Montgomery v. Opelousas General Hosp.

• Decision Date: 13 March 1989
• Docket Number: No. 88-C-1909,88-C-1909
• Citation: 540 So.2d 312
• Parties: Jackie MONTGOMERY et ux. v. OPELOUSAS GENERAL HOSPITAL et al.
• Court: Louisiana Supreme Court

Page 312

540 So.2d 312

Jackie MONTGOMERY et ux. v. OPELOUSAS GENERAL HOSPITAL et al.

No. 88-C-1909.

Supreme Court of Louisiana.

March 13, 1989.

Rehearing Denied April 20, 1989.

Kermit Doucet, Lafayette, for applicants.

Katherine Long Gilmore, Watson, Blanche, Wilson & Posner, Ambrose K. Ramsey, III, S. Alfred Adams, Carruth, Cooper & Adams, Baton Rouge, for respondents.

DIXON, Chief Justice.

On September 12, 1985, Jackie Montgomery and her husband J.L. Montgomery filed suit against medical technologist Robert Sullivan, Opelousas General Hospital, and the Louisiana Association of Hospitals Trust Fund (the Louisiana Patients' Compensation Fund). ¹ The Montgomerys alleged that a venipuncture had been improperly and negligently performed by Robert Sullivan during Mrs. Montgomery's hospitalization in 1984. As a result of this venipuncture, Mrs. Montgomery suffered damage to the median nerve in her right arm.

Following a bifurcated three day trial in October 1986, ² a twelve person jury unanimously found Robert Sullivan negligent and awarded Jackie Montgomery $200,000.00 in general damages and $5,000.00 in medical expenses. The jury also awarded J.L. Montgomery $8,000.00 for loss of consortium. The trial judge subsequently issued a written opinion also finding Robert Sullivan negligent in performing the venipuncture that injured Mrs. Montgomery and holding Opelousas General Hospital jointly and severally liable with its employee Sullivan under the theory of respondeat superior.

Following denial of post trial motions, the defendants appealed, alleging error in the judge's and jury's factual finding that Sullivan had breached the applicable standard of care in performing the venipuncture and challenging the quantum awarded for general damages and loss of consortium. The defendants also contested the trial court's jury charges on the doctrine of res ipsa loquitur and on the applicable standard of care. The court of appeal agreed with the defendants that the trial court had improperly instructed the jury on res ipsa loquitur and that the Montgomerys had failed to prove that Sullivan fell below the applicable standard of care. Montgomery v. Opelousas General Hospital, 529 So.2d 52 (La.App. 3rd Cir.1988). This court granted writs to determine whether the court of appeal erred in overruling the application of the res ipsa loquitur doctrine in this case. The doctrine of res ipsa loquitur is an evidentiary principle whose applicability cannot be determined absent a detailed review of the trial record. McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973). We now reverse.

FACTS

On the morning of February 17, 1984, Mrs. Jackie Montgomery underwent gallbladder surgery at Opelousas General Hospital. Following the surgery, at approximately 2:00 p.m., Mrs. Montgomery received an injection of morphine for pain. At 4:00 p.m., hospital medical technologist Robert Sullivan drew blood from the antecubital fossa area (the bend in the elbow) of Mrs. Montgomery's right arm in order to perform physician ordered labortory tests. During this venipuncture, Mrs. Montgomery contends that she suffered immediate and excruciating pain. This pain caused her to cry out and to curl her fingers, even though she was under sedation as a result of the morphine given some two hours prior to the venipuncture. According to Mrs. Montgomery, the medical technologist withdrew the needle when she cried out and then "fanned" the needle to find a vein. He was successful on this second attempt. Mr. Montgomery, who was with his wife at this time, testified that Mrs. Montgomery complained of pain and that the technolgist required two attempts to obtain the needed blood sample.

Mrs. Montgomery claims that during the remainder of her five day stay she repeatedly complained of pain and numbness in her arm to the nurses at the hospital and to her treating surgeon. None of her medical records, however, indicate that she complained of pain in her arm during the post operative period.

Mrs. Montgomery remained on medication to relieve her surgical pain after she was released from the hospital until she was discharged by her surgeon, Dr. Glenn Granger, on March 29, 1984. On April 11, 1984, some two weeks after Dr. Granger had discharged her and had discontinued her pain medication, Mrs. Montgomery retured to him with complaints of significant pain in her arm. ³ Dr. Granger referred her to Dr. Ladislas Lazaro III, an orthopedic surgeon who specialized in treating the hands and the upper extremities. Dr. Lazaro then referred Mrs. Montgomery to Dr. James Domingue, a neurologist, who performed nerve conduction studies and an electromyogram (EMG) on April 18, 1984. Both studies produced normal findings.

