Opinion
CIVIL ACTION NUMBER 01-3544, SECTION "L" (5)
December 2, 2002
ORDER REASONS
Before the Court is Defendant's motion in limine to exclude or limit expert testimony by Dr. Paul Schwartzenberger. For the following reasons, the motion in limine is DENIED.
I. BACKGROUND
Plaintiff, Eveda Ladner, a Mississippi resident, alleges that she was treated by the Defendant, Dr. Claire Wiegand, an endocrinologist, in Weigand's Slidell clinic, from November 1994 through July 10, 1998. Plaintiff underwent an ultrasound on November 19, 1994, which demonstrated an enlarged thyroid with multiple nodules. During her initial visits with Dr. Wiegand, the Plaintiff also exhibited symptoms representative of an overactive thyroid, including heart palpitations, tremors, insomnia, increased perspiration, heat intolerance, etc. Laboratory studies indicated hyperthyroidism and a nuclear thyroid scan demonstrated bilateral cold areas. Dr. Wiegand treated the Plaintiff for Grave's disease (thyrotoxic multinodular goiter) by using radioactive iodine and Plaintiff's condition subsequently improved. On April 27, 1997, Plaintiff complained of hoarseness to Dr. Wiegand, who ordered an ultrasound which revealed that the left lobe had decreased in size, while the right lobe remained stable in size. The hoarseness was attributed to Plaintiff's allergies. This hoarseness continued and was documented in a follow-up visit of October 23, 1997. An ultrasound of the thyroid gland was done at this time revealing a slight decrease of the left lobe in size and unchanged nodular areas. During another follow-up appointment on July 20, 1998, Dr. Wiegand documented that the Plaintiff's thyroid was smaller in size and without marked nodularity and her thyroid levels were normal. At this time, the Plaintiff did not complain of hoarseness and was instructed to return to Dr. Wiegand after one year for a follow-up visit.
In September of 1998, Plaintiff began to see Dr. Wiseman for sinusitis. After Plaintiff's complaints of blood in her mucous and continuing allergy problems, a cat scan of Plaintiff's upper neck and chest was ordered and, in March of 1999, the scan was performed and revealed a cancerous mass of the tongue. Apparently, between the Plaintiff's last visit with Dr. Wiegand and April of 1999, a dramatic change occurred with an increase of the thyroid to the size of a grapefruit.
Plaintiff brought a complaint against Dr. Wiegand for failure to discover her cancer and alleged that Dr. Wiegand did not meet the standard of care for her specialty. The medical review panel, composed of three endocrinologists, found that Dr. Wiegand's treatment of the Plaintiff was reasonable and complied with the appropriate standard of care of an endocrinologist. Plaintiff subsequently filed this action.
Defendant filed this motion in limine to exclude proposed expert testimony of Dr. Paul Schwartzenberger, an oncologist, as to the standard of care of an endocrinologist. The Defendant asserts that under Louisiana law, when the alleged acts of negligence raise issues peculiar to a particular specialty, then only those persons qualified in that specialty may offer evidence of the applicable standard of care. Because Dr. Schwartzenberger is an oncologist, a different field than the Defendant, the Defendant argues that he is not qualified to testify as an expert regarding the standard of care appropriate for an endocrinologist. Furthermore, the Defendant contends that there is no overlap between oncology and endocrinology so as to allow Dr. Schwartzenberger's testimony to fit into the narrow exception provided under Louisiana law. In a supplemental memorandum supporting her motion in limine, Defendant asserts that two other treating oncologists, Dr. Agustin Suarez and Dr. Paul Monsour have testified in a deposition that they would defer to a physician practicing within the applicable medical specialty of endocrinology regarding standard of care issues.
II. LAW AND ANALYSIS
This case is brought pursuant to the diversity jurisdiction of this Court. This Court is, therefore, bound to apply substantive law of Louisiana. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938). Louisiana law contains a specific statute addressing the burden of proof a plaintiff must meet regarding the standard of care in a medical malpractice action. Louisiana Revised Statute 9:2794 provides the following:
In a malpractice action based on the negligence of a physician . . . the plaintiff shall have the burden of proving: 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 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.
