Trichel v. Caire

427 So. 2d 1227
CourtLouisiana Court of Appeal
DecidedFebruary 22, 1983
Docket15072-CA
StatusPublished
Cited by5 cases

This text of 427 So. 2d 1227 (Trichel v. Caire) 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
Trichel v. Caire, 427 So. 2d 1227 (La. Ct. App. 1983).

Opinion

427 So.2d 1227 (1983)

Jan TRICHEL, Plaintiff-Appellant,
v.
Dr. Michael CAIRE, et al, Defendants-Appellees.

No. 15072-CA.

Court of Appeal of Louisiana, Second Circuit.

February 22, 1983.
Rehearing Denied April 7, 1983.

*1229 Chris J. Roy, Alexandria, for plaintiff-appellant.

Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Monroe, for defendants-appellees.

Before PRICE, HALL and SEXTON, JJ.

PRICE, Judge.

This is a medical malpractice action against plaintiff's treating physician and one of his partners, their medical partnership, Glenwood Hospital and the medical malpractice insurer. Plaintiff appeals the trial court judgment dismissing her claim, raising the following substantial issues: (1) is the doctrine of res ipsa loquitur applicable to this set of facts? (2) if res ipsa loquitur is not applicable, did plaintiff prove actionable negligence on the part of Dr. Donald, Dr. Caire and/or Glenwood Hospital? (3) if res ipsa loquitur is applicable, did the defendants show an absence of negligence sufficient to negate liability? and (4) what amount of damages will adequately compensate plaintiff for her injuries if defendants are liable therefor?

FACTS

Plaintiff, Mrs. Trichel, entered Glenwood Hospital on July 21, 1978, for delivery of her second child. Her attending physician was Dr. Donald, the general practitioner who had provided her prenatal care. He is a member of the defendant medical partnership, Donald, Caire & Watson, which also includes defendant Caire, an obstetrician-gynecologist (Ob-Gyn). The other partner, Dr. Watson, is a general practitioner and is not an individual defendant herein.

The baby was delivered without incident and Dr. Donald left the hospital a short time later. Then, approximately an hour later, Mrs. Trichel began hemorrhaging severely due to an everted uterus, i.e., one which is turned inside out. Dr. Watson and Dr. Truly, an Ob-Gyn, both of whom happened to be at the hospital at the time, responded to the emergency and attempted unsuccessfully to revert the uterus by manually pushing it back to its original position. Dr. Donald was recalled to the hospital and performed an emergency postpartal hysterectomy with the consent of plaintiff's husband. A day or two later, he went out of town on vacation, leaving Mrs. Trichel in the care of his partner, Dr. Caire. Seven days after the surgery, Dr. Caire ordered the stitches removed, which was three days sooner than Dr. Donald had instructed before leaving. On the day of her anticipated discharge, the wound from the surgery reopened through the several layers of skin and tissue. Plaintiff was rushed to surgery and Dr. Caire performed a second closure. Three days later she was discharged from the hospital.

Although she had undergone a total hysterectomy, i.e., complete removal of the uterus, Mrs. Trichel continued to have light monthly bleeding and it was discovered that part of her cervix, which is the neck of the uterus, and some endometrial cells of the uterus had not been removed. She subsequently developed cervicitis (infection of the cervix) and underwent surgery for removal *1230 of the remainder of the cervix in October, 1981.

Plaintiff brought suit alleging that Dr. Donald was negligent in failing to anticipate poor wound healing, in attempting to perform a surgical procedure beyond his capability, in failing to complete the procedure by removing the cervix, and in removing her Fallopian tubes and an ovary without her consent. She further alleged that Dr. Caire was negligent in premature removal of sutures and Glenwood Hospital was negligent in allowing Dr. Donald to perform surgery beyond his capability and in failing to keep adequate records of her condition.

After trial on the merits, the jury found both Dr. Donald and Dr. Caire were not negligent in their treatment of plaintiff. They also found Glenwood negligent, but its negligence was not a cause of Mrs. Trichel's damage.

In addition to the issues outlined at the beginning of this opinion, plaintiff cites various assignments of error in the conduct of the trial by the lower court and in the charges given to the jury. We pretermit a discussion of these assignments and address only the substantial issues summarized above inasmuch as our review of the record reveals that the judgment rendered is correct.

RES IPSA LOQUITUR

The initial inquiry is whether the trial judge should have instructed the jury to apply the doctrine of res ipsa loquitur. The resolution of this issue determined the burden of proof to be borne by each party.

The plaintiff's burden of proof in a malpractice action is set forth in LSA-R.S. 9:2794, which provides in pertinent part:

"A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq, or a dentist licensed under R.S. 37:751 et seq, the plaintiff shall have the burden or proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists 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 or dentists 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, and
(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.
B. * * *
C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving by a preponderance of the evidence, the negligence of the physician or dentist. The jury shall be further instructed that injury alone does not raise a presumption of the physician's or dentist's negligence. The provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable." (emphasis added).

The application of res ipsa loquitur in malpractice cases was explained by this court in the recent case of Rogers v. Brown, 416 So.2d 624 (La.App. 2d Cir.1982):

"The doctrine of res ipsa loquitur becomes applicable when the circumstances surrounding the incident in question ... are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the injury was due to the negligence of the person ... having control of the thing involved in the injury. In essence, this inference of negligence may be drawn because all of the circumstances surrounding the injury are of such a character *1231 that, unless an explanation can be given, the only fair and reasonable conclusion is that the injury was due to some breach of the defendant's (physician's) duty. See Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (1957); White v. McCool, 395 So.2d 774 (La.1981).

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427 So. 2d 1227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trichel-v-caire-lactapp-1983.