McLean v. Hunter

Decision Date20 October 1986
Docket NumberNo. 86-C-0786,86-C-0786
Citation495 So.2d 1298
PartiesElaine E. McLEAN v. Raymond K. HUNTER, et al.
CourtLouisiana Supreme Court

MacAllynn Achee, Baton Rouge, for applicant.

Carey Guglielmo, Baton Rouge, for respondent.

CALOGERO, Justice. *

In this dental malpractice litigation, we find ourselves in agreement with the court of appeal that the trial court erred in excluding from the jury certain portions of the testimony offered by Dr. Bruce Lovelace, a periodontist who would have testified relative to the standard of care applicable to general dentists practicing in Baton Rouge, Louisiana. 1 However, because we also find that an inappropriate standard of appellate review was used in assessing the effect of the trial court's error, we reverse and remand the case to the court of appeal for reconsideration of plaintiff's appeal. In accordance with this opinion, the reconsideration shall embody the appropriate standard of appellate review. Due consideration shall be given to all evidence in the record, including the proffered testimony of Dr. Lovelace. The court of appeal shall make an independent determination of whether or not the plaintiff's evidence preponderates, without affording any deference to the jury verdict.

Facts

On or about June 13, 1983, Ms. Elaine McLean filed suit against Dr. Raymond K. Hunter, alleging Dr. Hunter committed various acts of dental malpractice in his diagnosis and treatment of a condition known as periodontal disease. 2 Dr. Hunter is a practitioner of general dentistry. Plaintiff initially visited Dr. Hunter on an isolated occasion in December of 1977. Beginning in November of 1979, however, Ms. McLean began making repeated visits to Dr. Hunter for treatment of her dental problems. On September 2, 1981, she visited Dr. Hunter's office for treatment of an abscess. Because Dr. Hunter was out of his office on that date, Ms. McLean was examined by Dr. Thompson Lanius, a practitioner of general dentistry who shared office space with Dr. Hunter.

Dr. Lanius diagnosed a "periodontal abscess" in two of Ms. McLean's teeth. He then performed limited oral surgery to insure drainage of the abscess. When Ms. McLean returned on September 9, 1981, Dr. Lanius, after having discussed the case with Dr. Hunter, referred Ms. McLean to Dr. Bruce Lovelace, a periodontist. 3 Upon his examination of Ms. McLean, Dr. Lovelace diagnosed her condition as chronic, moderate to advanced periodontal disease. It is undisputed that Ms. McLean thereafter underwent extensive treatment for this condition.

At trial, 4 Dr. Lovelace was called to testify on behalf of Ms. McLean and was tendered as an expert in "periodontics." During the course of Dr. Lovelace's testimony, counsel for Dr. Hunter asked that the jury be excused. After the jury departed, counsel objected to Dr. Lovelace's offering any testimony as to the standard of care exercised by dentists engaged in the practice of general dentistry in Baton Rouge, Louisiana. The trial court, relying on La.R.S. 9:2794, sustained the objection. Plaintiff thereupon proferred the pertinent testimony of Dr. Lovelace.

Plaintiff subsequently called to the stand two additional periodontists, Dr. Alfred W. Broxson and Dr. Joseph Lawrence, and attempted to qualify the doctors as experts in general dentistry. This move was also rebuffed by the trial court. However, the trial court did accept Dr. Broxson and Dr. Lawrence as experts in periodontistry rather than as experts in general dentistry. Questioning of Dr. Broxson and Dr. Lawrence was then limited to hypothetical questions concerning practitioners of periodontistry. Both doctors were permitted to testify relative to the standard of care expected of periodontists in the Baton Rouge area. They were not permitted to testify as to the standard of care applicable to general dentists practicing in the Baton Rouge area.

The trial court also allowed plaintiff's counsel to question the defendant concerning the extent of his dental practice in the field of periodontistry. The trial court then instructed the jury it would have to decide whether Dr. Hunter had held himself out as a specialist in periodontistry. If the jury found Dr. Hunter had held himself out as a specialist, he was to be judged by the standards of a specialist (the latter standards having been attested to by Dr. Broxson and Dr. Lawrence). However, if the jury found Dr. Hunter had not held himself out as a specialist, the trial judge, in effect, instructed the jury to disregard the testimony of Dr. Broxson and Dr. Lawrence, since the testimony elicited from the two periodontists addressed the appropriate standard of care for practitioners of periodontistry, rather than for practitioners of general dentistry.

