Robert Buie and Lorna Buie VS John C. Beatrous, M. D. and Louisiana Medical Mutual Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 2141 ROBERT BUIE AND LORNA BUIE 1VID1tR DR JOHN C BEATROUS M AND D ro J LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY Judgment Rendered May 6 2011 Appealed from the Twenty Second Judicial District Court In and for the Parish of St Tammany Louisiana Trial Court Number 2008 10229 Honorable Patricia T Hedges Judge Jacques F Bezou Christine Y Voelkel Attorneys for Plaintiffs Appellants Covington LA Robert and Lorna Buie Deborah Deo Gracias Trahan Attorneys for Emily G Couvillon Covington LA Defendants Appellees Dr John C Beatrous and La Medical Mutual Ins Co BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J The plaintiffsappellants Robert Buie and his wife Lorna Buie appeal a judgment on a jury verdict dismissing their medical malpractice claims against the defendants Dr John C Beatrous and his professional liability insurer Louisiana Medical Mutual Insurance Company LAMMICO The Buies also appeal the trial court denial of their motion for judgment s notwithstanding the verdict JNOV or alternatively for a new trial We affirm in compliance with Uniform Rules Courts of Appeal Rule 2 l B 16 On February 15 2005 Mr Buie underwent endoscopic sinus surgery to drain his sinuses and to remove nasal polyps The surgery was performed by Dr Beatrous an otolaryngologist commonly referred to as an ENT or an ear nose and throat doctor Following surgery Mr Buie suffered a loss of vision in his left eye Dr Beatrous then consulted Dr Kyle Acosta an Dr Acosta evaluated Mr Buie and initiated medical ophthalmologist treatment which included administering highdose steroids Following Mr s Buie discharge from the hospital Dr Acosta continued to treat Mr Buie for his vision loss and he also consulted with Dr James Diamond ophthalmologist who specializes in the retina and vitreous an However Mr s Buie vision to his left eye has never been and never will be restored As a result of Mr Buie injury a complaint was filed with the s Division of Administration and in accordance with La R 40 a S 1299 47 medical review panel was convened which was comprised of three otolaryngologists Drs A Foster Hebert Virginia Bringaze and M Lisa Leonardand the attorney chairman On November 13 2007 the medical review panel issued a written and signed opinion that the evidence does support the conclusion that Dr Beatrous failed to meet the applicable standard of care 2 Thereafter on January 14 2008 the Buies initiated the instant medical malpractice action against Dr Beatrous and LAMMICO Following a five day jury trial that ended on December S 2008 the jury rendered a unanimous verdict in favor of Dr Beatrous finding that he did not breach the standard of care for otolaryngologists in his surgery of Mr Buie By judgment signed on December 15 2008 the trial court entered judgment on the jury verdict and dismissed the Buies claims against Dr Beatrous and LAMMICO The Buies filed a motion for JNOV or alternatively for a new trial which the trial court denied From both the judgment entered on the jury verdict and the judgment denying the motion for JNOV and new trial the Buies have appealed On appeal the Buies essentially argue that 1 the jury factual s finding that Dr Beatrous did not breach the standard of care in his treatment of Mr Buie was manifestly erroneous 2 the trial court erred in denying the Buies motion for JNOV or alternatively their motion for new trial 3 the trial court erred in allowing the three doctors that served on the medical review panel to testify at trial and 4 the trial court erred by failing to instruct the jury regarding the doctrine of res ipsa loquitur A plaintiff in a medical malpractice action is required to establish 1 the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the State of Louisiana and actively practicing in a similar community or locale and under similar circumstances and where the defendant practices in a particular specialty and the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty 2 that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence along with his best 3 judgment in the application of that skill and 3 that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred La R 9 S 2794 A See Summarizing at trial the plaintiff must establish the standard of care applicable to the doctor a violation by the doctor of that standard of care and a causal connection between the doctor alleged s negligence and the plaintiff injuries Pfiffner v Correa 940924 940963 s 940992 pp 78 La 10 643 So 1228 1233 94 7 1 2d It is well settled in Louisiana law that findings of fact may not be reversed on appeal absent manifest error or unless clearly wrong Stobart v State through Department of Transportation and Development 617 2d So 880 882 La 1993 The reviewing court must do more than just simply review the record for some evidence that supports or controverts the trial court findings it must instead review the record in its entirety to s determine whether the trial court findings were clearly wrong or manifestly s erroneous Id The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong but whether the fact finder conclusion s was a reasonable one Id if the findings are reasonable in light of the record reviewed in its entirety an appellate court may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Stobart 617 So at pp 882 883 2d The manifest error standard demands great deference to the trier of fact findings for only s the trier of fact can be aware of the variations in demeanor or tone of voice that bear so heavily on the listener understanding a belief in what is said s Rosell v ESCO 549 So 840 844 La 1989 2d Thus where two permissible views of the evidence exist the fact finder choice between them s cannot be manifestly erroneous or clearly wrong Id 11 In this case the jury finding that Dr Beatrous did not breach the s applicable standard of care with regard to his treatment of Mr Buie was reasonably supported by the expert opinion testimony of Drs Hebert and Bringaze Although the plaintiffs expert Dr Harry Allen Hamburger an ophthalmologist expressed his opinion that Dr Beatrous breached the standard of care because Mr Buie loss of vision in the left eye was caused s when Dr Beatrous negligently severed the optic nerve the expert opinions of Drs Acosta and Diamond as well as the diagnostic testing that Dr Diamond performed on Mr Buie suggested