Hemingway v. Ochsner Clinic
| Decision Date | 27 December 1979 |
| Docket Number | No. 77-2178,77-2178 |
| Citation | 608 F.2d 1040 |
| Parties | 5 Fed. R. Evid. Serv. 484 Glen R. HEMINGWAY, Plaintiff-Appellant, v. OCHSNER CLINIC and/or Ochsner Foundation Hospital et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Darryl J. Tschirn, John M. Robin, Covington, La., for plaintiff-appellant.
Henry Alsobrook, Jr., Gregory J. Laborde, New Orleans, La., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before TUTTLE, GOLDBERG and RANDALL, Circuit Judges.
The appellant here challenges the correctness of the trial court's order directing a verdict for the appellees, several doctors, the hospital and clinic with which they were associated and their respective insurance carriers. The trial court based its decision on the failure of the plaintiff to produce evidence "as to the standard of care generally practiced by other physicians in this community or in the community in which these defendant physicians practice in similar situations," and on the further ground that "there has been no evidence offered by the plaintiff tending to show that the defendant doctors negligently failed to follow such a standard." The court then determined that in the absence of adequate evidence to establish a claim against the doctors, the hospital and clinic with which they were associated could not be found negligent on the record before it.
Because we find that the defendant doctors themselves, called on behalf of the plaintiff, sufficiently established the standard of care applicable to the conduct which the plaintiff challenges in his action, and that the record discloses sufficient objective evidence from which a jury could find that such standard was not complied with, we reverse.
The plaintiff's action was based on his contention, to use laymen's language, that at a time when he was being treated for serious arterial insufficiency in his left foot the defendant doctors or other doctors and hospital personnel administered a drug which was designed to reduce or cut down the blood supply to all parts of his body. He claims that both the literature concerning the drug used and the pharmacopoeia warned against use in such circumstances, and the doctors' statement that "the standard in this community" is "that normally you don't prescribe a drug to someone who has a condition which is a contraindication" met all of the requirements for submission of the case to the jury.
The evidence which we find was sufficient to withstand a directed verdict was produced entirely from examination and cross-examination of the defendant doctors and from the hospital and clinic records. Briefly, it will be outlined as follows: Hemingway entered the Ochsner Clinic on January 1, 1973, having been referred by the Veterans Administration. He came under the care of Dr. William Davis and Dr. McKinnon for gastrointestinal disorders. He was subjected to the usual tests and was found to be suffering from a disease of the pancreas. On January 25, Dr. McKinnon performed an 95% Pancreatectomy, cholecystectomy, and splenectomy. Because plaintiff continued to suffer symptoms of pancreatitis, on April 12, 1973, Dr. McKinnon performed further complete pancreatectomy. One of the side effects of these operations is that the patient becomes a diabetic, suffering from diabetes mellitus.
After the operation, Hemingway began outpatient treatment under the care of Dr. Paul Murison, an Ochsner Foundation endocrinologist for treatment of his diabetes mellitus. He was first seen by Dr. Murison in February 1973. Dr. Murison was asked "whether or not diabetes had anything to do with vascular disease," "does one relate to the other?" He said "diabetics are more prone to develop problems with vascular." Then the further question; "more prone than . . .?;" He stated "an average person." Subsequently, during further questioning he qualified his answer by stating Dr. Murison also testified that while in the hospital on January 3, some 20 days before the first operation, Hemingway had complained of a migraine headache and had been given a Cafergot suppository and that at that time he had shown no adverse reaction to this dosage. It was undisputed that Cafergot contains the pharmacological properties of ergotamine which is used for the purpose of constricting blood vessels. Prolonged or excessive administration of the ergot alkaloids can cause vascular insufficiency and gangrene of the extremities. The literature which accompanies Cafergot and the pharmacy textbook introduced in evidence state that Cafergot is contraindicated for patients when suffering from certain types of vascular disease. 1
Dr. Murison testified as to the meaning of the words "peripheral vascular disease" as follows:
Would you give me the answer?
(The court reporter read the answer.)
How many times are you going over that, Counsel? That is four times, now.
Following this testimony, the medical witness testified that physicians originally obtain familiarity with the administration and prescribing of drugs in medical school and by keeping in constant awareness "through the medical literature, through meetings." The identified text "Pharmacological Basis of Therapeutics" is one of the textbooks with which he said he was familiar. The following evidence was then introduced:
Q: The drug Cafergot: First of all, let me ask you this. Do doctors or should doctors normally deviate or change from what the pharmacy textbooks tell them what to do as far as prescribing drugs?
Should a doctor on his own just change from that?
Thereafter, in response to the question: "Isn't it a fact that normally you don't prescribe a drug to someone who has a condition which is a contraindication" the witness answered: "True" and to the question: "And that is a standard in this community, isn't that right?" the doctor answered: "Yes."
Towards the end of May, after he became a diabetic, Cafergot was again prescribed for Hemingway's migraine headache. This was followed by a further use of Cafergot on June 9. On June 10, plaintiff's foot began hurting and he went to the Ochsner Hospital emergency room. At that time, he reported that in handling his motorcycle, it had fallen and injured his left foot. The Ochsner Foundation Hospital "Notes and Consultant's Reports" of June 16 state: On the same sheet under the heading "Exam" there appears the entry At the bottom of the page under the words "Imp (elsewhere used on the records to indicate "impressions") appears the entry "acute arterial insufficiency left foot". On June 17, it appeared that the condition of the left foot had deteriorated and Dr. John Ochsner recommended a procedure known as an arteriogram. This procedure involved the insertion of a catheter into a main artery and the introduction of a dye which permitted the medical personnel to see the flow of blood in the affected area. The arteriogram was performed and it showed "diffuse vasospasm with potency to foot. . . . " On the following day, Dr. Hutchinson made an entry 2
Thereupon, Dr. Ochsner performed a left lumbar sympathectomy which, as the witnesses testified, was for the purpose of increasing the blood supply to the affected foot.
Thereafter during the next five or six days ...
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