Lambert v. MichelLambert v. Michel
Wilmore J. Lambert‘s suit against Dr. Richard R. Michel and his malpractice insurer, St. Paul Fire and Marine Insurance Company, claimed damages for the death of Lambert‘s wife, Beatrice. A jury decided in favor of the defendants, Dr. Michel and St. Paul, and against plaintiff, Lambert.
The first issue presented is whether plaintiff‘s cause of action has prescribed.
PRESCRIPTION
Defendants have filed an exception of prescription in this cоurt, contending that the suit is barred by the provisions of
In some circumstances, the statute‘s application might result in a denial of an adequate remedy at law for injury in violation of
Attorney for plaintiff contends that the last treatment by Dr. Michel on April 3, 1975, occurred prior to the effective date of the statute, September 12, 1975, and
The Lamberts became aware of the cancerous cоndition on October 22, 1975, and the record indicates they then discovered that the cancer might have been detected earlier but for Dr. Michel‘s act, omission or neglect. Perrin v. Rodriguez, 153 So. 555
Article 2315, especially paragraphs two and three, is a special statute relating to actions arising from the death of tоrt victims. The rule is that where there is an apparent conflict between general laws and special laws on the same topic the special law prevails, even though the general law may have been enacted at a later date; the special law is not repealed by implication and is only affected if the intent to repeal cannot be doubted. Hewitt v. Webster, 118 So.2d 688 (La.App. 2 Cir. 1960).
Therefore, the prescriptive period applicable to Lambert‘s claim for the death of his wife is as provided by Article 2315 and not
The exception of prescription is overruled.
OTHER ISSUES
The other issues presented by plaintiff‘s appeal, as reflected by the record and the contentions of the parties, are as follows: whether the jury erred manifestly in holding that Dr. Michel was not guilty of negligence which was a legal cause of Mrs. Lambert‘s death; whеther the trial judge erred in failing to give certain instructions requested by plaintiff; whether there was error in receiving testimony from Dr. Michel concerning a medical meeting at Marksville General Hospital relative to a Federal study; and whether the trial judge erred in allowing certain questions by defendants’ counsel.
ON THE MERITS
Dr. Michel treаted Mrs. Lambert from April of 1972, until April of 1975, for
On or about October 19, 1975, Mrs. Lambert began to hemorrhage from her vagina. On October 22, 1975, Mrs. Lambert was examined by Dr. Vincent, a gynecologist, who diagnosed Mrs. Lambert‘s condition as stage 3 carcinoma of the cervix. (Stage 3 is a relatively advanced stage.) Mrs. Lambert was referred to a radiation treatment center at Woman‘s Hospital in Baton Rouge in an attempt to save her life. These radiation treatments, subsequent surgery, and chemotherapy were unsuccessful and Mrs. Lambert died on July 14, 1976.
Defendants’ expert witnesses (Dr. F. P. Bordelon, Jr., Dr. Edwin John Califey, Dr. Bryan Clark McCann and Dr. Samuel R. Abramson), all, like defendant, general practitioners in the Marksville-Avoyelles Parish community, unanimously testified that, when a woman presents herself in their offices or is hospitalized for a complaint unrelated to her female organs, they do not perform pelvic examinations or pap smears. Furthermore, under such circumstances, they elicit from their patients only the medical history necessary to treat the specific complaint. The jury could reasonably conclude thаt Dr. Michel‘s treatment of Mrs. Lambert did not fall below the community standard. There is no evidence that the community standard followed by general practitioners in the Marksville-Avoyelles Parish community is faulty or contrary to teachings in medical colleges.
Therefore, there is no manifest error in the jury‘s decision in favor of Dr. Michel and St. Paul and against the plaintiff.
SPECIAL INSTRUCTIONS
The special instructions which the trial judge declined to give the jury were as follows:
1. “Expert evidence is not required where the results of the treatment are of such character as to warrant the inference of want of care from the testimony of the laymen, or in the light of the knowledge and experience of the jurors. It is not necessary that expert testimony showing improper treatment be specific and positive.” (TR. 351)
2. “A doctor may not be allowed to take refuge in the fact that others in the same profession would have done the same as a defendant doctor did. If you determinе among yourselves that the plaintiff was entitled to better treatment or a higher standard of care than exists in the community, notwithstanding the medical testimony as to the local standard of care, you may find negligence by the defendant if you find there is negligence so obvious that it would be within the comprehension of a layman‘s common knowledge or experience.” (TR. 352)
The trial judge did not err in declining to give the two requested instructions. In the general instructions, the trial court charged the jury that the defendant physician was required to exercise the degree of care and skill ordinarily employed under similar circumstances by physicians in goоd standing in the community (TR. 343). Also, the jury was charged that the defendant was required to use reasonable
The question presented here was whether the physician had failed to follow proper medical procedures and not whether he was negligent in some fashion which might be appreciated by a layman. The instructions requested by plaintiff were appropriate only if the jury were called upon to decide a question of negligence within the purview of a layman‘s knowledge and wеre unwarranted under the facts of the instant case. The instructions given by the trial court adequately reflect the law on the issues presented.
TESTIMONY CONCERNING FEDERAL STUDY
Appellant‘s specification of error number three deals with Dr. Michel‘s testimony concerning the Marksville General Hospital and a Federal study, which purportedly found that nо pap smears or pelvic examinations were done in 1977 for patients with upper respiratory infections. Appellant objected to Dr. Michel‘s qualifications to give the testimony. There was no error in the ruling that the doctor was qualified.
HYPOTHETICAL QUESTIONS
Specifications of error number four and five deal with two series of hyрothetical questions proposed to expert witnesses. Plaintiff‘s objection was to questions (Tr. 154 and 177) by defendant‘s counsel as to whether the expert witness being interrogated would perform a pelvic examination or a pap smear on female patients involved in automobile accidents or having а variety of diseases. It is correct that hypothetical questions should not be based on unproved facts. Brown v. Aetna Casualty & Surety Company, 96 So.2d 357 (La. App. 1 Cir. 1967). But the questions posed here did not purport to be based on the facts of Mrs. Lambert‘s situation; they pertained to the general subject of pelvic examinations. A principal issue of the litigation involved the circumstances in which a pelvic examination or a pap smear is appropriate. The hypothetical questions were relevant to a material issue. Expert testimony, not unreasonably prolonged, which illuminates the general area of inquiry for the jury may be permitted. There was no error in allowing these questions.
For the reasons assigned, the judgment below is affirmed at appellant‘s costs.
AFFIRMED.
GUIDRY, J., concurs and assigns written reasons.
GUIDRY, Judge, concurring.
I concur in the result. In my view plaintiff‘s cause of action for the death of his wife has prescribed under the provisions of
Notes
“A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly liсensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission оr neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
“Section 2. If any provision or item of this Act or the applicаtion thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.”
“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation or other rights.”
“Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”
Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject tо the community rights of the surviving spouse.
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustаined through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
As used in this article, the words “child“, “brother“, “sister“, “father“, and “mother” include a child, brother, sister, father, and mother, by adoption, respectively. (Amended by Acts 1948, No. 333, § 1; Acts 1960, No. 30, § 1.)