Opinion
NO. 2011 CA 2071
03-25-2013
DIETRIK S. BRUMFIELD, INDIVIDUALLY AND ON BEHALF OF HER MINOR DAUGHTER, DEPRINCIA MCCLAIN v. THE ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND D/B/A TULANE UNIVERSITY MEDICAL CENTER, DR. ROCH HONTAS, ST. TAMMANY PARISH HOSPITAL
ELISABETH W. RAMIREZ AND JAMES A. MARCHAND, JR. COVINGTON, LA ATTORNEYS FOR PLAINTIFF-APPELLANT DEPRINCIA McCLAIN STEWART E. NILES, JR. BRYAN J. KNIGHT NEW ORLEANS, LA ATTORNEYS FOR DEFENDANTS-APPELLEES DR. ROCH HONTAS AND THE ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND D/B/A TULANE UNIVERSITY MEDICAL CENTER
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
in and for the Parish of St. Tammany, Louisiana
Trial Court No. 2003-11561
Honorable August X Hand, Judge
ELISABETH W. RAMIREZ
AND
JAMES A. MARCHAND, JR.
COVINGTON, LA
ATTORNEYS FOR
PLAINTIFF-APPELLANT
DEPRINCIA McCLAIN
STEWART E. NILES, JR.
BRYAN J. KNIGHT
NEW ORLEANS, LA
ATTORNEYS FOR
DEFENDANTS-APPELLEES
DR. ROCH HONTAS AND THE
ADMINISTRATORS OF THE
TULANE EDUCATIONAL FUND
D/B/A TULANE UNIVERSITY
MEDICAL CENTER
BEFORE: KUHN, PETTIGREW, AND MCDONALD, JJ .
PETTIGREW , J.
In this case, plaintiff, Deprincia McCain appeals a judgment of the trial court rendered October 28, 2009, consistent with a jury verdict of October 1, 2009. Said judgment dismissed the plaintiffs medical malpractice claims against defendants, Dr. Roch Hontas, the Administrators of the Tulane Educational Fund d/b/a Tulane University Medical Center ('Tulane"), and St. Tammany Parish Hospital ("STPH"). For the reasons that follow, we affirm the trial court's judgment.
When legal action was initially taken in this matter, Deprincia was a minor and not competent to bring this action on her own. Therefore, her mother, Dietrik S. Brumfield, appeared on her behalf. However, since that time, Deprincia has reached the age of majority, and a "Motion For Substitution Of Parties" was filed to substitute Deprincia as a party plaintiff and appellant in place of her mother, Dietrik. Moreover, with regard to the judgments before us on review, there is a "Motion To Dismiss Appeal Of Dietrik Brumfield" in the record that disposes of Dietrik's appeal of this matter. Thus, this appeal only pertains to Deprincia's claims.
FACTS AND PROCEDURAL HISTORY
On April 23, 1998, Deprincia was admitted to STPH for treatment following an accident. Deprincia had sustained various injuries, including but not limited to, fractures of her right hand and wrist, broken teeth, and lacerations on her chin, hands, and arms. On that same date, Dr. Roch Hontas performed a closed reduction of her right distal radius and ulnar bones and placed Deprincia's right arm in a cast from her wrist to the elbow. Although the record seems to indicate otherwise, Deprincia argues that within twenty-four hours of this surgery, her condition deteriorated such that she had signs and symptoms of an impending compartment syndrome that went undetected and untreated. On April 26, 1998, Dr. Hontas performed a second surgery on Deprincia, which consisted of volar and dorsal fasciotomies to relieve pressure over the compartment in the right forearm.
A third surgery was performed by Dr. Hontas on April 30, 1998, for purposes of irrigation, debridement, and wound closure if possible. During that procedure, a soft tissue infection was found in the volar aspect of the right forearm. Cultures were taken and the wound was irrigated. Dr. Hontas elected to "pack the wound open due to the soft tissue infection that was present." Deprincia was ultimately discharged to Children's Hospital in New Orleans, Louisiana, on May 12, 1998, and later to Medical Center of Louisiana at New Orleans, where she underwent treatment, including multiple surgeries, for compartment syndrome of her right arm.
Believing that the treatment rendered to her daughter was negligent and below the standard of care expected of an orthopedic surgeon and nurse under the circumstances, Deprincia's mother filed a medical malpractice claim on her behalf against Dr. Hontas, Tulane, and STPH. The medical review panel rendered an opinion on October 23, 2001, finding no evidence to support the conclusion that any of the named parties failed to comply with the appropriate standard of care. With regard to STPH, the panel noted that its "nursing staff made appropriate observations" that "were reported in a timely fashion to physicians." Concerning Dr. Hontas and Tulane, the panel gave the following reasons for its findings:
1. Dr. Hontas was concerned about the development of compartment syndrome as evidenced by the notes.On December 4, 2001, a petition for medical malpractice was filed on behalf of Deprincia against Dr. Hontas, Tulane, and STPH. The primary complaint was that the defendants failed to timely diagnose and treat Deprincia's compartment syndrome and infection, which led to permanent disfigurement and loss of use of her right arm. Following a two-week trial that ended on October 1, 2009, the jury returned a verdict in favor of the defendants, finding that defendants had not breached the standard of care in the treatment of Deprincia. By judgment signed on October 28, 2009, the trial court entered judgment on the jury verdict and dismissed "any and all" claims Deprincia had against defendants. Deprincia filed a motion for JNOV or alternatively for a new trial, which the trial court denied in a judgment signed on October 26, 2010. From both the judgment entered on the jury verdict and the judgment denying the motion for JNOV and new trial, Deprincia has appealed, assigning the following specifications of error:
2. When he saw a change in the patient's situation, he operated doing fasciotomies.
3. According to Dr. Hontas' operative dictation, the releases were done before any muscle necrosis or nerve damage occurred as a result of compartment syndrome.
