Opinion
2016 CA 0587
02-17-2017
ALSIE THOMAS, AND HIS CHILDREN, LESLIE THOMAS, KAREN THOMAS, NORMAN THOMAS, DON THOMAS AND KEVIN THOMAS v. SERGIO BARRIOS, M.D., DALE MACCURDY, M.D. AND LOUIS E. SUMMERSGILL, M.D.
Bobby Ray Malbrough R. Ray Orrill, Jr. New Orleans, LA Attorneys for Plaintiffs/Appellants Alsie, Leslie, Karen, Norman, Don, and Kevin Thomas Deborah Deo Gracias Trahan Covington, LA Attorney for Defendant/Appellee Sergio Barrios, M.D.
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court
In and for the Parish of St. Tammany State of Louisiana
No. 2012-10306 Div. C The Honorable Richard A. Swartz, Judge Presiding Bobby Ray Malbrough
R. Ray Orrill, Jr.
New Orleans, LA Attorneys for Plaintiffs/Appellants
Alsie, Leslie, Karen, Norman, Don,
and Kevin Thomas Deborah Deo Gracias Trahan
Covington, LA Attorney for Defendant/Appellee
Sergio Barrios, M.D. BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
This is an appeal of a judgment in favor of Sergio Barrios, M.D., dismissing the medical malpractice claims of the plaintiffs, Alsie Thomas, Leslie Thomas, Karen Thomas, Norman Thomas, Don Thomas, and Kevin Thomas. For the reasons that follow, we affirm.
The record reflects that Norman died in 2012.
FACTUAL AND PROCEDURAL HISTORY
On March 6, 2007, Alsie had an automatic implantable cardioverter defibrillator biventricular pacemaker (pacemaker) inserted into his chest at Slidell Memorial Hospital. The procedure was performed by Dr. Sergio Barrios, a cardiologist. The proper procedure for implantation of the pacemaker requires lead access to the right atrium and right ventricle of the heart through the left or right subclavian vein. A third lead is to be attached to the coronary sinus behind the heart. While inserting the pacemaker leads, the physician hooks the leads up to a pacing analyzer for a threshold check, which will test the physical amplitude of the signal. If the physician receives acceptable numbers from the leads, this will verify that the pacemaker is correctly positioned.
During Alsie's procedure, Dr. Barrios inserted the left ventricular lead through Alsie's left subclavian artery instead of the left subclavian vein and another lead in the aorta instead of the right atrium. The third lead was properly placed to the coronary sinus. Despite Dr. Barrios feeling like "[the] wires were not behaving the way [he] wanted ... [he] was getting the numbers that [he] felt ... were acceptable for [the] placement of [the pacemaker]."
Following the procedure, Alsie underwent an echocardiogram to evaluate the placement of the pacemaker leads. The radiology report noted that the "[pacemaker] ha[d] been placed in the left upper chest. There [were] 2 leads in the right ventricle and one in the right atrium." Numerous chest x-rays were reviewed by radiologists confirming that there were no abnormalities with the positioning of Alsie's pacemaker.
An echocardiogram is a graphic display produced by recording the echoes returned from the heart after the application of ultrasonic impulses; the ultrasound image of the heart. Dox, Attorney's Illustrated Medical Dictionary at E5.
Five days following the procedure, Alsie suffered a cerebrovascular accident, or stroke. Upon examination, ischemia was noted as the cause of Alsie's stroke. On March 16, 2007, Alsie was discharged from Slidell Memorial Hospital with his condition slowly improving. On March 19, 2007, Alsie was readmitted to Slidell Memorial Hospital with complaints of chest pain, general soreness, and loss of appetite. After examination, it was revealed that he appeared to be depressed and had mild weakness in his left side. However, chest x-rays reflected proper positioning of Alsie's pacemaker. On March 20, 2007, a computerized tomography scan (CT scan) also reflected proper positioning of Alsie's pacemaker as well as additional chest x-rays the following day. Alsie was discharged on March 23, 2007 from Slidell Memorial Hospital.
Alsie previously suffered from a stroke in July of 2005.
Ischemia is defined as a "[l]ack of blood in circumscribed area of the body due to mechanical obstruction or functional constriction of a blood vessel." Dox, Attorney's Illustrated Medical Dictionary at 134.
