Torbert v. Licciardi

673 So. 2d 1213, 94 La.App. 4 Cir. 2026, 1996 La. App. LEXIS 706, 1996 WL 203554
CourtLouisiana Court of Appeal
DecidedApril 24, 1996
DocketNo. 94-CA-2026
StatusPublished
Cited by3 cases

This text of 673 So. 2d 1213 (Torbert v. Licciardi) 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
Torbert v. Licciardi, 673 So. 2d 1213, 94 La.App. 4 Cir. 2026, 1996 La. App. LEXIS 706, 1996 WL 203554 (La. Ct. App. 1996).

Opinions

11 MURRAY, Judge.

This is an appeal by Dr. Joseph Licciardi, Jr. and his liability insurer from an adverse jury verdict and judgment awarding $67,-000.00 in damages to Amanda and Laura Torbert in a medical malpractice action. The Torberts answered the appeal seeking an increase in the damage awards.

The defendant doctor argues that the patient, Amanda Torbert, and her mother, Laura Torbert (who sued for loss of consortium), failed to prove that he deviated below the acceptable standard of care because there was no medical testimony to that effect.

The facts giving rise to these claims are not in dispute. Amanda Torbert was thirteen years old when she broke her arm while riding a bicycle on July 10, 1985.1 On her [1214]*1214pediatrician’s recommendation, Mrs. Torbert took Amanda to Southern Baptist Hospital to be seen and treated by Dr. Joseph Licciardi, Jr. Xjrays2 of the injured arm showed that both the radius and ulna were broken. After aligning the broken bones, Dr. Licciardi applied a plaster cast. X-rays taken after the cast was applied showed acceptable alignment. Amanda was given pain medication, and she and her mother were instructed on caring for the arm: there was to be no horseplay and the cast was not to get wet.

Amanda was again seen by the defendant nine days later, on July 19, 1985. X-rays taken on that visit showed that the bones had not moved. Amanda and Mrs. Torbert testified that they thought the cast looked loose and asked the doctor whether he was going to replace it. Dr. Licciardi examined the cast and advised that since it was satisfactory he was not going to change it.

On July 31, 1985, twelve days later, and twenty-one days after Amanda’s arm was broken and put in a cast, she again was seen by the defendant. X-rays taken on that date showed that the fracture had angulated five to ten degrees. Once again, Amanda and Mrs. Torbert questioned the doctor about changing the cast because it was loose. Once again, the doctor examined the cast, pronounced it satisfactory, and advised that he was not going to change it.

At this visit, Dr. Licciardi told Mrs. Tor-bert that Amanda should return for a followup visit in two weeks. However, when Mrs. Torbert was scheduling the next visit at the appointment desk she asked if Amanda could return in three weeks, instead of two, because the family planned to be on vacation at Astroworld in Houston in two weeks. She also asked if the doctor should be consulted about this request. She was told that it would be alright to schedule the return visit in three weeks, and that it was not necessary to consult the doctor.

The plaintiffs testified that Amanda Tor-bert did not go on any of the rides or engage in any rough activity while at Astroworld. She went in the hotel | ¾swimming pool but wrapped her injured arm in a large plastic bag to keep the cast dry.

On August 21, 1985, three weeks after the previous doctor visit, and six weeks after her arm was broken and put into a cast, Amanda Torbert returned to see Dr. Licciardi and he removed the cast. It was immediately apparent that the broken bones were now an-gulated fifteen to twenty degrees so that Amanda’s forearm was deformed.

Dr. Licciardi advised Amanda and her mother that it was possible that the forearm would straighten out on its own. That is, the bones might get into proper alignment without any treatment. He also advised them that surgery might be necessary to restore the bones to proper alignment.

Mrs. Torbert consulted Dr. Ray Haddad, a board-certified orthopedic surgeon, who operated on Amanda’s arm. The surgery, which was done under general anesthesia, required making one incision on the top of the forearm and another on the bottom, and attaching two small metal plates to the broken bones with several metal screws. Later, after the arm had healed, Dr. Haddad operated on Amanda a second time, on an outpatient basis, to remove the plates and screws.

The plaintiffs brought suit against Dr. Lic-ciardi. The matter was referred to a medical review panel comprised of three board-certified orthopedic surgeons who reviewed the medical records, x-rays, and Dr. Licciardi’s position paper. The panel members determined that the doctor had not deviated below the standard of care and that his conduct was not a factor in any damages suffered by Amanda Torbert.

pThe case eventually was tried to a jury, which found that Dr. Licciardi had breached the standard of care and that his negligence proximately caused the injury to Amanda. The jury awarded $65,000.00 in unspecified damages to Amanda Torbert and $2,000.00 damages to Mrs. Torbert for her loss of consortium. This appeal followed.

STANDARD OF CARE:

The defendants argue that the plaintiff in a medical malpractice case has the burden of producing expert testimony to show that the defendant doctor violated the standard of care. Since no expert testified that Dr. Lie-[1215]*1215eiardi deviated from the standard of care, they contend that the plaintiffs have not borne their burden of proof. The plaintiffs respond that it is not always necessary for the plaintiff in a medical malpractice action to produce such expert testimony. The Supreme Court clarified this point in Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, p. 9-10 (La. 10-17-94), 643 So.2d 1228,1234:

We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794’s requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care and there is objective evidence, including the testimony of the defendant/physieian, which demonstrates a breach thereof.

While the defendant is correct that no expert specifically testified that “this is the standard of care, and Dr. Liceiardi’s deviation from that standard caused Amanda Tor-bert harm,” there was ample testimony from all the experts to [sestablish the standard of care, and evidence from which the jury reasonably could conclude that Dr. Lieeiardi breached that standard.

The plaintiffs presented the testimony of Dr. Raul Reyes, a board-certified general surgeon with certain training and. experience in orthopedics2, as well as the deposition testimony of Dr. Haddad, who had passed away by the time of trial.

The defense presented the testimony of Dr. Stuart Phillips and the deposition testimony of Dr. Harold M. Stokes, two members of the medical review panel.3 Dr. Lieeiardi, who is a board-certified orthopedic surgeon, and the only doctor who actually saw the cast on Amanda, also testified in his own behalf.

All of the various doctors, including the defendant, were in agreement on many points. All agreed that a primary purpose of a cast in a fracture of this type (fracture of both the radius and ulna) is to immobilize the broken bones in a position of acceptable alignment while the arm heals. All agreed that this type of fracture is highly unstable, and misalignment is a common complication.

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Bluebook (online)
673 So. 2d 1213, 94 La.App. 4 Cir. 2026, 1996 La. App. LEXIS 706, 1996 WL 203554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/torbert-v-licciardi-lactapp-1996.