95-2712 La.App. 4 Cir. 7/23/97, Williams v. Golden

• Decision Date: 23 July 1997
• Citation: 699 So.2d 102
• Parties: 95-2712 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 102

699 So.2d 102

95-2712 La.App. 4 Cir. 7/23/97

Jean G. WILLIAMS individually and as Natural Tutrix of and on Behalf of her Minor Child, Jean Marie Williams v. Dr. David L. GOLDEN, M.D., et al.

No. 95-CA-2712.

Court of Appeal of Louisiana Fourth Circuit.

July 23, 1997.

As Modified on Grant of

Rehearing Sept. 30, 1997,

and As Amended Oct. 8, 1997.

Waltzer & Associates, Joel Waltzer. Bruce C. Waltzer, New Orleans, for Appellants.

Lemle & Kelleher, L.L.P., Albert H. Hanemann, Jr., David M. Whitaker, New Orleans, for Appellees.

Before BARRY, BYRNES and MURRAY, JJ.

[95-2712 La.App. 4 Cir. 1] BARRY, Judge.

Plaintiff Jean G. Williams, individually and on behalf of her minor child, Jeanne Marie, appeals a judgment in favor of the defendants in this medical malpractice action. ¹ Williams sued her gynecologist Dr. David Golden and his insurer, Insurance Corporation of America for damages as a result of his treatment to her and her child Jeanne Marie. ²

[95-2712 La.App. 4 Cir. 2] Williams alleged that Dr. Golden inserted a Copper-7 intrauterine device (IUD) in July 1983 and she became pregnant in September 1983. Dr. Golden was unable to remove the IUD after several attempts during her pregnancy. She alleged that he did not properly treat her and she delivered a very premature baby, Jeanne Marie, in her apartment without medical assistance on February 22, 1984. Jeanne Marie remained in the hospital's neonatal intensive care unit for months and had serious problems including intraventricular hemorrhage, hydrocephalus, and cerebral palsy.

The jury concluded that Dr. Golden did not fail to meet accepted standards of medical care when advising or treating Williams. The resulting judgment dismissed Williams' suit. Her motion for a new trial and judgment notwithstanding the verdict was denied.

Williams argues that it was error to instruct the jury that the law presumes a medical doctor possesses reasonable knowledge and skills required by controlling medical standards and applies that skill when treating a patient. Williams also claims the court failed to give counsel the jury charges in a reasonable time before closing arguments. A motion to remand to take evidence on the motion for a new trial was denied by this Court.

JURY INSTRUCTION

A jury instruction as a whole must reflect the applicable law in light of the pleadings and facts of the case. The question is whether the jury was misled to such an extent that it was not able to do justice. Girvan v. New Orleans Public Service, Inc., 94-0681 (La.App. 4 Cir. 11/30/94), 646 So.2d 481, writ denied 94-3169 (La.3/10/95), 650 So.2d 1178. The trial court must instruct the jury as [95-2712 La.App. 4 Cir. 3] to the law and avoid confusing the jury. Kennedy v. St. Charles General Hospital Auxiliary, 630 So.2d 888 (La.App. 4th Cir.1993), writ denied 94-0269 (La.3/18/94), 634 So.2d 863.

Discovery of an error in a jury instruction does not justify a trial de novo by an appellate court without measuring the gravity and degree of the error and considering the instructions as a whole and the circumstances of the case. Barnett v. New Orleans Public Service, Inc., 489 So.2d 452 (La.App. 4th Cir.1986). When a jury was erroneously instructed and the error probably contributed to the verdict, a reviewing court must set aside the jury verdict. Kibble v. B.P.O. Elks Lodge No.30, 640 So.2d 267 (La.App. 4th Cir.1993), writ denied 94-0922 (La.5/20/94), 641 So.2d 204; Boh Brothers Construction Company, Inc. v. Luber-Finer, Inc., 612 So.2d 270 (La.App. 4th Cir.1992), writ denied 614 So.2d 1256 (La.1993). Only then should a reviewing court make an independent de novo determination of the facts from the record, if possible, without according any weight to the factual findings of the erroneously instructed jury. The manifest error standard is not utilized when a jury's findings are tainted. Picou v. Ferrara, 483 So.2d 915 (La.1986); Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

The heart of this appeal concerns the following jury instructions:

Also, the law presumes that a medical practitioner possessed reasonable knowledge and skills required of him by the controlling medical standards and that in treating the patient he applied that knowledge and skill. This presumption should control your deliberations in this case unless it has been overcome by a showing that, by the greater weight of evidence, Doctor Golden was not so possessed or did not so apply his knowledge and skills.

