673 So. 2d 1213 | La. Ct. App. | 1996
Lead Opinion
This is an appeal by Dr. Joseph Licciardi, Jr. and his liability insurer from an adverse jury verdict and judgment awarding $67,-000.00 in damages to Amanda and Laura Torbert in a medical malpractice action. The Torberts answered the appeal seeking an increase in the damage awards.
The defendant doctor argues that the patient, Amanda Torbert, and her mother, Laura Torbert (who sued for loss of consortium), failed to prove that he deviated below the acceptable standard of care because there was no medical testimony to that effect.
The facts giving rise to these claims are not in dispute. Amanda Torbert was thirteen years old when she broke her arm while riding a bicycle on July 10, 1985.
Amanda was again seen by the defendant nine days later, on July 19, 1985. X-rays taken on that visit showed that the bones had not moved. Amanda and Mrs. Torbert testified that they thought the cast looked loose and asked the doctor whether he was going to replace it. Dr. Licciardi examined the cast and advised that since it was satisfactory he was not going to change it.
On July 31, 1985, twelve days later, and twenty-one days after Amanda’s arm was broken and put in a cast, she again was seen by the defendant. X-rays taken on that date showed that the fracture had angulated five to ten degrees. Once again, Amanda and Mrs. Torbert questioned the doctor about changing the cast because it was loose. Once again, the doctor examined the cast, pronounced it satisfactory, and advised that he was not going to change it.
At this visit, Dr. Licciardi told Mrs. Tor-bert that Amanda should return for a followup visit in two weeks. However, when Mrs. Torbert was scheduling the next visit at the appointment desk she asked if Amanda could return in three weeks, instead of two, because the family planned to be on vacation at Astroworld in Houston in two weeks. She also asked if the doctor should be consulted about this request. She was told that it would be alright to schedule the return visit in three weeks, and that it was not necessary to consult the doctor.
The plaintiffs testified that Amanda Tor-bert did not go on any of the rides or engage in any rough activity while at Astroworld. She went in the hotel | ¾swimming pool but wrapped her injured arm in a large plastic bag to keep the cast dry.
On August 21, 1985, three weeks after the previous doctor visit, and six weeks after her arm was broken and put into a cast, Amanda Torbert returned to see Dr. Licciardi and he removed the cast. It was immediately apparent that the broken bones were now an-gulated fifteen to twenty degrees so that Amanda’s forearm was deformed.
Dr. Licciardi advised Amanda and her mother that it was possible that the forearm would straighten out on its own. That is, the bones might get into proper alignment without any treatment. He also advised them that surgery might be necessary to restore the bones to proper alignment.
Mrs. Torbert consulted Dr. Ray Haddad, a board-certified orthopedic surgeon, who operated on Amanda’s arm. The surgery, which was done under general anesthesia, required making one incision on the top of the forearm and another on the bottom, and attaching two small metal plates to the broken bones with several metal screws. Later, after the arm had healed, Dr. Haddad operated on Amanda a second time, on an outpatient basis, to remove the plates and screws.
The plaintiffs brought suit against Dr. Lic-ciardi. The matter was referred to a medical review panel comprised of three board-certified orthopedic surgeons who reviewed the medical records, x-rays, and Dr. Licciardi’s position paper. The panel members determined that the doctor had not deviated below the standard of care and that his conduct was not a factor in any damages suffered by Amanda Torbert.
pThe case eventually was tried to a jury, which found that Dr. Licciardi had breached the standard of care and that his negligence proximately caused the injury to Amanda. The jury awarded $65,000.00 in unspecified damages to Amanda Torbert and $2,000.00 damages to Mrs. Torbert for her loss of consortium. This appeal followed.
STANDARD OF CARE:
The defendants argue that the plaintiff in a medical malpractice case has the burden of producing expert testimony to show that the defendant doctor violated the standard of care. Since no expert testified that Dr. Lie-
We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794’s requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care and there is objective evidence, including the testimony of the defendant/physieian, which demonstrates a breach thereof.
