Menard v. Holland

• Decision Date: 30 December 2005
• Docket Number: No. CA 05-353.,CA 05-353.
• Citation: 919 So.2d 810
• Parties: Lawrence MENARD and Patricia Menard v. Michael R. HOLLAND, M.D.
• Court: Court of Appeal of Louisiana — District of US

919 So.2d 810

Lawrence MENARD and Patricia Menard v. Michael R. HOLLAND, M.D.

No. CA 05-353.

Court of Appeal of Louisiana, Third Circuit.

December 30, 2005.

Rehearing Denied February 15, 2006.

Joseph Texada Dalrymple, Rivers, Beck, Dalrymple, Alexandria, Counsel for Plaintiffs/Appellants: Lawrence Menard and Patricia Menard.

James R. Shelton, Durio, McGoffin & Stagg, Lafayette, Counsel for Defendant/Appellee: Michael R. Holland, M.D.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.

EZELL, Judge.

Lawrence Menard and his wife, Patricia, filed this medical malpractice claim against Dr. Michael Holland alleging that Dr. Holland's substandard care in the operating room during Mr. Menard's cervical procedure caused him injury. Immediately after surgery Mr. Menard experienced extreme pain and swelling in his left arm. It was later determined that Mr. Menard was suffering from a condition in his left arm known as reflex sympathetic dystrophy (RSD). The case was tried before a jury which found that Dr. Holland's care of Mr. Menard was appropriate. The Menards appealed.

FACTS

Mr. Menard worked offshore as a cook and awoke one night with a pain in his neck and right arm that continued to worsen. Mr. Menard was referred to Dr. Holland by his family doctor, Dr. Richard McGregor, after an MRI revealed that he had a large posterior disc herniation at C6-7 with extrusion of disc material and significant cord compression. A posterior lateral C5-6 disc herniation with obliteration of the epidural fat was also observed. Due to the degree of cord compression, Dr. Holland recommended a two-level discectomy, corpectomy, iliac crest bone graft, and fusion.

On October 11, 1996, the procedures were performed. In the recovery room, it was noted that Mr. Menard experienced relief from his right-sided pain. However, he was now experiencing significant left upper extremity pain, swelling, and burning sensations. He was evaluated closely and appeared to have RSD. "RSD" is defined by 18 TABER'S CYCLOPEDIC MEDICAL DICTIONARY 1651 (1997), as "[a]n excessive or abnormal response of the sympathetic nervous system following injury to the face, shoulder, or extremity."

Concern that there might be a residual or new compression prompted a CT myelogram which indicated a possible compression on the left of the C5-6 level. On October 13, 1996, Mr. Menard was taken back to surgery for further decompression, which consisted of evacuation of a hematoma in the spinal canal as well as excision of his posterior longitudinal ligament and trimming of the iliac crest bone graft.

Mr. Menard continued to experience swelling, pain, and numbness in his left arm while Dr. Holland continued evaluating him. Different therapies were attempted to try to improve the condition in the left arm, including physical therapy and stellate ganglion blocks, which produced relief for a short period of time.

After EMG and nerve conduction studies indicated median and ulnar nerve abnormalities in the forearm, Mr. Menard was sent to Dr. Robert Tiel for an evaluation Dr. Tiel performed a sympathectomy on April 22, 1997. A sympathectomy is a procedure performed by a neurosurgeon in which an attempt is made to cut the sympathetic nerves to provide relief of the pain. This did relieve some of Mr. Menard's pain, but he continues to experience pain and problems in his left arm today.

Dr. Holland continued treating Mr. Menard until a claim was filed by the Menards in October 1997. The case was tried before a jury in August 2004. The jury returned a unanimous verdict finding that Dr. Holland's treatment of Mr. Menard was appropriate. The Menards assert that the trial court committed three legal errors which affected the jury's verdict. They claim that the trial court erred in failing to give a res ipsa loquitur jury instruction, in failing to strike four jurors for cause, and in failing to delete a written narrative by Dr. Holland from the medical records. The Menard's also claim that the jury's verdict was clearly wrong because the evidence in their favor was so overwhelming.

RES IPSA LOQUITURJURY INSTRUCTION

In Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 660 (La.1989), the supreme court reiterated the analysis of the doctrine of res ipsa loquitur as it expressed in Montgomery v. Opelousas General Hospital, 540 So.2d 312 (La.1989) (citations omitted):

The principle of res ipsa loquitur is a rule of circumstantial evidence that infers negligence on the part of defendants because the facts of the case indicate that the negligence of the defendant is the probable cause of the accident, in the absence of other equally probable explanations offered by credible witnesses. The doctrine allows an inference of negligence to arise from the common experience of the factfinder that such accidents normally do not occur in the absence of negligence.

Additionally, the doctrine does not dispense with the rule that negligence must be proved. It simply gives the plaintiff the right to place on the scales, "along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence" sufficient to shift the burden of proof.

The doctrine applies only when the facts of the controversy "suggest negligence of the defendant, rather than some other factor, as the most plausible explanation of the accident. Application of the principle is defeated if an inference that the accident was due to a cause other than defendant's negligence could be drawn as reasonably as one that it was due to his negligence." The doctrine does not apply if direct evidence sufficiently explains the injury.

The Menards requested that the judge give the jury a res ipsa loquitur jury instruction contending that there was no doubt that RSD in Mr. Menard's left arm was caused by an agency or instrumentality within the actual or constructive control of Dr. Holland during the cervical spinal procedure. Specifically, the Menards argued that Dr. Holland's placement of Mr. Menard's hands beneath his buttocks caused RSD.

The evidence at trial revealed that RSD is a relatively uncommon syndrome. It most commonly results after trauma to the limb. Many doctors have not even heard of RSD resulting from a spinal procedure. However, the doctors who testified agreed that different events could have caused RSD in Mr. Menard's left arm.

Dr. Stuart Phillips, an orthopedic surgeon, testified that there are four possibilities that could have caused RSD in the operating room: (1) placing of the hands partially or fully beneath the buttocks or hips; (2) leaving the elbows unpadded for the duration of the surgical procedure; (3) applying the retractors during the procedure with enough force; and (4) placing the wrist restraints too tightly around the wrists.

Dr. Gaetano Scuderi, also an orthopedic surgeon, agreed that the retractor could have caused injury to the sympathetic plexus. He also agreed that the placement of Mr. Menard's arms beneath him or the restraints on the wrists could have generated RSD. It was his opinion that these causes did not provide a safe operating environment. He opined that the most likely cause of RSD in this case was the placement of Mr. Menard's arms underneath him for four to five hours.

Dr. Christopher Cenac, another orthopedic surgeon, agreed that a lot of different things could have caused RSD in Mr. Menard's left arm. He opined that some type of compression from the retractors in the neck could have caused RSD, which is what he thought was the most likely cause of Mr. Menard's condition. He testified that nerve injury is a known complication of the surgical procedure and manipulating the C5-C6 nerves during surgery was not a breach of the standard of care required of Dr. Holland.

Dr. Holland himself testified that everyone agreed that something acute happened, they were just not sure what. Dr. Holland testified that the five-hour procedure went smoothly. Using a model, Dr. Holland demonstrated for the jury how he placed the wrist restraints on Mr. Menard and then placed his hands beneath the hips. Dr. Holland explained that he wrapped the arms with a sheet and the sheet was tucked under the patient. He testified that he did not tuck a patient's arms under the weight of his body. A bump is also placed under the hip to enable him to harvest bone for the graft. Dr. Holland opined that the most likely triggering event occurred in the neck, which...