Opinion
No. 95-CA-2259.
November 27, 1996. Rehearing Denied January 16, 1997.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 88-23574, STATE OF LOUISIANA, HONORABLE RICHARD J. GANUCHEAU, J.
Joseph L. Montgomery, Newman, Drolla, Mathis, Brady Wakefield, Metairie, for Plaintiff/Appellee.
Stephen M. Pizzo, Dante V. Maraldo, Blue Williams, Metairie, and James Ryan, III, Sessions Fishman, New Orleans, for Defendants/Appellants.
Before BARRY, BYRNES, ARMSTRONG, WALTZER and MURRAY.
Defendants, Dr. Thomas B. Ryan, and the Louisiana Patient's Compensation Fund and Oversight Board (the "Fund"), appeal a judgment in favor of plaintiff, Kietra L. Jordan, in a medical malpractice action. We reverse.
Having complaints of urinary frequency and a yeast infection, Ms. Jordan was first examined by Dr. Ryan, a gynecologist, in his office on Friday, December 4, 1987. Ms. Jordan informed Dr. Ryan that she had no known allergies, and she requested birth control pills. With a diagnosis indicating a urinary tract infection and a yeast infection, Dr. Ryan prescribed Septra pills and Monistat cream. Dr. Ryan provided Ms. Jordan with a prescription for birth control pills, a one-month sample of birth control pills, and the Septra pills. Ms. Jordan never had taken Septra prior to that date.
On the following day, Saturday, December 5, 1987, Ms. Jordan telephoned Dr. Ryan's office with complaints of increased genital itching and burning. Dr. Ryan returned Ms. Jordan's telephone call, instructed Ms. Jordan to continue taking the medication as directed and to call him on Monday, December 7, 1987 if she continued to have any problems. On Monday, December 7, 1987, Ms. Jordan's aunt, Ms. Edna Pierre, contacted Dr. Ryan's office and put him in touch with Ms. Jordan. At that time, Ms. Jordan informed Dr. Ryan that she was experiencing vaginal genital itching and burning worse than she was previously experiencing and that her "throat was starting to get sore." Ms. Jordan was not experiencing any itching or burning other than in the vaginal area. Ms. Jordan testified that she wanted an appointment that day, but Dr. Ryan informed her that he was booked and offered her an appointment for the next day, Tuesday, December 8, 1987.
Ms. Jordan informed Dr. Ryan that she could not see him on Tuesday, December 8, 1987 because this would interfere with her class schedule at Xavier University. Rather, Ms. Jordan made an appointment to see Dr. Ryan on Wednesday, December 9, 1987. Subsequently, Ms. Jordan attended her classes at Xavier on Monday, December 7, 1987, Tuesday, December 8, 1987, and Wednesday, December 9, 1987.
Ms. Jordan testified that when she saw Dr. Ryan on the afternoon of December 9, 1987, she complained of blurred vision, increased genital itching and burning, trouble keeping lipstick on her lips, and a sore throat. She indicated that she thought she was having an allergic reaction to the medication. Ms. Jordan also showed Dr. Ryan splotches on her right arm. At this time, Ms. Jordan's rash was just starting and had not broken out all over. Ms. Jordan testified that on Dr. Ryan's instruction to stop taking the Septra, she ceased taking that medication after her December 9, 1987 examination. When Dr. Ryan performed a vaginal examination of Ms. Jordan on December 9, 1987, he noted two ulcerations on the labia. Because of Ms. Jordan's symptoms of genital burning and itching that had increased despite medication, and because she was a young woman, herpes was a differential diagnosis on December 9. Dr. Ryan informed Ms. Jordan of this possibility and took a sample for a herpes culture. He also prescribed Corticaine cream, a combination steroid and topical anesthetic for the lesions and the pain.
On Thursday, December 10, 1987, Ms. Jordan applied Benadryl and Calamine lotion to the blotches on her right arm for the first time. Later that evening, the rash on Ms. Jordan's right arm began to break out all over her body. On the early morning of Friday, December 11, 1987, Ms. Jordan went to the Humana Hospital emergency room in New Orleans where she was seen by Dr. Gameel Ghaprial, an emergency room specialist. Although she had informed Dr. Ryan on December 4, 1987 that she had no known allergies, she advised the Humana emergency room personnel that her history included an allergic reaction to Erythromycin. After his examination of Ms. Jordan, Dr. Ghaprial diagnosed her with an urticarial eruption (a hives-like rash). Dr. Ghaprial also diagnosed Ms. Jordan as suffering an allergic reaction. Although Dr. Ghaprial was familiar with Stevens-Johnson syndrome, he did not diagnose Ms. Jordan with Stevens-Johnson syndrome at that time. More specifically, Dr. Ghaprial found no blister-like lesions. Dr. Ghaprial treated Ms. Jordan with a steroid, Amoxicillin, and Benadryl. Dr. Ghaprial then instructed Ms. Jordan to contact Dr. Ryan if her condition did not improve within two days. However, Ms. Jordan never attempted to contact Dr. Ryan after either the December 9, 1987 office visit or the December 11, 1987 visit to the Humana Hospital of New Orleans emergency room.
