Shelton v. Hair, 06-233.

• Decision Date: 27 September 2006
• Docket Number: No. 06-233.,06-233.
• Citation: 939 So.2d 685
• Parties: Barbara SHELTON, et vir. v. James G. HAIR, et al.
• Court: Court of Appeal of Louisiana — District of US

939 So.2d 685

Barbara SHELTON, et vir. v. James G. HAIR, et al.

No. 06-233.

Court of Appeal of Louisiana, Third Circuit.

September 27, 2006.

Frank M. Ferrell, Shreveport, LA, for Plaintiffs-First Appellants Barbara Shelton, et vir.

Victor H. Sooter, Alexandria, LA, for Defendants-Second Appellants Dr. James G. Hair and the Doctors Company.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.

PAINTER, Judge.

In this medical malpractice action, Plaintiff, Barbara Shelton, and her husband, David Shelton, sued Dr. C. Babson Fresh, a surgeon, and Dr. James G. Hair, a pathologist, following brain surgery. Plaintiffs alleged that Mrs. Shelton suffered severe deficits from having a portion of her brain removed unnecessarily after Dr. Fresh performed the surgery based on a "presumptive" diagnosis of astrocytoma from Dr. Hair. Dr. Fresh was voluntarily dismissed from the lawsuit by Plaintiffs. Following a bench trial, the trial judge found Dr. Hair to be ten percent at fault and awarded damages to Plaintiffs. Plaintiffs and Defendant appealed.

FACTUAL AND PROCEDURAL BACKGROUND

On February 27, 1998, Mrs. Shelton, who was fifty-seven years old at the time, presented to Dr. L.R. Collier, a general practitioner and surgeon whom Mrs. Shelton described as her family doctor, in Winnfield, Louisiana with complaints of right-sided weakness in her leg and arm. She also had a history of hypertension controlled by medication. On that day, Dr. Collier noted her blood pressure to be high. Mrs. Shelton was hospitalized and Dr. Collier ordered several tests, including a CT scan of the brain which showed a lesion in the left fronto-parietal area. Based on this CT, Dr. Collier requested a consult with Dr. C. Babson Fresh, a neurosurgeon in Alexandria, Louisiana. Mrs. Shelton was transferred to Rapides Regional Medical Center on March 4, 1998. A repeat CT scan of the brain was performed on that date and interpreted as showing a fronto-parietal cortical lesion approximately 1.5 to 2.0 cm. in diameter with a significant amount of edema surrounding the lesion. An MRI confirmed the location of the lesion just above the atrial region of the left lateral ventricle. The MRI was interpreted by Dr. Paul Larson as showing no mass effect and some associated adjacent increased signal in white matter due to gliosis, which is a benign condition. Plaintiffs allege that the information from Dr. Larson's report was not made available to them.

Mrs. Shelton testified at trial that Dr. Fresh thought it was a tumor that needed to be removed immediately. When she requested a second opinion, Mrs. Shelton testified that Dr. Fresh told her that there wasn't really time for a second opinion and that the condition needed to be taken care of immediately. That was Wednesday, and surgery was scheduled for Friday morning.

On March 6, 1998, Dr. Fresh performed a stereotaxic guided craniotomy and resection of tumor. During the procedure, a biopsy was obtained and the material was sent to Dr. Hair for analysis before completion of the surgery. Dr. Hair prepared the specimen for frozen section examination and had only several minutes to make a diagnosis. Dr. Hair's impression was "probable high grade astrocytoma." This information was conveyed to Dr. Fresh, and based thereon, Dr. Fresh proceeded to full invasive surgery to remove the abnormal tissue. Dr. Hair testified that he told Dr. Fresh that he did not have sufficient material with which to make a definitive diagnosis, but that based upon what he saw, it was probably a high grade astrocytoma, which would indicate a malignancy. Dr. Hair further testified that additional aspirated material was provided to him but was of no use because it was not part of the tumor.

A Permanent section of the biopsied material was reviewed by Dr. Seldon J. Deshotel, who diagnosed low grade astrocytoma. The tissue specimen was forwarded to Dr. Peter C. Burger, a neuropathologist at the Johns Hopkins University Medical Center in Baltimore, Maryland. Dr. Burger performed some additional testing using staining techniques that are not available intraoperatively and made the diagnosis that the tissue was abnormal but not malignant.

Mrs. Shelton alleged that the surgery was unnecessary and rendered her unable to walk without the use of a cane and has drastically curtailed her activities of daily life.

The matter was submitted to a medical review panel composed of Drs. David A. Cavanaugh, Travis Harrison, and Paul McGarry. The panel found that neither Dr. Fresh nor Dr. Hair breached the applicable standard of care. Drs. Harrison and McGarry testified at trial by deposition.

