We granted plaintiff's writ application to determine whether a plaintiff can prevail in a medical malpractice action when she does not introduce an expert witness to testify—as to the applicable standard of care, its breach, and causation. 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. In applying this rule to the case before us, even if this Court were to assume that the defendants, Dr. Fontenelle and Dr. Correa, through their own testimony, had established the applicable standard of care, and there can be inferred by the lay jury from facts and/or the defendant/physicians' testimony a breach of that standard, plaintiff fails in this lawsuit because there is no evidence to support a finding that the purported breach of the standard of care was the cause of Pfiffner's death, or his loss of a chance of survival.
This case involves a medical malpractice claim arising from the death of Mr. James A. Pfiffner. On April 12, 1983, Pfiffner, a longshoreman, received a blow to the head while assisting in off-loading cargo and dunnage from a ship at the Port of New Orleans. He did not lose consciousness immediately after the incident, but six days later, on April 18, 1993, he went to the emergency room at St. Claude General Hospital complaining of nausea, dizziness, severe headaches, and blurred vision. His diagnosis was "neck pains." The emergency room doctor telephoned Pfiffner's family physician, Dr. I.L. Fontenelle, to advise him of the patient's condition.
The next day, the Pfiffners went to see Dr. Fontenelle, a general medical practitioner, at his St. Claude Street office in New Orleans' 9th Ward near St. Claude General Hospital. Dr. Fontenelle examined Pfiffner and discovered that his condition had changed from the night before, as had then been reported to him by the emergency room attending physician. Dr. Fontenelle found nuchal rigidity (neck stiffness) and pupil dilation, symptoms which indicated a potentially serious neurological disorder. Dr. Fontenelle requested a neurological consultation and called Dr. Amilcar J.E. Correa, a neurologist board certified in neuroimagery and neurological surgery.
The Pfiffners went to see Dr. Correa that same day, April 19. There is a dispute as to what time this visit occurred. At trial, Mrs. Pfiffner testified to the following sequence of events. On the morning of April 19, 1983, Dr. Fontenelle called the Pfiffners and asked them to come to his office immediately. Pfiffner was examined by Dr. Fontenelle at around 8:00 a.m. Based on this examination, Dr. Fontenelle recommended a neurological consult and spoke with Dr. Correa at his
On the other hand, the testimony of Dr. Fontenelle, Dr. Correa, and Dr. Correa's receptionist, as well as documentary evidence and Mrs. Pfiffner's pre-trial deposition conflict with Mrs. Pfiffner's testimony at trial. During her deposition, when asked how long she and Mr. Pfiffner waited at Dr. Correa's office before being seen by him, Mrs. Pfiffner replied that it had been about thirty five to forty minutes. Moreover, Dr. Fontenelle testified that he did not examine Pfiffner until the afternoon of April 19. While the Pfiffners were in his office, he spoke to Dr. Correa about Pfiffner's change of symptoms and need for a neurological examination. The Pfiffners were then sent to Dr. Correa's office and arrived there around 4:00 p.m. A transfer note written by Dr. Fontenelle indicating the date and the time of his examining the patient (3:00 p.m.) supports this testimony. Moreover, Lilian Castillo, Dr. Correa's receptionist, and Dr. Correa both testified that Dr. Correa received a phone call from Dr. Fontenelle on April 19 at around 3:00 p.m. and the Pfiffners arrived at Dr. Correa's office around 4:00 p.m. Finally, the defendants' chronology of events is also supported by the fact that Dr. Correa's Prytania Street clinic across from Touro Infirmary did not open until 2:00 p.m.
