Simar v. Hartford Fire Ins. Co.

• Decision Date: 05 February 1986
• Docket Number: No. 84-995,84-995
• Parties: Betty Melancon SIMAR and Gary D. Simar, Substituted plaintiffs for deceased plaintiff, Charles W. Simar and Travelers Insurance Company (intervenor), Plaintiffs- Appellants, v. HARTFORD FIRE INSURANCE COMPANY and Hartford Insurance Group, Hartford Indemnity Company and Dr. Robert J. Rivet, Defendants-Appellees. 483 So.2d 196
• Court: Court of Appeal of Louisiana — District of US

Page 196

483 So.2d 196

Betty Melancon SIMAR and Gary D. Simar, Substituted

plaintiffs for deceased plaintiff, Charles W.

Simar and Travelers Insurance Company

(intervenor), Plaintiffs- Appellants, v. HARTFORD FIRE INSURANCE COMPANY and Hartford Insurance

Group, Hartford Indemnity Company and Dr. Robert

J. Rivet, Defendants-Appellees.

No. 84-995.

483 So.2d 196

Court of Appeal of Louisiana,

Third Circuit.

Feb. 5, 1986.

Guillory, McGee & Mayeux, Robert K. Guillory, Eunice, for plaintiffs-appellants.

Voorhies & Labbe, H. Lee Leonard, Mouton & Roy, Harmon F. Roy, Marc W. Judice, Lafayette, for defendants-appellees.

Grayson H. Brown, Baton Rouge, for intervenor-appellee-appellant and John O. Kopynec.

Before GUIDRY, FORET and DOUCET, JJ.

FORET, Judge.

This is a medical malpractice suit brought by plaintiff, Charles W. Simar ¹ against defendant, Dr. Robert J. Rivet and his professional liability insurer, the Hartford Insurance Group. The alleged malpractice involves the medical care rendered for the treatment of a worker's compensation claim. Travelers Insurance Company, the worker's compensation insurer, intervened for worker's compensation benefits paid to the plaintiff because of alleged extension and compounding of his disability by malpractice of the treating surgeon.

Following trial on the merits, a split ² jury found that Dr. Rivet was not negligent. The plaintiff has appealed this decision, alleging several specifications of error. The issues before us for review are:

1. Did Dr. Rivet's conduct fall below the standard of care of neurosurgeons in 1975?

2. Was there a lack of informed consent on the part of the plaintiff?

3. Did the trial court abuse its discretion in failing to grant the motion for a new trial or for judgment notwithstanding the verdict?

4. Did the trial court err in refusing to give a res ipsa charge to the jury?

FACTS

Charles W. Simar was injured in an accident which occurred on December 24, 1974. Consequently, he experienced weakness of the arms and legs, and footdrop, rendering walking a painful and difficult experience. Plaintiff continued to work for four or five weeks after this injury until he was referred to Dr. Robert Martinez, a Lafayette area neurologist, on February 4, 1975. Dr. Martinez thoroughly examined the plaintiff and found that he had spasticity in the lower extremities, bowel and bladder problems, and cervical injury between the C-5 and C-7 levels. Dr. Martinez confined plaintiff to a hospital for testing and then referred him to defendant, Dr. Robert J. Rivet, for a cervical laminectomy. Plaintiff was scheduled for surgery in February 1975. Unfortunately, a few days after surgery, plaintiff was rendered quadriplegic.

Charles W. Simar suffered from a pre-existing condition as a result of an accident which occurred in 1960. The 1960 accident caused a scarring or cystic enlargement in the spinal cord in the C-6 through C-7 levels. Because the spinal cord was enlarged, special precautions were taken during surgery to prevent flexion and/or extension of plaintiff's neck. These measures were taken in order to prevent further compression of the spinal cord to avoid compromising the blood supply to the cord with probable quadriplegia.

Plaintiff has complained of the following surgical errors which he alleges constitute malpractice:

1. Selection of improper surgical position.

2. Allowing blood pressure to drop during surgery.

3. Unreasonable flexion of the spine during surgery.

4. Unnecessary handling of the spinal cord.

5. Failure to obtain informed consent.

6. Lack of surgical care.

7. Failure to properly diagnose and handle plaintiff.

8. Failure to provide proper postsurgical care.

The record reveals that plaintiff was operated on while he was in an upright position--the upright position is now considered to be the most dangerous of three available positions, unless the vertebral column is maintained in a "neutral" position during surgery. According to Yeoman's Neurosurgical Handbook, 1982 edition, the neutral position maintains a maximum neck flexion of 20?. Plaintiff contends that his head was screwed into the surgical Gardner chair at a 45? angle, which is more than twice the acceptable level of neck flexion. Experts for plaintiff testified that only five or six minutes in such a position would compress the spine and interrupt blood flow with resultant quadriplegia. In addition, he alleges that two dorsal roots which were cut during the surgery, so that Dr. Rivet could reach the dentate ligament, interrupted the blood supply to the cord.

