Brock v. Newman
| Full Citation | Brock v. Newman, 543 So.2d 84 (La. App. 1989) |
| Decision Date | 11 April 1989 |
| Citation | 543 So.2d 84 |
| Docket Number | Nos. CA,s. CA |
| Parties | Barbara Brock, Wife of/and James BROCK v. Dr. John NEWMAN, et al. Barbara Brock, Wife of/and James BROCK v. Dr. Henry DUHE, et al. 88 0144, CA 88 0145. 543 So.2d 84 |
| Court | Court of Appeal of Louisiana — District of US |
Marie O. Riccio Wisner, New Orleans, for Barbara Brock & James Brock.
William S. Penick, New Orleans, for Charles C. Crumpler, M.D. & St. Paul Fire and Marine Ins. Co., Ins. Co., Insurer for Dr. Henry Duhe (deceased).
Edward J. Rice, Jr., Adams & Reese, New Orleans, for Dr. John Newman.
Fredrick R. Bott, New Orleans, for Dr. Paul Gard.
Before COVINGTON, C.J., and LOTTINGER and FOIL, JJ.
This appeal arises from a medical malpractice suit brought pursuant to La.R.S. 9:2794 that was dismissed against two of four physicians on a joint motion for summary judgment. Suit was brought against Drs. Henry Duhe, Paul D. Gard, Charles Crumpler, and John Newman. Gard and Crumpler filed the joint motion. Plaintiffs, Barbara Brock and her husband, James Brock, appeal the judgment as to Dr. Gard.
In August of 1982, Dr. Newman performed a "pap smear" on Mrs. Brock. In January of 1983, Mrs. Brock was told the results of the initial smear were "not clear." In February of 1983, Mrs. Brock underwent another pap smear. The smear was analyzed by Dr. Gard, a pathologist, who issued a report indicating "squamous displasia" (an abnormality of the cell). He suggested a histologic evaluation of the cervix. On or about February 21, 1983, Mrs. Brock was admitted to Bogalusa Community Medical Center for a dilation and curettage (D & C) and cold knife conization.
On or about February 21, 1983, Dr. Gard, after having prepared 22 slides from the block samples taken by Dr. Newman during the D & C procedure, issued a report diagnosing Mrs. Brock's condition as being adenocarcinoma of the endometrium and intraepithelial squamous cell carcinoma of the cervix. Finding such an occurrence of cell carcinoma to be rare, Dr. Gard consulted another pathologist, Dr. Crumpler, who, in a report, dated February 25, 1983, offered a different diagnosis, i.e. a micro-invasion of squamous cell carcinoma (cancer also) of the endometrium. In the report, Dr. Crumpler noted hysterectomy as "accepted treatment for microinvasive squamous cell carcinoma and Grade I adenocarcinoma of the endometrium if one felt so inclined to so classify the endometrium."
Because Dr. Crumpler's report differed from his own, Dr. Gard sought the opinion of a third pathologist, Dr. Richard J. Reed. On March 10, 1983, Dr. Reed reviewed the slides and issued a third written opinion, stating he found no evidence of cancer of either the endometrium or the cervix.
Dr. Newman received Dr. Gard's report on or about February 22, 1983, and thereupon informed Mrs. Brock that she had cancer of both the endometrium and the cervix, and that he had made an appointment for her with a radiotherapist, Dr. Henry Duhe, also a named defendant and now deceased. She was to receive a month of radiation therapy beginning February 28, 1983, the date she was discharged from the hospital where the D & C was performed.
On or about February 25, however, Dr. Newman allegedly received Dr. Crumpler's report, which varied from Dr. Gard's report. Dr. Gard testified at his deposition he did not tell Dr. Newman he had consulted Dr. Reed despite a statement in his report that "consultation is sought." However, he also claimed he did not know that Dr. Newman had referred Mrs. Brock to Dr. Duhe. He stated he learned of this fact on March 18, when Dr. Newman visited Dr. Gard. Dr. Newman, however, contends he personally discussed the Crumpler report with Gard after receiving it and told him he had recommended Mrs. Brock begin radiation.
Dr. Newman received Dr. Reed's report on or about March 10. The radiation treatments were stopped on or about March 21, at which time Mrs. Brock had already received 15 treatments, rendering her sterile and in need of a hysterectomy.
Plaintiffs' suits against Drs. Newman, and Gard, Crumpler, and Duhe (now deceased) and his insurer, The St. Paul, were consolidated into one suit, alleging they did not use the degree of knowledge or skill possessed, or the degree of care ordinarily exercised by physicians practicing medicine within their respective medical specialties. The entire lawsuit was stayed while the claim against Dr. Newman went before the medical review panel, which found he did not breach the standard of care of family practitioners in the treatment of Mrs. Brock.
Dr. Gard filed a motion for summary judgment which was denied. However, when a joint motion for summary judgment was filed by Drs. Crumpler and Gard, it was granted. Attached to the motion for summary judgment were reports, deposition excerpts, answers to interrogatories, and affidavits from Drs. Reed and G.W. Willis. The affidavit from Dr. Reed stated he had examined the slides and read the differing reports of Drs. Gard and Crumpler, and after having also reviewed Dr. Gard's deposition and the medical records of Mrs. Brock, he concluded the divergent diagnoses were "wholly within the bounds of proper medicine." He added, "Dr. Gard was not only not negligent, but he exhibited exemplary practice in conferring with Dr. Crumpler," and later seeking a third opinion about the "atypical specimen and slides." Dr. Willis stated in his affidavit that after having reviewed the differing reports and 14 of the 22 slides seen by Drs. Gard and Crumpler, the diagnoses of Drs. Gard and Crumpler "were within the sphere of reasonable possible diagnoses," and that their procedures "were customary and within the bounds of pathological standards of care."
Dr. Reed was the only witness listed by plaintiffs in response to Dr. Gard's interrogatories who would testify as to Dr Gard's negligence. Dr. Ed Lazarus was listed as a witness whom plaintiffs intended to call as to Drs. Duhe's and Newman's negligence. Also attached to the joint motion was a report requested by Dr. Newman from Dr. Herbert Ichinose, a pathologist, who viewed the biopsy and stated that while the endometrial biopsy did not show cancerous changes, the "pseudodecidual stromal nodules closely simulate cancer and adequately account for the difference in opinions."
Plaintiffs, in their opposition to the motion, dwelled on the "misdiagnoses" by Drs. Gard and Crumpler and remarks by Dr. Newman in his deposition that he "had no idea Dr. Crumpler and Gard could be totally out of sync with what Dr. Reed had to say." They also included a deposition excerpt by Dr. Gard conceding that "grading" a cancer would be significant to the attending physician and patient, but that some pathologists consider it more of an academic exercise. Plaintiffs contended Dr. Gard was negligent by not "grading" the stage of the cancer.
The trial court also granted a motion by The St. Paul to strike plaintiffs' fourth amending petition, alleging Drs. Duhe and Newman failed to disclose to Mrs. Brock information necessary for her to decide whether to undergo the radiation treatments.
Plaintiffs appeal the judgment as to Dr. Gard, contending the...
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