But despite conservative treatment from Dr. Lazaro, Mrs. Montgomery's pain continued. On the evening of June 4, 1984, the pain became so severe that Mrs. Montgomery went to the hospital emergency room. The next day, Dr. Lazaro performed a right lacertus fibrosus ⁴ release. Dr. Lazaro stated at trial that he had found the lacertus "thick. All I can tell you is--I look at a lot of lacertus and that one's thick. I don't know how to tell you how thick it is so it would become important to you, but it was thick." Under the lacertus was scar tissue that had entrapped and compressed the median nerve, changing it from its normal oval shape to a flat shape.

After Dr. Lazaro surgically released the median nerve from the pressure of the scar tissue, he examined the nerve under magnification. He also picked up the nerve and felt for neuromas, which frequently form when a nerve is injured. Other than the compression of the nerve, Dr. Lazaro found no damage.

Following this surgery, Mrs. Montgomery wore a splint on her right arm, supported by a sling around her neck. Dr. Lazaro testified that his records of June 21, 1984, indicated that Mrs. Montgomery had been relieved of her pain. But on June 28, 1984, Mrs. Montgomery returned to Dr. Lazaro with complaints of a different type of pain. This pain radiated from her shoulder and continued down her upper right arm. Dr. Lazaro suspected that this pain probably resulted from nerve root irritation in her neck and recommended that she see a Dr. Steven Snatic, a neurologist.

Dr. Lazaro next saw Mrs. Montgomery on July 13, 1984, after Dr. Snatic had hospitalized Mrs. Montgomery and conducted a myelogram. The myelogram indicated a "right lateral herniated disk at the C-6, 7 level." Dr. Snatic could not say definitely what caused this herniated disk, only that it was probably caused by "a combination of the normal wear and tear that people have on disk[s], plus probably an accumulation of minor injuries over a period of time." Neither he nor Dr. Lazaro could say whether the sling Mrs. Montgomery wore following the surgery to release the compressed median nerve caused the herniated disk, although neither viewed that as a probability.

During Mrs. Montgomery's hospitalization, Dr. Domingue, at the request of Dr. Snatic, also performed a second nerve conduction study and an EMG. Although the nerve conduction studies remained normal, Dr. Domingue testified that the EMG findings also indicated "involvement of the seventh cervical nerve root from the neck and possibly the eighth cervical nerve root or the first ulnar nerve."

When Dr. Snatic saw Mrs. Montgomery again on September 27, 1984, he testified that his notes indicated that she no longer had neck pain, although she still had "a little discomfort associated with the operation due to the elbow." On November 14, 1984, Dr. Domingue again saw Mrs. Montgomery at Dr. Lazaro's request. Because she was referred to him this time as a patient, not merely for testing, Dr. Domingue testified that he obtained a medical history from her, including a description of the pain in her right arm:

"She told me that physical therapy had eliminated her neck and upper arm pain, but that she was continuing to have problems from the elbow down.... a fluctuating toothache-like sensation ... involving the entirety of the arm below the elbow. She also had some intermittent numbness and tingling in the same area. The pain was much worse when she was exposed to cold or drafts."

After conducting a neurological examination, during which he found no apparent weakness or abnormal reflexes, Dr. Domingue testified that he suspected that her symptoms were "consistent with a sympathetic dystrophy of the right arm." ⁵ He also testified that he intended to block the sympathetic nerves and possibly confirm the diagnosis by performing a thermogram, but Mrs. Montgomery did not return for treatment. ⁶

CAUSATION

The issue in this case is not what caused the injury to Mrs. Montgomery's median nerve. Doctors Granger, Lazaro and Domingue all agreed that the venipuncture caused the damage. Instead, the issue is how the venipuncture caused the damage. According to the testimony of Dr. Domingue, venipunctures in the antecubital fossa area most consistently puncture the basilic vein. Although veins are not uniform in their location in the body, the basilic vein usually lies on top or directly to either side of the median nerve. The nerve itself is approximately one-eighth of an inch below the skin, under the lacertus fibrosus.

Medical technologist Robert Sullivan testified concerning the technique he normally used in performing a venipuncture in the antecubital fossa area. Since he did not remember performing the venipuncture on Mrs. Montgomery, he could not testify to the specific procedure he had used to obtain the blood sample from her. ⁷ His description of the venipuncture procedure he normally used was consistent with the procedure detailed in medical texts and hospital manuals introducted into evidence. More specifically, Sullivan testified that if he inserted a needle into the vein and did not draw blood, he would withdraw the needle slightly, reposition the angle, and insert it again. This description also was...