Later that Friday, December 11, 1987, Ms. Jordan contacted her mother, and they decided that Ms. Jordan should return home to Augusta, Georgia. Ms. Jordan arrived in Augusta on Saturday, December 12, 1987. By this time, Ms. Jordan's mobility was restricted. Ms. Jordan's condition continued to worsen, and she developed a serious and significant outbreak of blisters on her mouth and body. On Sunday, December 13, 1987, four days after her last contact with Dr. Ryan, Ms. Jordan went to the Humana Hospital in Augusta and was diagnosed with Stevens-Johnson Syndrome. Ms. Jordan was hospitalized at Humana in Augusta for three days in intensive care and for a total of sixteen days. By the time of trial she had recovered from the Stevens-Johnson Syndrome.
Dr. Ryan did not chart either his December 5, 1987 or his December 7, 1987 telephone conversations with Ms. Jordan. Additionally, Dr. Ryan did not chart some of the symptomatology which Ms. Jordan had on December 9, 1987 or his instructions to Ms. Jordan to stop taking the Septra medication at that time. Rather, Dr. Ryan testified that he accepts Ms. Jordan's testimony regarding what symptoms she had on December 9, 1987 and regarding his instructions to her to stop taking the Septra during the December 9, 1987 examination of Ms. Jordan.
Ms. Jordan sued Dr. Thomas Ryan, his clinic, and various other health care providers and their insurers for damages allegedly sustained as a result of Dr. Ryan's medical malpractice in failing to properly diagnose and treat her underlying infection and severe allergic reaction, known as Stevens-Johnson syndrome. By amending and supplemental petitions, additional providers were added, and Jordan's parents were added as petitioners, asserting claims for loss of consortium. A medical review panel reviewed Ms. Jordan's claim pursuant to La.R.S. 40:1299.41 et seq., and rendered a unanimous opinion in favor of Dr. Ryan, finding that the evidence did not support the conclusion that Dr. Ryan failed to meet the applicable standard of medical care, and that the conduct of which Ms. Jordan complained was not a factor in the resulting damages.
Following a four day trial, the jury returned a verdict in favor of Ms. Jordan and against Dr. Ryan in the amount of $100,000 and against the Fund in the amount of $400,000. The trial court entered judgment on the verdict and denied motions filed by Dr. Ryan and the Fund for judgment notwithstanding the verdict, new trial, mistrial and/or remittitur. The appeal of defendants, Dr. Ryan and the Fund, followed.
On appeal Dr. Ryan and the Fund contend that the trial court erred in: (1) finding that Dr. Ryan breached the ordinary medical standard of care in his treatment of Ms. Jordan, and that breach caused the plaintiffs injuries; (2) not finding that the damage award was excessive; and (3) denying the motion for a new trial and/or mistrial.
In a medical malpractice action against a health care provider, the patient must prove by a preponderance of the evidence that: (1) the doctor's treatment fell below the ordinary standard of care required of physicians in his medical specialty; and (2) that the doctor's substandard care caused the injury sustained. La.R.S. 9:2794; Byrd v. State Through Depart. of Public Safety and Corrections, 93-2765 (La. 5/23/94), 637 So.2d 114. A physician's duty is to exercise the degree of skill ordinarily employed by his professional peers under similar circumstances. The law does not require absolute precision in medical diagnoses; acts of professional judgment are evaluated in terms of reasonableness under the circumstances then existing, not in terms of the result or in light of subsequent events. Soteropulos v. Schmidt, 556 So.2d 276 (La.App. 4 Cir. 1990). It is the specialist's knowledge of the requisite subject matter, rather than the specialty within which the specialist practices, which determines whether a specialist may testify as to the degree of care which should be exercised; a particular specialist's knowledge of the subject matter on which he is to offer expert testimony is determined on a case by case basis. McLean v. Hunter, 495 So.2d 1298 (La. 1986). Causation is a question of fact to which the trial court's determinations will not be disturbed absent manifest error. Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1276 (La. 1991); Rosell v. ESCO, 549 So.2d 840, 844-845 (La. 1989). Before a fact-finder's verdict may be reversed, the reviewing court must find from the record that a reasonable factual basis does not exist for the verdict, and that the record establishes the verdict is manifestly wrong. Lewis v. State Through Dept. of Transp. and Development, 94-2370 (La. 4/21/95), 654 So.2d 311, 314. Although deference is accorded to the factfinder, the reviewing court has a constitutional duty to review facts, not merely to decide whether the reviewing court would have found the facts differently, but to determine whether the trial court's verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La. 7/5/94), 639 So.2d 216, 221.
