Warren v. Everist

706 So. 2d 593, 1998 WL 18009
CourtLouisiana Court of Appeal
DecidedJanuary 21, 1998
Docket30,187-CA
StatusPublished
Cited by7 cases

This text of 706 So. 2d 593 (Warren v. Everist) 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
Warren v. Everist, 706 So. 2d 593, 1998 WL 18009 (La. Ct. App. 1998).

Opinion

706 So.2d 593 (1998)

Nelda WARREN, Plaintiff-Appellant,
v.
Bruce W. EVERIST, M.D., Defendant-Appellee.

No. 30,187-CA.

Court of Appeal of Louisiana, Second Circuit.

January 21, 1998.

*594 Nelson, Hammons & Self by John L. Hammons, Shreveport, for Plaintiff-Appellant.

Noah, Smith & Newman by Elmer T. Noah, II, Monroe, for Defendant-Appellee.

Before WILLIAMS, STEWART and CARAWAY, JJ.

CARAWAY, Judge.

The plaintiff, Nelda Warren, appeals a jury verdict and judgment dismissing her claim that the defendant pediatrician was negligent in his treatment of the plaintiff's daughter, Jennifer Warren. After five years of intermittent rectal bleeding thought to be caused by benign juvenile polyps, Jennifer, at age sixteen, died as a result of adenocarcinoma, a colon cancer rarely found in children. We find no manifest error of fact or error of law in the record of the proceedings. Accordingly, we affirm.

Facts

On September 11, 1984, Nelda Warren brought her ten-year-old daughter, Jennifer, to Dr. Bruce Everist with a complaint of rectal bleeding and the appearance of blood in her stools for approximately one month. Dr. Everist performed a digital rectal examination as well as a complete physical and other tests. Finding no apparent source of the bleeding, one week later, after the bleeding continued, Dr. Everist referred Jennifer to Dr. William Lumpkin, a general surgeon.

On September 18, 1984, Dr. Lumpkin performed a rectal and proctoscopic examination. Finding nothing, he performed an air contrast barium enema that revealed a probable polyp in the sigmoid colon. He scheduled and performed surgery on Jennifer where he confirmed and removed the colonic polyp with a sigmoidoscope. The polyp was analyzed and determined to be a benign juvenile polyp.

Following her surgery, Jennifer had some additional bleeding complications due to the removal of the polyp and was kept at the hospital overnight. Dr. Lumpkin released Jennifer from his care and told Mrs. Warren that because the polyp was benign, there was no need for concern. He also told her that there could be some additional bleeding even after the polyp was removed, and unless there was serious bleeding or frequent bleeding, there was no reason for alarm. After the removal of the polyp, Jennifer had additional bleeding, but Mrs. Warren was not concerned due to the statements made to her by Dr. Lumpkin.

On August 1, 1985, approximately ten months after the surgery, Jennifer returned to Dr. Everist with a complaint of 103° fever, nausea, vomiting, and diarrhea with bloody stools the night before. She also reported that she had had blood in her stools several times since the operation. Dr. Everist did a complete physical and a rectal examination. He found no blood or polyp within the reach of his digital examination. She had gained 3½ pounds since her last visit. Her hemoglobin was 12.4, indicating that she was not anemic. Finding no blood and no anal fissures, a common cause of rectal bleeding in children due to constipation, Dr. Everist concluded, in addition to a diagnosis of a gastrointestinal virus, that the reported episodic bleeding was probably due to another benign juvenile polyp.

Both Mrs. Warren and Dr. Everist agreed in their testimony at trial that he told her the bleeding should be monitored, and if it became more severe or frequent, she was to let him know. Jennifer was instructed to report all episodes to her and him. Additionally, Dr. Everist also recalled at trial discussing with Mrs. Warren the likelihood that it was a juvenile polyp and further testing was an option. He did not recommend removal of the polyp, however, because polyps often resolve themselves by spontaneous necrosis, that is, they frequently become twisted and the polypal tissue dies, breaks off and is passed out of the body. Mrs. Warren, however, did not recall this additional discussion at trial.

*595 Jennifer did not see Dr. Everist again until September of 1989, some four years later. Mrs. Warren testified that she had called Dr. Everist on several occasions to report that Jennifer had rectal bleeding. Although she was not certain, she estimated the frequency of these calls at three or four times per year. She testified that Dr. Everist would ask several questions when she called, including questions about the color of the blood, the quantity and the frequency of the episodes of rectal bleeding. She said he reassured her that no further examination was warranted. Dr. Everist, and his nurse, Faye Forman, each testified that they did not recall speaking to Mrs. Warren by telephone. Dr. Everist does not have a policy of documenting all phone calls from patients.

After further visits to Dr. Everist and other doctors in 1989 reporting symptoms other than rectal bleeding, Jennifer underwent an operation on January 3, 1990, for what was thought to be a ruptured appendix. The operation revealed advanced adenocarcinoma in the form of a massive tumor on the colon encroaching upon many vital organs and vessels such that total removal was impossible and her chance of survival virtually non-existent. She was put on chemotherapy and narcotics for pain. Jennifer died six months later on June 17, 1990.

A medical review panel consisting of three pediatricians reviewing the plaintiff's claims against the defendant found that Dr. Everist's treatment of Jennifer Warren did not fall below the applicable standard of care. A jury agreed, finding that Dr. Everist was not negligent in his treatment of Jennifer Warren. Plaintiff's motion for JNOV was denied. Plaintiff now appeals both the judgment and the denial of the JNOV.

Discussion

During the trial, the testimony of the various medical experts reviewed the eleventh and twelfth editions of Nelson Textbook of Pediatrics, a highly respected medical treatise for pediatric care. Because of a change in the text in the discussion of juvenile colonic polyps in the twelfth edition published in 1983, the plaintiff argues that the standard of care for the diagnosis and treatment of such polyps changed and, in 1985, required the use of a colonoscopy to visualize the entire length of the colon upon Dr. Everist's diagnosis of a probable polyp. Moreover, plaintiff argues that the description of the standard of care contained in the twelfth edition became a joint stipulation by both parties during the course of the trial. We first address the issue of the stipulation.

Joint Stipulation

Because the language of the two texts of the Nelson treatise (reviewed further below) was the topic of much discussion by the experts, both the plaintiff and the defendant introduced excerpts from the treatise into evidence. Plaintiff now argues that these separate and unobjected to offerings of the text of the twelfth edition by both parties amounted to a joint stipulation that the standard of care described in the twelfth edition of the treatise controls the outcome of this case, citing Aycock v. City of Shreveport, 535 So.2d 1006 (La.App. 2d Cir.1988), writ denied, 536 So.2d 1223 (La.1989) and Comberrel v. Basford, 550 So.2d 1356 (La.App. 5th Cir.1989).

From our review of the expert testimony and the parties' introduction of the text of the pediatrics treatise, we find no joint stipulation of fact. We interpret the use of this treatise at trial as part of the data on which all the experts admittedly relied.

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Bluebook (online)
706 So. 2d 593, 1998 WL 18009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warren-v-everist-lactapp-1998.