Wainwright v. Leary

623 So. 2d 233, 1993 WL 311949
CourtLouisiana Court of Appeal
DecidedAugust 18, 1993
Docket25036-CA
StatusPublished
Cited by5 cases

This text of 623 So. 2d 233 (Wainwright v. Leary) 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
Wainwright v. Leary, 623 So. 2d 233, 1993 WL 311949 (La. Ct. App. 1993).

Opinion

623 So.2d 233 (1993)

Wayne WAINWRIGHT, Plaintiff-Appellant,
v.
Marshall L. LEARY, M.D. and Lammico Insurance Company, Defendants-Appellees.

No. 25036-CA.

Court of Appeal of Louisiana, Second Circuit.

August 18, 1993.

*234 Bruscato & Loomis by Albert E. Loomis, III, Monroe, for plaintiff-appellant.

Hudson, Potts & Bernstein by Gordon L. James, Brady D. King, II, Monroe, for defendants-appellees.

Before MARVIN, SEXTON and STEWART, JJ.

STEWART, Judge.

Plaintiff, Wayne Wainwright, filed a medical malpractice and wrongful death/survivorship action against Dr. Marshall Leary and his insurer, LAMMICO, because Wainwright's wife died from a reaction to medicine which Dr. Leary had prescribed. A 12-person jury found in favor of defendant, Dr. Leary. Wainwright appeals the jury verdict, asserting that it is contrary to the evidence and that the trial court erred in disallowing the testimony of one expert witness. We affirm.

FACTS

Patty Wainwright developed "essential thrombocythemia", a blood disorder in which megakarocytes, a type of bone marrow cell, produce dangerously high levels of platelets. Platelets, white blood cells, and red blood cells are all blood components which are produced in the bone marrow. The platelets are useful in blood clotting and thus in keeping blood from seeping into the body's tissues. Essential thrombocythemia is not curable. Half of those who have this blood disorder die before the end of a ten-year period, and half die after a ten-year period. Patty was diagnosed with this disease as early as May 16, 1983.

Dr. Marshall Leary treated Patty Wainwright for this disorder. On June 20 or 21, Dr. Leary prescribed Busulfan, also known as Myleran. As a result of the Busulfan, less than three months later the death of Patty Wainwright's bone marrow was confirmed. Her bone marrow no longer produced any platelets or white blood cells. In mid-October, she was hospitalized. She died on December 10, 1983 in St. Francis Hospital.

Wayne Wainwright filed suit against Dr. Marshall Leary. His petition for wrongful death and survival action damages alleges that Dr. Leary negligently administered Myleran, also known as Busulfan, to Patty Wainwright. Specifically, Wainwright alleges that Dr. Leary prescribed dosages in excess of those normally prescribed; failed to notify Patty Wainwright of his August 1, 1983 decision that she discontinue use of the Busulfan; and failed to properly monitor and supervise her use of the drug, and to disclose the extreme risks associated with this drug.

After trial, a 12-person jury rendered a verdict in favor of Dr. Leary and against Wainwright. In conformity with the jury verdict, the trial court rendered judgment in favor of defendants, Dr. Leary and his insurer, and dismissed Wainwright's claims against them. Wainwright appeals.

*235 DISCUSSION

Plaintiff-appellant, Wayne Wainwright, asserts that Dr. Leary ignored all known scientific properties of Busulfan and administered it such that it killed Patty Wainwright's bone marrow. Because Dr. Leary frequently changed the dosage of Busulfan/Myleran, he had no opportunity to stop administration of the drug before the platelet count entered the normal range. This, appellant contends, constituted medical malpractice and renders Dr. Leary liable to Wayne Wainwright for damages due to Patty Wainwright's suffering and death.

Defendant-appellees, Dr. Leary and his insurer, contend that Patty's death was due to known side effects of a very potent drug which had to be administered in order to combat her life threatening blood disorder. Appellees contend that Patty died from an idiosyncratic reaction to Busulfan—i.e., a reaction which occurs in some patients but which is not easily predicted.

Legal Principles

1. General

In a medical malpractice action, the plaintiff must establish by a preponderance of the evidence: (1) that the doctor's treatment fell below the ordinary standard of care expected of a physician in his medical specialty, and (2) the existence of a causal relationship between the alleged negligent treatment and the injury sustained. LSA-R.S. 9:2794; Martin v. East Jefferson General Hosp., 582 So.2d 1272 (La.1991); Smith v. State through DHHR, 523 So.2d 815, 819 (La.1988); Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 723 (La.1987). Resolution of each of these involves a determination of fact which should not be reversed on appeal absent manifest error. Housley v. Cerise, 579 So.2d 973 (La.1991); Smith, supra at 822; Rosell v. ESCO, 549 So.2d 840 (La.1989); Martin, supra.

In Stobart v. State DOTD, 617 So.2d 880, 882 (La.1993), the Louisiana Supreme Court observed that

A court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840 (La.1989). This court has announced a two-part test for the reversal of a fact-finder's determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact-finder's conclusion was a reasonable one.

(Citations omitted and emphasis ours.)

The parties agree that the Busulfan killed Patty's bone marrow and resulted in her death. Thus, at issue is whether the manner in which Dr. Leary administered the Busulfan (1) fell below the applicable standard of care and (2) caused the damages for which Mr. Wainwright seeks relief.

2. Standard of Care

The physician's conduct is evaluated in terms of reasonableness under the circumstances existing when his professional judgment is exercised. The physician will neither be held to a standard of perfection nor evaluated with benefit of hindsight. Opinions from medical experts are necessary to determine both the applicable standard of care, and whether that standard was breached. It is for the trier of fact to evaluate conflicting expert opinions in relation to all the circumstances of the case. Roland v. Tedesco, 616 So.2d 780 (La.App. 2d Cir.1993); Gibson v. Bossier City General Hospital, 594 So.2d 1332 (La.App. 2d Cir.1991); Stein v. Insurance Corp. of America, 566 So.2d 1114 *236 (La.App. 2d Cir.1990), writ denied, 569 So.2d 984 (La.1990); Maxwell v. Soileau, 561 So.2d 1378 (La.App. 2d Cir.1990), writ denied, 567 So.2d 1123 (La.1990).

Where there are contradictory expert opinions concerning compliance with the applicable standard of care, the reviewing court will give great deference to the conclusions of the trier of facts. Bolton v. Louisiana State University Medical Center, 601 So.2d 677 (La.App. 2d Cir.1992); Roland v. Tedesco, supra.

3. Causal Relationship

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Bluebook (online)
623 So. 2d 233, 1993 WL 311949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wainwright-v-leary-lactapp-1993.