See, LSA-Const. Art. 5, section 10(B).
Dr. Ryan relies on the testimony of his expert witnesses, Dr. Lee T. Nesbitt, Jr., and Dr. Larry Millikan, as well as the determination of the medical review panel. Dr. William P. Coleman, III, a board certified dermatologist, who saw the plaintiff at the request of her attorney, also was called as a witness by the defendants.
Dr. Nesbitt qualified as an expert concerning Stevens-Johnson Syndrome (the syndrome), having seen over fifty cases during his career and serving as a professor and head of the Dermatology Department at Louisiana State University's School of Medicine. Dr. Millikan holds similar credentials at Tulane Medical School and has seen about twenty-five cases of the syndrome.
Dr. Maclyn Elliott Wade, a board certified obstetrician/gynecologist, testified on behalf of the plaintiff. The video deposition of Dr. Robert B. Rhoades, a board certified allergy specialist, who treated Ms. Jordan and has experience treating the syndrome, was offered by the plaintiff and was reviewed by the jury. Additionally, the jury viewed the video deposition of Dr. James J. Wallace, a psychiatrist, who saw the plaintiff six times beginning in September 1988. Dr. Wallace testified on behalf of the plaintiff. He diagnosed Ms. Jordan's condition as an adjustment disorder with depressed and anxious mood. He felt that her adjustment disorder was fairly severe although he did not see her symptoms as being dramatic enough to support a diagnosis of post-traumatic stress disorder. Dr. Wallace related Ms. Jordan's adjustment disorder in part resulting from her experience in having Stevens-Johnson syndrome, as well as resulting from other family stresses and incidents in her life.
Except for Dr. Wallace, who did not testify as an expert concerning the symptoms of the Stevens-Johnson syndrome, all of the physicians, including Dr. Ryan and the members of the medical review panel, composed of three obstetrician/gynecologists, Dr. Eugene J. Hoffman, Dr. Gustavo F. Carlomagno and Dr. George B. Morris, III, as well as Dr. Wade and Dr. Rhoades, agreed that the syndrome is extremely rare.
Dr. Nesbitt testified that the syndrome will occur with as few as one or two doses of the allergen and is not dose-related. Dr. Rhoades agreed that only a few doses of an allergen drug will induce the syndrome in a sensitive patient. Dr. Millikan, however, testified on cross-examination that he could not determine which dose, the first, second, fifth or tenth was the one that triggered Ms. Jordan's serious allergic reaction. The doctors agreed that stopping the drug after its introduction would have no effect on whether the patient develops the syndrome.
Dr. Rhoades and Dr. Millikan testified that the syndrome's reaction usually begins about seven days after introduction of the allergen drug. Doctors Rhoades and Nesbitt testified to the difficulties encountered in diagnosing the syndrome, and Dr. Rhoades noted that the disease becomes full-blown relatively quickly, usually in one or two days. Dr. Nesbitt testified that the syndrome could not be diagnosed positively until the outbreak of symmetrical blistering in the mouth and on the skin, and in his mind, there was no evidence that Ms. Jordan was having the syndrome even as late as her emergency room visit in the early hours of Friday morning.
As to treatment, Dr. Rhoades testified that he uses steroids to treat the syndrome, although there is not conclusive evidence that they are helpful.
As to causation, Dr. Millikan testified that he had reviewed the records in this case, and felt there was a 60 percent probability that the syndrome had been induced by the Septra, 20 percent probability that it had been induced by the Amoxicillin, and 20 percent probability that it had been induced by herpes virus. Dr. Nesbitt testified that the Septra may have caused the syndrome in Ms. Jordan, but it could have been caused by an infection or by other medication.
Dr. Wade testified that the Septra caused the syndrome.
Dr. Coleman testified that Septra could have caused the syndrome, which could also have been caused by the herpes or an unknown infection. He said that more likely than not, however, the Septra was the cause of the syndrome in Ms. Jordan's case.
In Dr. Nesbitt's opinion, even if the Septra was the cause of Ms. Jordan's Stevens-Johnson syndrome, stopping the Septra dosages would not have made any difference in stopping the onset of the syndrome's symptoms and the reaction would have been the same whether or not the dosage was stopped on December 7 or December 9, 1987. Dr. Nesbitt explained that if a patient took the medication Septra for the first time, it would take an incubation period of seven to ten days for a reaction to occur. If the patient previously took the medication Septra within two or three years, the reaction could probably be manifested in 36 to 48 hours. Plaintiff's expert, Dr. Wade, testified that Septra was a highly used medication for the treatment of urinary infections, and he saw nothing wrong with Dr. Ryan's having prescribed it initially for Ms. Jordan.