While the defendant is correct that no expert specifically testified that “this is the standard of care, and Dr. Liceiardi’s deviation from that standard caused Amanda Tor-bert harm,” there was ample testimony from all the experts to [sestablish the standard of care, and evidence from which the jury reasonably could conclude that Dr. Lieeiardi breached that standard.
The plaintiffs presented the testimony of Dr. Raul Reyes, a board-certified general surgeon with certain training and. experience in orthopedics
The defense presented the testimony of Dr. Stuart Phillips and the deposition testimony of Dr. Harold M. Stokes, two members of the medical review panel.
All of the various doctors, including the defendant, were in agreement on many points. All agreed that a primary purpose of a cast in a fracture of this type (fracture of both the radius and ulna) is to immobilize the broken bones in a position of acceptable alignment while the arm heals. All agreed that this type of fracture is highly unstable, and misalignment is a common complication. Because of this possibility, the experts agreed that the patient must be followed closely. The experts also agreed that swelling, which can occur several days after an arm breaks, will make the cast tighter, but that the east will fit more loosely after the swelling goes down. In order to deal with this problem, a scored cast, which allows some expansion for swelling, is used; once the swelling goes down, this type of cast can be tightened with adhesive tape. The experts also agreed that one cannot determine if a cast is too tight or too loose on the basis of x-rays alone; this [(¡decision should be based on an examination of the cast and the patient’s complaints.
Dr. Reyes, who examined Amanda in 1990 after the surgery by Dr. Haddad, was presented with a summary of the lay testimony describing the condition of Amanda’s cast. He was then asked if, based on those facts, the cast was too loose and needed replacement. He responded that if presented with that situation he would take an x-ray to see if there had been any movement in the bones. He acknowledged that a cast that was either too loose or too tight would be a problem. Dr. Reyes testified that a cast that was properly fitted initially could become loose when the swelling went down, allowing angulation. For these reasons, this type of fracture had to be followed very closely.
Dr. Haddad testified that the deformity in Amanda’s arm was caused because the re
Dr. Licciardi testified that he did not realize that the reduction of Amanda’s fracture was lost until he took the cast off on August 21, 1985. He admitted that the July 31st x-ray showed a five degree angulation, which he felt was acceptable, although the x-ray of July 19th showed that “the bones hadn’t moved in ten days.” [7He did not recall at trial if he had-ever taped Amanda’s cast, although he had asserted that he had done so in his submission to the medical review panel. He acknowledged that the taping would be apparent if it had been done. Dr. Licciar-di admitted that his office notes made no mention of any complaints of looseness by Amanda or her mother, which indicated he did not consider those complaints significant. Dr. Licciardi testified that he saw no sores when he removed the cast, but he did note areas of reddening.
Dr. Stokes, who testified on the defendant’s behalf, opined that a east should be changed if it was so loose that the fracture could angulate or if x-rays showed some an-gulation. Dr. Stokes agreed that the x-ray of July 31st showed a five to ten degree angulation. He stated that it was his impression that Dr. Licciardi taped the split cast on the first office visit after the swelling went down, which was consistent with the standard of care.
Dr. Phillips also reviewed the July 31st x-ray and confirmed the angulation that was not present on the earlier x-ray. On cross-examination he testified that if angulation was seen on x-ray, the cast should be examined to determine if “snugging it up” would help prevent the angulation from progressing.
The plaintiffs presented lay testimony as to the fit of the cast. Amanda Torbert testified that her arm was swollen at first and the cast was fine. However, when the swelling went down, the cast became so loose that she could put three fingers in the top and scratch, and she could scratch her knucldes from the bottom. She also testified that the cast was so loose she could move it, and it felt like it was rubbing her elbow raw, as though she had a sore. It also was rubbing her arm about midway between her elbow and wrist. She denied that the cast had been taped after the swelling went down.
| sLaura Torbert testified that a groove was initially cut in the cast at the hospital, and that the cast was noticeably loose on the first office visit, She also denied that the east was tightened by taping it. She confirmed that Amanda could put her hand in the top of the cast and move it.
