26,280 La.App. 2 Cir. 12/9/94, Smith v. State, Dept. of Health and Hospitals

• Decision Date: 09 December 1994
• Citation: 647 So.2d 653
• Parties: 26,280 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 653

647 So.2d 653

26,280 La.App. 2 Cir. 12/9/94

Rachel SMITH, indiv., Plaintiff-Appellant, v. STATE of Louisiana, DHH, Defendant-Appellee.

No. 26,280-CA.

Court of Appeal of Louisiana Second Circuit.

Dec. 9, 1994.

Writ Granted March 10, 1995.

Moore, Walters, Shoenfelt & Thompson by Oscar L. Shoenfelt and Marjorie Ann McKeithen, Baton Rouge, for appellant.

Hudson, Potts & Bernstein by Gordon L. James and Jan P. Christiansen, Monroe, for appellee.

Before SEXTON, NORRIS, JJ., and PRICE, J. Pro Tem.

NORRIS, Judge.

Rachel Smith, individually and on behalf of her two minor children, appeals a District Court judgment that dismissed her wrongful death and survival claims against the State of Louisiana, Department of Health and Hospitals, in this medical malpractice action. The State had conceded malpractice in that the staff of E.A. Conway Hospital in Monroe failed to diagnose the decedent's lung cancer. The District Court, however, found that this conduct neither deprived the decedent of a chance of survival nor diminished his life expectancy. We conclude that the District Court was plainly wrong in failing to find the loss of a chance of survival, and in failing to award wrongful death and survival damages proportionate to the loss of the chance. Accordingly we reverse and render.

Factual background

Benjamin Smith checked into E.A. Conway, a state operated general hospital in Monroe, in August 1987 for a sore on the top of his right foot. This was ultimately diagnosed as cellulitis with lymphangitis, and treated; minor surgery was performed to drain fluid. In the course of his five-day stay, the hospital took an x-ray of his chest. The radiologist, Dr. David Lawrence, noted in the x-ray a "mediastinal mass projected to the right of the trachea." All the experts said this should have alerted the treating physician to the possibility of lung cancer; however, no one advised Smith of it, and he was sent home to let his foot recuperate. The State Department of Health and Hospitals, which operates Conway, concedes that it was malpractice to fail to advise Smith of his condition and follow it up.

Over 14 months later, in late October 1988, Smith returned to Conway complaining that for the last three weeks he had suffered chest pains, weakness, fever and chills, and bloody cough. A new chest x-ray, taken October 31, showed that the mass had doubled in size. A bronchoscopy and biopsy taken on November 10 showed the worst: Smith suffered from small cell carcinoma of the lungs, a fast-acting and lethal cancer. Smith's cancer had already progressed to the "extensive" stage (present in both lungs), thus excluding surgery as a treatment option. Doctors placed him on aggressive chemotherapy, but it was too late. Smith spent the last two months of his life mostly confined to Conway, and finally died on March 16, 1989.

Smith's wife, Rachel, petitioned for a Medical Review Panel and ultimately filed this suit individually and on behalf on the couple's two children, Michael and Brian. As noted, the State conceded that its doctors breached the standard of care, but contested whether the breach caused any subsequent injury. At trial in November 1992, Mrs. Smith and her two sons testified about their family life together, and described Benjamin's last days. Dr. Ernest Moser, an economist at Northeast Louisiana University in Monroe, testified as to probable financial losses resulting from Benjamin's death.

The parties submitted expert medical evidence by deposition. The plaintiffs' expert was Dr. Paul Bader, a consulting hematologist and oncologist from New York City, board certified in internal medicine and oncology. He defined "limited disease" lung cancer as that confined to one hemithorax or treatable by one radiation point, and "extensive disease" as everything else. He examined Smith's August 1987 x-ray and hospital records, and concluded it showed a limited disease. He testified that if Smith had then been treated with an "up-to-date combination of chemotherapy and radiation," he would have had a five-year survival chance of 13% to 25%. He conceded that older studies, such as a textbook by DeVita, placed the five-year survival rate at 7%, but he felt that modern rate was from 7-25%. (In an earlier deposition Dr. Bader had stated that patients with "very" limited disease, when treated with surgery, chemo and radiation, had a five-year survival rate of 40-80%, an estimate rejected by the other experts). He added that recurrences of cancer after five years were "rare." He also stated the 2 1/2-year survival rate for a limited disease was 30-40%, although in the prior deposition he had said this was only 10-25%. By November 1988, when treatment was finally begun, Smith's cancer was extensive and his chances of survival were less than 1%. Dr Bader also testified that the average survival rate for an untreated case of limited small cell cancer was three months; in light of the fact that Smith actually survived 14 months after the cancer was first noted, Dr. Bader concluded that Smith's disease must have been "relatively indolent."

