Folse v. Anderson, 2675

• Decision Date: 05 July 1967
• Docket Number: No. 2675,2675
• Citation: 202 So.2d 404
• Parties: C. W. FOLSE v. Jack R. ANDERSON.
• Court: Court of Appeal of Louisiana — District of US

Page 404

202 So.2d 404

C. W. FOLSE v.Jack R. ANDERSON.

No. 2675.

Court of Appeal of Louisiana, Fourth Circuit.

July 5, 1967.

Rehearing Denied Oct. 4, 1967.

Harry A. Burglass, Metairie, for Clarence W. Folse, plaintiff-appellant.

Christovich & Kearney, A. R. Christovich, Jr., New Orleans, for Jack R. Anderson, defendant-appellee.

Before McBRIDE, CHASEZ and HALL, JJ.

CHASEZ, Judge.

Clarence W. Folse, Jr., brought suit for damages in the total sum of $36,000.00 against Doctor Jack R. Anderson, an Ear, Nose and Throat Specialist, for personal injuries sustained when the defendant performed plastic surgery on July 5, 1960 upon the plaintiff's nose.He alleged that hedefendant was engaged to perform surgery 'merely for the purpose of correcting a slight thickening of the skin on the end of plaintiff's nose' and that the defendant exceeded his authority in that he performed extensive surgery upon the nose with the result that his appearance was altered to his detriment, and his breathing impaired.

Alternatively, the plaintiff alleged that the defendant warranted that the surgery would improve his appearance and that he would suffer no breathing impairment; and further that these representations influenced plaintiff to undergo plastic surgery, and to suffer to change in his appearance and breathing impairment.

The defendant answered, denying liability and averruled that the plaintiff consulted him in a professional capacity for surgery to improve his appearance, with full discussion of what was desired.He alleged that the plaintiff was fully cognizant of and acquiesced in all operative procedures performed, which procedures were done with high skill and care; and that any alteration of appearance was initiated by the express instructions of the plaintiff.The 'negligence and fault' of the plaintiff in requesting the treatment was also pleaded.

This suit was filed on July 5, 1961.Answer was filed on December 11, 1962.A pretrial conference was held on November 19, 1963, with the plaintiff present, and trial was set for January 23, 1964.On January 20, 1964plaintiff's counsel withdrew.A substituted counsel placed his name of record on January 23, 1964 and the case was continued until March 30, 1964.This counsel also withdrew on March 25, 1964.On March 30, 1964, the defendant and his witnesses having appeared twice, and the plaintiff having subpoenaed his witnesses in proper person, the court ordered him to proceed with the trial.After the plaintiff called and interrogated six witnesses, the Court granted him a continuance until June 30, 1964, because of the plaintiff's stated inability to try the case himself.He was expressly admonished by the court to obtain a lawyer, and have the lawyer prepare for trial, and the court advised him that the case would be disposed of on that day,--regardless of whether he had a lawyer or not.Mr. Folse admitted that he had difficulty previously in securing counsel because he could not agree on who would be responsible for professional fees.

On June 30, 1964, another attorney in Mr. Folse's employ appeared and requested a continuance, stating that he had not had enough time in which to prepare his case.This continuance was understandably denied.After a short recess, this attorney then informed the court that the plaintiff desired to try his own case, and counsel desired to withdraw, because counsel and client could not agree upon the theory of the case.The case was continued once again until November 30, 1964, the Court patiently explaining to plaintiff that there would be no more continuances and that, in all fairness to the Court and to the defendant, he would have to be ready for trial at that time.

On September 29, 1964 a fourth attorney was entered of record on the plaintiff's behalf.On November 24, 1964, Mr. Folse wrote the District Court a letter wherein he stated he was again without counsel and complained of this latter attorney's 'proscrastination'.On November 30, 1964 his former attorney also formally withdrew and the plaintiff finally went to trial, appearing in proper person.Judgment was rendered on December 9, 1964 in favor of the defendant, dismissing the suit of the plaintiff.

The plaintiff has taken this appeal.His contention to this Court is that, is spite of the irrelevancy of much of the testimony in the record, there is evidence to show that there is a serious risk in submitting to a rhinoplasty, both from a cosmetic and breathing standpoint, and this risk was not imparted to the plaintiff, who was instead, led to believe that a proper breathing function was guaranteed and assured.Further, it is contended, the record indicates, that as a result of the operation the breathing function actually had been impaired.

