Opinion
NUMBER 2012 CA 1758
07-29-2013
OSCAR P. BERTHELOT v. RICHARD STALDER AS SECRETARY OF LOUISIANA DEPARTMENT OF CORRECTIONS
Owen J. Bradley New Orleans, LA Counsel for Plaintiff/Appellant Nora Berthelot George O. Luce Kenneth M. Henke Baton Rouge, LA and James D. "Buddy" Caldwell Attorney General Counsel for Defendants/Appellees State of Louisiana, Department of Public Safety and Corrections, Richard Stalder & Burl Cain
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Suit Number 458,174
Honorable Wilson Fields, Presiding
Owen J. Bradley
New Orleans, LA
Counsel for Plaintiff/Appellant
Nora Berthelot
George O. Luce
Kenneth M. Henke
Baton Rouge, LA
and James D. "Buddy" Caldwell
Attorney General
Counsel for Defendants/Appellees
State of Louisiana, Department of
Public Safety and Corrections,
Richard Stalder & Burl Cain
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
GUIDRY , J.
In this negligence action, plaintiff, Nora Berthelot, appeals from a trial court judgment dismissing her claims with prejudice against the defendants, State of Louisiana, Department of Public Safety and Corrections; Richard Stalder, Secretary of the Louisiana Department of Public Safety and Corrections; James Miller, Warden of Washington Correctional Institute; and Burl Cain, Warden of Louisiana State Penitentiary at Angola. For the reasons that follow, we affirm.
Nora Berthelot was substituted as the party plaintiff following Oscar Berthelot's death on February 16, 2008.
FACTS AND PROCEDURAL HISTORY
On February 18, 1999, Oscar Berthelot filed a petition for judicial review in the Nineteenth Judicial District Court asserting that Department of Corrections employees in Baton Rouge, at the Louisiana State Penitentiary at Angola, and at the Washington Correctional Institute were responsible for the amputation of his left leg and for cruel and unusual punishment caused by their lack of medical attention, deliberate indifference, and lack of care. On May 16, 2002, Mr. Berthelot filed an amended petition, asserting that at all pertinent times he was an inmate in the custody of the Louisiana State Penitentiary at Angola and at Washington Correctional Institute. Mr. Berthelot asserted that he had diabetic neuropathy for a number of years prior to his incarceration, and that as a result of the defendants' failure to provide adequate and timely medical care, he suffered the amputation of his left lower extremity on September 18, 1998. Particularly, Mr. Berthelot asserted that the defendants disregarded his complaints about his left foot, failed to provide consultations with specialists, did not have sufficient medical personnel, and failed to send him to appropriate specialists and hospitals in a timely manner. Additionally, Mr. Berthelot asserted that the defendants' employees subjected him to job duties and assignments and other details that were grossly inappropriate for his diabetic neuropathy.
The matter was subsequently set for a jury trial. Prior to trial, defendants filed a motion in limine to exclude plaintiff's expert witness, Dr. Willard Noyes, because he had no experience or training in Louisiana and was barred by the "locality rule" of La. R.S. 9:2794(A) from testifying as to the standard of care or alleged breaches thereof by Louisiana physicians practicing general medicine in the state prison system. By order dated December 9, 2011, the trial court granted the defendants' motion to exclude Dr. Noyes from testifying at trial, finding Dr. Noyes did not meet the requirements under La. R.S. 9:2794(A), the locality rule, since Dr. Noyes did not practice medicine in Louisiana or in a similar community or locale and under similar circumstances.
Following a five-day trial, the jury returned a verdict in favor of the defendants, finding that the defendants did not breach the standard of care owed to Mr. Berthelot. The trial court signed a judgment in conformity with the jury's verdict on February 15, 2012, dismissing all of plaintiff's claims against the defendants with prejudice. Thereafter, plaintiff filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, which was denied. Plaintiff now appeals from these judgments.