4. The infection which produced the patient's deformities was detected timely.
5. Prophylactic antibiotics were timely ordered pending cultures.
1. The jury was manifestly erroneous in finding that Dr. Roch Hontas did not deviate from the standards of care for [orthopedic] surgeons in the diagnosis and treatment of compartment syndrome, and in the diagnosis and treatment of post-operative infection; and as such, the judgment of the jury should be reversed.
2. The jury was manifestly erroneous in not awarding damages to Deprincia for Dr. Hontas['] failure to comply with the standards of [orthopedic] surgeons for his failure to timely diagnose and treat compartment syndrome, and post-operative infection.
Although Deprincia sought to appeal both the judgment on the merits and the judgment denying the motion for JNOV and new trial, defendants correctly point out in their appeal brief that Deprincia has abandoned any alleged error relative to the trial court's denial of her motion for JNOV and new trial by failing to brief this issue. See Uniform Rules--Courts of Appeal, Rule 2-12.4.
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DISCUSSION
In order to prevail in a medical malpractice action, a plaintiff is required to establish: (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 under similar circumstances; and where the defendant practices in a particular specialty and 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; and (3) that as a proximate result of this lack of knowledge or skill or failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred. See La. R.S. 9:2794(A); Lieux v. Mitchell, 2006-0382, pp. 10-11 (La. App. 1 Cir. 12/28/06), 951 Sc.2d 307, 314, writ denied, 2007-0905 (La. 6/15/07), 958 So.2d 1199. In other words, the plaintiff must establish the standard of care applicable to the doctor, a breach of that standard of care, and that the substandard care caused an injury the plaintiff would otherwise not have suffered. Thibodaux v. Leonard 3. Chabert Medical Center, 2006-0599, p. 4 (La. App. 1 Cir. 9/14/07), 981 So.2d 686, 689, writ denied. 2007-2039 (La. 12/7/07), 969 So.2d 640.
It is well settled that the resolution of each of these inquiries involves a determination of fact, which should not be reversed on appeal absent manifest error. Bradbury v. Thomas, 98-1678, p. 8 (La. App. 1 Cir. 9/24/99), 757 So.2d 666, 673. In reviewing the factual findings of the trier of fact, an appellate court can only reverse when (1) it finds from the record that a reasonable factual basis does not exist for the findings of the trier of fact and (2) it further determines that the record establishes that the findings are manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). If the trial court or jury findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).
In medical malpractice actions, opinions from medical experts are usually necessary to determine both the applicable standard of care and whether that standard was breached. Thibodaux, 2006-0599 at 4-5, 981 So.2d at 689. When medical experts are called to testify, the views of such expert witnesses are persuasive, although not controlling, and any weight assigned to their testimony by the trier of fact is dependent upon the facts on which the opinion is based as well as the expert's qualifications and experience. The trier of fact must assess the testimony and credibility of all the witnesses and make factual determinations regarding these evaluations. Bradbury, 98-1678 at 8, 757 So.2d at 673.
In this case, the jury's finding that neither Dr. Hontas nor STPH breached the applicable standard of care with regard to the treatment of Deprincia was reasonably supported by the expert opinion testimony of Dr. John Cazale and Dr. Harold Stokes, both of whom were members of the medical review panel that originally considered this matter. Although Deprincia's experts, Dr. Howard Collier, a board certified orthopedic surgeon of thirty years, Dr. Lenny Turkowitz, a board certified neurologist of thirty years, and Dr. Marc Gordon, a board certified general surgeon of thirty-five years, ail expressed the opinion that Dr, Hontas failed to timely diagnose and treat Deprincia's compartment syndrome, Dr. Cazale and Dr. Stokes suggested otherwise. Both Dr. Cazale and Dr. Stokes testified that it was impossible for Deprincia to have developed compartment syndrome on April 24 or 25, 1998, as she alleges. They explained that if compartment syndrome had been present at that time, then during the April 26, 1998 fasciotomies, Dr. Hontas would have encountered a necrotic, liquefied compartment, wrought with dead muscles, tendons, and tissues. Rather, in his April 26 operative report, Dr. Hontas documented "extremely healthy" muscles and indicated that he found no necrotic tissue, muscle, or skin. Thus, Dr. Cazale and Dr. Stokes were both of the opinion that Dr. Hontas' diagnosis of Deprincia's compartment syndrome on April 26, 1998, was timely, and his subsequent treatment of same was appropriate. Thus, the jury was faced with two different, yet reasonable and permissible views of the evidence, and its choice between them cannot be clearly wrong. See Rosell, 549 So.2d at 844. Therefore, after a thorough review of the record, we find that the jury's conclusion was reasonable and that its factual finding that neither Dr. Hontas nor STPH breached the applicable standard of care in the treatment of Deprincia was not manifestly erroneous.
CONCLUSION
For the above and foregoing reasons, we affirm the trial court's October 28, 2009 judgment incorporating the jury's verdict and the October 26, 2010 judgment denying the motion for JNOV and new trial. All costs associated with this appeal are assessed against plaintiff, Deprincia McClain.