97-1630 La.App. 3 Cir. 4/29/98, Navarro v. Aries Marine Corp.

• Decision Date: 29 April 1998
• Citation: 713 So.2d 613
• Parties: 97-1630 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 613

713 So.2d 613

97-1630 La.App. 3 Cir. 4/29/98

Ernesto A. NAVARRO, III, Plaintiff--Appellee, v. ARIES MARINE CORPORATION, Defendant--Appellant.

No. 97-1630.

Court of Appeal of Louisiana Third Circuit.

April 29, 1998.

Raymond M. Allen, William J.F. Gearheard, Lafayette, for Ernesto A. Navarro, III.

Douglas William Truxillo, Robert S. Hinyub, Lafayette, for Aries Marine Corp.

Marc W. Judice, Lafayette, for John Cobb, M.D.

Before YELVERTON, COOKS and SULLIVAN, JJ.

[97-1630 La.App. 3 Cir. 1] YELVERTON, Judge.

Ernesto Navarro suffered a back injury while working as a seaman aboard a vessel owned by his employer, Aries Marine Corporation (Aries). Maintenance and cure were paid by Aries, and Aries was still paying maintenance at trial. The issue in this case is whether Aries is liable for cure payments resulting from procedures performed by Mr. Navarro's treating physician, Dr. John Cobb, an orthopedic surgeon. Aries argues that the treatment was not medically necessary. The trial court found that the treatment, which successfully relieved the patient of his back pain, was medically [97-1630 La.App. 3 Cir. 2] necessary and ordered Aries to pay the medical expenses. That finding is contained in the following portion of the trial court's reasons for judgment.

The court will not detail every medical opinion offered in this case. Suffice it to say, that no doctor disputes Plaintiff was having constant back pain at the time Dr. Gidman released him for work. None of the treatment afforded to Plaintiff by Defendant's doctors were effective. The surgery performed by Dr. Cobb has been successful. This is a case of a difference in medical treatment but the excellent result convinces the Court that the medical treatment of Dr. Cobb was medically necessary to relieve Plaintiff of his painful condition. No doctor has indicated Plaintiff was not truthful and Dr. Gidman admitted that Plaintiff had medical problems with his back when he first saw him and when he last saw him which prevented him from returning to his normal work. Finally, Dr. Gidman was unable to account for the excellent recovery of Plaintiff after his surgery except to say he was "lucky".

As a result, the Court finds the testimony of Dr. Cobb to be the most credible of the medical opinions given. Additionally, the use of a discogram [sic] as a tool by Dr. Cobb, although controversial, is not medically recognized as useless in view of the many articles introduced, the failure of the medical society to take a stand against it and the continued teaching in some medical schools (Tulane) of its correct use.

Aries appeals that decision. Aries makes three assignments of error which we will address below. After reviewing the record in its entirety, we find no manifest error in the trial court's finding that Dr. Cobb's testing and treatment was medically necessary. We find no merit to Aries' assignments of error, and for the following reasons, we affirm the trial court's judgment.

[97-1630 La.App. 3 Cir. 3] Assignment of Error 1

Aries' first assignment of error is:

Judge Aaron erred in granting Dr. Cobb's motion to quash the subpoena duces tecum requesting that Dr. Cobb produce records from his office indicating the number of patients he has treated over the last five years who were referred to him by attorneys, the number of surgeries he has performed on such patients (by percentage) and the total amount of income he received from attorneys who referred patients to him over that same period.

Aries relies on this circuit's opinion in Rowe v. State Farm Mut. Auto. Ins. Co. 95-669 (La.App. 3 Cir. 3/6/96); 670 So.2d 718, writ denied 96-0824 (La.5/17/96); 673 So.2d 611, as its license to discover the above subpoenaed information from Dr. Cobb. Aries argues that it needed that information to prepare for meaningful cross-examination of Dr. Cobb and to show Dr. Cobb's bias.

It was Dr. Cobb, not the plaintiff, who filed the motion to quash the subpoena duces tecum. Dr. Cobb gave several reasons for opposing the subpoena. His arguments were based on relevance (Dr. Cobb was the treating physician); privilege (patient identity and information may not be divulged); burden (the doctor's clinic has over 13,000 patient records that are not computerized); judge trial (a judge, not a jury, was to determine the credibility of Dr. Cobb); and on the fact that diskography has scientific proponents as well as opponents.