Alsie was admitted to Northshore Regional Medical Center on March 30, 2007. Alsie had additional chest x-rays taken, which reflected no abnormalities with regard to his pacemaker. The radiology report stated, "AICD device is noted in place." Another chest x-ray was reviewed on March 31, 2007 and the radiology report stated, "AIC device is noted in place ...." On April 1, 2007, Alsie had an echocardiogram to assess his heart function, and the cardiology reported noted no abnormalities with his pacemaker. Additional chest x-rays were reviewed by radiologists on April 2, 4-7, and 20 of 2007 which all, according to the radiologists, reflected proper positioning of Alsie's pacemaker.
On May 4, 2007, Alsie was admitted to Lakeview Regional Medical Center complaining of chest pain. A transesophageal echocardiogram (TEE) revealed that two pacemaker leads were in Alsie's arterial system. On May 7, 2007, Alsie underwent a procedure by Dr. Gregory Groglio, a cardiovascular surgeon, to remove the misplaced pacemaker leads and insert new leads. Alsie successfully recovered from the procedure.
A TEE is a cardiac imaging procedure in which an ultrasound transducer, positioned on an endoscope (a long, thin, flexible instrument about one-half inch in diameter), is guided down the patient's throat into the esophagus. The esophagus sits behind the heart, allowing a much clearer image of the heart, particularly, the back structures, such as the left atrium. By rotating the tip of the transducer, the physician can examine the heart from several different angles. A TEE is extremely useful in detecting blood clots, masses and tumors that are located in the heart. It can also gauge the severity of certain valve problems, including infections and congenital diseases. Stratmann v. Cardiovascular Specialists, Inc., 2010-0947 (La. App. 4th Cir. 5/9/11), 65 So.3d 244, 246, writ denied, 2011-1161 (La. 9/16/11), 69 So.3d 1151.
Thereafter, the plaintiffs alleged that the improper placement of the pacemaker leads by Dr. Barrios caused Alsie's stroke. According to the plaintiffs, the stroke was "admittedly and irrefutably" caused by a blood clot as a result of the negligence of Dr. Barrios. The plaintiffs alleged various acts of medical malpractice by Dr. Barrios and presented their claims to a medical review panel. A medical review panel was convened in September of 2011. The panel rendered a unanimous opinion concluding that Dr. Barrios did not breach the applicable standard of care. The panel specifically noted in its opinion that "[a]n inadvertent placement of a pacemaker lead is a known complication of this procedure." Subsequently, the plaintiffs filed a petition for damages against Dr. Barrios in January of 2012. The plaintiffs alleged that Dr. Barrios breached the applicable standard of care in his treatment of Alsie.
The plaintiffs also named as defendants radiologists Dr. Dale MacCurdy and Dr. Louis Summersgill, who performed and interpreted several of Alsie's chest x-rays. Those defendants filed a motion for summary judgment alleging that the plaintiffs lacked the necessary medical expert testimony needed to satisfy their evidentiary burden of proof at trial under La. R.S. 9:2794. Following a hearing, the trial court granted summary judgment in favor of those defendants dismissing the plaintiffs' claims against them with prejudice.
Dr. Barrios filed a motion in limine to preclude the plaintiffs' expert witness, Dr. William Walker, a cardiovascular surgeon, from testifying because he was not a cardiologist and did not possess the training or experience to offer expert testimony regarding the standard of care applicable herein as required by La. R.S. 9:2794(D). Dr. Barrios also filed a motion for summary judgment alleging that Dr. Walker's expert testimony was not sufficient to create a genuine issue of material fact. The trial court denied both motions.
Following a three-day trial, the jury returned a verdict finding that Dr. Barrios did not lack the degree of knowledge or skill or failed to exercise reasonable care when implanting the pacemaker leads in Alsie. On August 14, 2015, the trial court signed a judgment in accordance with the jury verdict and dismissed the plaintiffs' claims with prejudice. After the plaintiffs' motion for new trial, or alternatively, judgment notwithstanding the verdict (JNOV) was denied, the plaintiffs lodged this appeal, asserting five assignments of error contending that:
This court notes that the plaintiffs appealed the December 1, 2015, judgment denying their motion for JNOV or motion for new trial. The denial of a motion for a JNOV or new trial is an interlocutory and non-appealable judgment. La. C.C. art. 1914. However, an appeal of the denial of a JNOV, or alternatively, motion for new trial should be considered as an appeal of the judgment on the merits when it is clear from appellant's brief that the appeal was intended to be on the merits. McKee v. Wal-Mart Stores, Inc., 2006-1672 (La App. 1st Cir. 6/8/07), 964 So.2d 1008, 1013, writ denied, 2007-1655 (La. 10/26/07), 966 So.2d 583. Thus, it is clear from the plaintiffs' brief that their appeal was intended to be on the merits.
