Wells v. Lurate

674 So. 2d 1059, 1996 La. App. LEXIS 844, 1996 WL 229829
CourtLouisiana Court of Appeal
DecidedMay 8, 1996
DocketNo. 28322-CA
StatusPublished
Cited by2 cases

This text of 674 So. 2d 1059 (Wells v. Lurate) 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
Wells v. Lurate, 674 So. 2d 1059, 1996 La. App. LEXIS 844, 1996 WL 229829 (La. Ct. App. 1996).

Opinions

11 WILLIAMS, Judge.

In this medical malpractice action, the plaintiffs, Marvin and Annette Wells, appeal an adverse judgment following a jury trial, rendered in favor of the defendant, Dr. Robert Lurate, finding that he was not negligent in his medical treatment of the plaintiffs’ infant son. For the following reasons, we affirm.

FACTS

The plaintiffs, Marvin and Annette Wells, were the parents of Marvin Wells, Jr., a fourteen-month-old sickle cell anemia patient. As a part of the child’s treatment for the disease, his mother gave him two daily doses of penicillin as prescribed. On the afternoon of November 3, 1990, the child’s mother noticed that he had a fever and gave him tylenol instead of the usual dose of penicillin. The child was reportedly active during the late afternoon. However, after the child awoke from a nap at 7:30 p.m., his mother observed that he was feverish, irritable and his condition was visibly worse. She brought her son to the DeSoto General Hospital emergency room in Mansfield.

The defendant, Dr. Robert Lurate, was the emergency room physician on duty. He took the child’s history and performed a physical examination. The child had a respiration rate of 68 breaths per minute, a temperature of 103.5 degrees Fahrenheit and a pulse rate of 120 beats per minute. The physical examination revealed the presence of diffuse rhonchi in the child’s lungs. Dr. Lurate prescribed intravenous (IV) fluids and supplemental oxygen for the child. He also ordered a chest x-ray and a complete blood count (CBC). After receiving the fluids and oxygen, the child’s condition seemed to improve. His breathing was not labored and he appeared stable to both Dr. Lurate and the attending nurse, Alicia Williams. Dr. Lurate was concerned with the CBC results, which showed a low hemoglobin level of 4.5 and a hematocrit level of 15.5. The normal hemoglobin level for a sickle cell child is 7. Because of these concerns, he then ^contacted the pediatric emergency room at LSU Medical Center (LSUMC) in Shreveport and consulted with Dr. Terry Kendrick, the pediatrician on duty. After he was informed of the child’s physical condition, Dr. Kendrick recommended that the child be sent to LSUMC as quickly as possible because his condition required intensive care (ICU) facilities not available at DeSoto General. Dr. Lurate reported that Mansfield did not have ambulance service available and that the closest ambulance would take an hour to arrive from Logansport. Dr. Lurate told Dr. Kendrick that the child appeared stable and so they decided that the quickest means of transporting the patient to LSUMC was by private car. The IV fluids and oxygen were discontinued, but the child’s vital signs were not rechecked before transport. At 10:45 p.m., the child left DeSoto General in a private car for the approximately 45 minute trip to LSUMC. Several miles outside of Shreveport, the child began having seizures. He was comatose upon arrival at the LSUMC emergency room shortly after midnight and was transferred to the pediatric ICU. Despite the emergency treatment undertaken at LSUMC, at 3:40 a.m. the child’s heart stopped and CPR was unsuccessful. The cause of death was recorded as overwhelming pneumococcal sepsis and septic shock.

The plaintiffs filed a complaint against the defendant and his liability insurer and re[1061]*1061quested the formation of a medical review panel. The complaint alleged that the defendant failed to follow accepted emergency medical standards in his treatment of the plaintiffs’ child. The review panel found in favor of the plaintiffs, who then filed this action. At the conclusion of the case, the trial court submitted special jury interrogatories on the issues of the standard of care, causation and damages. As to whether Dr. Lurate breached the standard of care, the jury answered in the negative, thereby foreclosing its consideration of the remaining issues of causation and damages. A written judgment in accordance with the jury’s verdict was subsequently rendered. The plaintiffs appeal this ^judgment.

DISCUSSION

The plaintiffs argue the jury was clearly wrong in finding that Dr. Lurate was not negligent in his medical treatment of their child. They contend Dr. Lurate breached the standard of care by failing to give the child antibiotics and a blood transfusion, and by transporting the child in a private automobile without oxygen and IV fluids.

In a malpractice action based on the negligence of a physician licensed to practice in Louisiana, where the defendant practices in a particular specialty and the alleged acts of medical negligence raise issues peculiar to that specialty, the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the same medical specialty. The plaintiff must also prove that the defendant either lacked this degree of skill or failed to use reasonable care and diligence in applying that skill, and that defendant’s failure to exercise this degree of care caused plaintiff to suffer injuries that would not otherwise have occurred. LSA-R.S. 9:2794 A; Smith v. Lincoln General Hospital, 27,133 (La.App.2d Cir. 6/21/95), 658 So.2d 256, writ denied, 95-1808 (La. 10/27/95), 662 So.2d 3. The mere fact that an injury occurred does not raise a presumption that the physician was negligent. LSA-R.S. 9:2794 C.

A physician is not held to a standard of absolute precision. Rather, his conduct and judgment are evaluated in terms of reasonableness under then-existing circumstances, not on the basis of hindsight or in light of subsequent events. Iseah v. E.A. Conway Memorial Hospital, 591 So.2d 767 (La.App.2d Cir.1991), writ denied, 595 So.2d 657 (La.1992). Credibility determinations, including the evaluation of expert testimony, together with the ultimate issue of whether a plaintiff has satisfied his burden of proof are factual issues to be resolved by the |4trier of fact and will not be disturbed on appeal in the absence of manifest error. Iseah v. E.A. Conway Memorial Hospital, supra. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La.1991); Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the present case, the plaintiffs contend the evidence at trial established that Dr. Lurate failed to deliver appropriate emergency medical care to the child. Dr. Robert West, the plaintiffs’ emergency medicine expert, testified that in his opinion, Dr. Lurate breached the standard of care by failing to initiate antibiotic treatment for a child with sickle cell disease presenting with a high fever and with an above normal white blood cell count. The plaintiffs’ pediatrics expert, Dr. David Beckton, also testified that the child should have received antibiotics soon after his arrival at the emergency room.

The jury also heard testimony from Dr. Lurate, who stated that he does not routinely give antibiotics to patients before identifying the source of infection, because of the risk of a negative reaction. Dr. Lurate pointed out that if a viral infection was involved, there was a chance that the antibiotics would not destroy a resistant strain, which would then continue to spread in the patient’s body. Dr. Lurate also explained that he did not give antibiotics to this child because of the possibility that a spinal tap would be done to check for the presence of meningitis. Antibiotics could contaminate the spinal fluid and prevent identification of an attacking organism. In addition, Dr.

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674 So. 2d 1059, 1996 La. App. LEXIS 844, 1996 WL 229829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-lurate-lactapp-1996.