Samuels v. Doctors Hospital, Inc., Civ. A. No. 750078.

• Decision Date: 28 June 1976
• Docket Number: Civ. A. No. 750078.
• Citation: 414 F. Supp. 1124
• Parties: J. D. SAMUELS, Jr. v. DOCTORS HOSPITAL, INC., et al., American Motorists Insurance Company, Intervenor.
• Court: U.S. District Court — Western District of Louisiana

414 F. Supp. 1124

J. D. SAMUELS, Jr. v. DOCTORS HOSPITAL, INC., et al. American Motorists Insurance Company, Intervenor.

Civ. A. No. 750078.

United States District Court, W. D. Louisiana, Shreveport Division.

June 16, 1976.

Addendum June 28, 1976.

William P. Hannon, Jr., Atlanta, Tex., Helm, Jones & Pletcher, Houston, Tex., Leonard Fuhrer, Neblett, Fuhrer & Broussard, Alexandria, La., for plaintiff.

T. P. Flahive, Flahive & Ogden, Austin, Tex., for intervenor.

Charles L. Mayer, Mayer, Smith & Roberts, James B. Gardner, Lunn, Irion, Switzer, Johnson & Salley, Sidney Earl Cook, Cook, Clark, Egan, Yancey & King, Shreveport, La., for defendants.

DAWKINS, Senior District Judge.

MEMORANDUM RULING

J. D. Samuels, Jr., here seeks damages for personal injuries allegedly caused by the negligence of Dr. Warren Long, Dr. H. K. Faludi, and Doctors Hospital, Inc. (the Hospital). Also named as defendants were St. Paul Fire & Marine Insurance Company, insurer of Dr. Long, and Hartford Fire Insurance Company, insurer of Dr. Faludi. By order of the Court, predicated upon joint stipulation of the parties, plaintiff's individual claims against Dr. Long and Dr. Faludi have been dismissed, reserving all rights to plaintiff to proceed against the Hospital and the two insurers.

Jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1332.¹

The complaint, answers, answers to interrogatories, depositions, and medical records in the file established the following uncontroverted facts:

While working for the Interstate Paper Company, at Queen City, Texas, in 1972, plaintiff fell from a machine, landing upright. Several days later he developed pain in the left hip, and this soon began to radiate down the left leg. Plaintiff was treated by Dr. Norris Knight, of Texarkana, Texas, who fitted him with a back brace. However, Samuels continued to experience discomfort, and a myelogram revealed a deep defect at L5, S1 on the left side. On December 17, 1972, plaintiff underwent a laminectomy at L5, S1 on the left, at Wadley Hospital, Texarkana, Texas (none of the records in the file shows by whom this surgery was performed). After his discharge from Wadley Hospital on December 26, 1972, plaintiff made out-patient visits to Dr. Knight tri-weekly. Soon the visits were reduced to once every three months, and plaintiff last saw Dr. Knight on January 9, 1974.

Immediately following his first laminectomy, plaintiff began to experience pain in the right hip, and again radicular pain soon followed, together with some parispinous muscle spasms in the right parispinous area. Samuels complained that, although sitting was less painful than standing and walking, he could assume no configuration which fully would alleviate his painful symptoms; he even felt pain while lying prone.

Dr. Knight sought neuro-surgical consultation with Dr. Warren Long in January, 1974. Dr. Long's consultation report, dated January 22, 1974, contains the following impression:

"Recurrent HNP problems. I feel that this man should have a total hemi-laminectomy and disc removal at 4, 5, or corresponding to the mid-line defect on the lateral myelogram and also exploration of the 5, 1 interspace or 5, 6 as it would be here on the right at the same time. I have talked to Dr. Knight about this."

Samuels entered Doctors Hospital on January 27, 1974; he was scheduled for surgery which was performed the following day. Dr. Long's report of the operation is unremarkable: "The intervertebral disc at L4-5 right was removed and Samuels was returned to the recovery room in satisfactory condition."²

Since Dr. Long planned to be out of town for several days, he asked Dr. H. K. Faludi to "cover" for him on Friday and Saturday. Dr. Faludi testified at his deposition that Dr. Long must have left Shreveport on Thursday, January 31, because several nurses called him late that afternoon to request instructions regarding several of Dr. Long's patients.

Dr. Long returned to Shreveport on Sunday, February 3, which was six days into plaintiff's postoperative period.³ Samuels then had developed total paraplegia with sensory level at L-1. He was taken to the x-ray room where a lumbar puncture was performed. Pus exudate was found in the subdural space, and a tap of the epidural space revealed the presence of still more exudates. A red Number 8 French Catheter was inserted in the epidural space all the way to T-1, and the space thoroughly was irrigated with Bacitracin solution. Medical reports in the record show that the greatest mass of exudates was at the site of the laminectomy, 4-5, 5-1 right. Additionally, there was a small dural tear at the 4-5 right interspace.