DISCUSSION
Exclusion of Expert Testimony
In her first assignment of error, plaintiff asserts that the trial court erred in excluding the testimony of Dr. Willard Noyes, a vascular surgeon, based on the locality rule contained in La. R.S. 9:2794(A)(1). Louisiana Revised Statute 9:2794(A) provides, in pertinent part:
In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a
chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic 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 where 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, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
The locality rule, as detailed above, requires that the degree of care to which a physician is to be held be based solely upon the standard of practice in a similar community or locale and under similar circumstances, and it applies solely to non-specialists. Magee v. Pittman, 98-1164, p. 9 (La. App. 1st Cir. 5/12/00), 761 So. 2d 731, 740, writ denied, 00-1684 (La. 9/22/00), 768 So. 2d 31. Specialists are held to a national standard, that degree of care ordinarily practiced by physicians within the involved medical specialty. Magee, 98-1164 at p. 9, 761 So. 2d at 740.
Under La. R.S. 9:2794, an expert must possess the requisite knowledge about the applicable standard of care. A specialist may testify as an expert witness in a case involving a general practitioner if he has sufficient knowledge of the requisite subject matter. McLean v. Hunter, 495 So. 2d 1298, 1302-1303 (La. 1986). However, the expert must also be familiar with the standard required of a physician under similar circumstances in a similar community. Rowsey v. Jones, 26,823, p. 19 (La. App. 2nd Cir. 5/10/95), 655 So. 2d 560, 574. The only jurisprudential exception to the locality rule eliminating the "similar community" requirement is where a uniform nationwide method for a particular medical procedure has been established. Leyva v. Iberia General Hospital, 94-0795 (La. 10/17/94), 643 So. 2d 1236, 1239; Piazza v. Behrman Chiropractic Clinic, Inc., 601 So. 2d 1378, 1381-82 (La. 1992). Absent this exception, an expert must be familiar with the degree of care ordinarily exercised by physicians in a similar community or locale and under similar circumstances. Magee, 98-1164 at p. 10, 761 So. 2d at 741. It is well settled that a trial court is accorded broad discretion in determining whether expert opinion evidence should be held admissible and its decision will not be overturned absent an abuse of discretion. Williams v. Our Lady of the Lake Hospital, Inc., 09-0267, p. 5 (La. App. 1st Cir. 9/11/09), 22 So. 3d 997, 1000.
In the instant case, there is no dispute that the prison physicians who treated Mr. Berthelot were licensed physicians who practiced general medicine. Accordingly, the locality rule applies and the plaintiff had to establish that Dr. Noyes was familiar with the degree of care ordinarily exercised by physicians in a similar community or locale under similar circumstances. However, from our review of the record, we do not find any evidence indicating that Dr. Noyes, a vascular surgeon who practiced in Thompson and Allentown, Pennsylvania, was familiar with the degree of care exercised by general physicians, nor that the communities in which he practiced are similar to the communities where the Louisiana State Penitentiary at Angola and Washington Correctional Institute are located.
Further, we disagree with plaintiff's assertion that Dr. Noyes' testimony is exempt from the locality rule because of a national standard of care applicable to the management of a diabetic foot. As stated above, the jurisprudential exception to the locality rule has only been extended to uniform nationwide methods for performing a particular medical procedure. See Leyva, 94-0795 at p. 6, 643 So. 2d at 1239. The entire management of a diabetic foot, including diagnosis, treatment, and referrals to specialists, does not constitute a particular medical procedure. Further, even if we were to find that the exception extends to an entire course of treatment, the record is devoid of evidence that the experts agreed that there is a national standard of care for such treatment. See Magee, 98-1164 at p. 11, 761 So. 2d at 741-742 (finding in dicta ample evidence from experts on both sides that there was a uniform nationwide method for the recognition, diagnosis and institution of medical therapy for coronary disease, thereby constituting an exception to the locality rule) and Rowsey, 26,823, p. 20, 655 So. 2d at 574 (finding no exception to the locality rule because the record was devoid of evidence suggesting that there was a uniform nationwide procedure for diagnosing and treating cancer patients.)
Plaintiff asserts that Dr. Noyes testified in detail as to why the management of a diabetic foot has a national standard of care. Additionally, the plaintiff asserts that the defendants' expert, Dr. Tonya Jagneaux, testified that recommendations for diabetic foot care are the same all over the United States. However, from our review of the record we do not find that Dr. Jagneaux conceded that there was a uniform national standard of care for treating a diabetic foot. Rather, Dr. Jagneaux specifically stated that it is naive to say that treatment of the diabetic foot is the same, because there are different levels of care in different institutions, organizations, and states. Further, Dr. Jagneaux stated that the literature is not consistent on how to treat the diabetic foot, and if you ask three to ten experts, you would get as many different opinions on how to do specific things. Therefore, plaintiff failed to establish that there is a uniform nationwide method for managing a diabetic foot.