Assuming that the Septra was the cause of Ms. Jordan's Stevens-Johnson syndrome, the issue is whether Dr. Ryan's actions constitute deviations from the medical standard of care in the community when he: (1) delayed in advising the plaintiff to stop taking the medication at the onset of her first symptoms of increased itching and burning, and sore throat; (2) failed to see the patient immediately or to arrange for an appointment so that another physician could examine her on Monday, December 7, 1987; and (3) failed to diagnose the plaintiffs condition as an allergic reaction on December 9, 1987.
On December 5, 1987, the day after she began taking Septra, Ms. Jordan called Dr. Ryan, complaining again of burning and itching. He continued her on the Septra and told her to call him back on December 7, 1987. On Monday, December 7, she called again to advise Dr. Ryan that the itching and burning had become worse, her throat was sore, and she wanted to see him that day. Dr. Ryan offered her an appointment on the December 8, which was not convenient, so she did not see him until December 9, 1987.
When the patient called to schedule an appointment, and Dr. Ryan's schedule was full for Monday, December 7, 1987, the patient could not come into the office on Tuesday because of her college schedule. The fact that the patient wanted to put off treatment for another additional day would indicate to a physician that the plaintiff's condition did not need immediate attention. Ms. Jordan informed Dr. Ryan that she had no known allergies. Without the information that the patient's history showed a prior allergic reaction, and with a reasonable conclusion that the patient's condition did not warrant immediate attention, Dr. Ryan did not deviate from the medical standard of care when he did not have another physician see the plaintiff on Monday, December 7, 1987 and did not instruct Ms. Jordan to stop taking the Septra on that date. Even if Ms. Jordan had been examined by Dr. Ryan or another physician on December 7, 1987, a failure to diagnose her symptoms would not have constituted a deviation from the ordinary standard of medical care because the syndrome was rare, was not easily diagnosed, and would have occurred even if the Septra dosage was discontinued on December 7, 1987. Dr. Ryan's treatment remained within the ordinary standard of care in his specialty when he told the patient to stop taking the medication, Septra, when he saw her on December 9, 1987.
A possible diagnosis of herpes was reasonable at that time based on Dr. Ryan's examination and his finding two lesions in the patient's vaginal area. There was testimony that herpes can cause problems with urinating, which was one of Ms. Jordan's continued symptoms. The plaintiff testified that she told Dr. Ryan that she "had not had sex in about three months." The patient requested birth control pills. It would not be unusual for a gynecologist to see a patient with herpes; a possible diagnosis of herpes rather than an allergic reaction was not unreasonable where the patient's history included the above factors but did not include any known allergies. Dr. Ryan's treatment remained within the ordinary standard of care in his specialty.
Dr. Ryan did not diagnose Ms. Jordan with the Stevens-Johnson syndrome; however, Dr. Gameel Ghaprial, the Humana emergency room specialist, did not make that diagnosis either although he was familiar with that rare condition, he was aware that Ms. Jordan had an allergic reaction to Erythromycin, and he examined Ms. Jordan later than Dr. Ryan. Nor did Dr. Ghaprial admit Ms. Jordan into the hospital after he examined her in the emergency room. Under the totality of circumstances the plaintiff failed to show by a preponderance of the evidence that Dr. Ryan's treatment was below the medical standard of care required of doctors in his medical specialty in the community, and the trial court's finding that the defendants were liable was manifestly erroneous. A physician's conduct in treatment of a patient is evaluated in terms of professional standards and the current state of medical science, and a physician's judgment is evaluated in light of the facts known at the time of the patient's treatment, not on the basis of hindsight of information later learned. Alello v. Smith, 94-103 (La.App. 5 Cir. 7/26/94), 641 So.2d 664, writ denied 94-2231 (La. 11/18/94), 646 So.2d 382.
The conclusion that the trial court was clearly wrong in finding liability on the part of Dr. Ryan and the Fund, pretermits a review of the other claims raised on appeal.
Accordingly, the judgment of the trial court is reversed, and the suit against the defendants, Dr. Ryan and the Fund, is dismissed.
REVERSED RENDERED.
ARMSTRONG and MURRAY, JJ., concur with reasons.
WALTZER, J., dissents with reasons.
