Beckham v. St. Paul Fire and Marine Ins. Co.
| Decision Date | 24 February 1993 |
| Docket Number | No. 24,193-CA,24,193-CA |
| Citation | 614 So.2d 760 |
| Parties | Patricia W. BECKHAM, et ux., Plaintiffs-Appellants, v. ST. PAUL FIRE AND MARINE, INSURANCE COMPANY, et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Nelson, Hammons & White by John L. Hammons, Shreveport, for plaintiffs-appellants.
Mayer, Smith & Roberts by Mark Goodwin, Shreveport, for defendants-appellees.
Before NORRIS, BROWN and STEWART, JJ.
During her after-surgery hospitalization, plaintiff, Patricia Beckham, sustained second and third degree burns. She and her husband, Larry, sued the surgeon, Dr. James R. Shamblin and his malpractice insurer, St. Paul Fire and Marine Insurance company. At the trial on the merits, the court found for defendants and plaintiffs appeal. For the reasons set forth below, we reverse.
FACTS
It is not disputed that Mrs. Beckham was injured through the medical negligence of the hospital nursing staff. The hospital settled with plaintiffs in a separate lawsuit. The issue presented in this appeal is whether any responsibility lies with the treating physician. The basic facts are clear.
In the fall of 1985, Mrs. Beckham consulted Dr. John Haynes concerning pain located along a hysterectomy scar. Dr. Haynes diagnosed an incisional hernia and recommended abdominal surgery. Mrs. Beckham was referred to Dr. Shamblin, a general surgeon. Because she also had flaccid skin, subcutaneous tissue and stretch marks caused by pregnancy, Mrs. Beckham decided to have an abdominoplasty ("tummy tuck") performed simultaneously with the repair of the hernia.
Dr. Shamblin scheduled surgery for November 1, 1985, at Riverside Community Hospital ("Riverside"). Hospital records indicate that surgery began at 12:10 p.m. on November 1 and ended at 1:50 p.m. that same day. The operative record states that the patient tolerated the procedure well and without complications.
Over the following two days, after-surgery care included injections of Demerol. At 10:00 a.m. on November 2, 1985, the day after surgery, Dr. Shamblin checked on Mrs. Beckham and ordered a "heating pad to abdomen PRN" ["PRN" means "as needed"].
Although ordered at 10:00 a.m., the heating pad was not placed on Mrs. Beckham's abdomen until 2:30 p.m. The heating pad used was an electric pad with three temperature settings. The nurses' notes indicate that the patient was disoriented as to time and place when the pad was applied and that she tampered with both the pad and the abdominal binder which secured her dressings. At 7:30 a.m. on November 3, the nurses' notes reflect that Mrs. Beckham's abdomen was red over the entire area covered by the heating pad, but the heating pad was not removed, nor was any attempt made to contact Dr. Shamblin.
While making rounds at approximately noon on November 3, Dr. Shamblin discovered blistering on both sides of Mrs. Beckham's navel and discontinued application of the heating pad. At that time, the doctor ordered Neosporin, an antibiotic ointment, to be applied to the burned area. According to the nurses' notes, these blisters were still present at the time Mrs. Beckham was released from Riverside on November 7, 1985. On the day Mrs. Beckham was discharged, Dr. Shamblin removed every other staple which had been used in suturing the exterior of the horizontal incision (the abdominoplasty) and all staples from the vertical incision (the revision of old hysterectomy scar).
Following discharge and while being driven home from the hospital by her mother, Mrs. Beckham started having abdominal pain and noticed that the vertical incision was gapping (sloughing) open. Mrs. Beckham called Dr. Shamblin's office and was advised to stay in bed and to come in to see the doctor on Monday, November 11. All expert witnesses agreed that the excessive heat contributed to this incision pulling apart.
Mrs. Beckham saw Dr. Shamblin on November 11; he noted the burned areas and the sloughing (opening of the wound) around the vertical incision. Dr. Shamblin prescribed antibiotics and advised the application of ointment to the area. Dr. Shamblin saw Mrs. Beckham again on November 14 and for a final visit on November 21. The sloughing had progressively worsened on both of these visits. Dr. Shamblin advised Mrs. Beckham to clean the wounded areas with peroxide two to three times a day and to continue applying the antibiotic ointment.
