Ware v. Medical Protective Ins. Co.

621 So. 2d 54, 1993 La. App. LEXIS 2434, 1993 WL 216899
CourtLouisiana Court of Appeal
DecidedJune 23, 1993
Docket24875-CA
StatusPublished
Cited by9 cases

This text of 621 So. 2d 54 (Ware v. Medical Protective Ins. 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
Ware v. Medical Protective Ins. Co., 621 So. 2d 54, 1993 La. App. LEXIS 2434, 1993 WL 216899 (La. Ct. App. 1993).

Opinion

621 So.2d 54 (1993)

Mary Ann WARE, Plaintiff-Appellant,
v.
MEDICAL PROTECTIVE INSURANCE COMPANY, et al., Defendants-Appellees.

No. 24875-CA.

Court of Appeal of Louisiana, Second Circuit.

June 23, 1993.

*55 Nelson & Hammons by John L. Hammons, Shreveport, for plaintiff.

Blanchard, Walker, O'Quin & Roberts by Lawrence W. Pettiette, Jr., A.M. Stroud, III and Edwin H. Byrd, III, Shreveport, Juneau, Judice, Hill & Adley by Marc W. Judice, Lafayette, for defendants.

Before MARVIN, HIGHTOWER and BROWN, JJ.

HIGHTOWER, Judge.

In this wrongful death/dental malpractice action, a surviving wife appeals from a *56 judgment rejecting her demands against an endodontist and his insurer, pursuant to unanimous jury verdict. For the reasons that follow, we affirm.

BACKGROUND

After experiencing a toothache for two days, Billy Gene Ware, age 49, sought treatment from Dr. Perry Hollembeak, a general dentist, on November 18, 1987. X-rays showed a suspected abscess near the root of the upper left lateral incisor. After consulting the dentist who previously performed a root canal procedure on the same tooth in another city, Dr. Hollembeak made arrangements for Ware to see an endodontist, Dr. Paul Wood, and also prescribed Tylenol 3 (containing acetaminophen) for the pain.

Ware saw the endodontist on the morning of November 20, 1987, still complaining of severe pain in the area of the abovementioned tooth. Dr. Wood did not obtain a blood pressure reading, but the patient informed him, consistent with a previously completed questionnaire, of his medically controlled hypertensive condition. After discussing other treatment options, the dental specialist performed a retrofil procedure, the placement of a filling in the root tip in order to prevent future infection. During that process, the endodontist administered, at most, 85 micrograms of epinephrine, along with a local anesthetic.

Plaintiff accompanied her husband on the date in question. According to her, upon completion of the procedure, he appeared "shaky," "gray[ish]" in the face, and sweaty. Additionally, she recalled that he could not ambulate without assistance, and that she had to open the door as they exited the dentist's office. She further indicated that her spouse experienced chills both while in route home and later when he sought bedrest, and that his condition worsened during the afternoon.

Gay Hooper, the dental assistant who aided during the procedure, and two other employees of the office testified for the defense. Contrary to plaintiff's description of her husband, all three of these individuals remembered Ware being alert and able to walk unassisted immediately after the treatment. Hooper observed neither an ashen appearance nor any other adverse reaction to the medication administered during the procedure; one of the other two witnesses stated that the patient opened the door for his wife in departing the building. Nor, as Ware postoperatively traversed the hallway toward the front desk, did Dr. Wood detect any of the symptoms described by plaintiff.

Unfortunately, around 3:00 p.m., Ware suffered convulsions. Emergency paramedics, and later physicians at Riverside Community Hospital, attempted to save his life but, at about 5:00 p.m., he died.

An autopsy by the parish coroner, Dr. George McCormick, showed the cause of death to be "acute cardiorespiratory failure," most logically attributable to a history of hypertension. That document further stated, "It would be attractive to try to tie [the] dental surgery to his death, but the evidence for that was not present." Notwithstanding these declarations, approximately two and one-half years later, the physician supplemented the earlier certificate to then report that death had been "caused by an overdose of epinephrine, complicated by methemoglobinemia caused by an interaction between acetaminophen [Mr. Ware] was taking, and Prilocaine given to him during the dental procedure." During trial, in yet a third conclusion, the coroner would fully subscribe to his second report but also opine, for the first time, that a heart attack caused the death.

Plaintiff instituted suit, in the district court, against Dr. Paul Wood and his malpractice insurer on March 7, 1991. Following a seven-day trial, jurors responded negatively to the special verdict query, "Did the defendant, Dr. Paul L. Wood, provide substandard care as an endodontist in his treatment of Billy Gene Ware?" This appeal ensued, after the signing of judgment.

ADMISSIBILITY OF TESTIMONY

In the first presented issue, concerning the trial court's refusal to exclude the testimony of Dr. Henry Handley, plaintiff argues surprise and unfairness in that the *57 cardiologist had not been listed in responses to initial or supplemental interrogatories, or on the pretrial order. In brief, defendants assert that the unavailability of a previously-listed cardiologist, Dr. Herbert Master, prompted their request to substitute experts on the first day of trial.

The trial judge, of course, is granted broad discretion in conducting a trial and in determining whether to receive or refuse testimony. Curry v. Johnson, 590 So.2d 1213 (La.App. 1st Cir.1991). Likewise, in implementing a pretrial order pursuant to LSA-C.C.P. Art. 1551, the lower court has much discretion to allow modifications that prevent substantial injustice. Gilcrease v. Gilcrease, 438 So.2d 658 (La. App. 2d Cir.1983), writ denied, 442 So.2d 461 (La.1983); Zanca v. Exhibition Contractors Co., 614 So.2d 325 (La.App. 4th Cir.1993); Curry, supra; Reese v. Griffith, 568 So.2d 1146 (La.App. 5th Cir.1990).

True enough, Dr. Handley is not named as a potential witness in the abovementioned documents. However, as reflected by the record, defendants amended their witness list almost two months in advance of trial to include the cardiologist, Dr. Master. Later, the pretrial order also incorporated his name as a defense witness, that document actually having been filed by counsel for plaintiff.

Even so, plaintiff's counsel chose not to depose Dr. Master, though in subsequent appellate oral argument admitting an awareness of the listed cardiologist long before trial. Hence, such a deposition not having been secured, the trial court apparently concluded that prejudice would not likely result from the requested substitution of experts. We also note that more than a week elapsed from the beginning of trial until Dr. Handley actually testified, with a weekend recess intervening. Yet, as later acknowledged, counsel for plaintiff again made no effort to depose the expert, nor moved for a continuance.

Given this sequence of events, we fail to perceive any abuse of discretion in allowing the cardiologist to testify.

INSTRUCTIONS TO JURY

Next, in assailing the rejection of a proposed special jury charge, plaintiff basically contends the trial judge should have enunciated that a negligent local standard of care cannot shield a healthcare provider from liability. As authority for such an instruction, appellant cites Favalora v. Aetna Cas. & Surety Co., 144 So.2d 544 (La.App. 1st Cir.1962). In that case, after discussing the then-controlling locality rule (that a physician or dentist would be held to that degree of care observed by other practitioners in the defendant's locality), the court concluded that such a local standard would not avert liability if shown to constitute negligence.

However, by later enacting Act 807 of 1975, which became LSA-R.S.

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621 So. 2d 54, 1993 La. App. LEXIS 2434, 1993 WL 216899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ware-v-medical-protective-ins-co-lactapp-1993.