Defendants' experts testified that the neck was not in flexion according to photographs and x-rays taken during the surgery, and the nerve roots were splayed downward due to scarring and not due to cutting. These experts additionally testified that cutting the nerve roots had no effect on the interruption of the blood supply to the spinal cord since no major blood vessels had been cut.

One of the factual issues at trial was whether or not the cutting of the dorsal roots would interrupt blood supply. Predictably, the answer to this question came down to a battle of the experts. Apparently the jury was persuaded by defendants' experts as opposed to plaintiff's. A legal issue was whether or not the cutting of the two dorsal nerve roots breached the standard of care of neurosurgery for practicing neurosurgeons in 1975. According to several of the experts who testified at trial on behalf of defendants, Dr. Rivet was well within the standard of care for neurosurgeons practicing in 1975. Any reasonable inferences made by the jury as a result of testimony and evidence presented at trial should not be disturbed on appellate review. Ewing and Salter, Inc. v. Gafner Automotive & Machine, Inc., 392 So.2d 762 (La.App. 3 Cir.1980), writ ref. 396 So.2d 933 (La.1981).

MOTION FOR NEW TRIAL

The jury rendered a verdict on December 16, 1982, the judgment was signed on January 13, 1983 and amended on February 17, 1983. On December 23, 1982, plaintiff had filed a motion for a new trial and/or a judgment notwithstanding the verdict, based on the grounds that one juror had a conflict of interest which had not been revealed until after trial and that plaintiff had discovered evidence since trial which was unobtainable before or during trial with due diligence. Simar died on February 6, 1983. Hearing on the motion for new trial took place on October 7, 1983, and the motion was denied on February 14, 1984. On February 15, 1984, plaintiff filed a second devolutive appeal ³.

Dr. George McCormick, a forensic pathologist, performed an autopsy on March 7, 1983. Evidence taken from the autopsy was introduced on October 7, 1983. The court was of the opinion that the new evidence did not present anything novel on the question of whether or not Dr. Rivet's surgical procedure fell below the standard of care required of him, and denied the motion.

In order to mandate a new trial, newly discovered evidence must meet all of the tests mentioned in LSA-C.C.P. Art. 1972: the newly discovered evidence is not cumulative, would tend to change the result of the case, and which the party could not have known or could not have discovered before or during the trial with due diligence. It is obvious that the new evidence must create new issues or develop new facts which would suggest a change in the result of the case. Barker v. Rust Engineering Co., 428 So.2d 391 (La.1983); Chauvin v. Chauvin, 297 So.2d 234 (La.App. 3 Cir.1974); Strobel v. Schlegel, 145 So.2d 664 (La.App. 4 Cir.1962), cert. denied Dec. 10, 1962 (unable to find citation).

At the hearing on the motion for new trial, the following evidence was adduced: on behalf of plaintiff, a forensic pathologist testified that the cord was not cancerous and that the only reasonable explanation for cutting the dorsal nerve root bilaterally at two different levels was that the spine had been in a position of extreme flexion. After reading the record at trial and comparing it with the evidence presented at the hearing on the motion for the new trial, we find that the trial judge did not abuse his discretion in refusing to grant a new trial.

Dr. George McCormick testified on behalf of plaintiff. He dissected Simar's spinal cord and various segments of it were photographed by his technicians. Dr. G. McCormick also reviewed the hospital records, Dr. Liss' trial testimony, and a neurological surgery textbook. He did not review any other testimony from the trial and indicated in his deposition that he needed more information in order to formulate any opinion. However, Dr. G. McCormick testified at the motion for the new trial and gave an opinion on the case without ever having obtained the information he previously considered necessary. Dr. G. McCormick is not board certified in forensic pathology nor in neuropathology. He has no experience in neurosurgery or neurosurgical procedures. He testified that he did not know whether the dorsal nerve roots or dorsal nerve rootlets had been cut. He further indicated that he did not believe there would be any difference in effect on the blood supply whether dorsal nerve roots and/or dorsal nerve rootlets were cut. He further testified that he did not know whether the silver clips had actually been placed on the roots or rootlets. Additionally, he did not even know what syringomyelia ⁴ was at the time of his deposition. Based upon the slides and the testimony previously mentioned, Dr. G. McCormick testified that he believed Dr. Rivet had cut the dorsal nerve roots at two levels, that several blood vessels supplying blood to the cord had been cut, and that the cord had been manipulated during the surgery, causing it to become flattened and die and that there was no cancer present anywhere in the spinal cord. Dr. G. McCormick did admit that syringomyelia was present in Simar's spinal cord prior to the surgery. However, he did not feel that the surgical slides suggested...