Dissatisfied with Dr. Shamblin's treatment, Mrs. Beckham sought medical care from other doctors. Corrective surgery was done by Dr. Charles Itzig, a general surgeon; Dr. Itzig performed a surgical repair of the "pucker" in the old vertical incision and a revision of the scars from the burns and the scar caused by the slough or opening of the vertical incision on her abdominal wall.
Plaintiffs filed an action against American Medical International, Inc., owner of Riverside, on July 31, 1986. The claim against the hospital was compromised and settled on April 4, 1987. Thereafter, on July 22, 1987, Plaintiffs filed a complaint against Dr. Shamblin with the Commissioner of Insurance and the matter was referred to a medical review panel. Plaintiffs filed this lawsuit against Dr. Shamblin and his insurer in district court on February 29, 1989 (within the time allowed following the results from the medical review panel). Defendants filed an exception of prescription, which was referred to the trial on the merits. The exception claimed the complaint filed July 22, 1987, was not timely.
The trial court concluded that Dr. Shamblin did not commit medical malpractice. The court found that plaintiff's harm was entirely caused by the Riverside nursing staff. A formal judgment was signed on September 5, 1991, from which judgment plaintiffs have timely appealed.
STANDARD OF APPELLATE REVIEW
Appellate review extends to both law and facts, but an appellate court may not set aside a finding of fact in the absence of manifest error. La.Const. Art. 5, Sec. 10(B); Smith v. American Indemnity Insurance Co., 598 So.2d 486 (La.App. 2d Cir.1992), writ denied, 600 So.2d 685 (La.1992). The Louisiana Supreme Court set forth a two part test used in appellate review of facts in Mart v. Hill, 505 So.2d 1120 (La.1987):
(1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and
(2) the appellate court must further determine that the record establishes that the finding is not clearly wrong.
Mart, 505 So.2d at 1127; McLain v. Glenwood Regional Medical Center, 602 So.2d 240 (La.App. 2d Cir.1992).
Appellate review of the trial court's findings in a medical malpractice action is limited. The standard of knowledge, skill and care for physicians is best determined from the testimony of other experts in the field. When the medical experts express different views, judgments and opinions on whether the standard was met in any given case, the reviewing court will give great deference to a trier of fact's evaluations. Gibson v. Bossier City General Hospital, 594 So.2d 1332 (La.App. 2d Cir.1991). The trier of fact's findings will not be disturbed in the absence of clear error, even if other conclusions from the same evidence are equally reasonable. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Gibson v. Bossier City General Hospital, supra; Reid v. North Caddo Memorial Hospital, 528 So.2d 653 (La.App. 2d Cir.1988).
In a medical malpractice action against a physician or surgeon, the plaintiff has the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana actively practicing in a similar community or locale and under similar circumstances; and where 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 plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) 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.
(3) 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.
The plaintiff is not required to prove that the defendant's conduct was the only cause of the harm, nor must the plaintiff negate all other possibilities; the plaintiff must only show by a preponderance of the evidence that the injury suffered was caused in part by the defendant's substandard conduct. Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977). The plaintiff is not required to prove "beyond a reasonable medical certainty" that medical negligence occurred, but must only prove the three elements required by LSA-R.S. 9:2794(A) by a preponderance of the evidence.
The doctor's professional judgment and conduct are evaluated in terms of reasonableness under the then existing circumstances, not in terms of result or in light of subsequent events. A physician is not required to exercise the highest degree of care possible; his duty is to exercise the degree of skill ordinarily employed by his professional peers under similar circumstances. Gibson v. Bossier City General Hospital, supra.
The standard of knowledge, skill and care for physicians and surgeons is best determined from the testimony of other experts in the field. Gibson, supra.
DID THE TRIAL COURT ERR IN CONCLUDING THAT DR. SHAMBLIN DID
NOT DEVIATE FROM APPLICABLE MEDICAL STANDARDS?
All experts testifying in this case, including Dr. Shamblin, agreed that Mrs. Beckham was injured because of medical negligence. This malpractice resulted from the failure...
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