Marsha Redler and David Dixon, two family friends, also testified that the cast appeared to be very loose; neither noticed tape on the cast.
In sum, there was expert testimony establishing that this type of fracture was very difficult to manage -and must be followed very closely. According to Dr. Haddad, the standard of care under these circumstances required weekly reexaminations to check and possibly change the cast. The evidence presented by the plaintiffs established that the east was so loose that it was rubbing Amanda’s elbow, and that this was reported to the doctor, who apparently chose to ignore it. The experts agreed that the x-ray taken on July 31st showed that this fracture had begun to angulate. Despite this, Dr. Licciardi did not change the east nor did he see Amanda weekly. Thus, in light of the evidence of angulation on July 31st and the patient’s complaints about the cast’s condition, the jury reasonably could have concluded that Dr. Liceiardi’s failure to check Amanda’s cast weekly was below the standard of proper
In a medical malpractice action the plaintiff must prove the standard of care applicable to the charged physician, a violation by that physician of that standard, and a causal connection between the physician’s negligence and the plaintiff’s resultant injury. La.Rev.Stat.Ann. § 9:2794 A; Pfiffner, 94-0924, p. 8, 643 So.2d'at 1233; Soteropulos v. Schmidt, 556 So.2d 276, 278 (La.App. 4th Cir.1990). It is well settled that a court of appeal may not set aside a trial court’s | afinding of fact in the absence of manifest error, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). As stated above, the evidence presented here supports the jury’s finding of liability under these standards.
DAMAGES:
Amanda Torbert appeals the jury’s damage award of $65,000.00
The Supreme Court has delineated our function when a general damage award is challenged on appeal:
[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
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The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact_ 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.
Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, — U.S. —, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994) (citations omitted). In determining whether an abuse of discretion has been shown, the relevant evidence must be viewed in the light which offers the most support to the trial court’s judgment. Id. at 1261.
The testimony and photographic evidence establish that Amanda had an obviously deformed forearm after Dr. Liceiardi removed her cast August 21, 1985, and because of this she was subjected to cruel remarks from her peers. However, corrective surgery was performed less than two-and-a-half months later with good results. Although she had to undergo surgery again in January 1988 and has permanent scarring from these procedures, nothing was presented to suggest she has had any significant impairment of her lifestyle or abilities.
For these reasons, the judgment is affirmed.
AFFIRMED
WALTZER, J., concurs in part, dissents in part.
. She was twenty-two years old at the time of trial.
. The plaintiffs argue that the trial court erred by failing to qualify Dr. Reyes as an expert in orthopedic surgery instead of an expert only in general surgery. Since the trial court did not prevent Dr. Reyes from answering any questions, the error, if any, would be harmless. Also, Dr. Reyes was primarily a liability witness and, of course, the plaintiffs prevailed as to liability.
. Dr. Kerr, the third member of the medical review panel, passed away prior to trial without having been deposed.
. This term refers to the process of bringing the fragments of a broken bone into alignment for healing.
. The jury was not asked to itemize their damage award, only to provide an amount which “would fairly and adequately compensate Amanda ... for her injuries and expenses.’’
. By the time of trial, Amanda was a married homemaker with one child.
Dissenting Opinion
dissenting with reasons.
I respectfully dissent because I believe that the plaintiffs did not meet their burden of introducing expert medical testimony that the defendant doctor failed to meet the standard of care. As an initial point, we must decide whether expert medical testimony is necessary in this case. The standard for deciding that issue is clarified by the Supreme Court in Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La. 10-17-94), 643 So.2d 1228.