[95-2712 La.App. 4 Cir. 4] Williams notes that the defense proposed the instruction (charge 3) and it was given to the jury over her objection. According to the transcript, immediately after the jury was charged and retired, Williams' counsel noted an objection to the charge. ³ Williams correctly contends the instruction is improper under La. R.S. 9:2794. The cases cited by defendants to support the instruction are old cases, see generally Freche v. Mary, 16 So.2d 213, 215 (La.App.1944), and Brashears v. Peak, 19 So.2d 901, 903 (La.App. 1st Cir.1944), which pre-date La. R.S. 40:1299.41 et seq., the Medical Malpractice Act, and La. R.S. 9:2794 (both enacted in 1975). Those statutes set out the burden in medical malpractice actions. ⁴

However, we must look at the jury instruction as a whole. We note that at the beginning of the jury charge the correct law under La. R.S. 9:2794 was given:

In order to prove their case against Doctor Golden, the plaintiffs must prove:

One, The degree of knowledge, or skill possessed or the degree of care ordinarily exercised by physicians practicing in the field of obstetrics/gynecology.

[95-2712 La.App. 4 Cir. 5] Two, That the defendant either lacked this degree of knowledge or skill, or that he failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and

Three, That as a proximate result of the defendant's lack of such knowledge or skill, or as a proximate result of his failure to exercise reasonable care and diligence, along with his best judgment the plaintiff suffered injuries which would not otherwise have been incurred.

If the plaintiff fails to prove any one of these things, you must render judgment in favor of the defendant.

Following the above instruction the trial court informed the jury that the Medical Review Panel found the evidence did not support a conclusion that Dr. Golden failed to meet the applicable standard of care. Then the court gave the challenged instruction which specifies that it is presumed Dr. Golden possessed the required skill and knowledge and applied it when treating Williams. The instruction further stated that the presumption controls unless it is overcome by "greater weight of evidence" that Dr. Golden did not possess the knowledge or properly apply his skills. It is confusing as to what standard of proof Williams was required to meet.

Placing the erroneous instruction toward the end of the charge supports Williams' contention that the instruction prejudiced the case and resulted in the adverse verdict. The use of "presumption" in the instruction was persuasive as to Williams' burden. We conclude the jury verdict was contaminated by the highly prejudicial instruction. The judgment is reversed and the verdict is set aside. We will conduct a de novo review.

[95-2712 La.App. 4 Cir. 6] DE NOVO REVIEW

LAW ON LIABILITY

Williams alleged that Dr. Golden committed malpractice. She claimed that he failed to diagnose the onset of early delivery and did not attempt to delay labor. Williams also alleged that Dr. Golden failed to provide adequate information concerning risks to the fetus if she carried to term with an intrauterine device in place. As a result she was deprived of her right to make an informed choice.

In a medical malpractice action a plaintiff faces a two-fold burden: first, to establish by a preponderance of the evidence that the physician's treatment fell below the ordinary standard of care in his medical specialty; second, to prove a causal relationship between the alleged negligent treatment and the resultant injury. La. R.S. 9:2794; Morris v. Ferriss, 95-1790 (La.App. 4 Cir. 2/15/96), 669 So.2d 1316, writ denied 96-0676 (La.4/26/96), 672 So.2d 671; Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La.1991); Snia v. United Medical Center of New Orleans, 93-2367 (La.App. 4 Cir. 5/26/94), 637 So.2d 1290, writ denied 94-1653 (La.10/7/94), 644 So.2d 637.

The Louisiana Uniform Consent Law requires disclosure of the nature and purpose of a medical or surgical procedure together with known risks, if any, of death, brain damage, quadriplegia,, paraplegia, the loss of function of any organ or limb or disfiguring scars. La. R.S. 40:1299.40. A doctor is required to provide sufficient information to allow the patient to make an informed and intelligent decision on whether to submit to a course of treatment. The patient should be told the nature of the ailment or condition, the risks involved in the proposed treatment, the risks of failing to undergo treatment, and the risks of alternative treatment. Hartman v. D'Ambrosia, 95-0393 (La.App. 4 Cir. [95-2712 La.App. 4 Cir. 7] 11/30/95), 665 So.2d 1206, writ denied 95-3124 (La.2/16/96), 667 So.2d 1060, quoting Hondroulis v. Schuhmacher, 553 So.2d 398, 411 (La.1988).

A physician is required to advise a patient of any material consequences which would influence the decision of a reasonable person in the patient's condition. A doctor has a duty to disclose all material risks. The determination of materiality is a two-step process:

The first step is to define the existence and nature of the risk and the likelihood of its occurrence. "Some" expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. The second prong ... is ... to decide whether the probability of that type harm is a risk which...