Dr. Ryan's delay from Monday, December 7 to Wednesday, December 9 in seeing plaintiff, and in discontinuing the Septra, resulted in her taking several more doses of Septra. Plaintiff's counsel elicited some testimony on cross-examination of two doctors that, as to allergic reactions to medication in general, it is best to discontinue the medication as soon as possible because, the more one takes of the medication, the worse the allergic reaction may be. However, the same point does not hold true for Stevens-Johnson Syndrome in particular. The medical testimony was either that Stevens-Johnson Syndrome in reaction to a medication is "not dose related" so that the reaction will run its course if the first dose is taken and further doses will not increase its severity or that it is unknown to medicine as to whether Stevens-Johnson Syndrome is dose related or whether further doses can increase the severity of the reaction. There is no testimony, by any of the doctors who testified in this case, to the effect that the additional doses of Septra taken by plaintiff from Monday, December 7 to Wednesday, December 9, either caused her Stevens-Johnson Syndrome or made it more severe. Thus, plaintiff has not carried her burden of proof as to causation in that respect.
Dr. Ryan's failure to give plaintiff steroids can be the cause of damages only if the steroids would have affected the course of Stevens-Johnson Syndrome. The medical testimony was either that steroids have no effect on Stevens-Johnson Syndrome or that it is unknown to medicine as to whether steroids will have any effect. Although steroids are sometimes used in connection with Stevens-Johnson Syndrome, as was eventually done in this case, this apparently is just a matter of doing something as opposed to nothing, and not because of any particular expectation of alleviating the reaction. There is not any testimony by any of the ten doctors to the effect that steroids would have affected plaintiff's Stevens-Johnson Syndrome. Thus, the plaintiff failed to meet her burden of proving causation in this respect as well.
Lastly, plaintiff's expert, Dr. Wade, testified that Dr. Ryan should have, in some unspecified way, "followed" plaintiff's condition after the Wednesday, December 9 visit. However, there was no opportunity for Dr. Ryan to follow plaintiff's condition. Late Wednesday, December 10, the plaintiff became concerned and, instead of contacting Dr. Ryan, went to the emergency room in the early morning hours of Thursday, December 11. The emergency room physician instructed her to contact Dr. Ryan if her condition did not improve in two days. Instead, she flew home to Georgia. Moreover, the medical testimony was unanimous that the symptoms indicative of Stevens-Johnson Syndrome do not appear for seven to ten days, which is precisely what happened in this case, and that by that time plaintiff was in Georgia. The plaintiff chose not to be treated by Dr. Ryan after the Wednesday, December 9 visit, and elected to be seen by other doctors, so Dr. Ryan was not able to "follow" her condition in any way.
I respectfully concur in the reversal of the judgment.
I disagree with the majority's conclusion that the determination that Dr. Ryan deviated from the standard of care was manifestly erroneous. All medical experts agreed that Septra was an appropriate medication for the symptoms with which Ms. Jordan presented. All agreed that Dr. Ryan's advice to Ms. Jordan on December 5, 1987, to continue the Septra and call him on Monday if her condition did not improve, was appropriate and within the standard of care. All agreed that it was not malpractice for Dr. Ryan to fail to diagnose Stevens-Johnson syndrome during the time that Ms. Jordan was under his care. All agreed that Septra should have been discontinued on December 9, 1987, as it was. However, Dr. Wade, a board certified gynecologist, testified that in his opinion, it was a deviation from the standard of care for Dr. Ryan not to have seen Ms. Jordan when she telephoned him on Monday, September 7, 1987. Although the other medical witnesses who testified did not share this opinion, the jury evidently made a credibility call and chose to accept Dr. Wade's testimony over that of the other medical experts. While this panel might have reached a different conclusion, it is not our function to substitute our judgment for that of the trier of fact. Welch v. Winn-Dixie Louisiana, Inc., 94-2331, p. 14 (La. 5/22/95), 655 So.2d 309, 316.
However, Dr. Wade did not testify that the standard of care would have required that Septra be discontinued had Ms. Jordan been seen on December 7. In fact, his testimony suggests that the non-specific symptoms that Ms. Jordan described on that date, without the "hives" that were present on December 9, would not necessarily have led to the conclusion that Ms. Jordan was having an allergic reaction.
Even had Dr. Ryan seen Ms. Jordan on December 7 and discontinued the medication at that time, there was no evidence to support the conclusion that Ms. Jordan's condition would have been any less severe. The experts in Stevens-Johnson syndrome agreed that there is no treatment that is known to modify the course of the disease. Dr. Rhoades, the allergist who treated Ms. Jordan, testified that because the illness presents a serious situation, steroids are given to patients with Stevens-Johnson, but the one study of which he was aware suggests that the use of steroids does not alter the outcome.