The jurisprudence has also recognized that there are situations in which expert testimony is not necessary. Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence. See Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La.1986). Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician’s fault. See id. at 719-20. Likewise, where the defendant/physician testifies as to the standard of care and his breach thereof, see, e.g., Riser v. American Medical Int’l Inc. 620 So.2d 372, 377 (La.Ct.App. 5th Cir. 1993), or the alleged negligence consists of violating a statute and/or the hospital’s bylaws, see, e.g., Hastings, 498 So.2d at 722 (violation of LSA-R.S. 40:2113.4 which imposes duty on a hospital to make emergency services available to all persons in the community without regard to income or insurance protection and hospital bylaws establishing duties for on-call physicians), expert testimony is also unnecessary to establish a malpractice claim.
We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794’s requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care and there is objective evidence, including the testimony of the defendani/physician, which demonstrates a breach thereof.
laPfiffner, supra at 9-10, 643 So.2d at 1233-34.
It is clear from the facts discussed below that the present case does not present any of the situations identified by Pfiffner as not requiring expert testimony as to the issue of whether the defendant doctor failed to meet the standard of care. Instead, the present case involves the exercise of medical judgment when there are competing medical considerations as to the proper action to be taken by the doctor. Pfiffner holds that most medical malpractice cases do require expert testimony as to whether the doctor met the standard of care; and this is one of those cases.
The plaintiffs’ primary theory at trial was that the cast applied by the defendant doctor was too loose. This, plaintiffs argue, allowed the malalignment which required surgery on Amanda Torbert’s forearm. The plaintiffs also argue that the defendant doctor did not see Amanda Torbert for follow-up visits frequently enough after he applied the cast.
The following medical background is undisputed. The purpose of applying the cast (aside from protecting the broken arm from outside impacts) was to immobilize the broken bones in the forearm in a position of acceptable alignment while the arm healed. The cast went from the knuckles up to near the top of the upper armpit and was an L-
The cast should be snug enough to immobilize the broken bones in acceptable alignment. If the cast is too loose, then this can allow the bones to get out of acceptable alignment and heal in a malaligned position requiring surgery to correct. On the other hand, the cast must not be too tight. If the east is too tight, this can cause circulation problems leading to the destruction of tissue, gangrene, and even the loss of the limb. Thus, a balance must be struck in fitting the cast and the consequences of the cast being too loose, while significant, are not as grave as those resulting from the cast being too tight.
With the type of break suffered by Amanda Torbert, it is the portion of the cast covering the middle forearm that must not be too loose. Looseness in the portion of the cast covering the upper arm or the hand is not a concern as to malalignment. (Thus, the lay testimony of looseness in those areas of the cast is irrelevant.)
During the several days after an arm break, swelling can occur, and this will make the cast tighter. To guard against this, a score can be made in the east which will allow it to | .-¡expand some and this was done in the present ease. Also, after swelling goes down, the east will fit more loosely. To deal with this, a scored cast can be taped with adhesive tape and, while the evidence is somewhat mixed as to whether that was done in this case, there is no evidence of whether or not taping was necessary in this case.
If the cast becomes too loose, it can be removed and a new east applied. However, when a cast is changed, it is possible that malalignment will occur during the change. Thus, in order to avoid that risk, the cast should not be changed unless necessary.
The type of broken forearm suffered by Amanda Torbert with both the radius and the ulna broken, is highly unstable. Consequently, malalignment is not an uncommon complication with this type of broken forearm. About 15% of such broken forearms malalign. This can result from the natural pulling of the muscles on the broken bones even if the cast is applied properly. Thus, the mere fact that malalignment occurs is not, by itself, indicative of the cast being too loose or of the treatment otherwise being improper.
The only way to insure against malalignment in the case of a broken arm of the type suffered by Amanda Torbert would be to go ahead and do the surgery such as was eventually done on the plaintiff by Dr. Haddad. But, in 85% of cases, the use of a east is successful, and so surgery is not necessary. Consequently, the standard practice is to first attempt the use of a cast as was done in the present case. But, because of the possibility of malalignment, the patient must be closely followed by the doctor.