Dr. Long scheduled and performed surgery that day. His report of surgery shows that a total laminectomy was performed at 5-4-3-2 and portions of 1. The wound thoroughly was cleansed, and two large tubes were placed bilaterally in the gutter wall, and a reverse flow irrigation was set up. The pathologist's report, filed February 3, reads in part as follows:

"DIAGNOSIS: Epidural tissue:

1. Acute cellulitis of fibrofatty tissue with associated bacteria of micrococcal morphology. Hemolytic coagulase positive Staphylococcus aureus cultured."

In laymen's terms, this simply means that plaintiff suffered an epidural tissue abscess caused by a Staphylococcus infection.

Plaintiff contends that the infection has rendered him a life-long paraplegic. He further contends that the infection was caused by the negligence of Dr. Warren Long and the Hospital in the respects set forth in the complaint. In the alternative, Samuels contends that the Hospital should be liable under a theory of res ispa loquitur. Finally, plaintiff avers that Dr. Faludi also was negligent in failing timely to detect the onset of the disabling Staphylococcus infection while treating plaintiff in the absence of Dr. Long.

In his supplemental answers to interrogatories propounded by the Hospital, plaintiff lists the several expert witnesses whom he expects to call at trial. Those "will call" witnesses who were listed to testify regarding failure to follow recognized medical procedures are Dr. Gerald F. Winkler and Dr. Robert M. Crowell,⁴ both of whom are from Great Neck, New York. Accordingly, on March 11, 1976, we ordered the attorneys for all parties to file memoranda on the question of admissibility vel non of opinion testimony by Doctors who are not licensed to practice medicine in Louisiana, and, more particularly, in Shreveport. We directed the attention of the parties to Couto v. Oms, 319 So.2d 518, at 528 (La.App. 4th Cir., 1975). Defendants subsequently moved to exclude the testimony of plaintiff's nonresident experts on the liability question at trial. We realize that this motion may be premature; however, we also are aware that a delay in resolving this issue may result in considerable expense for travel and expert witness fees. Consequently, all parties are in agreement that we presently should rule on defendants' motion.

The sole issue now before us, therefore, is the admissibility vel non of opinion testimony, offered to prove liability, by doctors who are not licensed to practice medicine in Louisiana.

Plaintiff contends that opinion testimony of out-of-state physicians is admissible, and any objection thereto should go only to the weight to be given to the testimony. Plaintiff tenders three arguments in support of his contention:

First: It is within the province of the jury to determine, after direct and cross examination, whether the out-of-state physicians have any knowledge of local community standards;

Second: The local standards may not meet generally acceptable medical standards (to which these doctors may testify), thus local standards may be immaterial on the negligence issue, Favalora v. Aetna Casualty & Surety Company, 144 So.2d 544 (La.App. 1st Cir., 1962); and,

Third: Defendants' testimony on cross examination should be compared to "other testimony as to the standard which should be applied in communities of similar size and location."⁵

Defendants argue that the long established "locality rule," together with the newly adopted Louisiana Medical Malpractice Statute, requires that opinion testimony by doctors who are not licensed to practice medicine in Louisiana be held inadmissible per se.

We note initially that Louisiana's recent codification of the jurisprudential "locality rule," La.R.S. 9:2794 (Acts 1975, No. 807, § 1), does not control this controversy, for the statute was passed after the occurrence of events which led to this law suit.

The most oft-quoted phraseology of the "locality rule" appears in Meyer v. St. Paul-Mercury Indemnity Company, 225 La. 618, 73 So.2d 781 (1953).⁶ The Court there stated:

"A physician, surgeon or dentist . . is not required to exercise the highest degree of skill and care possible. As a general rule it is his duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment in the application of his skill to the case." Meyer v. St. Paul-Mercury Indemnity Company, supra, 73 So.2d at 782. (Emphasis supplied.)

The locality rule was not an issue in Meyer; however, the rule was expressed as part of the standard of care to which physicians must be held. The Supreme Court of Louisiana fairly recently reaffirmed the locality rule in Uter v. Bone and Joint Clinic, 249 La. 851, 192 So.2d 100 (1966). Likewise, the Courts of Appeal of Louisiana (intermediate appellate courts) continue to employ the locality rule as the proper standard of care in medical malpractice cases. See e. g., Delaune v. Davis, 316 So.2d 7 (La.App. 1st Cir., 1975); Glenn v. Kerlin, 305 So.2d 611 (La.App. 2d Cir., 1974); Busby v. St. Paul Fire & Marine Insurance Company, 290 So.2d 701 (La.App. 1st Cir., 1974). Moreover, required applicability of the locality...