Holloway v. Southern Baptist Hospital

• Court: Court of Appeal of Louisiana
• Writing for the Court: REDMANN; PER CURIAM
• Citation: Holloway v. Southern Baptist Hospital, 367 So.2d 871 (La. App. 1978)
• Decision Date: 30 October 1978
• Docket Number: No. 8797,8797
• Parties: Mrs. Margaret HOLLOWAY, wife of and Robert E. Holloway v. SOUTHERN BAPTIST HOSPITAL, Commercial Union Insurance Company of New York, the Continental Insurance Company and James M. Freeman.

Page 871

367 So.2d 871

Mrs. Margaret HOLLOWAY, wife of and Robert E. Holloway v. SOUTHERN BAPTIST HOSPITAL, Commercial Union Insurance Company of New York, the Continental Insurance Company and James M. Freeman.

No. 8797.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 30, 1978.

Per Curiam On Denial of Rehearing Jan. 16, 1979.

Lawrence J. Smith, Michael A. Villa, Levy & Smith, New Orleans, for plaintiffs.

Monte J. Ducote, New Orleans, for defendant Southern Baptist Hospital.

Charles A. Boggs, Montgomery, Barnett, Brown & Read, New Orleans, for defendant Commercial Union Ins. Co.

Lawrence D. Wiedemann, New Orleans, for defendants Dr. James M. Freeman and Dr. Leslie Guidry.

Lilian M. Cohen, Charles R. Maloney, New Orleans, for defendant Mrs. Earline Karl.

Conrad Meyer, IV, Baldwin & Haspel, New Orleans, for defendant Mrs. Lola Breedlove Moore.

H. Martin Hunley, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants Dr. James A. Rogers, Dr. Dermit L. Roux, New Orleans Anesthesia Associates and St. Paul Fire & Marine Ins. Co.

Before REDMANN, STOULIG and SCHOTT, JJ.

REDMANN, Judge.

Plaintiff wife had healthy arms when she entered an operating room for heart surgery. By the time she returned to her room after a week's stay in recovery room and surgical intensive care unit, she was experiencing left arm pain which heralded a left ulnar neuropathy with causalgia. Despite major surgical efforts at ulnar nerve relocation and autonomic nerve system excisions (including removal of her uppermost rib), she remains afflicted today with the neuropathy and causalgia which have caused atrophy and disability of the left arm.

Plaintiff husband and wife now appeal from the rejection on the merits of their action for damages against hospital, surgeons, anesthesiologists and nurses.

The ultimate question is whether plaintiffs have borne their burden of proving that some fault within La.C.C. 2315 by some defendant caused the injury. Because no direct evidence established causative fault (as plaintiffs concede), the question becomes whether circumstantial evidence establishes causative fault as, more probably than not, the source of the injury. As plaintiffs phrase it, the question is whether Res ipsa loquitur applies.

McCann v. Baton Rouge Gen. Hosp., La.1973, 276 So.2d 259, 262, establishes that a cause of action is stated by a petition alleging that "the body of the injured (plaintiff) was in the exclusive custody of the several defendants . . . (and) while under anesthesia (or heavy sedation) received injuries to a part . . . not involved in the surgery (in the nature of) untoward or unusual occurrences during the time of medical supervision." At trial, unless other evidence exculpates them, proof of the cited circumstances will support the Res ipsa loquitur inference that the medical custodians were somehow at fault; see Larkin v. State Farm M. A. Ins. Co., 1957, 233 La. 544, 97 So.2d 389.

The trial judge's reasons for judgment expressly found "that all of the parties (defendant) involved used the highest degree of care and standard necessary for the protection of the patient." The reasons lamented, however, Meyer v. St. Paul-Mercury Indem. Co., 1954, 225 La. 618, 73 So.2d 781, "and its doctrine as to the inapplicability of res ipsa loquitur to most malpractice cases". We reverse because the trial judge erred in founding his judgment on the belief that the circumstantial evidence rule of Res ipsa loquitur is inapplicable. The rule applies here.

Meyer 's "interpretation of the law as to a physician's duty to his patient", already weakened by McCann, was Overruled subsequent to the judgment appealed from, in Ardoin v. Hartford Acc. & Indem. Co., La.1978, 360 So.2d 1331. Ardoin expressly condemned the "locality rule" which prevented liability in Meyer. The present case is unconcerned with the locality rule (save as to nurses, a question we pretermit). There is no dispute over the duty owed by hospital and other medical personnel not to so pull the arm of an anesthetized or sedated patient as to damage the ulnar nerve by stretching, or not to allow the sedated patient to remain for several hours in one position, as to damage the ulnar nerve by prolonged compression. Disputed is whether plaintiffs proved that duty was breached, and by whom. We conclude that the evidence legally establishes that some breach of that duty was the mechanism of plaintiff wife's injury.

The test of proof is stated by Boudreaux v. American Ins. Co., 1972, 262 La. 721, 264 So.2d 621, 636:

It suffices if the circumstantial proof excludes other reasonable hypotheses only with a fair amount of certainty, so that it be more probable than not that the harm was caused by the tortious conduct of the defendant. . . . (By) the principle of "res ipsa loquitur" (the thing speaks for itself) . . . where properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury.

That test is met by this record. Perhaps the strongest evidence for plaintiff is that from Dr. Richard W. Levy, a neurosurgeon, while that for defendants is from Dr. Robert J. Schramel, a thoracic and cardiovascular surgeon. Even Dr. Schramel agrees that the most probable explanation of plaintiff wife's problem is a stretching or compression of the ulnar nerve. Although 15% Of All similar cases are from other, undetected causes, cases arising during hospitalization are not often from undetected cause. Dr. Schramel, however, would not rule out as a cause a stretching or compression of the brachial plexus (which includes the ulnar nerve) at the thoracic outlet an uncommon but not necessarily fault-implying result of spreading the ribs apart after cutting through the sternum vertically to allow access for heart surgery. Dr. Schramel, who never examined the patient, discounts her causalgia as causalgia-like symptoms, while Dr. Levy relies on his clinical diagnosis of causalgia from its objective signs, and especially upon the limitation of problems to the area served by the ulnar nerve branch (distal to the thoracic outlet) rather than all areas served by the brachial plexus, (a) to...