McLin v. Breaux

• Decision Date: 03 November 2006
• Docket Number: No. 2005 CA 1911.,2005 CA 1911.
• Citation: 950 So.2d 711
• Parties: Kim McLIN and Curtis McLin v. Jeffrey BREAUX, M.D., Michael Leggio, M.D., and Louisiana Medical Mutual Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

950 So.2d 711

Kim McLIN and Curtis McLin v. Jeffrey BREAUX, M.D., Michael Leggio, M.D., and Louisiana Medical Mutual Insurance Company.

No. 2005 CA 1911.

Court of Appeal of Louisiana, First Circuit.

November 3, 2006.

Writ Denied January 26, 2007.

Frank Tomeny, III, Tomeny & Fisher, Baton Rouge, for Plaintiffs-Appellees Kim and Curtis McLin.

Janie Languirand Coles, Paul R. Mayer, Jr., Batiza, Godofsky, Penzato, Schroeder, & Ford, Baton Rouge, for Defendants-Appellants Jeffrey Breaux, M.D. and Louisiana Medical Mutual Ins. Co.

Before: PARRO, GUIDRY, and McCLENDON, JJ.

PARRO, J.

Dr. Jeffrey Breaux and his medical malpractice insurer, Louisiana Medical Mutual Insurance Company (LAMMICO), appeal a judgment granting the plaintiffs' motion for judgment notwithstanding the verdict, in which the trial court modified a jury verdict that had found no negligence on the part of Dr. Breaux, and rendered a judgment apportioning fault evenly between him and Lane Memorial Hospital and awarding general and special damages. For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 26, 2001, Dr. Breaux performed a surgical procedure on Kim McLin at Lane Memorial Hospital.¹ Her initial post-operative condition was uneventful, but several days after her release from the hospital, she contacted Dr. Breaux with complaints of severe abdominal pain, constant nausea, and vomiting. An x-ray on July 31 revealed what appeared to be a laparotomy pad (lap pad) in her abdominal cavity. Dr. Breaux performed emergency surgery that day and removed a lap pad from McLin's abdomen. After the pad was removed, she had a normal recovery.

At the McLins' request, a medical review panel was convened. The physicians on the panel concluded that neither Dr. Breaux nor Dr. Michael Leggio, who had assisted during the initial surgery, breached the standard of care.² McLin and her husband then filed suit against both doctors and their insurer, LAMMICO. Dr. Leggio was dismissed before trial, and the case proceeded to a jury trial against Dr. Breaux. The evidence included McLin's medical records, the results of the medical review panel, expert testimony, and testimony from all of the medical personnel who had participated in the first surgical procedure. The key facts are basically undisputed.³ Before the surgery began, the hospital's nursing staff who were assisting with the procedure set out and counted all the instruments and materials that would be used. The surgery proceeded without incident. At its completion, Dr. Breaux manually explored McLin's abdominal cavity and removed lap pads and sponges he had used. He then visually examined the area and did not see any remaining materials. When he began to close the internal membranes or fascia surrounding the abdominal cavity, the nurses performed a surgical count of everything that had been used during the surgery. Upon completion of this count, they told Dr. Breaux that all materials were accounted for and were outside of McLin's body. Another count was done while he performed the final closure of the skin, and the same result was reported to him. However, the hospital staff admittedly did not completely follow the hospital's policy for performing the surgical counts, and the counts were obviously incorrect, as one of the lap pads was left in McLin's body.⁴

After considering this evidence, the jury found Dr. Breaux was not negligent. A judgment in accord with this verdict was signed December 23, 2004. The McLins then sought a judgment notwithstanding the verdict (JNOV), based on jurisprudence stating that a surgeon has a non-delegable duty to remove all sponges used during surgery from a patient's body. The trial court agreed and granted the motion, apportioning fifty percent fault to Dr. Breaux and fifty percent to Lane Memorial Hospital. In a judgment signed April 5, 2005, Dr. Breaux and LAMMICO were ordered to pay damages of $28,685.86, plus legal interest, to McLin, and loss of consortium damages in the amount of $500, plus legal interest, to her husband. Dr. Breaux and LAMMICO appeal.

