Slack v. Fleet

242 So. 2d 650
CourtLouisiana Court of Appeal
DecidedDecember 21, 1970
Docket8140
StatusPublished
Cited by2 cases

This text of 242 So. 2d 650 (Slack v. Fleet) 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
Slack v. Fleet, 242 So. 2d 650 (La. Ct. App. 1970).

Opinion

242 So.2d 650 (1970)

John L. SLACK et ux.
v.
Dr. A. K. FLEET et al.

No. 8140.

Court of Appeal of Louisiana, First Circuit.

December 21, 1970.

*651 F. Louis Gonzales, Joel B. Dickinson, Baton Rouge, for appellants.

Louis G. Baine, Jr., of Seale, Smith, Baine & Phelps, Baton Rouge, for appellees.

Before LANDRY, ELLIS and BLANCHE, JJ.

BLANCHE, Judge.

This is an appeal by plaintiffs, John L. Slack and his wife, Regina Slack, from a judgment dismissing their malpractice suit against Dr. A. K. Fleet and his liability insurer, The St. Paul Fire and Marine Insurance Company. For the reasons set forth herein, we affirm the judgment in favor of defendants.

The record shows that Mrs. Slack consulted Dr. Fleet on Saturday, August 26, 1967, with complaints of pain and cramping in the stomach, nausea, vomiting and nervousness. Following physical examination Dr. Fleet made a diagnosis of acute cholecystitis with liver manifestations, possible gastric ulcer, hypertension and extreme nervousness. Dr. Fleet prescribed six drugs to be taken by the plaintiff; namely, (1) Liquid Estomul, (2) Elixir Donnatal, (3) Elixir Butisol Sodium,[1] (4) Phenaphen with Codeine, (5) Enarax and (6) Probanthine with Phenobarbital. Mrs. Slack commenced taking the drugs and by Monday, August 28, 1967, she testified she experienced dizzy spells and a skin rash. Mrs. Slack testified that she personally telephoned Dr. Fleet, described her symptoms, and was advised by the doctor to continue the medication. Dr. Fleet, conversely, testified that a female other than Mrs. Slack telephoned him on Monday, related the symptoms being experienced by Mrs. Slack, whereupon the doctor advised the caller to instruct Mrs. Slack to discontinue taking all the prescribed drugs and instead drink some baking soda water two to three times that day. Dr. Fleet further testified he advised the caller to see that the patient's condition was reported to him within the next day or two. Mrs. Slack testified her symptoms persisted and on Wednesday, August 30, 1967, she had her daughter call Dr. Fleet. Plaintiff's daughter, Carol Bennett, testified she called Dr. Fleet, related to him that the rash was more severe and was spreading over her mother's body, whereupon she testified Dr. Fleet asked her to call out the prescription numbers and the drug store where they were filled, and upon her complying with this alleged request, she testified Dr. Fleet ordered that Mrs. Slack discontinue use of only one of the prescribed drugs. Dr. Fleet, on the contrary, testified that an unidentified female caller other than his patient telephoned him on August 30, 1967, advising him of the continuation of the rash, whereupon he inquired whether Mrs. Slack had stopped taking the prescribed drugs, to which inquiry he received an affirmative *652 answer. Dr. Fleet testified at this point he prescribed two antihistamines for the reported skin rash. Mrs. Slack and her daughter testified that because of the persistence of the condition, the daughter again called Dr. Fleet on Sunday, September 3, 1967, as a result of which telephone call Dr. Fleet agreed to and did, in fact, see Mrs. Slack at his office. Dr. Fleet testified that he received the third telephone call from an unidentified female other than Mrs. Slack on Saturday, September 2, 1967, advising him that the rash had spread, whereupon he informed the caller to have Mrs. Slack come to his office that afternoon or Sunday. Dr. Fleet testified he examined the patient on Sunday, September 3, 1967, at his office, and as a result of this examination he arranged for Mrs. Slack to be examined and treated by Dr. Henry W. Jolly, Jr., a Baton Rouge dermatologist.

The trial court summarized the expert testimony offered in the case and gave its reasons for dismissing the suit as follows:

"No medical testimony was offered by the plaintiff, Regina Slack, which is understandable and is true in most malpractice suits because of the reluctance of the medical profession to acknowledge errors of their fellows. Nonetheless, the absence of any affirmative proof on this point must be noted because it contrasts with the supporting testimony furnished by the defendant in affirmation of the treatment rendered by him in the case. Dr. Bruce Baer, an outstanding specialist in internal medicine in the City of Baton Rouge, stated that the diagnosis and treatment furnished by Dr. Fleet was within the standard of care required for a general practitioner to treat these complaints. He further stated the medications prescribed by the doctor are commonly used by practicing physicians in the community and it would be reasonable to prescribe these for the patient's complaints. While he said he may not have prescribed all of the same medicines in an identical case, he could not fault Dr. Fleet for prescribing the five medicines at the same time. In conclusion, Dr. Baer said his common practice was to inquire regarding the patient's sensitivity prior to treatment, but aside from this precaution, neither he nor any other physician administers any test to determine whether a patient was in fact sensitive to such drugs.
"Dr. Vance Byars testified on behalf of the defendant. He said Dr. Fleet's diagnosis and treatment were the same as he would have made under the circumstances. He stated emphatically that there was no fault with the program of treatment prescribed by Dr. Fleet in this case.
"Despite the plaintiff's disagreement with the `locality rule,' the law relative to this case is well established in the Louisiana jurisprudence. As stated by the Supreme Court in the leading case of Meyer v. St. Paul-Mercury Indemnity Company, 225 La. 618, 73 So.2d 781 (1954):
`A physician, surgeon or dentist, according to the jurisprudence of this court and of the Louisiana Courts of Appeal, is not required to exercise the highest degree of skill and care possible. As a general rule it is his duty to exercise the degree of skill ordinarily employed under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment in the application of his skill to the case.'
"The medical evidence presented in this case reflects no deviation or departure by the treating physician in his initial treatment from the standard of care followed by other physicians in the community under the circumstances described. The only other question involves a question of proof as to whether Dr. Fleet failed to discontinue the use of the medicines after their apparent adverse effect on his patient had been *653 brought to his attention. The plaintiff and her daughter testified that the doctor only recommended discontinuing the use of one drug, whereas his testimony was directly in opposition. On this point the Court is of the opinion that the greater weight should be accorded to the recorded history of treatment evidenced by the doctor's medical records.
"Plaintiff's counsel in a superb brief makes out a good theoretical case for malpractice by the doctor, but the evidence fails to show that he has carried the burden of proof required in order that the plaintiffs should prevail." (Reasons for Judgment, Record, pp. 54-56)

Counsel for plaintiffs contends that the trial court erred in applying the so-called "locality rule" and in not holding that Dr. Fleet was negligent in prescribing the six drugs to be taken simultaneously by the plaintiff when each of the drugs had a potential side effect of skin rash.

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Bluebook (online)
242 So. 2d 650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slack-v-fleet-lactapp-1970.