La. R.S. 9:2794 (West 2002) (emphasis added).
Where the alleged negligent acts raise issues which are limited and peculiar to the medical specialty involved, only those who are qualified in that specialty may testify as to the applicable standards. Hebert v. Podiatry Ins. Co. of America, 688 So.2d 1107, 1113 (La.Ct.App. 3d Cir. 1996); Turner v. Massiah, 641 So.2d 610 (La.Ct.App. 5th Cir. 1994), reversed in part on other grounds, 656 So.2d 636 (La. 1995). However, it is a specialist's knowledge of the requisite subject matter, rather than the specialty within which the specialist practices, which determines whether a specialist should testify as to the degree of care which should be exercised. Coleman v. Deno, 787 So.2d 446, 467 (La.Ct.App. 4th Cir. 2001); Turner, 641 So.2d at 617. An expert need not be actively practicing in the particular specialty about which he/she will testify. Bradbury v. Thomas, 757 SO.2d 666, 674 (La.Ct.App. 1st Cir. 1999) (citing Piazza v. Behrman Chiropractic Clinic, Inc., 601 So.2d 1378 (La. 1992)).
When medical specialities overlap, Louisiana courts recognize that it is appropriate to allow a specialist in one field to give expert testimony as to the standard of care applicable to performing a particular procedure common to both disciplines. Hebert, 688 So.2d at 1113; Ricker v. Hebert, 655 So.2d 493, 495 (La.Ct.App. 1st Cir. 1995). In other words, "Where the procedure alleged to be negligently performed is one that is not limited to a particular specialty, and where there is no showing that the standard of care is different for different medical disciplines, an expert with knowledge of the requisite procedure should be allowed to testify regarding the standard of care regarding that procedure." Ricker, 655 So.2d at 495. In such a case, the party offering the expert must show the witness's expertise, skill, and training in the procedure. Id. It is for the Court to determine on a case by case basis the expert's qualifications to testify as to the standard of care. Hebert, 688 So.2d at 1113 (citing McLean v. Hunter, 495 So.2d 1298 (La. 1986)).
One Louisiana case, Ricker v. Hebert, 655 So.2d 493, 495 (La.Ct.App. 1st Cir. 1995), cites the following as examples of when Louisiana courts have held that medical specialties overlap to such extent that a physician in a different field may testify as an expert: Levya v. Iberia Gen. Hosp., 643 So.2d 1236 (La. 1994) (allowing obstetrician/gynecologist to testify as to standard required of general practitioner in performing tubal ligation); Soteropulos v. Schmidt, 556 So, 2d 276 (La.Ct.App. 4th Cir. 1990) (allowing orthopedist to testify as to standard of care required of vascular surgeon in smoothing edges of tibia during amputation); Steinbach v. Barfield, 428 So.2d 915 (La.Ct.App. 1st Cir. 1983) (allowing specialists in colon and rectal cancer, family practice, and diagnostic radiology testify as to standard of care required of specialist in internal medicine in diagnosing colon cancer); and Fairchild v. Brian, 354 So.2d 675 (La.Ct.App. 1st Cir. 1977) (allowing ophthalmologists to testify as to standard of care required of optometrist in diagnosing eye disease). In addition to these cases, two other Louisiana cases were helpful as examples for this Court. In Turner v. Massiah, 641 So.2d 610, 617 (La.Ct.App. 5th Cir. 1994), the court allowed an oncologist to testify as to the standard of care applicable to a plastic surgeon in diagnosing and spotting breast cancer. Also, in Slavich v. Knox, 750 So.2d 301, 304 (La.Ct.App. 4th Cir. 1999), the court allowed a general surgeon to testify as to the applicable standard of care of an internist in diagnosis and detection of cancer.