As indicated at the outset of this opinion, plaintiff has the burden of proving the applicable standard of care, its breach, and causation. Because plaintiff clearly did not prove that the delay in treatment caused her husband's death or loss of a chance of survival, plaintiff cannot prevail. We, therefore, need not decide whether the jury was wrong in finding that plaintiff did prove the standard of care and breach thereof. By this means of resolving this case, we therefore concede that the jury was correct in finding Dr. Correa had delayed treating Pfiffner for five hours, and that by such delay, Dr. Correa breached the standard of care he owed to Pfiffner. We also concede for present purposes that plaintiff established the standard of care by testimony from Dr. Correa that seriously ill patients must be quickly diagnosed and treated. Although the only expert to testify was Dr. Correa and he testified that he did not breach this standard, we do not conclude that the jury was wrong in this decision. Nonetheless, we find that Dr. Correa must prevail in this action because there is no support for the jury's finding that this breach contributed, in whole or in part, to Pfiffner's death. Assuming the jury reasonably concluded that Dr. Correa was at fault, it cannot conclude, since there is no evidence of the same, that such fault caused Pfiffner's death, or loss of a chance of survival.
In making the same concession regarding the defendant Dr. Fontenelle, we note that Dr. Fontenelle must likewise prevail because here, too, no evidence demonstrates any causal nexus between Dr. Fontenelle's alleged negligence and Pfiffner's demise.
Upon examining Pfiffner, Dr. Correa discovered that he was suffering from marked stiffness of the neck. Dr. Correa also observed pupil constriction but did not find papilledema (swelling of the head or optic nerve). The optic nerve did not indicate any increased intracranial pressure. Dr. Correa's differential diagnosis was that Pfiffner was suffering from meningitis or subarachnoid hemorrhage. After a lumbar puncture and CT scans, Pfiffner was sent to Chalmette General Hospital. The CT scans revealed cerebritis (an inflammation of the brain) and
On April 13, 1984, Mrs. Pfiffner filed a complaint against Dr. Fontenelle and Dr. Correa with the Commissioner of Insurance. Three days later, on April 16, 1984, she brought suit "individually and on behalf of her deceased husband and his estate" against Dr. Fontenelle, Dr. Correa, Diagnostic Services, and St. Claude General Hospital. Dr. Fontenelle filed an exception of prematurity which was maintained. The suit against Dr. Fontenelle was thereupon dismissed without prejudice. Diagnostic Services was dismissed because plaintiff failed to amend her petition after its exception of no cause of action was maintained.
Thereafter, the complaint filed with the Commissioner of Insurance against Drs. Fontenelle and Correa was brought before a Medical Review Panel pursuant to LSA-R.S. 40:1299.41 et seq. On September 6, 1986, the Medical Review Panel found that the evidence did not support a conclusion that Dr. Fontenelle had breached the applicable standard of care. On June 16, 1987, the Panel reached the same conclusion as to Dr. Correa.
On September 14, 1987, Mrs. Pfiffner filed a second lawsuit, this one not premature, against both doctors, St. Claude General, and Diagnostic Services. The major thrust of her claim was that Drs. Fontenelle and Correa had unreasonably delayed the diagnosis and treatment of her husband and thus, caused his death, or at least, his loss of a chance of survival.
After plaintiff voluntarily dismissed her claim against Diagnostic Services and St. Claude General Hospital, the trial as to Drs. Fontenelle and Correa was conducted. At the close of Mrs. Pfiffner's case, both Drs. Fontenelle and Correa moved for a directed verdict, which the court denied. The jury rendered a verdict in excess of $100,000 in favor of Mrs. Pfiffner, "individually and on behalf of her deceased husband," against Drs. Fontenelle and Correa. The jury apportioned negligence at 60% for Dr. Correa and 40% for Dr. Fontenelle. Both doctors filed a Motion Notwithstanding Jury Verdict. On March 22, 1991, the judge executed an amended judgment limiting the liability of Drs. Fontenelle and Correa to the statutory limit of $100,000 pursuant to LSA-R.S. 40:1299.47, but casting the Patients' Compensation Fund for the excess of $200,000.