Therefore, because the evidence does not support the conclusion that plaintiffs have borne their burden of proving that Dr. Ryan's deviation from the standard of care, his failure to see Ms. Jordan on December 7, caused the injury Ms. Jordan sustained, I concur in the reversal of the judgment.
I respectfully dissent, because I do not believe the jury's verdict on liability was shown to have been manifestly erroneous. I would amend the judgment, however, reducing the award to $15,000, which my research reveals to be the highest reasonable award under the facts of this case.
Ms. Jordan first presented to the office of Dr. Ryan on Friday, 4 December 1987, with complaints of urinary frequency and a yeast infection. Ms. Jordan also requested birth control pills on this date. After an examination and a diagnosis indicating a urinary tract infection and a yeast infection, Dr. Ryan prescribed Septra pills and Monistat cream. On the following day, Saturday, 5 December 1987, Ms. Jordan telephoned Dr. Ryan's office with complaints of increased genital itching. Dr. Ryan promptly returned Ms. Jordan's telephone call and instructed Ms. Jordan to continue taking the medication as directed and to call him on Monday, 7 December 1987 if she continued to have any problems. On Monday, Ms. Jordan informed Dr. Ryan that she was experiencing vaginal genital itching and burning worse than she was previously experiencing and a new symptom, her "throat was starting to get sore." Ms. Jordan testified that she wanted an appointment that day, but Dr. Ryan informed her that he was booked and offered her an appointment for the next day, Tuesday, 8 December 1987. Ms. Jordan informed Dr. Ryan that she could not see him on Tuesday, 8 December 1987 because this would interfere with her class schedule at Xavier, and elected to see Dr. Ryan on Wednesday, 9 December 1987. Since the doctor did not communicate any urgency to Ms. Jordan and, indeed, refused to see her the day she called, Ms. Jordan was lulled into the belief that the onset of a new symptom, sore throat, was not medically significant. Ms. Jordan attended her classes at Xavier on Monday, 7 December 1987, Tuesday, 8 December 1987, and Wednesday, 9 December 1987. On her visit with Dr. Ryan Wednesday, Ms. Jordan complained of two additional symptoms, blurred vision and trouble keeping lipstick on her lips, increased genital itching and burning, and a sore throat and indicated she thought she was having an allergic reaction to the medication. Ms. Jordan also showed Dr. Ryan splotches on her right arm. At this time, Ms. Jordan's rash was just starting and had not broken out all over. Dr. Ryan took her off the Septra medication and performed a vaginal examination of Ms. Jordan on 9 December 1987. He noted two herpetic type ulcerations on the labia and told Ms. Jordan that she might have herpes, performed a herpes culture, and prescribed Corticaine cream for the lesions and the pain.
On Thursday, 10 December 1987, Ms. Jordan applied Benadryl and Calamine lotion to the blotches on her right arm for the first time. Later that evening, the rash on Ms. Jordan's right arm began to break out all over her body. This marked a significant worsening of her condition from the previous day. On the early morning of Friday, 11 December 1987, Ms. Jordan presented to the Humana Hospital emergency room in New Orleans where she was treated with a steroid, Amoxicillin, and Benadryl. The emergency room physician instructed Ms. Jordan to contact Dr. Ryan if her condition did not improve within two days. However, Ms. Jordan never attempted to contact Dr. Ryan after either the 9 December 1987 office visit or the 11 December 1987 visit to the Humana Hospital of New Orleans emergency room. Apparently the jury believed that Ms. Jordan had lost faith in Dr. Ryan by this time, believing him to be unconcerned with her condition. This belief is confirmed by the fact that Dr. Ryan failed even to chart Ms. Jordan's symptoms, her visits on the 5th and 7th of December or her calls.
Later that Friday, 11 December 1987, Ms. Jordan contacted her mother, and they decided that Ms. Jordan should return home to Augusta, Georgia. When she arrived on Saturday, her mobility was seriously restricted, her condition continued to worsen, and she developed serious and significant outbreak of blisters on her mouth and body, typical of Stevens-Johnson Syndrome. On Sunday, 13 December 1987, four days after her last contact with Dr. Ryan, Ms. Jordan went to the Humana Hospital in Augusta and was diagnosed with Stevens-Johnson Syndrome. Ms. Jordan was hospitalized at Humana in Augusta for three days in intensive care and for a total of sixteen days.
In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100 (La. 1/16/96), p. 4, 666 So.2d 612, 614. Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So.2d 742, 745; Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880 (La. 1993); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).
Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. . . . When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact's findings; . . . Rosell v. ESCO, 549 So.2d 840, 844-845 (La. 1989).
