Ardoin v. Hartford Acc. & Indem. Co.

• Decision Date: 19 June 1978
• Docket Number: Nos. 60992,61008 and 61011,s. 60992
• Citation: 360 So.2d 1331
• Parties: Dorothy Hebert ARDOIN et al. v. HARTFORD ACCIDENT AND INDEMNITY CO. et al.
• Court: Louisiana Supreme Court

Page 1331

360 So.2d 1331

Dorothy Hebert ARDOIN et al. v. HARTFORD ACCIDENT AND INDEMNITY CO. et al.

Nos. 60992, 61008 and 61011.

Supreme Court of Louisiana.

June 19, 1978.

Rehearing Denied July 26, 1978.

Welton P. Mouton, Jr., Law Office of Welton P. Mouton and Richard R. Kennedy, Law Office of Richard R. Kennedy, Lafayette for defendants-respondents in three cases.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Timothy J. McNamara, Daniel G. Fournerat, Lafayette, for plaintiffs-applicants in 60992 and for respondents in 61008 and 61011.

H. Lee Leonard, Voorhies & Labbe, Lafayette, for defendants-respondents in all three cases.

Lynn C. Woods, Jr., Houston, Tex., for plaintiff-applicant in 61011 and for respondent in 60992 and 61008.

James T. Guglielmo, Lewis & Lewis, Opelousas, for applicant in No. 61008 and for respondents in 60922 and 61011.

Stephen J. Ledet, Jr., Opelousas, amicus curiae for St. Landry Parish Medical Society.

Thompson & Sellers, Charles M. Thompson, Jr., Abbeville, amicus curiae for Vermilion Parish Medical Society.

J. William Pucheu, Fuselier, Pucheu & Soileau, Ville Platte, amicus curiae for Evangeline Parish Medical Society.

Paul H. Due and Robert D. Downing, Due, Dodson & deGravelles, Baton Rouge, amicus curiae for The La. Trial Lawyers Association.

Richard R. Kennedy, Lafayette, amicus curiae for Lafayette Parish Medical Society.

John V. Parker, Sanders, Downing, Kean & Cazedessus, Baton Rouge, amicus curiae for La. State Medical Society.

DENNIS, Justice.

In this case we are called upon to decide if Louisiana courts are governed by the "locality rule" in determining whether an act of a medical specialist that causes damage to his patient constitutes fault which obliges the physician to repair it.

On July 9, 1976, Lorrie Ardoin died during a "coronary artery by-pass" operation which was being performed by Dr. James Bozeman, a cardiovascular surgeon, at Our Lady of Lourdes Hospital in Lafayette, Louisiana. This type of operation requires that the patient's heart be stopped and that his vital functions be maintained by a "heart-lung" machine throughout the surgery. The apparatus consists of a pump with tubes which are used to suction blood from the patient's body and return it to his arteries after the blood has been oxygenated. This process is known as cardiopulmonary perfusion and the hospital attendants who operate the heart-lung machine are called perfusionists. Coincidentally with Ardoin's operation the hospital initiated the use of new tubing manufactured by Bentley Laboratories, Inc. in its cardiopulmonary perfusion. Because the hospital previously used another medical supplier's tubing, Bentley Laboratories' district manager, Travis Bohannon, was present during the operation for the purpose of assisting Darrell Gregory and Ronald DeBlanc, the hospital perfusionists, in attaching the new tubing to the heart-lung machine. After the cardiopulmonary apparatus had been assembled and the surgery was underway, Dr. Bozeman attached one of the tubes to the ventricle of the patient's heart for the purpose of pumping blood from the patient into the oxygenator. Instead of suctioning blood as it should have, however, the tube pumped air into Ardoin's heart. Death followed instantaneously when a massive air embolism reached the patient's brain.

The decedent's wife and nine children brought a wrongful death action alleging various acts of negligence on the part of the following defendants: Dr. James Bozeman, the cardiovascular surgeon; Darrell E. Gregory, perfusionist; Ronald DeBlanc, perfusionist; Our Lady of Lourdes Hospital; Travis Bohannon, district manager for Bentley Laboratories, Inc.; and Bentley Laboratories, Inc. Numerous third party demands were filed by the defendants and their insurers. Our review is limited to the third party action filed by Travis Bohannon, Bentley Laboratories, Inc. and its insurers against Dr. Bozeman.