Accordingly, from our review of the record, we find no error in the trial court's application of the locality rule to Dr. Noyes' testimony and likewise find no abuse of the trial court's discretion in excluding his testimony, because he did not meet the requirements of La. R.S. 9:2794A(1). Testimony of Social Worker
We also note that Dr. Noyes anticipated testimony as described by the plaintiff is duplicative and corroborated by plaintiff's other expert, Dr. Bradley Collins, who testified at trial by way of video deposition.
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The plaintiff next argues that the trial court erred in admitting the testimony of Mary Lou Faciane, a social worker assigned to Mr. Berthelot while he was incarcerated, because such testimony was irrelevant and highly prejudicial.
Generally all relevant evidence is admissible. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Whether evidence is relevant and admissible is within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. Boudreaux v. Mid-Continent Casualty Company, 05-2453, p. 8 (La. App. 1st Cir. 11/3/06), 950 So. 2d 839, 845, writ denied, 06-2775 (La. 1/26/07), 948 So. 2d 171.
However, relevant evidence may be excluded if, among other things, its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. La. C.E. art. 403. The party alleging prejudice by the evidentiary ruling of the trial court bears the burden of so proving. Mapp Construction, LLC v. Southgate Penthouses, LLC, 09-0850 (La. App. 1st Cir. 10/23/09), 29 So. 3d 548, 561, writ denied, 09-2743 (La. 2/26/10), 28 So. 3d 275. In reviewing evidentiary decisions of the trial court, an appellate court must consider whether the particular ruling complained of was erroneous and if so, whether the error prejudiced the complainant's cause, for unless it does, reversal is not warranted. Rusk v. Rusk, 12-176, p. 11 (La. App. 3rd Cir. 6/6/12), 102 So.3d 193, 201.
Ms. Faciane testified that she was assigned to Mr. Berthelot after the time period complained of in his petition, namely, after his left leg amputation. Ms. Faciane testified as to Mr. Berthelot's unwillingness to cooperate with persons who were trying to help him, detailing specific instances after the amputation of his leg where he was demanding and uncooperative. Plaintiff objected several times during the questioning of Ms. Faciane, and defendants asserted that this testimony addressed Mr. Berthelot's routine or practice of being uncooperative with prison personnel. The trial court overruled the objections and allowed the brief testimony.
Louisiana Code of Evidence article 406 provides that evidence of the habit of a person is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit. The defense argued throughout the trial that prison personnel attempted to provide care to Mr. Berthelot to treat his diabetic condition but that he was uncooperative. Accordingly, Ms. Faciane's testimony was relevant to the defense's argument that Mr. Berthelot, and not the defendants, was responsible for the condition leading to the amputation of his left leg. Further, even if we were to find that the trial court erred in admitting Ms. Faciane's testimony, the admission of such testimony was not prejudicial, because such evidence was merely cumulative of other properly admitted evidence in the record. Dr. Jagneaux had previously testified as to Mr. Berthelot's history of refusing to cooperate with prison medical personnel and his untruthfulness with prison personnel regarding his medical care. As such, Ms. Faciane's brief testimony of similar behavior did not have a substantial effect on the outcome of the case, and any error in its admission was harmless, See Alcorn v. City of Baton Rouge ex rel. the Baton Rouge Police Department, 02-0952, p. 8 (La. App. 1st Cir. 6/27/03), 851 So. 2d 1194, 1202, judgment vacated on other grounds, 03-2682 (La. 1/16/04), 863 So. 2d 517. Standard of Care
Finally, plaintiff asserts that the jury erred in finding that the defendants did not breach the standard of care owed to Mr. Berthelot. At trial, both sides presented expert testimony as to the standard of care to be applied to the treatment of Mr. Berthelot's diabetic foot. Dr. Tonya Jagneaux, an expert qualified in internal medicine and critical care, testified on behalf of the defendants. Dr. Jagneaux stated that she had reviewed the entire medical record, consisting of some three thousand pages. According to the records, Mr. Berthelot was an insulin dependent diabetic since 1984, and he had a history of diabetic gangrene to the left foot, with surgery in June 1995. Mr. Berthelot presented to the Angola clinic on January 27, 1998, with left foot trauma and bleeding at the site of a previous amputation of his left small toe. However, Dr. Jagneaux noted that the medical records did not describe an ulcer. Mr. Berthelot was given an antibiotic and a dressing change, and was restricted to an indoor sitting job, tennis shoes/slippers, and no walking over 100 yards. Dr. Jagneaux stated that normally an antibiotic would not be prescribed absent an infection; however, because of the location of the wound on Mr. Berthelot's foot and the high risk for infection, an antibiotic was appropriate. Additionally, Dr. Jagneaux opined that if a diabetic presented with wounds on his feet, the standard of care required limiting weight bearing activity on the foot so that the wound could heal. Dr. Jagneaux stated that the medical records suggest that the clinic personnel followed this standard by limiting Mr. Berthelot's activities.