1. There exists no valid line of reasoning and permissible inferences that could possibly lead rational persons to the conclusion reached by the jury, and thus the jury's decision was manifestly erroneous or clearly wrong.
2. The trial court committed manifest error in failing to grant a judgment notwithstanding the verdict, by failing to balance the deference afforded to the jury's verdict against the trial court's obligation to insure that substantial justice was accomplished.
3. Given the evidence produced at trial no reasonable factual basis exist for the jury's finding and the record establishes that the fact finder was clearly wrong in this case.
4. In the mere fifty (50) minutes the jury was out for deliberations, it was impossible to give adequate, fair and impartial attention to the extensive medical testimony, documentary evidence and exhibits presented in this case, without even asking to review the exhibits, and thus the jury rushed to judgment in violation of their collective sworn oath to be fair and impartial.
5. Both the trial court and the jury erred in failing to recognize that Dr. Barrios' conduct in this malpractice action of "doing nothing" when the post-procedure x-ray clearly revealed that one of the leads crossed the aortic notch increased Plaintiff's risk of harm to the extent of being a substantial factor in causing the stroke.
STANDARD OF REVIEW
An appellate court may not set aside a jury's finding of fact absent manifest error or unless it is clearly wrong. Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106, 1111 (La. 1990). In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding; and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. McGlothlin v. Christus St. Patrick Hospital, 2010-2775 (La. 7/1/11), 65 So.3d 1218, 1231.
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. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. Further, when findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Id.
Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to re-determine the facts de novo from the entire record and render a judgment on the merits. Id., 549 So.2d at 844 n. 2.
DISCUSSION
Standard of Care
In their first, third, and fourth assignments of error, the plaintiffs contend that the jury erred in failing to find that they satisfied their burden of proving a breach of the applicable standard of care. Additionally, the plaintiffs contend that there is no factual basis for the jury's findings due to the relatively short amount of time that the jury deliberated.
To establish a medical malpractice claim against a physician, a plaintiff must establish by a preponderance of the evidence: (1) the standard of care applicable to the physician (2) a violation of that standard of care by the physician; and (3) a causal connection between the physician's alleged negligence and the claimed injuries. See La. R.S. 9:2794(A). The resolution of each of these inquiries are determinations of fact which should not be reversed on appeal absent manifest error. See Doyle v. Ramos, 2013-1143 (La. App. 3 Cir. 3/5/14), 134 So.3d 92, 96. These elements can be summarized in the context of this case as requiring the plaintiffs to prove: (1) the standard of care applicable to Dr. Barrios in his practice as a cardiologist (2) Dr. Barrios' breach of that standard of care; and (3) the causal relationship between that breach and the injuries sustained by the plaintiffs.
Expert testimony is generally required to establish the applicable standard of care and whether that standard was breached. See Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 884. Under the manifest error standard of review, when the fact finder's determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. Aymami v. St. Tammany Parish Hospital Service District Number 1, 2013-1034 (La. App. 1 Cir. 5/7/14), 145 So.3d 439, 447. Further, a jury may accept or reject in whole or in part the opinion expressed by an expert; such testimony is to be weighed the same as any other evidence. Matherne v. Barnum, 2011-0827 (La. App. 1 Cir. 3/19/12), 94 So.3d 782, 790, writ denied, 2012-0865 (La. 6/1/12), 90 So.3d 442. Where expert witnesses present differing testimony, it is the responsibility of the trier of fact to determine which evidence is the most credible. Aymami, 145 So.3d at 447.