We start with the observation that Mr. Navarro was not referred to Dr. Cobb by his attorney. The evidence was that Mr. Navarro had heard about Dr. Cobb from friends and asked his family physician to refer him to Dr. Cobb. Regardless of that fact, we would still not find error in the trial court's determination to quash the subpoena duces tecum. The trial judge found that the plaintiff was in [97-1630 La.App. 3 Cir. 4] constant pain and is now recovered. It is difficult to argue with the cause and effect relationship between Dr. Cobb's treatment, diagnosis, and surgery, and the plaintiff's recovery. On these facts, the trial court must have decided that the allowance of such an extensive review of Dr. Cobb's records would have unjustifiably imposed an undue burden on the doctor. La.Code Civ.P. art. 1426(A)(1) allows the trial court to order that "discovery not be had" if such would impose an "undue burden or expense." Furthermore, under La.Code Civ.P. art 1354, the trial court "in its discretion may vacate or modify the subpoena if it is unreasonable or oppressive."

In Rowe, 670 So.2d 718, this court held that the trial court abused its discretion in not allowing the plaintiff to subpoena, within limits, certain financial records of the defendant's expert orthopedist in order to establish the expert's possible bias. While that case contains a significant number of distinguishing features, it is only necessary that we point out a few to show it is not controlling under the facts before us. First, the court's reasoning in Rowe, 670 So.2d at 724-725, discloses that the concern was about a "retained expert" whose "apparent objectivity" might unduly influence a jury. The court believed that the trier of fact, a jury, might need to know if bias existed.

The expert in Rowe was not the plaintiff's treating physician but an expert retained by the defendant who reviewed the plaintiff's case only three weeks or so pretrial. In this case, Dr. Cobb was Mr. Navarro's treating physician, not a retained expert. Further, in this case the trier of fact is an experienced judge, not a jury.

[97-1630 La.App. 3 Cir. 5] Nevertheless, Aries argues that "[t]he situation before this court is nearly identical to that presented by Rowe ...." Aries cited 31 reported decisions ¹ of this court which it argued demonstrated Dr. Cobb's "track record" and revealed excessive bias in favor of personal injury claimants, and a propensity to order diskograms and surgery.

[97-1630 La.App. 3 Cir. 6] We do not interpret Rowe to mean that every expert medical witness in every case will be subject to a subpoena duces tecum of unrelated medical records for the purpose of cross examination. We have examined the 31 cases cited by Aries and said to reflect Dr. Cobb's "track record". Of the 31, only two indicate that an attorney referred the plaintiff to him. Eight referrals were from other physicians; in one he met the patient while treating the patient in the emergency room; one patient chose Dr. Cobb on his own; one was referred by another of Dr. Cobb's patients; the opinion does not disclose in the remaining 18 citations how the parties became Dr. Cobb's patients. Dr. Cobb recommended surgery 13 times out of the 31 listed cases. In six cases he recommended conservative treatment. Three times he stated there were no objective signs of injury or that the plaintiff could go back to work without restrictions. In the remaining nine cases there is no indication of the treatment. Dr. Cobb was the treating physician in 24 of the 31 cases. In the other seven he was giving a second opinion for the benefit of other physicians.

While in the majority of the 31 cases Dr. Cobb testified on behalf of claimants, he did not always testify in a manner that was beneficial to the claimant. For example, in Poirier, he testified that while the plaintiff had serious injuries, the cause of the injuries was very likely not the negligence of the defendant. Also, in Lewis, while he recommended disability based on the claimant's subjective complaints of pain, Dr. Cobb testified that he could find no objective sign of an injury. In Broussard, Dr. Cobb testified he performed a diskogram that revealed no disk injury existed. He testified that he thought the claimant could return to work. In Fusilier and [97-1630 La.App. 3 Cir. 7] in Saucier, he agreed with Dr. James McDaniel that the claimants had no objective signs of injury.

We also found and examined 15 other opinions ² from this circuit where Dr. Cobb was mentioned. In none did Dr. Cobb recommend surgery. In most he recommended physical therapy or other conservative treatment. In Jefferson v. K-Mart, an attorney referred the plaintiff to him. Dr. Cobb recommended physical therapy and said surgery would not be beneficial. In six of those cases the plaintiff was referred to Dr. Cobb by other doctors. Only once was it shown that an attorney referred the patient. The others did not indicate who referred the plaintiff to Dr. Cobb.

This court held in Rowe that it was an abuse of the trial court's discretion not to issue the subpoena duces tecum for Dr. James McDaniel's records, based on the circumstances presented in that case. We find that the circumstances presented in the present case are not comparable to those presented in Rowe. It was not an abuse of the trial court's discretion to quash the subpoena duces tecum in the present case.

[97-1630 La.App. 3 Cir. 8] Assignment of Error 2

By this assignment Aries claims "Judge Aaron erred in allowing in testimony and...