In light of the above-discussed undisputed medical background, I believe it can be seen that the issue was not simply whether the plaintiffs cast was “loose” but, instead, whether the plaintiff’s cast was too loose. The plaintiffs presented the testimony of themselves and two family friends as to the looseness of the cast. The testimony was not based on any measurements, but was descriptive. Of course, all of that was lay testimony. While it could supply information as to how loose the cast was, it could not answer the determinative question of whether the cast was too loose. For that, the plaintiffs turned to the expert testimony of Dr. Reyes.
However, although it appears that the plaintiffs’ counsel twice asked the right question, Dr. Reyes did not answer it squarely either time. When his testimony is taken as a whole, Dr. Reyes did not answer the question of whether Amanda Torbert’s cast was in fact too loose, so that it needed to be changed. Instead, Dr. Reyes responded that, if a cast is too Lloose, then it should be changed. In fact, like the other physician witnesses, he testified that the cast should not be too tight for fear of cutting off circulation. Because, to be fairly understood, Dr. Reyes’s testimony must be taken as a whole, it is necessary to quote some of it at length.
Q. We have had testimony prior to your coming here Ms. Amanda Torbert explained to the jury how loose her east was and she described it in this manner.*1220 You did not see Amanda back in July of 1985; is that correct?
A. I did not see her until after she had her surgery.
Q. I want to give you these facts which are in evidence and then ask your opinion. If in fact nine days after Amanda broke her arm, the cast was so loose that Amanda could insert several of her fingers down into the top of the cast as I’m demonstrating to you here and could move the cast with her arm — with her hand and could also insert several fingers inside the top of the cast and also underneath on the palm side of the cast, and if in fact also there was such movement that her elbow became sore or irritated from the cast being loose and in fact even a rub spot about halfway between the elbow and the wrist, if in fact those things did exist, is that cast too loose for this type of fracture and should it be replaced?
A. If a patient presented he or she to me with a loose cast, I would have at that point with this type of fracture I would have taken an X-ray to see if there had been any movement in the bones and I probably would have removed the east and applied a new cast and made it a little bit snug. The problem that we have in treating these fractures is that it you make the cast too tight, then you get circulatory problems, and, of course, if you make it tight, you may be able to preserve the bone in proper alignment but then the patient starts getting circulatory problems and if you don’t attend to that you can get gangrene. If you make the cast too loose, then the cast can go ahead and the bones can angu-late. A cast that is properly applied at the time of the fracture may become loose once the swelling has receded, so that if a patient has a cast that you feel is proper, three or four days later the cast may become loose because the swelling has gone down and this fracture can angulate. (emphasis added)
Q. In fact, that’s why you need to follow this type of fracture so closely?
A. That’s correct.
Q. If displacement or it starts to angulate during the healing process because a east is too loose, the best thing to do is immediately change the cast and get it snug around the arm, is that a fair statement?
IsA. In a young person if you catch this early you can go ahead and remanipu-late the fragments and put them in good position and recast the patient but still with the same problems that you had the first time that the cast can become loose or the cast can become too tight.
Q. What you just said, is that the standard of care that is expected of a physician in the field of orthopedics in terms of the care for their patient?
A. Yes.
Q. So therefore leaving on a loose cast as described to you instead of replacing it with a snug one and following it closely is a breach of the standard of care that’s expected of a physician in this field of specialty, is that a fair statement?