In the instant case, the jury heard from several expert witnesses. The plaintiffs tendered Dr. William Walker, who is in private practice, as an expert in the field of cardiovascular surgery. Dr. Walker opined that Dr. Barrios breached the standard of care in two respects. First, he stated that it was unreasonable for Dr. Barrios to put the pacemaker leads in the left subclavian artery instead of the subclavian vein. Secondly, Dr. Walker found that Dr. Barrios should have done a follow-up on Alsie's chest x-ray after the procedure. However, on cross-examination, Dr. Walker testified that due to the subclavian artery and subclavian vein being so close in proximity, occasionally a cardiologist may enter the artery despite using the proper technique. Dr. Walker also affirmed that the abnormal position of a pacemaker lead is a well-recognized but uncommon complication. Dr. Walker further acknowledged that a doctor can apply the proper standard of care and still not achieve an optimal result.
In opposition, Dr. Barrios offered as an expert Dr. James McKinnie, a cardiovascular electrophysiologist, to testify as to the applicable standard of care and whether Dr. Barrios met that standard of care. Dr. McKinnie was a member of the medical review panel that opined that Dr. Barrios did not breach the applicable standard of care. Dr. McKinnie was of the opinion that the abnormal position of a pacemaker lead is a known complication that can occur through arterial placement. The following exchange occurred during Dr. McKinnie's video deposition:
Q. What are the limitations of fluoroscopy? Could those wires appear to be in a vein when they're actually in the artery?
A. That's possible ... the two structures are contiguous to one another. When you look at the heart model, they're very close. So you could see, depending on your view, you might get fooled.
* * * * *
Q. So you could get acceptable numbers even though the leads are not in the right chambers?
A. [I]t's possible based on the anatomy. [S]ometimes there are rhythm problems in the right atrium. We will approach through the aorta itself and actually physically ablate. That tells you how close they can be. So it's rare. You find it hard to believe that it could happen, but you try to figure out how it can happen and, what the physical ramifications of what happened are and how could the operator be fooled or ... was this a question of not enough attention to the implant or ... I ask myself was could an experienced operator be fooled? And that's the conclusion I came to myself.
Q. Though it's rare this is a known complication that can occur to a skilled physician?
A. I have seen them placed in the left side of the heart through a variety of different mechanisms. In fact, we published a patient with that. But that happens probably more commonly than we think.
* * * * *
Q. While extremely rare, am I correct based on your prior testimony, that the complications that occurred in this case can occur to a reasonable skilled cardiologists using standard appropriate technique in the cath lab including the fluoroscopy and given the acceptable thresholds that were obtained?
* * * * *
A. So could a person be fooled by entry into the vessel? Yes. Could the guide wire course have simulated to the correct trajectory? Yes. ... [C]ould the numbers have fooled you into thinking you were right in the right place despite some visual discordance, some things that maybe didn't look right? The answer is yes. Now, it makes sense to me why [Dr. Barrios] might have since [he] was in the aorta, it makes sense to me why he might have had to reposition.Ultimately Dr. McKinnie concluded that Dr. Barrios did not deviate from the applicable standard of care.
Dr. Barrios also offered as an expert in radiology, Dr. Michael Hanneman, who was likewise a member of the medical review panel proceeding in this case. Dr. Hanneman testified that he reviewed the medical records of this case and was of the opinion that that the evidence submitted did not support the conclusion that Dr. Barrios failed to meet the applicable standard of care. Dr. Hanneman further stated that because no physician discovered the lead misplacements after numerous x-rays were interpreted of Alsie's chest, over the course of approximately three months, he did not think Dr. Barrios breached the applicable standard of care.
After a complete review of the record, we find that the record reasonably establishes, through expert opinion testimony, that an inadvertent placement of a pacemaker lead was a known complication of the procedure and that Dr. Barrios did not deviate from the standard of care. Dr. McKinnie testified that the abnormal position of a pacemaker lead was a known complication. Although Dr. Walker opined that it was unreasonable to put the pacemaker leads in the left subclavian artery instead of the left subclavian vein, he also acknowledged that it was a known risk of the procedure. When expert witnesses present differing testimony, it is the function and responsibility of the trier of fact to determine which evidence to believe, and that finding can virtually never be manifestly erroneous. Washington v. Waring, 2013-0078 (La. App. 1 Cir. 2/18/14), 142 So.3d 40, 46, writ denied, 2014-0515 (La. 4/25/14), 138 So.3d 646. As long as the record contains ample evidence to reasonably support the jury's verdict, the jury's choice on whom or which evidence to believe is not manifest error. Therefore, we find the jury's verdict was sufficiently and reasonably supported by the evidence in the record, as the defendant's experts concluded that Dr. Barrios' treatment and evaluation of Alsie was appropriate and that his treatment did not fall below the applicable standard of care.