We find that we cannot accept these contentions inasmuch as the fact conclusions of the judge to the contrary are borne out by the record.In addition to the plaintiff and the defendant, several reputable physicians testified, all called by the plaintiff and most of whom the plaintiff had seen relative to his nose.Some freely testified as experts for the plaintiff without guarantee of their expert fees.We will briefly recapitulate what we consider the pertinent testimony.

Dr. Harold V. Cummings testified that he had given the plaintiff a general physical examination in October of 1959 and observed no breathing impairment of the nose.He also advised him to see a psychiatrist.Dr. Joseph D. Landry also examined the plaintiff and found nothing to indicate a breathing impairment at the time, prior to the operation.He found him a perfectly normal individual.

Dr. James W. Burkes performed a dermabrasion on the plaintiff's face on June 10, 1960 to remove acne scars from the plaintiff's face .The plaintiff complained of scar tissue on the end of his nose and he was told a dermabrasion would not aid it.He also referred Mr. Folse to Dr. Anderson and testified that the plaintiff, to his knowledge, had previous dermabrasions.Dr. Robert J. Meade testified that he had given the plaintiff a dermabrasion in 1959.

Clarence Folse went to see Dr. Anderson relative to having some treatment for his nose.After several visits, a rhinoplasty was performed on July 5, 1960.Dr. Anderson stated the results were 'certainly within normal limits, they were acceptable results.'He explained the steps performed, removing the nasal hump, narrowing the nose, shortening the nose somewhat and working on the tip of the nose.The patient's post-operative course appeared satisfactory.On July 11, 1960 the patient expressed dissatisfaction with the results and the doctor explained that temporary distortion was expected after the operation.A chin implant had also been made on the doctor's suggestion, and this the plaintiff ordered taken out on this occasion.On July 21, the patient said that he was breathing well most of the time and examination of the nose revealed it to be satisfactory.On August 5, 1960 Mr. Folse complained of intermittent breathing blockage and of some swelling, which was not unusual.On August 20, 1960 the patient called to express his dissatisfaction with the nose, and felt that the tip was too far up in the air.On August 22, 1960 the patient came in to express further dissatisfaction with the appearance of his nose.On August 25, 1960 arrangements were made on behalf of the patient for a cartilage graft along the dorsum of the nose in order to alter its appearance, despite the advice of Dr. Anderson to await further developments which would come in time.However, the plaintiff decided not to go through with the operation.On August 30, 1960the plaintiff complained of night breathing difficulty for which a decongestant antihistamine was prescribed.September 1 1960 was the last time the doctor talked to Mr. Folse, when Mr. Folse stated he wanted his nose 'cut down' and the doctor advised him to wait for the nose to heal in several months.

Dr. Robert F. Ryan saw the plaintiff in August of 1960 either once or twice, one visit being on August 30, 1960.The plaintiff was disturbed about the appearance and the function of his nose.This doctor recommended he go back to Dr. Anderson and told him that he believed the results would improve in time, and if he were dissatisfied from a cosmetic standpoint, to see Dr. Richard Vincent, or for function to see another named physician.Dr. Ryan saw a large amount of edema and swelling from the operation, which would be expected at that period of time after the rhinoplasty.

Dr. Richard A. Vincent, a plastic surgeon, testified the plaintiff saw him on September 9, 1960 and was concerned about his appearance.He advised the plaintiff to await the full results of the operation .On the 28th of September Doctor Vincent suggested that the plaintiff be referred to an Ear, Nose and Throat specialist who perhaps could perform an operation to alleviate the plaintiff's complaints.On the 14th of November, there was no history of allergy, but the doctor felt he ought to be seen by an otolaryngologist.In January of 1961 there was no change.On March 20, 1961, the patient had 'marked congestion of all mucous membrances.'The doctor referred him to a physician in St. Louis.Dr. Vincent felt that the rhinoplasty met or exceeded the standards of this locality.

As near as we can discern, the plaintiff was seen by Dr. Meade again in the Spring or Summer of 1961.He testified as an expert plastic surgeon.He said the plaintiff was concerned about the appearance of his nose, and he felt that the plaintiff was 'overbreathing' which was the cause of his breathing difficulty, which he felt had become a fixation.He also recommended that the plaintiff see a psychiatrist.He felt that the plaintiff had received a good rhinoplasty, which did not cause any significant disability and which had met the standards of medical care.

Doctor Meade had also written a letter to the draft board, concerning the plaintiff, in...