Davis v. Duplantis
| Decision Date | 16 September 1971 |
| Docket Number | No. 30991.,30991. |
| Citation | 448 F.2d 918 |
| Parties | James DAVIS, Plaintiff-Appellant, v. M. J. DUPLANTIS, M.D., and W. Hammond Newman, M.D., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Russ M. Herman, Mark Herman, Maury Herman, New Orleans, La., for plaintiff-appellant.
H. Martin Hunley, Jr., New Orleans, La., for W. Hammond Newman, M.D.
Breard Snellings, of Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, La., for M. J. Duplantis, M.D.
Before GOLDBERG, GODBOLD and RONEY, Circuit Judges.
This medical malpractice case against two doctors resulted in a directed verdict for one defendant and a jury verdict for the other. The plaintiff appeals the directed verdict in favor of Dr. M. J. Duplantis on the ground that there were factual issues which should have gone to the jury. He appeals the jury verdict in favor of Dr. W. Hammond Newman on the ground that it was reversible error to allow the testimony of an expert witness whose name was submitted a day later than required by the pretrial order. We affirm both judgments.
Plaintiff, James Davis, injured his left knee in 1963 while working as a laborer. He was attended by Dr. M. J. Duplantis, a general practitioner, and underwent an operation for cartilage removal by Dr. W. Hammond Newman, an orthopedic surgeon. Both doctors practiced medicine in Covington, Louisiana. At some time subsequent to the operation, plaintiff developed an arteriovenus fistula behind his left knee. Although plaintiff complained to both of the defendants that he had pains and a "jumping" sensation in his left knee, neither doctor diagnosed the problem as an arteriovenus fistula. The fistula was surgically corrected by another doctor in 1967. While it was contended that the arteriovenus fistula arose out of Dr. Newman's operation, plaintiff did not contend that Dr. Newman was guilty of negligence in the performance of the operation. The single thrust of the malpractice claim was that the defendant doctors negligently failed to make a post-operative diagnosis of plaintiff's condition before it caused physical damages alleged to have rendered plaintiff permanently disabled.
This is a diversity case controlled by Louisiana law which follows the so-called "locality rule" in malpractice cases. This rule holds that physicians and surgeons are not negligent if they exercise that degree of skill and care which is usually possessed and exercised by practitioners of their profession in the same locality or community.1
To recover in a malpractice case, plaintiff has the dual burden of proving first, the recognized standard of care generally practiced by other physicians in the community in similar situations, and second, that the defendant negligently failed to follow that standard.2
Relying on this rule, the trial court directed a verdict for Dr. Duplantis on the ground that plaintiff's proof failed to provide the first ingredient of his case, i. e., the standard of care existing and to be followed by a general practitioner of medicine in the community of Covington, Louisiana. Contending that the case should have been sent to the jury, plaintiff says three things: first, the community standard was established through the testimony of Dr. Duplantis himself while under cross-examination; second, notwithstanding any community standard, the doctor failed to take known precautions for his patient's welfare; and third, Dr. Duplantis failed to inform his patient of certain x-ray results and, therefore, is liable for simple negligence.
We can assume, without deciding, that plaintiff could carry his burden of establishing the standard of professional practice against which a defendant doctor's acts must be tested through the testimony on cross-examination of the defendant doctor himself.3 This avails plaintiff nothing however because a complete reading of Dr. Duplantis' testimony reveals that he did not testify to any community standards at all; that is, he did not testify as to what other practitioners did in situations similar to this one. He did testify to certain procedures and practices which he customarily followed in various circumstances, but even if it could be presumed that his customary practices would establish the standard for the community, he at no time indicated that he varied from his own standard practices in this particular situation, much less that any supposed variance amounted to negligence. Before any jury should be left to speculate as to whether certain diagnostic procedures should have been executed by a physician, there must be some proof that other doctors in similar circumstances would have carried out such procedures as a minimum standard of practice, and the jury must be given some evidence other than counsel's argument that the omissions were negligent in character. A mere listing of those tests which could have been made, but were not, does not present an issue for the jury.
In arguing that irrespective of any community standard the jury should have been left to determine whether the doctor failed to take necessary precautions for his patient's welfare, the plaintiff relies on Favalora v. Aetna Casualty & Surety Co., 144 So.2d 544 (La.App. 1962), as an exception to the locality rule. This argument misconstrues Favalora, which merely holds that a doctor's compliance with a community standard does not relieve him of liability in a malpractice case if it is shown by a member of the profession from defendant's locality that the procedure followed is recognized by members of the same profession as being faulty and contrary to the teaching in medical colleges.
There was simply no testimony in plaintiff's case upon which the jury could conclude that the procedures followed by Dr. Duplantis as a general practitioner were, in the eyes of the profession, faulty.
Plaintiff cites Dowling v. Mutual Life Ins. Co. of New York, 168 So. 2d 107 (La.App.1964), for his argument that Dr. Duplantis was guilty of actionable negligence...
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...abuse of discretion by the district court. Federal Deposit Ins. Corp. v. Glickman,450 F.2d 416, 419 (9th Cir. 1971); Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir. 1971). We turn now to a consideration of the record which plaintiffs suggest is sufficient to withstand Central States' motion......
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...order is discretionary with the trial court and will not be disturbed on appeal absent an abuse of discretion. E.g., Davis v. Duplantis, 448 F.2d 918 (5th Cir. 1971); Wright Rootbeer Co. of New Orleans v. Dr. Pepper Co., 414 F.2d 887 (5th Cir. 1969). Failure of a district court to allow def......
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American Water Development, Inc. v. City of Alamosa, s. 92SA141
...case through its preparatory stages."3 James Wm. Moore et al., Moore's Federal Practice p 16.19 (2d ed. 1993) (quoting Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir.1971)).39 The court detailed the nature and amounts of the awards to each of the individual objectors who received such award......
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Pillsbury Co. v. Midland Enterprises, Inc., Civ. A. No. 87-5041.
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