Courts of appeal are instructed that before a fact-finder's verdict may be reversed, we must find from the record that a reasonable factual basis does not exist for the verdict, and that the record establishes the verdict is manifestly wrong. Lewis v. State Through Dept. of Transp. and Development, 94-2370 (La. 4/21/95), 654 So.2d 311, 314; Stobart v. State Through Dept. of Transp. and Development, supra.
That standard applies in medical malpractice suits. Richoux v. Metropolitan Gastroenterology, 522 So.2d 677 (La.App. 5 Cir. 1988); Malbrough v. Hamsa, 463 So.2d 639 (La.App. 5 Cir. 1984), writ denied 466 So.2d 472 (La. 1985), 466 So.2d 474 (La. 1985); Protti v. Tolmas, 459 So.2d 614 (La.App. 5 Cir. 1984); Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir. 1991).
Having reviewed the record as a whole, I find no manifest error in the jury's verdict. In this medical malpractice action, Ms. Jordan sustained her two-fold burden of proof, having established by a preponderance of the evidence that the doctor's treatment fell below the ordinary standard of care required of physicians in his medical specialty, and this fault caused her to have been denied appropriate treatment for her allergic reaction from its onset until her admission to the Augusta Hospital. La.R.S. 9:2794; Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1276 (La. 1991); Smith v. State Through Dept. of Health and Human Resources Admin., 523 So.2d 815, 819 (La. 1988).
Expert witnesses who are members of the medical profession are necessary sources of proof in medical malpractice actions to determine whether the defendant possessed the requisite degree of skill and knowledge, or failed to exercise reasonable care and diligence. Martin, supra at 1277. This rule has been refined by the Louisiana Supreme Court in Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La. 10/17/94), p. 1, 643 So.2d 1228, 1230:
As a general rule, a plaintiff can prevail under such circumstances when a defendant/physician or a defense expert testifies regarding the standard of care, and the objective evidence at trial is such that a lay jury can infer negligence from the facts. Accordingly, the court of appeal was in error when it stated that the absence of expert testimony by a plaintiff regarding a breach of the standard of care precludes success in a medical malpractice action. A plaintiff must also establish, with adequate evidence, however, a causal connection between a defendant's negligence and the plaintiff's injuries.
I agree with the majority's conclusion that Dr. Ryan was not negligent in having prescribed Septra for Ms. Jordan's apparent urinary infection. I also agree that he was not negligent in having failed to diagnose her symptoms as indicative of Stevens-Johnson syndrome. However, the record supports a finding that Dr. Ryan deviated from accepted medical standards when, on having been advised of the onset of a new allergic symptom, Ms. Jordan's sore throat, he did not immediately begin treating her for an allergic reaction. Such treatment, while it would not have prevented onset of Stevens-Johnson syndrome, would have provided some degree of relief from her symptoms and confidence is her treatment, and would have avoided the anxiety that led Ms. Jordan to go to the New Orleans emergency room and, eventually, to the hospital in Georgia.
Viewing the evidence in accordance with the Lewis/ Stobart/ Rosell standard, I would find that Ms. Jordan clearly proved that Dr. Ryan's failure to begin at least on Monday to treat Ms. Jordan for an allergic reaction constitutes a departure from the standard of medical care. Dr. Hoffman testified that when a patient complains of new symptoms (the sore throat and increased itching and burning in this case), she should be seen immediately. Ms. Jordan was not seen immediately, and the jury could have determined that the severity of her symptoms and her level of discomfort and anxiety were increased because of this delay. It is not reasonable to conclude, however, that the symptoms were caused by the delay. The jury could have concluded from the evidence that Dr. Ryan's failure to see Jordan on Monday, when she called complaining of new symptoms, and his failure to refer her to another physician who could see her on that day, led her to believe that time was not of the essence, and that she could safely wait an additional day, until Wednesday, to see Dr. Ryan, thus not disturbing her college exam schedule. The jury could have inferred a lack of concern on Dr. Ryan's part from the fact that he had not charted Ms. Jordan's physical complaints of allergic reaction when she made those complaints on the 5th, 7th and 9th of December, complaints which Dr. Hoffman testified should have triggered discontinuance of Ms. Jordan's Septra medication. This deviation from Dr. Hoffman's standard resulted in a delay in the administration of steroid treatment which was eventually commenced successfully in the Augusta Humana Hospital.
The jury's award of $500,000 in damages is, I believe, unsupported by the facts of this case. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on Ms. Jordan is a clear abuse of the "much discretion" of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976); Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993) cert. den. 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The theme that emerges from the jurisprudence is that the discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., supra.