At the time of the operation there were four physicians in Lafayette holding themselves out as specialists in cardiovascular surgery, viz., Dr. Bozeman, Dr. Leslie Guidry, Bozeman's expert witness, and Dr. Guidry's two partners. During a trial by jury Dr. Bozeman testified that in Lafayette the customary practice during a by-pass operation did not require a cardiovascular surgeon to test a perfusion tube to determine if it was properly working before inserting it into a patient's heart. Dr. Bozeman admitted that the direction of air flow in such a tube can be tested easily by dipping it in a sterile solution or in the blood draining into the patient's chest cavity. However, the surgeon stated that he did not perform this test but only looked at the line to see if it was the correct one. Dr. Bozeman testified that he depended on the perfusionists to check the heart-lung machinery for proper directional flow of air in the lines because his attention must be directed to other matters of importance during the operation. Testimony given by Dr. Guidry as to the customary practice in Lafayette was in accordance with that of Dr. Bozeman.

In an effort to prove negligence on the part of Dr. Bozeman in not testing the tube before inserting it into Ardoin's heart the third party plaintiffs sought to introduce the testimony of Dr. Prentiss Smith, a cardiovascular surgeon. Because Dr. Smith practiced in Baton Rouge and was not familiar with the care or skill of cardiovascular surgeons in Lafayette the trial judge ruled that Dr. Smith was not a competent witness. A proffer by statement was made which indicated that Dr. Smith would have testified that the degree of skill possessed and care ordinarily exercised by physicians within his specialty in the performance of a coronary artery by-pass operation requires a surgeon to test a perfusion tube by dipping it in either blood or a sterile solution before inserting it into a patient's heart.

Upon conclusion of the trial, the jury found negligence on the part of Gregory, one of the perfusionists, and Bohannon, the district manager of Bentley Laboratories. No negligence was found by the jury on the part of Dr. Bozeman. The demands of the plaintiffs and third parties against Dr. Bozeman were dismissed and judgments totalling $405,000 were rendered in behalf of the plaintiffs against Gregory, Bohannon and their employers and insurers. Appeals were perfected by defendants Gregory and Bohannon, their employers and their insurers. Plaintiffs answered the appeals asking for an increase in the amount of damages awarded.

On appeal the court of appeal refused to vacate or modify the awards made to the plaintiffs and affirmed the dismissal of the third party demands against Dr. Bozeman. Ardoin v. Hartford Accident & Indemnity Company, 350 So.2d 205 (La.App.3d Cir. 1977). In rejecting the third party plaintiffs' assertions that the trial court erred in precluding the testimony of Dr. Prentiss Smith, the Baton Rouge specialist, the intermediate court relied primarily on this Court's opinion in Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953). In that case this Court stated that a physician, surgeon or dentist has a duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment in the application of his skill to the case. Since Dr. Smith was not qualified to testify as to the degree of skill ordinarily employed by specialists performing cardiovascular surgery in Lafayette, the court of appeal concluded that his testimony was correctly excluded. Secondarily, the intermediate court held that no modifications in the law favorable to medical patients had been effected by La.R.S. 9:2794 and that the trial court's ruling was therefore consistent with this statute.

We granted writs on behalf of third party plaintiff Bohannon, his employer and their insurers, to review the questions of law raised by the exclusion of Dr. Smith's testimony, viz., whether the interpretation of the law as to a physician's duty to his patient was correctly set forth in Meyer v. St. Paul-Mercury Indemnity Co.; whether the law in this regard was altered by La.R.S. 9:2794; and, if so, whether the legislation applies to quasi-offenses occurring before its effective date.

The standard of conduct required of persons in Louisiana in their relationships with one another is stated in simple, general terms set forth in Article 2315 of the Louisiana Civil Code of 1870:

"Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.

" * * *."

This single article forms the basis of all tort liability in Louisiana. ¹ The remaining articles of the Civil Code's chapter of legal principles regulating offenses and quasi-offenses, Articles 2316 through 2324, contain amplifications as to what constitutes "fault" and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible. ²

Under the civilian tradition of our state the courts have been given a broad, general principle of legislative will from which they are required to determine when the interest of society is best served by requiring one who harms another to respond in damages for the injury caused. ³ In deciding whether the conduct in a specific case falls below that in which a person can engage without becoming responsible for resultant damage, a court must refer first to the fountainhead of responsibility, Article 2315, and next in applying the article to the many other articles in our code which deal with the responsibility of certain persons or that which arises due to certain types of activity. ⁴ After searching through the code itself a jurist should refer in turn to the acts of the legislature, local governments, and other legislative and administrative bodies. Then, having...