The defendants' expert was Dr. William Anderson, who is board certified in medical oncology, hematology and internal medicine. He examined all the applicable medical records. He defined a "limited" lung cancer as one confined to one side of the chest or thorax. From his examination of the August 1987 x-ray, he was not sure whether Smith had at that time a limited disease, which would have given him a life expectancy of 12-16 months, or an extensive disease, which would have given him 7-12 months. He considered it more likely, however, that Smith had a limited disease. Even with a limited disease subjected to aggressive treatment, Dr. Anderson testified that Smith's chance of surviving two years was only 7%, and his chance of surviving five to 10 years was 1-12%. (He conceded that he had seen clinical results of 23% five-year survival, but these included patients whose cancer was operable; Smith's was not.) He added that he had never seen a small cell lung cancer patient survive five to 10 years, but conceded that the failure to diagnose and treat Smith in August 1987 caused him to lose a chance of survival.

Dr. Roy G. Clay, director of surgical services at Conway, was Smith's treating physician. He related in great detail the course of treatment Smith underwent. He testified that "extensive stage" lung cancer means anything other than a solitary lesion on one lung, but felt the term meant different things to different people. He also testified that when he saw Smith in November 1988, he had extensive stage cancer, but admitted that at some prior time it might have been limited. Assuming that Smith had limited stage disease in August 1987, Dr. Clay estimated his chance of surviving two years was 15%, and his chance of surviving five years, 5%; he also placed Smith's life expectancy at that point at 24-26 months. (He did not disagree with Dr. Anderson's estimate of a 1-12% five-year survival chance.) Dr. Clay agreed with the other experts that by November 1988 Smith's chances of survival were virtually nil.

All three experts discussed various textbooks, articles and other sources of their estimates of the chances of survival for limited and extensive stage patients. The most controversial was the 1990 American College of Chest Physicians board certification syllabus, which referred to "one recent trial of concurrent chemotherapy and chest irradiation" as producing a 25% five-year survival rate in limited disease patients. None of the experts, however, was familiar with this trial or willing to confirm its results from personal experience.

The final medical expert was Dr. David Lawrence, the radiologist who had noted the mediastinal mass in August 1987. Although he testified only as an expert in radiology, he stated that a patient with small cell cancer which has not spread has only a 10-15% chance of living five years.

The District Court summarized the evidence and concluded:

[T]he plaintiff failed to prove by a preponderance of the evidence that the failure to follow up the x-ray in 1987 with treatment caused the decedent to die or lose a chance of survival. In fact, the evidence overwhelmingly shows that decedent lived his expected life span had he been treated. Mr. Smith was very sick at the time of his x-ray in 1987 and the plaintiff has failed to prove he had a reasonable chance of survival. * * * Therefore the defendant is entitled to judgment dismissing the plaintiffs' claims. (emphasis added)

Applicable law

The plaintiff in a medical malpractice action has the burden of proving the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in Louisiana (or, in the case of specialists, the degree of care ordinarily practiced by physicians within that medical specialty); 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 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. La.R.S. 9:2794 A; Elliott v. Robinson, 612 So.2d 996 (La.App.2d Cir.1993), and citations therein.

Once a breach of duty constituting malpractice is established, the question of whether the malpractice contributed to the death, i.e., lessened the chance of survival, is a question for the fact finder. Hastings v. Baton Rouge Gen'l Hosp., 498 So.2d 713, 720 (La.1987). A substantial factor in lessening the chance of survival need not be the only causative factor; it need only increase the risk of harm. Id., citing Jones v. Montefiore Hosp., 494 Pa. 410, 431 A.2d 920 (1981), and Restatement (Second) of Torts, § 323 (1965). ¹ See also Smith v. State through DHHR, 523 So.2d 815, 820-821 (La.1988); ...