Dr. Jagneaux noted that on March 17, 1998, Mr. Berthelot presented to the clinic for evaluation of an ulcerated lesion that had appeared two days prior at the site of his previous amputation. Mr. Berthelot was diagnosed with an infection, which was debrided (infected tissue removed), and was prescribed oral antibiotics. Dr. Jagneaux stated that a culture at this time was not warranted. According to Dr. Jagneaux, the ulcer was superficial and it would be inappropriate to culture it, because going deeper into the wound to obtain a culture could induce more damage to an already compromised area. Further, Dr. Jagneaux noted that obtaining a culture of the foot itself would yield useless information because it is open to bacteria from the sock, floor, etc. Therefore, though Dr. Jagneaux agreed that a doctor would like to know the bacteria type, in this instance trying to determine the type of bacteria by way of a culture could do more damage. Accordingly, debridement of the infected tissue and prescription of broad spectrum antibiotics to control the source of the infection was appropriate.
Dr. Jagneaux noted that from April to early August 1998, Mr. Berthelot presented several times to the prison clinic for evaluation of right foot problems. However, during this time, Mr. Berthelot received wound care to his left foot, consisting of debridement and dressing changes, and was also receiving oral antibiotics, though for his right foot infection. Dr. Jagneaux stated that standard treatment of an ulcer, or any wound care, is to continue to keep it moist to allow it to heal from the base forward by applying wet dressings to the wound and dry dressings on top, and that is what clinic personnel did in this case.
Further, from her review of the medical records, Dr. Jagneaux opined that during the period from April to August 1998, Mr. Berthelot's left foot showed signs of healing and there was no evidence of an infection to the area. According to Dr. Jagneaux, when Mr. Berthelot presented to the infirmary at Washington Correctional Institute on August 11, 1998, for emergency evaluation of his left foot, which was noted as red, swollen and tender, Mr. Berthelot was suffering from a relatively new or acute infection. Dr. Jagneaux stated that Mr. Berthelot was immediately transferred to a local hospital for evaluation and received a CT scan and bone scan. According to Dr. Jagneaux, these scans revealed an acute osteomyelitis (bone infection), which occurred secondary to the soft tissue infection that he had when he presented to the infirmary on August 11, 1998. Mr. Berthelot was subsequently transferred to the Medical Center of Louisiana at New Orleans, where he received a below-the-knee amputation of his left leg. The pathology report of the amputated limb revealed that Mr. Berthelot suffered from atherosclerosis vascular disease (low blood supply to the foot with inflammation.)
According to Dr. Jagneaux, Mr. Berthelot had diabetes that was poorly controlled and resulted in terrible neuropathy to his feet. As such, he had a predisposition to ulcers, which was demonstrated prior to him being incarcerated. Dr. Jagneaux stated that prison doctors made several recommendations for Mr. Berthelot's care, but that he would not follow them, including refusal of accu-checks, blood glucose measurements, insulin and his refusal to attend telemedicine diabetic clinics for assessment for referrals or recommendations for medical regiments. Dr. Jagneaux opined that Mr. Berthelot's noncompliance with recommended medical care played a major role in his problem, and that the poorly controlled diabetes and poor blood supply to the left foot is what led to the amputation.
