was scheduled for surgery in February 1975. Unfortunately, a few days after surgery, plaintiff was rendered quadriplegic.

Charles W. Simar suffered from a pre-ex-isting condition as a result of an accident which occurred in 1960. The 1960 accident caused a scarring or cystic enlargement in the spinal cord in the C-6 through C-7 levels. Because the spinal cord was enlarged, special precautions were taken during surgery to prevent flexion and/or extension of plaintiff’s neck. These measures were taken in order to prevent further compression of the spinal cord to avoid compromising the blood supply to the cord with probable quadriplegia.

Plaintiff has complained of the following surgical errors which he alleges constitute malpractice:

1. Selection of improper surgical position.
2. Allowing blood pressure to drop during surgery.
3. Unreasonable flexion of the spine during surgery.
4. Unnecessary handling of the spinal cord.
5. Failure to obtain informed consent.
6. Lack of surgical care.
7. Failure to properly diagnose and handle plaintiff.
8. Failure to provide proper postsurgical care.'

The record reveals that plaintiff was operated on while he was in an upright position — the upright position is now considered to be the most dangerous of three available positions, unless the vertebral column is maintained in a “neutral” position during surgery. According to Yeoman’s Neurosurgical Handbook, 1982 edition, the neutral position maintains a maximum neck flexion of 20°. Plaintiff contends that his head was screwed into the surgical Gardner chair at a 45° angle, which is more than twice the acceptable level of neck flexion. Experts for plaintiff testified that only five or six minutes in such a position would compress the spine and interrupt blood flow with resultant quadriplegia. In addition, he alleges that two dorsal roots which were cut during the surgery, so that Dr. Rivet could reach the dentate ligament, interrupted the blood supply to the cord.

Defendants’ experts testified that the neck was not in flexion according to photographs and x-rays taken during the surgery, and the nerve roots were splayed downward due to scarring and not due to cutting. These experts additionally testified that cutting the nerve roots had no effect on the interruption of the blood supply to the spinal cord since no major blood vessels had been cut.

One of the factual issues at trial was whether or not the cutting of the dorsal roots would interrupt blood supply. Predictably, the answer to this question came down to a battle of the experts. Apparently the jury was persuaded by defendants’ experts as opposed to plaintiff’s. A legal issue was whether or not the cutting of the two dorsal nerve roots breached the standard of care of neurosurgery for practicing neurosurgeons in 1975. According to several of the experts who testified at trial on behalf of defendants, Dr. Rivet was well within the standard of care for neurosurgeons practicing in 1975. Any reasonable inferences made by the jury as a result of testimony and evidence presented at trial should not be disturbed on appellate review. Ewing and Salter, Inc. v. Gafner Automotive & Machine, Inc., 392 So.2d 762 (La.App. 3 Cir.1980), writ ref. 396 So.2d 933 (La. 1981).

MOTION FOR NEW TRIAL

The jury rendered a verdict on December 16,1982, the judgment was signed on January 13, 1983 and amended on February 17, 1983. On December 23, 1982, plaintiff had filed a motion for a new trial and/or a judgment notwithstanding the verdict, based on the grounds that one juror had a conflict of interest which had not been revealed until after trial and that plaintiff [199]*199had discovered evidence since trial which was unobtainable before or during trial with due diligence. Simar died on February 6, 1983. Hearing on the motion for new trial took place on October 7,1983, and the motion was denied on February 14, 1984. On February 15, 1984, plaintiff filed a second devolutive appeal3.

Dr. George McCormick, a forensic pathologist, performed an autopsy on March 7, 1983. Evidence taken from the autopsy was introduced on October 7, 1983. The court was of the opinion that the new evidence did not present anything novel on the question of whether or not Dr. Rivet’s surgical procedure fell below the standard of care required of him, and denied the motion.

In order to mandate a new trial, newly discovered evidence must meet all of the tests mentioned in LSA-C.C.P. Art. 1972: the newly discovered evidence is not cumulative, would tend to change the result of the case, and which the party could not have known or could not have discovered before or during the trial with due diligence. It is obvious that the new evidence must create new issues or develop new facts which would suggest a change in the result of the case. Barker v. Rust Engineering Co., 428 So.2d 391 (La.1983); Chauvin v. Chauvin, 297 So.2d 234 (La.App. 3 Cir.1974); Strobel v. Schlegel, 145 So.2d 664 (La.App. 4 Cir.1962), cert. denied Dec. 10, 1962 (unable to find citation).

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Related

Young v. Colligan
560 So. 2d 843 (Louisiana Court of Appeal, 1990)
Green v. Dupre
520 So. 2d 761 (Louisiana Court of Appeal, 1988)
Simar v. Hartford Fire Insurance Co.
485 So. 2d 65 (Supreme Court of Louisiana, 1986)

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Bluebook (online)
483 So. 2d 196, 1986 La. App. LEXIS 6051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simar-v-hartford-fire-insurance-co-lactapp-1986.