A bench trial was held on March 22, 2005 before the Honorable B. Dexter Ryland, who took the matter under advisement. However, Judge Ryland died on June 28, 2005, before issuing any written reasons for judgment. Judge B.C. Bennet was appointed to take over Judge Ryland's docket. In accordance with La.R.S. 13:4209, the parties agreed that Judge Bennett would review the transcript of the trial testimony and all exhibits accepted into evidence. Judge Bennett rendered written reasons for judgment on September 19, 2005, wherein he found for Plaintiffs. Judge Bennett awarded the following damages: (1) $250,000.00 in general damages to Barbara Shelton; (2) $81,175.80 in medical specials to Barbara Shelton; (3) $52,920.00.00 in past lost wages to Barbara Shelton; and (4) $100,000.00 to David Shelton for his loss of consortium. Thus, total damages were $484,095.80. However, Judge Bennett found Defendant, Dr. Hair, to be ten percent (10%) at fault,¹ and in a October 28, 2005 judgment in accordance with his written reasons, reduced Plaintiffs' recovery to $48,095.80.

Defendants, Dr. Hair and his insurer, The Doctor's Company, filed a motion for new trial which was heard by Judge Patricia Koch on December 22, 2005. By judgment dated January 3, 2006, Judge Koch denied the motion for new trial. Defendants suspensively appealed, asserting that the trial court erred in the following particulars: (1) in failing to grant a motion in limine seeking to preclude the testimony of Plaintiffs' expert, Malcolm Goodwin, as to the applicable standard of care; (2) in finding a breach of the applicable standard of care by Dr. Hair and in the subsequent allocation of ten percent (10%) of fault to him; (3) in holding that Plaintiffs had met their burden of proof regarding the amount of damages purportedly caused as a result of the alleged breach of the standard of care; and (4) in denying the motion for new trial. Plaintiffs also appealed, asserting that the trial court erred in its allocation of fault and seeking an increase in the award of general damages.

We first note that there is an error in calculation of the judgment. Ten percent (10%) of $484,095.80 is $48,409.58 rather than $48,095.80. Accordingly, we amend the judgment to provide that the amount recoverable by Plaintiffs is $48,409.58. In all other respects, for the reasons that follow, we affirm the judgment of the trial court.

DISCUSSION

Motion in Limine

Defendant complains that the trial court failed to preclude Plaintiffs' expert, Dr. Malcolm Goodwin, from testifying as to the standard of care for pathologists. The thrust of Defendant's argument is that Dr. Goodwin is a "hired gun" who has not performed a frozen section diagnosis of brain tissue in over thirty years. Defendant also points out that Dr. Goodwin has never been accepted by any court as an expert witness in a case such as this where the focus of the case was the pathologic examination of a frozen section of brain tissue. Thus, Defendant alleges that Dr. Goodwin's testimony was neither relevant nor reliable.

The trial court denied Defendant's motion in limine and allowed Dr. Goodwin's testimony by deposition to be admitted into evidence and considered it in making its ruling. In written reasons for judgment, Judge Bennett found that Dr. Goodwin was qualified as a pathologist and that his testimony had some probative value. Judge Bennett did note that he had not practiced in many years. He apparently weighed Dr. Goodwin's testimony that the samples were inadequate against the testimony of the medical review panelists.

Defendant cites Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) for the proposition that expert scientific testimony must rise to a threshold level of reliability in order to be admissible under La.Code Evid. art. 702. Louisiana Code of Evidence article 702 reads: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." We find, as did the trial court, that Dr. Goodwin's testimony was reliable, probative, and aided the trier of fact in reaching its decision. Furthermore, the trial court has great discretion in its consideration of motions in limine, which provide litigants with a procedural vehicle to have evidentiary matters decided prior to trial. Scott v. Dauterive Hosp. Corp., 02-1364 (La.App. 3 Cir. 04/23/03), 851 So.2d 1152, writ denied, 03-2005 (La.10/31/03), 857 So.2d 487. This court has also recognized that "the trial court is allowed much discretion in determining whether to allow a witness to testify as an expert under La.Code Evid. Art. 702" and that "[i]ts judgment will remain undisturbed unless clearly erroneous." Hall v. Brookshire Bros., Ltd., 01-1506, p. 19 (La.App. 3 Cir. 8/21/02), 831 So.2d 1010, 1024, writs granted, 02-2404, 02-2421 (La.11/27/02), 831 So.2d 285, and decision affirmed, 02-2404 (La.6/27/03), 848 So.2d 559. Accordingly, we find that the trial court did not err in its implicit finding that Dr. Goodwin met the Daubert criteria for admissibility of his expert testimony and that there...