Pesantes v. U.S.
| Decision Date | 10 July 1980 |
| Docket Number | No. 78-2269,78-2269 |
| Citation | 621 F.2d 175 |
| Parties | 6 Fed. R. Evid. Serv. 419 Gustavo A. PESANTES, Jr., as Administrator of the Succession of Gustavo Adolph Pesantes, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. Robert Morgan, Edna Sakir Morgan, New Orleans, La., W. C. D. Friederichsen, Gretna, La., for plaintiffs-appellants.
John P. Volz, U. S. Atty., Robert L. Boese, Asst. U. S. Atty., Marc J. Yellin, New Orleans, La., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before WISDOM, RONEY, and HATCHETT, Circuit Judges.
On first analysis, this appeal seemed to involve a simple procedural question under the Federal Rules of Evidence: Did the district court err in excluding the testimony of an expert medical specialist, unfamiliar with medical practices in the locality (Greater New Orleans)? Closer consideration of the case leads us to conclude that it turns on a substantive principle of law: In a malpractice case, the duty of care imposed on a medical specialist is governed by the standard of care within the specialty itself, regardless of the locality where the operation was performed. That principle, which goes to the core of determining the liability of a defendant physician, is now recognized as the law of Louisiana, the applicable law of the forum state under the Federal Torts Claim Act. Accordingly, we reverse the district court for excluding the testimony of the defendant's principal expert witness, a Boston specialist in anesthesiology.
In June 1973, 55 year-old seaman Gustavo Adolph Pesantes was admitted to the United States Public Health Service Hospital in New Orleans to undergo a routine umbilical hernia operation. The hospital's physicians determined that surgical repair of the hernia was a medical necessity for Pesantes to remain fit for seaman's duties. Pesantes knowingly consented to an operation.
Pesantes's surgery began shortly after 9:00 a. m. on June 22, 1973. The attending anesthesiologist, Dr. William Hetrick, after some difficulty, placed an endotracheal tube in Pesantes with the object of assuring an adequate supply of oxygen to the patient's lungs during the operation. At about 9:35 a. m., the hospital residents, Albert Arrillago, M.D., and James Bates, M.D., commenced the operation. They halted the surgery several minutes later when Pesantes experienced respiratory difficulties. The attending physicians administered a drug to suppress a bronchospasm by Pesantes and continued with the operation after his spasm had subsided. Later, a second bronchospasm occurred. Pesantes's pulse rate declined, his blood pressure dropped, and there were signs of cyanosis. In an effort to resuscitate Pesantes, the physicians gave him various drugs and performed cardiac massage. His condition continued to deteriorate. He died at 10:15 a. m.
The Administrator of Pesantes's Succession brought this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (FTCA), alleging that the negligence of the hospital and members of its staff participating in the operation on Pesantes proximately caused his death. Specifically, the plaintiff alleged that the attending anesthesiologist negligently placed the endotracheal tube in Pesantes's esophagus rather than in his trachea. The plaintiff alleged also that Pesantes died because the hospital's physicians over-administered intravenous fluids, commenced the operation despite Pesantes's acute anoxia, and instituted resuscitative measures too late. Two days after the death an autopsy was performed. It showed that Pesantes had suffered acute heart failure on the operating table and that his lungs were filled with fluid and were almost devoid of air; air had dilated his stomach to twice its normal size. The plaintiff contended that the pathology findings confirmed what was clear from Pesantes's clinical course: he died an anoxic death that should have been avoided by removing the endotracheal tube and establishing a patent airway to Pesantes's lungs.
The district court, after at a bench trial, found that the United States "had shown by a preponderance of the evidence that the . . . Hospital, its staff and personnel did not act negligently or improperly or in any way deviate from the standard of care as practiced in this community in connection with its treatment of Mr. Pesantes". On appeal, the plaintiff maintains that the testimony of a nonresident medical expert was improperly excluded, that the district court's findings of fact were clearly erroneous, and that the district court should have applied the doctrine of res ipsa loquitur.