APPLICABLE LAW

Judgment Notwithstanding the Verdict — JNOV

Article 1811(F) of the Louisiana Code of Civil Procedure authorizes a trial court to grant a JNOV on either the issue of liability or damages or both. A JNOV should be granted only if the trial court, after considering the evidence in the light most favorable to the party opposed to the motion, finds it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on that issue. Broussard v. Stack, 95-2508 (La.App. 1st Cir.9/27/96), 680 So.2d 771, 779-80. In cases where virtually no factual dispute exists and no credibility determinations by the fact finder are required, legal questions are within the province of the trial court to decide by entering a JNOV. See Junot v. Morgan, 01-0237 (La.App. 1st Cir.2/20/02), 818 So.2d 152, 157-58.

Medical Malpractice

A plaintiff in a medical malpractice action has the burden of proving: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; if the defendant physician practices in a particular specialty, and the alleged acts of medical negligence raise issues peculiar to that particular medical specialty, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty; (2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment, in the application of that skill; and (3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred. LSA-R.S. 9:2794(A). Summarizing, the plaintiff must establish the standard of care applicable to the doctor, a violation by the doctor of that standard of care, and a causal connection between the doctor's alleged negligence and the plaintiff's injuries. Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228, 1233. Injury alone does not raise a presumption of the physician's negligence. LSA-R.S. 9:2794(C).

To meet this burden of proof, the plaintiff generally is required to produce expert medical testimony. Lefort v. Venable, 93-2345 (La.App. 1st Cir.6/28/96), 676 So.2d 218, 220. However, the jurisprudence has recognized exceptions in instances of obvious negligence, i.e., instances in which the medical and factual issues are such that a lay jury can perceive negligence as well as any expert can. Pfiffner, 643 So.2d at 1234. Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body, from which a lay person can infer negligence. Pfiffner, 643 So.2d at 1233-34; Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La.1986). The prevailing case law in Louisiana holds that a surgeon has a non-delegable duty to remove all sponges placed in a patient's body. See Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969), overruled on other grounds by Garlington v. Kingsley, 289 So.2d 88 (La.1974); Chappetta v. Ciaravella, 311 So.2d 563 (La.App. 4th Cir.), writ denied, 313 So.2d 841 (La.1975); Guilbeau v. St. Paul Fire & Marine Ins. Co., 325 So.2d 395 (La.App. 3rd Cir.1975), writ denied, 329 So.2d 454 (La.1976); Johnston v. Southwest Louisiana Assoc., 96-1457 (La.App. 3rd Cir.4/2/97), 693 So.2d 1195; Romero v. Bellina, 01-0274 (La App. 5th Cir. 9/25/01), 798 So.2d 279, 281, writ denied, 01-2852 (La.1/11/02), 807 So.2d 237. See also Kelly v. Riverside Med. Ctr., 499 So.2d 1135, 1136 (La.App. 1st Cir.1986); Seals v. Gosey, 565 So.2d 1003, 1011 (La. App. 1st Cir.1990).

DISCUSSION

Dr. Breaux and LAMMICO contend the court erred in granting the motion for JNOV, because the case law stating a surgeon has a "non-delegable" duty to remove materials used during surgery from the patient's body is a form of strict liability, which is not the current law and was legislatively overruled by the passage of LSA-R.S. 9:2794. This statute was first enacted in 1975 and, with reference to the burden of proof in a medical malpractice cause of action, has remained substantially the same since that date. The appellants correctly note that the Grant case cited above, in which the Louisiana Supreme Court first enunciated this independent duty that the surgeon could not delegate to nurses, predated this legislation. They argue that later decisions from other courts of appeal erroneously relied on Grant and are not binding on this court. They also contend that the way in which surgical procedures are performed does not allow a surgeon to independently ensure that every lap pad or sponge has been removed, and that in this case, it is clear from the evidence that the hospital staff violated procedure and was solely at fault in allowing the lap pad to remain in McLin's body. Therefore, they urge this court to reinstate the jury verdict finding that Dr. Breaux was not negligent.

The Grant case involved an inaccurate surgical count by the nurses, resulting in the failure to remove a gauze "sponge" from a patient's body.⁵ During that surgery, the sponges were attached to a metal holder or clamp as they were inserted and removed. The court stated:

The surgeon performing the operation inserts the sponges and this is, of course, a medical treatment to absorb bleeding so that the operation may be performed and, when the surgery is over, it is the surgeon who must remove the sponges before closing the incision.

Grant, 223 So.2d at 153. Recognizing the majority rule on...