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THE WITNESS:
If a patient presented he or she to me with what I thought was a loose cast with this type of fracture, I would take an X-ray at that time and then I would make a determination as to whether I felt that I needed to place a cast, put a snug east on and again sometimes the physician is caught in a bind because if you put the cast on too tight, you get circulatory problems with angulation and I would rather have problems with angulation than with circulatory problems, (emphasis added)
What is absent from Dr. Reyes’s testimony is any statement that Amanda Torbert’s cast, as described in the hypothetical question, was so loose as to need replacement. At times, Dr. Reyes speaks of a “loose” cast but, at other times he uses the phrase “too loose” to describe a east that needs to be changed. In context, the only reasonable view of Dr. Reyes’s testimony is that, when he speaks of a “loose” cast, he means a cast that is “too loose.”
In particular, Dr. Reyes twice emphasized that he would take an X-ray to examine the
1SI am most conscious that we should not reverse a finding of fact unless that finding is “clearly wrong” or “manifestly erroneous.” Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). But, Dr. Reyes never said that, if a cast was as described in the hypothetical question posed by plaintiffs’ counsel, then that cast should be changed. Instead, Dr. Reyes said that, if a patient had a loose cast, then he would make a determination (including use of an X-ray) of whether the cast was too loose and, if it was, then he would change it. Thus, there is a complete lack of expert testimony in support of the plaintiffs’ position on the determinative issue — whether the cast was too loose and so needed to be changed.
Also, although we do not re-weigh the evidence de novo on- appeal, Rosell, supra; Stobart, supra, I believe it is appropriate to briefly set Dr. Reyes’s testimony in the context of other medical testimony. Dr. Haddad was not asked for and did not express any opinion as to whether the cast had been too loose. Dr. Phillips looked at the X-rays of Amanda Torbert’s arm in the east that were taken on the July 10 accident date and on the July 19 and July 31 office visits. He stated that he was able to determine from the X-rays whether the cast was too loose. Dr. Phillips explained that air space between the east and the arm shows up as a black area on the x-ray while the cast, its padding, the flesh and the bone show up as shades of white. Dr. Phillips testified that he could see in the X-rays that the cast was not too loose. Dr. Stokes also looked at the same X-rays as Dr. Phillips and, like Dr. Phillips, testified that those X-rays showed that the cast was not too loose. The defendant doctor also examined the X-rays and, like Dr. Phillips and Dr. Stokes, testified that the X-rays showed that the cast was not too loose. In contrast, Dr. Reyes, who also looked at the X-rays, could not tell from them whether or not the cast was too loose and, in fact, he testified that he could never tell from x-rays whether or not a cylindrical cast was too loose. The only doctor who saw the cast on Amanda Torbert was the defendant doctor and he, of course, testified that the cast was not too loose.
We cannot assume that Dr. Haddad’s treatment with respect to the post-surgical cast he applied can be compared with the defendant doctor’s treatment with respect to the post-injury east he applied. First, Dr. Haddad’s cast covered two surgical incisions, which he may have needed to check. Second, there were metal screws and plates in the arm which may have helped maintain alignment during a cast change and which may have required ^viewing the arm itself from complications connected with them. Third, Dr. Haddad did not use a plastic cast as did the defendant doctor. In any case, none of the medical expert testimony compared the two doctors’ treatments as to their respective casts or even suggests such a comparison.
The plaintiffs also briefly argue that the defendant doctor did not see Amanda Tor-bert often enough for follow-up visits after the cast was applied. It is undisputed that the defendant doctor saw Amanda Torbert for follow-up visits nine days and twenty-one days after the cast was applied and that he did not see her again until six weeks after the cast was applied.
None of the doctors who testified criticized this frequency of follow-up visits. The only medical testimony explicitly addressing the issue was that the frequency of follow-up visits was sufficient. Dr. Haddad said that he would follow up and take x-rays “probably” once a week for “three or four” weeks. Dr. Reyes said that “practice varies” but that he would take x-rays weekly for three weeks. But it is undisputed that, as of the July 31
Concurrence in Part
concurring in part and dissenting in part.