otherwise Thus the jury was faced with two different yet reasonable and permissible views of the evidence and its choice between them cannot be clearly wrong See Rosell 549 So at 844 2d Therefore after a thorough review of the record we find that the jury s conclusion was reasonable and that its factual finding that Dr Beatrous did not breach the applicable standard of care for otolaryngologi in his sts I Although we note that Drs Hebert Bringaze and Leonard were the members of the medical review panel that initially found in favor of the plaintiffs the opinion made the following findings 1 2 3 4 5 6 There were proper preop procedures The consent was properly given There was prompt and proper removal of the packing The ophthalmologist was properly and timely consulted There was postoperative bleeding in the orbit that was not caused by the packing There was a compromise of circulation to the eye the cause of which was not determinable in the record 7 There was evidence of hematoma in the orbit 8 The steroids were fully and appropriately administered under the circumstances 9 10 11 Diabetes was not medically induced or exacerbated and is a non issue as the patient did not reveal his prior history to the surgeon Cortisone was properly administered under the circumstances The physician should have performed a lateral canthotomy at the onset of the patient complaint The performance of same s however may not have altered the outcome to the patient Based on these factual findings it appears that the medical review panel opinion s that Dr Beatrous failed to meet the applicable standard of care with regard to his treatment of Mr Buie was based solely on its determination that Dr Beatrous should have performed a lateral canthotomy at the onset of Mr Buie complaints However during the trial of s this matter and based on a consensus among all of the experts at trial after further review of the matter the plaintiffs stipulated that a lateral canthotomy was not medically indicated 1 treatment of Mr Buie was not manifestly erroneous Furthermore in light of the quality and weight of the evidence supporting the conclusion that Dr Beatrous did not breach the applicable standard of care we find that the trial court properly denied the motion for JNOV and did not abuse its discretion in denying the motion for a new trial With regard to allowing the members of the medical review to testify at trial we find no merit to the Buies assignment of error First and foremost we note that pursuant to La R 40 either party has the right to S 1299 H 47 call any member of the medical review panel as a witness at trial See also Medine v Roniger 20033436 pp 710 La 7 879 So 706 712 04 2 2d 3 71 In fact it was the plaintiffs who called Dr Hebert as an expert witness at the trial of this matter Thus any objection to his testimony was waived Although the Buies further contend that the members of the medical review should have been disqualified from testifying because they improperly attempted to alter or amend the medical review panel opinion after the medical review panel proceedings had concluded we note that the altered or amended opinions were properly excluded from evidence by the trial court To the extent that the panel members changed their opinion at trial as to whether Dr Beatrous breached the standard of care individually they were entitled to do so and the plaintiffs were afforded the opportunity to cross examine the individual panel members as to the fact that they changed their opinions and to raise the issue of their credibility in this regard before the jury Accordingly we do not find that trial court abused its discretion by allowing the members of the medical review panel to testify at trial Lastly we find that the trial court properly refused to instruct the jury regarding the doctrine of res ipsa loquitur The doctrine of res ipsa loquitur permits the inference of negligence from the surrounding circumstances 6 Broussard v Voorhies 20062306 p 6 La App 1 Cir 9 970 St 07 19 2d So 1038 1043 writ denied 20072052 La 12 970 So 535 07 14 2d Res ipsa loquitur is not a substantive legal tenet but rather an evidentiary doctrine under which a tort claim may be established by circumstantial evidence Id A jury should only be instructed on the doctrine of res ipsa loquitur if the trial court determines that reasonable minds could not differ on the presence of all three of the following criteria for its use 1 the injury is of the kind which does not ordinarily occur in the absence of negligence on s someone part 2 the evidence sufficiently eliminates other more probable causes of the injury such as the conduct of the plaintiff or of a third person and 3 the alleged negligence of the defendant must be within the scope of the defendant duty to the plaintiff s Linnear v CenterPoint Entergy EntexReliant Energy 20063030 P 10 La 9 966 So 36 44 07 5 2d If reasonable minds could not conclude that all three criteria are satisfied then the legal requirements for the use of res ipsa loquitur are not met and consequently the jury should not be instructed on the doctrine Id Applying the applicable criteria we find that that the trial court properly rejected the plaintiffs request for a res ipsa loquitur instruction This case does not meet the first requirement because several of the experts including Dr Stephen Meyer an ophthalmologist opined that loss of vision following ophthalmological surgery can ordinarily occur in the absence of negligence or through no fault of the surgeon We also note that in advance of surgery Mr Buie executed a consent form which reflected numerous risks associated with the surgery including a loss of vision Negligence may not be inferred when the injury is a recognized complication that can occur in the absence of negligence Lindner v Hoffman 20041019 p 5 La App 4th Cir 1 894 So 427 431 Thus because reasonable minds could not 05 12 2d 7 differ on the finding that loss of vision from surgery can occur in the absence of negligence the trial court properly decided not to instruct the jury regarding this doctrine Accordingly the trial s court December 15 2010 judgment incorporating the jury verdict and the December 15 2010 judgment denying s the motion for JNOV or new trial are affirmed in compliance Uniform RulesCourts of Appeal Rule 2 1 B 6 All costs of this appeal are assessed to the plaintiffs appellants Robert and Lorna Buie AFFIRMED 3
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