Williams v. Louisiana Medical Mutual Insurance Co.

866 So. 2d 306, 2003 La.App. 4 Cir. 1081, 2004 La. App. LEXIS 22, 2004 WL 77122
Louisiana Court of Appeal·Decided January 14, 2004·No. No. 2003-CA-1081·Published·Cited by 2 cases

Opinion

11 DAVID S. GORBATY, Judge.

In this appeal, defendants urge that the trial judge erred in awarding damages to plaintiff and in denying their exception of prescription. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

This medical malpractice case, which was filed on February 3,1997, arises out of the performance of a cholecystectomy by Dr. Gibson, a board-certified general surgeon, on Milezone Williams at United Medical Center on February 9, 1993. Two days later, Ms. Williams underwent a second remedial surgery to repair a complication in the nature of a Roux-en-y anasto-mosis. In September of 1994, Ms. Williams underwent a third procedure to repair a stricture that formed in the anas-tomosis performed by Dr. Gibson on February 11, 1993. Plaintiff filed suit, alleging that, during the performance of the initial laparoscopic cholecystectomy, Dr. Gibson erroneously identified the proximal duct of the stomach with the cystic duct, and mistakenly clipped and divided it, causing the need for a second procedure to repair the unintended damage.

Defendants filed an exception of prescription, arguing that Ms. Williams had signed a consent form on February 10, 1993 specifically noting that she was | ¡¿having surgery to “repair” and “fix” her bile duct, and that she knew something had gone wrong in the first surgery. However, she did not file a complaint with the Louisiana Patient’s Compensation Fund (“PCF”) until August 24, 1995, more than two and one-half years after the first repair surgery. The exception was denied, and the trial judge noted that “defendants ... are barred from raising the issue of prescription at trial.” In response to this ruling, defendants filed an appeal and a writ application. This court denied the writ, stating that defendants would have an adequate remedy on appeal and could proffer any information.

After a bench trial, matters relating to prescription were proffered. The trial judge initially entered judgment on October 31, 2002 in the amount of $770,000.00. Motions for new trial were filed by both parties, and as a result, the trial judge amended the original judgment, reducing the award to the Medical Malpractice Act $500,000.00 mandated cap. Defendants Louisiana Medical Mutual Insurance Company and Johnny L. Gibson, M.D. subsequently filed this appeal. The Louisiana PCF intervened for appeal purposes.

ASSIGNMENTS OF ERROR URGED BY LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY AND JOHNNY L. GIBSON, M.D.

1. The trial court erred in finding that defendants had breached the standard of care in general surgery.

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). In Mart v. Hill, 505 So.2d 1120 (La.1987), the Louisiana Supreme Court posited a two-part test for the reversal of a factfinder’s determinations:

[310]*310|31) 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). Id. at 1127 (quoting Arceneaux v. Domingue, 365 So.2d at 1333 (La.1978)),

This test dictates that the appellate court must do more than simply review the record for some evidence that supports or controverts the trial court’s finding. Id. The appellate 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 factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973, 976 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfinder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the' court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this court has emphasized that “the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Housley v. Cerise, 579 So.2d 973, 976 (La.1991), (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

Courts have recognized that “[t]he reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be maniféstly erroneous or clearly wrong. Id.

In a medical malpractice action, the plaintiff has the burden of proving by a preponderance of the evidence the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians. practicing within its medical specialty; that the defendant either lacks 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 and 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 occurred. La. R.S. 9:2794.

Other experts practicing within the defendant’s medical specialty determine the standard of care. At trial, both Dr. Philip Boudreaux and Dr. Samuel Esterk-yn testified about the standard of care in performing laparoscopic gallbladder sur[311]*311gery. Dr. Boudreaux testified that while performing the surgery, the doctor must identify the cystic duct, clip and cut it, and then remove the gallbladder. The surgeon must be certain about the identity of the cystic duct before he divides it. The surgeon must also be certain about its origin or certain of its termination by either identifying the junction of the gallbladder and the cystic duct or identifying the | ¿junction of the cystic duct and the common bile duct. If the surgeon is still having difficulty visualizing the cystic duct, then the standard of care is to perform a cholangio-gram (an x-ray using dye). If the doctor is still not sure after performing the cho-langiogram, then the procedure should be converted to an open procedure.

Dr.

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Williams v. Louisiana Medical Mutual Insurance Co., 866 So. 2d 306, 2003 La.App. 4 Cir. 1081, 2004 La. App. LEXIS 22, 2004 WL 77122 (La. Ct. App. 2004).

866 So. 2d 306 (Williams v. Louisiana Medical Mutual Insurance Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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