The Court finds that the practice or procedure at issue in this case is the failure to diagnose and treat cancer involving the thyroid. No reported Louisiana case has discussed the particular issue in this case, that is, whether a physician certified in oncology and internal medicine is qualified to testify as to the standard of care of an endocrinologist in failing to diagnose cancer. In fact, no reported cases even discuss the standard of care with regard to an endocrinologist.
In Plaintiff's complaint, her claim against Defendant Dr. Wiegand is that the doctor failed to diagnose and treat cancer. Plaintiff's Complaint, ¶ 7.
This Court is faced with two issues: (1) whether the failure to diagnose cancer in a patient with thyroid problems is a practice/procedure common to endocrinologists and internists or oncologists; and (2) if the practice/procedure is common to the specialties, then whether the Plaintiff met her burden of proving her expert's expertise, skill and training in the practice/procedure. As to the first prong, Plaintiff argues that the treatment of thyroid disease is done not only by endocrinologists but by internists and even family practitioners. Thus, Plaintiff asserts that Dr. Schwartzenberger, as an internist and oncologist, is qualified to testify as to the treatment and diagnosis of thyroid conditions and/or cancer. The practice/procedures overlap, according to the Plaintiff, because both endocrinologists and oncologists are called upon to treat thyroid cancer.
In addition to arguing that the practice/procedure is common to endocrinology, internal medicine and oncology, the Plaintiff provides the Court with a detailed description of Dr. Schwartzenberger's qualifications in an effort to meet her burden of proving his skill, expertise and training. Dr. Schwartzenberger's current position is as an associate professor in the hematology/oncology section at Louisiana State University in New Orleans, Louisiana. Dr. Schwartzenberger attended medical school in Germany obtaining a doctorate degree, did work in internal medicine and critical care in England for one year, and then completed an internal medicine residency in the United States. He also completed a fellowship in oncology in Maryland. Currently, he is a certified by the American boards in internal medicine and oncology and has numerous publications and several grants listed on his curriculum vitae relating to his cancer work. Dr. Schwartzenberger has never testified as an expert before.
In his deposition, Dr. Schwartzenberger testified that from his training as an internist, he is familiar with various endocrinological problems and takes care of many of these problems with his patients. Specifically, he has treated multi-nodular goiter. It is Dr. Schwartzenberger's opinion that Dr. Wiegand breached the standard of care by ignoring the Plaintiffs persistent hoarseness, which he explained is a hallmark for thoracic or head or neck malignancies. According to Dr. Schwartzenberger, persistent hoarseness should be recognized as a sign of cancer by even a primary care doctor, not just an oncologist. He also notes that the presence of the cold areas evident from the scans significantly increase the risk that there maybe cancer present in the thyroid gland. In Dr. Schwartzenberger's opinion, a series of three fine needle aspirations would have given a 95% accuracy as to whether a malignancy was present; however, this procedure was never performed or recommended by Dr. Wiegand.
Under Louisiana law, this Court must determine Dr. Schwartzenberger's qualifications to testify as to the standard of care based on the particular facts of this case. In this case, there is no evidence to show that the standards required of an endocrinologist for diagnosing and treating a thyroid cancer are different (higher or lower) from those required from oncologists or internists. The Court concludes from the evidence before it that the practice in question, diagnosing and treating cancer involving the thyroid, is a practice that is common to both the field of oncology and endocrinology. Therefore, because Dr. Schwartzenberger has the requisite knowledge of this practice as demonstrated by his testimony and credentials, he is qualified to testify as an expert as to the applicable standard of care of an endocrinologist regarding the failure to diagnose cancer. Furthermore, considering the detailed list of publications, education and experience of Dr. Schwartzenberger provided by the Plaintiff, the Court finds that the Plaintiff has met her burden to prove that Dr. Schwartzenberger's skill, expertise and training in this practice, diagnosing cancer. Accordingly, Dr. Schwartzenberger may properly testify as an expert regarding the standard of care required of Dr. Wiegand.
II. CONCLUSION
For the foregoing reasons, Defendant's motion in limine is DENIED.