Seals v. Pittman

• Decision Date: 15 October 1986
• Docket Number: No. CA,CA
• Parties: Joan Provost SEALS, Wife of/and Leo SEALS v. M.L. PITTMAN, Jr., M.D., et al. 85 0992.
• Court: Court of Appeal of Louisiana — District of US

Page 114

499 So.2d 114

Joan Provost SEALS, Wife of/and Leo SEALS v. M.L. PITTMAN, Jr., M.D., et al.

No. CA 85 0992.

Court of Appeal of Louisiana First Circuit.

Oct. 15, 1986.

Rehearing Denied Jan. 12, 1987.

Writ Denied March 13, 1987.

Carl J. Schumacher, Jr., David Schumacher, New Orleans, Edward Shamis, Jr., Slidell, for plaintiffs/appellants.

Lloyd W. Hayes, New Orleans, for M.J. Duplantis and Hartford Fire Ins. Co. defendants herein.

William Penick, New Orleans, for M.L. Pittman, & St. Paul Fire & Marine Co., defendants.

Peter T. Dazzio, Baton Rouge, for St. Tammany Parish.

Before GROVER L. COVINGTON, C.J., and WATKINS and JOHN S. COVINGTON, JJ.

GROVER L. COVINGTON, Chief Judge.

This appeal arises from a nine to three verdict in favor of the defendants, denying plaintiffs' claim for damages sustained as a result of alleged medical malpractice.

The trial court rendered judgment on the jury verdict. Thereafter, plaintiffs moved for a judgment notwithstanding the verdict, for a new trial and to enforce a compromise agreement, which motions were denied. The plaintiffs have appealed. We affirm.

The relevant facts of this case are as follows.

Dr. M.L. Pittman, Jr., a practicing surgeon in the Covington area, saw Joan Provost Seals in his office on December 17, 1979. She gave the doctor a history of right upper quadrant abdominal pain with distension. According to the information provided Dr. Pittman, she had been seen at the Highland Park Hospital Emergency Room by Dr. Montalbano in January, 1979, and treated for a gallbladder condition. One week prior to the office visit she had been seen in a hospital emergency room with complaints of abdominal pain. According to the testimony presented at trial, the pain she was having in December, 1979, was severe and constant. Following physical examination, a diagnosis of cholelithiasis was made and symptomatic treatment begun. Surgical treatment was recommended, but delayed at plaintiff's request.

The patient was admitted to St. Tammany Parish Hospital on December 27, 1979. History was of recurrent severe attacks of right upper quadrant abdominal pain and abdominal distension with intolerance of fried or greasy foods. Preoperative testing was performed including a cholecystogram and gallbladder echogram. The echogram was interpreted as suggestive of chronic cholecystitis. Surgery, consisting of an exploratory laparotomy and cholecystectomy, was performed on January 4, 1980 by Dr. Pittman, with Dr. M.J. Duplantis assisting.

The standard right mid-rectus abdominal incision was used. The gallbladder was identified. Marked inflammatory changes were noted and extensive adhesions and scar tissue were encountered. The gallbladder was noted to be flattened and constricted. Dr. Pittman noted it to be filled with stones. The top surface of the gallbladder was visible. The adhesions were dissected away from the upper surface of the gallbladder which was then outlined by following the outer edges of the gallbladder. A minimum amount of bile was present. As a result of the dense fibrous and scar tissue, the common bile duct was not identifiable. Because of the added risk of dissecting the ducts in the region, no attempt was made to dissect them. Dr. Pittman identified the junction of the cystic duct and gallbladder without difficulty and performed a high ligation at the gallbladder. The gallbladder was removed by peeling it out from under the liver. No further surgical assistance being needed, Dr. Duplantis left the operating room.

Dr. Pittman performed a postoperative cholecystogram, which is a procedure employed to ensure that no stones remained in the ducts. A catheter tip was placed in the stump of the cystic duct and dye injected. The X-ray showed an absence of the common hepatic duct. The procedure was repeated with the same results. Dr. Meier, the pathologist, was called to the operating room to inspect the gallbladder. After examination of the organ, he could not identify any duct other than the small nub of the cystic duct.

Dr. Pittman continued to explore the abdomen, attempting to locate the common hepatic duct. Additional tissue was submitted to the pathologist but it was not ductal tissue. After further exploration, Dr. Pittman located a small drop of bile which led him to the frayed end of the hepatic duct at the edge of the liver.