I concur in that part of the majority opinion that finds that Dr. Licciardi breached the applicable standard of care in his treatment of Amanda Torbert. In addition to the evidence mentioned in the majority opinion, Dr. Reyes’s testimony and Dr. Haddad’s treatment offer persuasive support for the trial court’s liability finding. Dr. Reyes testified that under the circumstances of Amanda’s injury he would take an x-ray after the plaster was applied, which Dr. Licciardi failed to do. Dr. Reyes testified that for the next three weeks he would take weekly x-rays. If a patient presented with a loose cast, he would have taken an x-ray and probably would have removed the east, applied a new cast and made the cast snugger. He testified that in order to make an informed decision as to whether the cast is too loose, a doctor must make a clinical determination by examining the arm in relation to the cast. Dr. Reyes testified that angulation complications may be avoided by closely following the patient to determine the point at which angu-lation was becoming more accentuated. Here, according to Dr. Reyes, the problem was exacerbated because Amanda was a young, active person. Dr. Licciardi failed to make these clinical determinations and failed to follow Amanda’s healing process closely, violating the standard of care to which Dr. Reyes testified.
RPr. Haddad’s records show that during his treatment of Amanda, he in fact changed her cast every time he saw her following the corrective surgery. Dr. Licciardi failed to do so when Amanda was under his care.
I respectfully dissent to the majority’s af-firmance of the jury’s clearly inadequate award of general damages. While I recognize that under the standard set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, -U.S. -, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the jury’s discretion in setting general damages is “great” and “vast,” I find that an award of less than $50,000 to a young girl who was forced to undergo two needless surgeries, who suffered the pain and inconvenience of extended recovery and physical therapy, who sustained a permanent partial 25% disability and who was the object of scorn and derision when, at the tender and impressionable age of thirteen, she endured the disfigurement caused by Dr. Lieeiardi’s failure to meet the standard of care shocks the conscience. See Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir.1991).
Following Dr. Licciardi’s botched treatment of her broken arm, with a scarred, discolored and misshapen arm, this thirteen year old girl embarked on her career in junior high school. This milestone is a momentous and anxiety-attended event for any child, made worse for Amanda as a result of the medical malpractice proved at trial. Amanda testified without contradiction that her schoolmates referred to her arm as a “chicken wing.” Dr. Stewart Phillips testified that young girls are less forgiving than their male counterparts about a companion who looks different, and that a crooked arm would be “very, very upsetting.” Following Dr. Haddad’s second surgery, to remove the plate and pin he had inserted in the first remedial surgery, Amanda was left with two long, discolored scars, running along |3the top and the bottom of her arm. Marsha Redler and David Dixon testified that the scars were ugly and caused Amanda emotional discomfort. During her school years, Amanda could not enjoy the camaraderie and development of physical and emotional skills offered by participation in school sports such as volleyball and bowling. Her mother is an active sportswoman, and because of Dr. Licciardi’s malpractice, mother and daughter are unable to share this avocation.
There was testimony concerning the possibility of subsequent scar revision surgery, which would cost $5,000 and which would be
An award of less than $50,000 in general damages does not bear a reasonable relationship to the elements of the damages and to the over $15,000 out of pocket medical expenses incurred by the plaintiff. I must conclude from the entirety of the evidence viewed in the light most favorable to Dr. Liceiardi, that a rational trier of fact could not have fixed the awards of general damages at the level set by the jury and that this is one of those “exceptional eases where such awards are so gross as to be contrary to right reason.” Bartholomew v. CNG Producing Co., 832 F.2d 326 (CA-5, 1987), quoted in Youn v. Maritime Overseas Corp., 623 So.2d at 1261.
|4I find the authorities cited by plaintiff counsel to be persuasive. Having found that the award for Amanda’s particular injuries and their effects on her under the particular circumstances is a clear abuse of the “much discretion” of the trier of fact,
IsFor the foregoing reasons, I would affirm the judgment of the trial court finding liability, but would increase the award of general damages from less than $50,000 to $95,000.
. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963).