Dr. Bradley Collins, also an expert in internal medicine, testified on behalf of the plaintiff. Dr. Collins reviewed the medical records from January 1998 to August 1998 and also reviewed some records before and after those dates. According to Dr. Collins, when Mr. Berthelot presented to the prison clinic on January 27, 1998, with bleeding at the site of a previous amputation of his left small toe, the standard of care required that more evaluation be done by clinic personnel. Specifically, Dr. Collins stated that the standard of care required that clinic personnel obtain blood work and an x-ray of the foot. Additionally, Dr. Collins stated that he likely would have debrided necrotic tissue, evaluated the vasculature of the limb, and considered having Mr. Berthelot evaluated by a surgeon. Dr. Collins also stated that there was no set follow-up schedule for Mr. Berthelot's care. According to Dr. Collins, he would have seen the patient in seven to ten days to make sure the wound was healing appropriately, and if there was evidence of poor healing, he would have been more aggressive in terms of further evaluation.
Dr. Collins stated that when Mr. Berthelot presented to the clinic in March 1998, he had signs of a significant, longstanding infection. Mr. Berthelot received a CBC, blood chemistry and urinalysis and was prescribed oral antibiotics. However, Dr. Collins stated that the standard of care required that clinic personnel obtain a sedimentation rate, bone film, bone scan or CT scan (if available), and definitely a deep tissue culture. Additionally, Dr. Collins stated that Mr. Berthelot should have been referred to a surgeon or podiatrist for debridement and should have been prescribed intravenous antibiotics, because they provide a quicker response and better tissue penetration. According to Dr. Collins, the defendants deviated from the standard of care by not attacking Mr. Berthelot's condition aggressively and by not following-up properly with his care.
Additionally, Dr. Collins stated that between March and August 1998, though Mr. Berthelot was seen by clinic personnel for problems with his right foot, the medical records mention drainage of his left foot, which suggests an active wound and an ongoing problem. According to Dr. Collins, when Mr. Berthelot presented to the hospital in August 1998, he was suffering from a chronic, smoldering problem that had just flared. Dr. Collins asserts that this is supported by the fact that while at the hospital, Mr. Berthelot was diagnosed with osteomyelitis, and that this condition takes time to develop. Accordingly, Dr. Collins opined that the amputation of Mr. Berthelot's left leg was the result of a chronic infection.
The trier of fact must assess the testimony and credibility of witnesses and make credibility determinations regarding those evaluations. Knight v. Gould, 10-1355, p. 5 (La. App. 1st Cir. 3/25/11), 65 So. 3d 158, 161. In this case, the parties presented conflicting expert medical testimony on whether the defendants breached the standard of care. Where there are contradictory expert opinions concerning compliance with the applicable standard of care, the reviewing court will give great deference to the conclusions of the trier of fact. Thibodaux v. Leonard J. Chabert Medical Center, 06-0599, p. 5 (La. App. 1st Cir. 9/14/07), 981 So. 2d 686, 690, writ denied, 07-2039 (La. 12/7/07). 969 So. 2d 640. The issue on appeal is not whether the jury was right or wrong, but whether its conclusion was a reasonable one. Knight, 10-1355 at pp. 5-6, 65 So. 3d at 161.
Based on our review of the entire record, we find that the jury was clearly presented with conflicting testimony as to the. standard of care under these circumstances and apparently chose to give more weight to the defendant's expert. Given the discretion afforded to the jury in making such a determination, and because the jury's finding that the defendant's did not breach the standard of care owed to Mr. Berthelot is reasonably supported by the record, we find no manifest error in the jury's conclusion.
Further, based on our determination of this issue, we likewise find no manifest error in the trial court's judgment denying plaintiff's motion for a judgment notwithstanding the verdict, or in the alternative, a new trial. See Belle Pass Terminal, Inc. v. John, Inc., 92-1544, 92-1545, pp. 41-42 (La. App. 1st Cir. 3/11/94), 634 So. 2d 466, 491-492, writ denied, 94-0906 (La. 6/17/94), 638 So. 2d 1094.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to plaintiff/appellant, Nora Berthelot.
AFFIRMED.