Dr. Pittman then called Dr. Patrick Hunter, a local surgeon, who came to the operating room. Dr. Hunter examined and explored the surgical area again, but no ductal material was identified. The gap between the hepatic and common bile ducts created by removal of the gallbladder prevented anastomosis of the ends. Since this was a situation neither surgeon had ever encountered, a phone call was made to Dr. Francis Nance, Professor of Surgery at LSU Medical School. Following the advice of Dr. Nance, a rubber catheter was placed to drain the liver. The patient was then transferred to Dr. Nance at Hotel Dieu Hospital for further surgery and follow-up care.

Suit was filed against Dr. Pittman and his insurer, St. Paul Fire and Marine Insurance Company (St. Paul). Claim for medical panel review was brought against Dr. Duplantis and his insurer, and St. Tammany Parish Hospital. The hospital was not joined in the suit. Dr. Duplantis was voluntarily dismissed at trial.

Prior to trial, certain settlement negotiations were conducted, which included an offer made by defendants by letter of October 25, 1984. This offer was tacitly rejected by plaintiffs. By its terms, the offer expired at 3:00 p.m., October 26. On October 29, trial of this matter commenced before a jury. On Friday, November 2, the parties rested. Over the weekend, oral settlement negotiations were conducted by counsel for plaintiffs and for St. Paul. On November 5, counsel for plaintiffs made a counteroffer to defendants, for settlement of the case based on the terms of the October 25 letter, plus payment of all court costs by appellees. Dr. Pittman objected to any settlement at that point, and negotiations were broken off.

Following closing arguments and jury instructions, and prior to the jury's verdict, plaintiffs were permitted to enter a statement of the settlement discussions in the record.

Subsequently, the jury returned the verdict for the defendants.

On appeal, appellants enumerate four general areas of error in the conduct of the trial, namely:

first, that the jury was improperly selected due to the trial court's failure to excuse certain jurors and potential jurors for cause, and its failure to grant additional peremptory challenges for selection of the jury alternates;

second, that the jury composition accounted for the verdict which determined that Dr. Pittman was free of negligence;

third, that the jury erred in concluding there was not a lack of informed consent; and finally, that an enforceable compromise was reached which the trial judge failed to enforce.

No allegations of error are made regarding the instructions of law given the jury by the trial judge, and there is no complaint that the jury verdict is manifestly erroneous. A careful review of the appellants' brief reveals no contention that the jury verdict is unsupported by the evidence.

ISSUE NUMBER ONE: JURY SELECTION

Appellants assert on appeal that errors in the jury selection process flawed the verdict. They object to the failure of the trial judge to grant challenges for cause to several jurors. The record reflects that after voir dire examination of each of the challenged jurors was completed, the trial judge determined that each juror could be fair and impartial. The plaintiffs did not avail themselves of all of their peremptory challenges. They used only five of their six peremptory challenges during the selection of the jury. The parties were granted one additional peremptory challenge for the selection of the alternate juror, which additional challenge was used by the plaintiffs. The record reveals that the plaintiffs used five peremptory challenges to the jury panel and one in the selection of the alternate juror.

Since all of the plaintiffs' peremptory challenges were not exhausted during the impanelling of the jury, appellants cannot complain of the trial judge's failure to excuse a juror for cause. Bernard v. Richoux, 464 So.2d 856 (La.App. 5th Cir.1985).

It is a well settled principle of law that the trial judge is vested with broad discretion when ruling on challenges for cause. See, Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3rd Cir.1975), writ denied, 321 So.2d 363 (La.1975). Only when the record demonstrates a clear abuse of discretion should the appellate court intervene. The trial judge is obviously in the best position to assess the juror's demeanor, sincerity, fairness and credibility. Thus, his decision is not subject to disturbance by appellate action without a showing that there was a clear abuse of discretion. Broussard v. Missouri Pacific Railroad Company, 376 So.2d 532 (La.App. 3rd Cir.1979). There is no showing of abuse. Under the circumstances, there is no merit in the appellants' complaint of the jury selection.

Appellants further argue that it was error of the trial judge to refuse to grant challenges for cause to prospective jurors who were themselves or whose close relatives were patients of Dr. Pittman. The same assertion is made for the failure to grant a challenge for cause as to potential jurors who were employees of the hospital where the surgery was performed. No challenge for cause was made at trial to either close relatives of patients of Dr. Pittman or to hospital employees. This issue was not raised at trial and is not preserved for purposes of appellate review. The only challenge for cause made at trial was to patients of defendant.

Juror pool member Stanley Thompson stated not that he was a Pittman patient, but that he had been treated by Dr. Pittman some ten years prior to trial. This is not a relationship that would require exclusion...