The principal question on appeal is whether the district court erred in excluding the testimony of the plaintiff's chief medical expert, Dr. George E. Battit, an anesthesiologist on the staff of Harvard Medical School who practiced at the Massachusetts General Hospital in Boston. The court based its ruling on Louisiana's "locality rule". 1 Under the locality rule a physician is held only to that "degree of skill and care which is usually possessed and exercised by practitioners of their profession in the same locality or community." Meyer v. St. Paul-Indemnity Co., 1953, 225 La. 618, 73 So.2d 781, 786. Dr. Battit had not practiced medicine in Louisiana and was not familiar with the degree of skill exercised by surgeons and anesthesiologists in the Greater New Orleans area. The district court concluded, therefore, that Dr. Battit was incompetent to testify as to whether the hospital's staff performed the operation in accordance with the accepted standards of medical practice in New Orleans.
The district court's ruling on the admissibility of Dr. Battit's testimony was based on the line of cases which follow the locality rule as stated in Meyer. 2 Shortly after the district court's decision the Louisiana Supreme Court overruled Meyer and its progeny. Ardoin v. Hartford Accident and Indemnity Co., La.1978, 360 So.2d 1331. See Note, Medical Malpractice in Louisiana The Rejection of the Locality Rule as Applied to Specialists, 39 La.L.Rev. 306 (1978).
Ardoin is an interesting example of civilian methodology. Mr. Justice Dennis, writing for the Louisiana Supreme Court, pointed out that the Louisiana Court of Appeals had made the mistake of using the common law method of relying on prior decisions. He wrote:
Instead of beginning with the keystone of responsibility, Article 2315, 3 and reading La.R.S. 9:2794 in the light of it and other pertinent articles, the intermediate court approached the problem as one of deciding the extent, if any, to which the jurisprudence had been amended by the legislative act. Thus, rather than reading La.R.S. 9:2794 as the lawmakers' indication of how the basic principle of Article 2315, as amplified by Article 2316, should be applied in a particular class of cases, the appeals court measured the enactment solely against language contained in a judicial opinion. The basic error in this method of interpretation is that it not only ignores the first principles of our law but it also assumes that jurisprudence is equivalent to legislation instead of treating it as judicial interpretation which may or may not adequately reflect the meaning of the laws for contemporary purposes.
The Court next considered the effect of Louisiana's medical malpractice statute, La.Rev.Stat.Ann. § 9:2794 (effective 1975), on the locality rule. Section 9:2794(A)(1) provides:
(W)here the defendant practices in a particular specialty and where 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 (and must prove) (t)hat 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 (emphasis added).
At this point, the Louisiana Supreme Court aptly observed:
(A) tenet of our legal philosophy becomes apparent, i. e., that civil and criminal sanctions imposed for socially unacceptable conduct should be applied equally throughout the state to all citizens within the same class or set of circumstances. Therefore, one must conclude that, if the legislature were to act contrary to this policy by establishing a different definition of negligence, imprudence or want of skill by a medical specialist within each locality, the lawmaking body would express its intention explicitly. Since La.R.S. 9:2724 contains no such expression pertaining to medical specialists, the statute should not be given the effect of Balkanizing those representing themselves as having superior skill or knowledge beyond that common to the medical profession by the application of varying geographic standards of fault.
The Ardoin Court concluded that the statute supersedes the locality rule as it applies to the practice of a medical speciality, because the statute requires medical specialists to exercise that degree of care ordinarily practiced by other physicians engaged in the same speciality rather than the degree of care exercised by physicians practicing in a similar community. Accordingly, the Court held that the "testimony of qualified experts, regardless of whether practicing within or familiar with the defendant doctor's locality is admissible to prove the degree of care ordinarily exercised and the degree of skill or knowledge ordinarily possessed by physicians within the involved medical specialty". Id. at 1340. Significantly, Ardoin held that section 9:2794's rejection of the locality rule applies retroactively to causes of action that arose before the passage of the statute. 4
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