Ms. Jordan's physical pain and anxiety concerning her undiagnosed condition was before the jury, as was the sole residuum of disfiguring splotches on her legs. While her psychological problems related to Stevens-Johnson syndrome apparently resolved in January of 1995, her psychiatrist testified that he saw her five times from 20 September 1988 through 23 June 1989 for issues arising out of the syndrome. It is apparent that the jury failed to make the distinction between damages arising out of the Stevens-Johnson Syndrome (for which Dr. Ryan is not responsible) and damages arising out of his failure to diagnose an allergic relation (for which Dr. Ryan is responsible.)
The award of $500,000 for delay in recognition and treatment of the allergic reaction bears no reasonable relationship to the elements of the proved damages. My review of the entirety of the evidence viewed in the light most favorable to Ms. Jordan indicates that a rational trier of fact could not have fixed the award of general damages at the level set by the jury. This is one of those "exceptional cases where such awards are so gross as to be contrary to right reason." Bartholomew v. CNG Producing Co., 832 F.2d 326 (5th Cir. 1987). Youn v. Maritime Overseas Corp., supra. The standard of review for damage awards requires Dr. Ryan to make a showing that the trier of fact abused the great discretion accorded in awarding damages. In effect, the award must be so high or so low in proportion to the injury that it "shocks the conscience." Moore v. Healthcare Elmwood, Inc., supra. I believe that Dr. Ryan sustained this burden.
Having found the jury abused its great, even vast discretion in awarding damages, I have reviewed the jurisprudence in order to determine the highest possible award, pursuant to the Coco standard.
In Walker v. Maybelline Co., 477 So.2d 1136 (La.App. 1 Cir. 1985), the court sustained an award of $426,584.35 against Maybelline, which was found to have had knowledge of the likelihood of pseudomonas infection where the eye is scratched by a mascara applicator, yet failed to warn its users of this danger. Ms. Walker scratched her eye with a Maybelline mascara wand and was found to be blind in one eye, in constant pain, and likely to lose the sight in her other eye. She lost her job and was forced, because of the injury, to take a job at a reduced rate of pay. The court affirmed the award of past medicals ($37,434.35), future medicals ($25,000), permanent disfigurement ($50,000), past pain and suffering ($150,000), future pain and suffering ($100,000), loss of earning capacity ($63,000) and expert fees ($1150). Thus, the highest general damage award in this context is $250,000. Unlike Ms. Jordan, Ms. Walker's disability continues, and causes her "constant pain" and the likely total loss of sight. Further, Maybelline was found to have caused the reaction, not merely to have exacerbated its consequences. Thus, this award is not controlling in the instant case.
In Sellers v. Breaux, 422 So.2d 1231 (La.App. 1 Cir. 1982), plaintiff had a severe allergic reaction and bronchitis caused by inhalation of creosote fumes. Her injuries required eight days in hospital. She had a second but less severe reaction, and her disability was resolved about a month and a half after the initial exposure. The jury awarded a total of $5,000, including general damages of $2,815.35. This was affirmed.
King v. Our Lady of the Lake Regional Medical Center, 623 So.2d 139 (La.App. 1 Cir. 1993), which is cited in Eason's Louisiana Quantum Study and Personal Injury Law, affirmed a $1500 award for medical battery where codeine was administered to a patient having a known codeine allergy. There, the causation evidence was weak, and the trial court found no damage had been sustained as a result of the administration of the codeine.
In Leday v. Clairol, Inc., 571 So.2d 866 (La.App. 3 Cir. 1990), the court reversed an award of $1000 in general damages for a plaintiff who did not perform a "patch test" that could have discovered her allergy to the hair product. Plaintiff suffered persistent hair loss and acute dermatitis which resolved itself after treatment over a 2 1/2 month period.
In Richard v. Walgreen's Louisiana Company, 476 So.2d 1150 (La.App. 3 Cir. 1985), the trial court awarded general damages of $4000 for allergic reaction to overdose of anti-nausea suppositories caused by improper filling of the prescription by Walgreen's. Liability was stipulated, and only quantum was disputed. Within 3 hours of administration of the suppository, the child was heavily sedated and could not be awakened in the morning. When he awoke, the child had no muscle control and could not stand or speak. The child was hospitalized for observation, but had improved by that time and was released to his parents with instructions to administer fluids. He suffered no permanent damage. The appeal court reduced the general damage award to $2,000 in this pre- Youn decision.
In the case at bar, the basic damage to Ms. Jordan, the onset of the syndrome, was not caused by Dr. Ryan's deviation from the standard of care. That deviation caused only the increased discomfort and anxiety resulting from the delay in diagnosis from Monday, 7 December when Ms. Jordan complained of a new symptom, sore throat, until Sunday, 13 December, when Humana Hospital in Augusta diagnosed the syndrome. Under these facts, the highest reasonable award for that six day delay in diagnosis would be $15,000.