Additionally, we find no merit in the plaintiffs' contention that there was no factual basis for the jury's findings due to the amount of time they deliberated. The length of jury deliberation is not indicative of jury misconduct. See Calmes v. Weems, 2006-0008, 2006 WL 3107653 (La. App. 1 Cir. 11/3/06), writ denied, 2006-2842 (La. 2/2/07), 948 So.2d 1083; Drury v. American Honda Motor Co., Inc., 93-1414 (La. App. 1 Cir. 12/22/94), 659 So.2d 738, 773, writ denied, 95-1012 (La. 6/23/95), 660 So.2d 437. While the jury deliberated for only fifty minutes, the evidence reasonably supports the jury's verdict. This assignment is without merit.
The plaintiffs also assign as error that the trial court and jury erred in failing to recognize that Dr. Barrios was negligent in failing to order a TEE after Alsie's procedure. The plaintiffs assert that a TEE would have detected the misplacement of Alsie's pacemaker leads. However, the testimony of Dr. McKinnie established that physicians do not typically utilize a TEE during this type of procedure, but instead use fluoroscopy to make certain that they are in "the right spot" after the procedure is performed. Dr. McKinnie testified that "[he has] seen a lot of implants [and has] never seen [a physician] do a TEE to ... physically find a location." He further stated in his deposition that he believed Dr. Barrios had no suspicions of Alsie's procedure to utilize a TEE, specifically stating that "[i]t was [his] impression that [Dr. Barrios] was not in doubt" to order a TEE.
Additionally, the plaintiffs' expert, Dr. Groglio, who was accepted as an expert in cardiovascular thoracic surgery, testified that he does not "routinely" perform a TEE for the initial placement of a pacemaker because the procedure is performed under fluoroscopy (x-rays).
A physician is not held to a standard of absolute precision. Rather, his conduct and judgment are evaluated in terms of reasonableness under the existing circumstances, not on the basis of hindsight. Credibility determinations, including the evaluation of expert testimony, and the ultimate issue of whether a plaintiff has satisfied the burden of proof are factual issues to be resolved by the trier of fact and will not be disturbed on appeal absent manifest error. Lowrey v. Borders, 43,675 (La. App. 2 Cir. 12/10/08), 1 So.3d 635, 641, writ denied, 2009-0043 (La. 3/6/09), 3 So.3d 487. Because the experts' testimonies establish that Dr. Barrios was not negligent in failing to order a TEE for Alsie, we cannot say that the jury was manifestly erroneous. This assignment of error is without merit.
Accordingly, the expert testimony, panel opinion, and medical records establish that while rare, a lead misplacement is a known complication of a pacemaker implantation, which may occur in the absence of negligence and that Dr. Barrios was not negligent in failing to perform a follow up on Alsie's chest x-ray after the procedure. After a thorough review of the record, and cognizant of the deference due to a jury's credibility determinations, we find no manifest error in the jury's findings. Thus, having rejected the testimony of the plaintiffs' expert witnesses, the jury reasonably concluded that the plaintiffs failed to prove that Dr. Barrios breached the applicable standard of care. Accordingly, these assignments of error lack merit.
We note that the plaintiffs assigned as an error the trial court's denial of their motion for JNOV or new trial; however, that assignment is not separately briefed and may therefore be deemed abandoned pursuant to Uniform Rules—Courts of Appeal, Rule 2-12.(B)(4). Additionally, as noted above, we have found that the jury's verdict is supported by the record. See Joseph v. Broussard Rice Mill, Inc., 2000-628, (La. 10/30/00), 772 So.2d 94, 99 (wherein the supreme court held that, on review of a denial of a motion for JNOV, an appellate court considers whether "the facts and inferences point so strongly and overwhelmingly in favor of [the moving] party that ... reasonable persons could not arrive at a contrary verdict[.]") --------
CONCLUSION
For the foregoing reasons, the trial court's judgment is affirmed. All costs of this proceeding are assessed to Alsie Thomas, Leslie Thomas, Karen Thomas, Don Thomas, and Kevin Thomas.
AFFIRMED.