The jury, in response to written interrogatories provided by the trial court, found Dr. Hunter was to be judged in accordance with the standard of care applicable to a "general practitioner of dentistry" rather than to the standard of care applicable to a "periodontist." The jury further found the defendant's conduct was not below the standard of care applicable to a practitioner of general dentistry. Accordingly, the jury rendered a verdict in favor of Dr. Hunter.

The effect of the trial court's instructions was that none of the three periodontists called by the plaintiff were allowed to express an expert opinion as to the appropriate degree of periodontal care expected of general dentists practicing in the Baton Rouge area, nor were they allowed to express an expert opinion as to whether conduct presumably similar to Dr. Hunter's may have breached that standard. The instructions provided by the trial court served to nullify the opinions of Dr. Broxson and Dr. Lawrence, who were allowed to testify only as to the appropriate standard of care expected from practitioners of periodontistry. Although plaintiff's counsel objected in general to the trial court's rulings relative to the testimony of Dr. Broxson and Dr. Lawrence, he did not proffer the testimony of the periodontists, as he had done previously with the testimony of Dr. Lovelace. 5

As was previously noted, the court of appeal held the trial court erred in excluding the expert testimony of Dr. Lovelace concerning the appropriate standard of care for general dentists practicing in the Baton Rouge area. 6 However, using the following reasoning, the First Circuit held that the error did not warrant reversal:

However, even though the trial court may have erred in excluding this testimony, this exclusion does not alone appear so prejudicial that its admission would have changed the outcome of the trial. Even with the addition of the proferred testimony, the jury could have reached the same result without committing manifest error.... While conceding Dr. Lovelace possesses impressive credentials, we are not persuaded that the admission of his proferred testimony would have changed the outcome of trial. Our independent review of all the evidence, including the proferred testimony, does not disclose the result reached was clearly wrong. Accordingly, the error committed by the trial court in this respect does not warrant reversal.

It is this language which prompted our granting writs in this case.

TESTIMONY OF DR. LOVELACE

In excluding the testimony of Dr. Lovelace, the trial court relied on La.R.S. 9:2794(A)(1), which provides, in pertinent part:

A. In a malpractice action based on the negligence of a ... dentist licensed under R.S. 37:751 et seq. ... the plaintiff shall have the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by ... dentists ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by ... dentists ... within the involved medical specialty.

As the court of appeal correctly noted, this provision sets forth the requisite burden of proof, but does not specify or set limits on the qualifications of a professional witness who may be presented to sustain the burden.

We now hold it is a specialist's knowledge of the requisite subject matter, rather than the specialty or sub-specialty within which the specialist practices, which determines whether a specialist may testify as to the degree of care which should be exercised by general practitioners. A particular specialist's knowledge of the subject matter on which he is to offer expert testimony should be determined on a case by case basis.

Implicit support for our holding is provided by La.R.S. 9:2794(B), which provides that a party to a malpractice suit has "the right to subpoena any ... dentist ... for trial to establish the ... degree of care ordinarily exercised." A periodontist such as Dr. Lovelace is obviously no less a dentist because he engages in a specialty practice rather than a general dentistry practice.

Although we have not previously addressed this particular issue, we find support for our opinion in the decisions of other state courts. A case with a particularly compelling factual setting is Evans v. Ohanesian, 39 Cal.App.3d 121, 112 Cal.Rptr. 236 (1974). In Evans, a dental malpractice suit was brought against a practitioner of general dentistry. The plaintiff, in order to meet the requisite burden of proof, offered the testimony of a periodontist who examined the plaintiff subsequent to the general practitioner's treatment.

The trial court refused to permit the periodontist to express an opinion as to the standard of practice of general practitioners and would not allow him to express an opinion as to whether the defendant breached that standard. Outside the presence of the jury, ...

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