Whiddon v. Elliott

594 So. 2d 449, 1991 WL 310829
CourtLouisiana Court of Appeal
DecidedDecember 27, 1991
Docket90 CA 1761
StatusPublished
Cited by2 cases

This text of 594 So. 2d 449 (Whiddon v. Elliott) 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
Whiddon v. Elliott, 594 So. 2d 449, 1991 WL 310829 (La. Ct. App. 1991).

Opinion

594 So.2d 449 (1991)

J. Robert WHIDDON
v.
DR. Robert L. ELLIOTT, d/b/a the Breast Clinic and St. Paul Fire and Marine Insurance Company.

No. 90 CA 1761.

Court of Appeal of Louisiana, First Circuit.

December 27, 1991.

*450 Donnie L. Floyd, Donn Moss and John Dugas, Baton Rouge, for plaintiff-appellant J. Robert Whiddon.

Myron A. Walker, Jr., Baton Rouge, for defendants-appellees Dr. Robert L. Elliott and St. Paul Fire and Marine Ins. Co.

Before SHORTESS, LANIER and CRAIN, JJ.

CRAIN, Judge.

J. Robert Whiddon had enlarged breasts and was extremely self conscious of this condition. He consulted Dr. Robert L. Elliott, who made the clinical diagnosis of obesity and severe gynecomastia and recommended excision of the breast tissue as the course of treatment. Dr. Elliott performed a bilateral subcutaneous mastectomy in April, 1985. Whiddon developed several postoperative complications, most of which apparently resolved. He subsequently became displeased with the results of the surgery, complaining of excessive or redundant folds of skin which sagged on either side of the nipples of both breasts, the asymmetric appearance of his breasts (the right breast is larger than the left) and the inverted nipple of the left breast.

He instituted this action against Dr. Elliott on theories of malpractice and lack of informed consent. After trial on the merits the trial court granted defendants' motion for involuntary dismissal. From this *451 judgment, Whiddon appeals alleging as error the trial court's granting of defendants' motion for involuntary dismissal, determining (1) that plaintiff failed to prove that defendant committed malpractice under La. R.S. 9:2794, and (2) that Whiddon had impliedly consented to the surgical procedure.

In determining whether to grant a motion for involuntary dismissal the trial judge should evaluate the evidence and render a decision based upon whether the opponent to the motion has proved his case by a preponderance of the evidence. Fuller v. Wal-Mart Stores, Inc., 519 So.2d 366 (La.App. 2d Cir.1988). In reviewing the granting of a motion for involuntary dismissal by a trial court, the appellate court determines whether the trial court was manifestly erroneous in finding the plaintiff failed to carry the burden of proof. Matherne v. Rise, 479 So.2d 580 (La.App. 1st Cir.1985).

La.R.S. 9:2794(A) provides that in a malpractice action based on the negligence of a physician, the plaintiff has the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... 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... 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.
(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.

Plaintiff was referred by his family physician to Dr. Elliott for a consultation for possible surgical reduction of his enlarged breasts. He testified that Dr. Elliott guaranteed that after surgery he would have a "normal male chest." The initial consultation was on February 5, 1985. Whiddon was obese at the time of that consultation (5'8" tall and approximately 100 pounds overweight). It is uncontroverted that Dr. Elliott told plaintiff that he would have to lose weight before surgery could be performed. Plaintiff allegedly lost 30-40 pounds and returned to Dr. Elliott's office on March 25, where the prospective surgery was discussed. He stated that Dr. Elliott did not discuss a plastic surgery option nor did he discuss possible adverse cosmetic effects of the subcutaneous mastectomy. He again visited Dr. Elliott's office on April 16 for a preoperative visit. The surgery was performed on April 17, 1985. At the time of trial plaintiff was still obese.

Dr. Elliott is a board certified general surgeon who for the past seventeen years has limited his practice to diseases and cancer of the breast. It is undisputed that a general surgeon is generally accepted to perform breast surgery on both males and females. Dr. Elliott stated that at the initial consultation plaintiff told him that he was overweight and had tried unsuccessfully to lose weight on numerous occasions; and that he had large breasts for a long time and wanted a flat chest so that he could wear a t-shirt to the beach. Dr. Elliott thought that obesity was a large contributing factor to the gynecomastia or enlarged breasts. He further stated that he decided to perform the bilateral subcutaneous mastectomy without incorporating a skin reduction envelope procedure because a reduction procedure was indicated neither preoperatively nor at the time of surgery. Dr. Elliott's reasons for not performing a skin reduction envelope procedure in addition to excising the breast tissue is because plaintiff's nipple was centrally located on his breast mound and a skin reduction procedure is indicated on a patient with a nipple pointing downward on a pendulous or ptotic breast. Neither was a skin reduction indicated during surgery because after *452 completion of the subcutaneous mastectomy plaintiff's skin fit flat against his chest wall; there was no redundant excess skin. Further, he stated that plaintiff's skin folds were the result of obesity, not excess redundant skin.

Dr. Robert H. Krupkin, a general surgeon specializing in diseases of the breast, was accepted by the court as an expert in that field and testified on behalf of plaintiff. Dr. Krupkin was formerly employed by Dr. Elliott and was fired by Dr. Elliott in 1984 for reasons unrelated to this case. Dr. Krupkin stated that the animosity between him and Dr. Elliott was no longer foremost in his mind; that he would try to be as objective as he possibly could; and that "there is no vendetta here." He stated that in 1985 it was an acceptable and common practice and was within the expertise of a general surgeon to perform breast reduction procedures on males as well as females; and that a subcutaneous mastectomy is a common procedure for the treatment of gynecomastia. In Dr. Krupkin's opinion the standard of care would have required the surgeon to also resect the skin envelope to remove redundant skin which was left after removal of breast tissue in order to correct the total appearance, which Dr. Elliott failed to do. Dr. Krupkin stated that in 1985 he would probably have attempted to perform the skin reduction procedure himself rather than refer it to a plastic surgeon. He stated that the determination of whether to perform a skin reduction must be made by the physician preoperatively upon evaluation of the extent of the breast enlargement and how much tissue (fatty or glandular) is to be removed. If a significant amount of tissue will be removed and its removal will create excess skin and cause male positioning of the nipple areolar complex, then reduction of the skin envelope is necessary.

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Cite This Page — Counsel Stack

Bluebook (online)
594 So. 2d 449, 1991 WL 310829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whiddon-v-elliott-lactapp-1991.