Both physicians appealed to the Court of Appeal, Fourth Circuit. After a three-judge panel indicated a 2-1 split favoring reversing the district court, a five judge panel
Medical malpractice has been defined by LSA-R.S. 40:1299.41(A)(8) as:
Revised Statute 9:2794 sets forth the burden of proof imposed upon the plaintiff in establishing his malpractice claim. The plaintiff must prove by a preponderance of the evidence:
See La.Rev.Stat.Ann. § 9:2794(A) (West 1991). Thus, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician's alleged negligence and the plaintiff's injuries resulting therefrom.
Although LSA-R.S. 9:2794(B) grants any party to the suit the right to subpoena any physician without his consent for a deposition or testimony at trial to establish this standard of care, see La.Rev.Stat.Ann. § 9:2794(B) (West 1991), the statute is silent as to whether such experts are necessary in order for the plaintiff to meet his burden of proof. A majority of Louisiana court of appeal cases have held that such expert testimony is necessary.
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
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/physician, which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant's fault and the injury alleged.
In this case, the alleged negligence is not like a physician's leaving a sponge in a patient's body or his amputation of the wrong leg; the plaintiff here claims that her husband's death was caused by an unnecessary delay in diagnosis and treatment. There are surely cases in which there are obvious unnecessary delays in treatment which constitute medical malpractice and where causation is evident. One obvious situation would be where a seriously injured patient is left to bleed to death in an emergency room. And there no doubt are other instances in which the medical and factual issues are within the lay person's ability to perceive as negligence and harmful through delay in treatment.
The causal connection between a patient's death and an unreasonable delay vis a vis a neurosurgeon's diagnosis and treatment of a patient in circumstances involving a complex medical condition, however, is simply beyond the province of lay persons to assess. Plaintiff here needed to establish, either through her own experts or the testimony of the defendants or defense experts, that given her husband's medical history and condition, as well as the defendants' clinical and diagnostic findings, Drs. Fontenelle and Correa breached a specified standard of care (perhaps that under these circumstances, more expeditious treatment was necessary) and that this breach caused Pfiffner's death or loss of a chance of survival. In the absence of such testimony, and even assuming all other facts favorable to the plaintiff, the decision of the lower courts must be reversed because there is no proof that Pfiffner would have fared any better had Drs. Fontenelle and Correa seen him any earlier than they did. In fact, the evidence is to the contrary. Mrs. Pfiffner did not meet her burden of establishing that the alleged unreasonable delay in the diagnosis and treatment of Pfiffner contributed, in whole or part, to her husband's death or loss of a chance of survival.
There are two relevant questions pertaining to causation in this case. The first is: If Dr. Fontenelle had personally examined Pfiffner the night he came to St. Claude Hospital on April 18, 1983, and Dr. Correa, earlier than he did on April 19, would they have been able to discover the severity of Pfiffner's condition at that time so as to initiate successful treatment prior to Pfiffner's seizure and resultant decline into a semi-comatose state? Mrs. Pfiffner contends that Dr. Fontenelle was negligent in not coming to St. Claude Hospital and examining her husband when by telephone she had
It must, therefore, first be determined whether Dr. Fontenelle should have been alerted to the severity of Pfiffner's condition the night of April 18, 1983 so that earlier treatment could have been effected. We must also determine whether Dr. Correa should have examined, diagnosed, and initiated treatment earlier than he did. If so, the second question is whether the defendants' failure to undertake an earlier course of treatment decreased Pfiffner's chances of survival.
The only expert testimony regarding causation was given by Dr. Correa and it favored the defendants. After reviewing the testimony of Dr. Correa, it is clear that Pfiffner suffered from an inoperable brain lesion that had ruptured, spilling toxins into the spaces within his brain, causing chemical meningitis, which caused seizures, then swelling, and ultimately, his death. Even had the defendants seen Pfiffner the night of April 18, 1983 and even had they diagnosed Pfiffner's brain lesion that evening, there is no support for Mrs. Pfiffner's contention that earlier surgical intervention would have saved her husband's life. Surely plaintiff presented no such evidence by any expert, including testimony presented by the defense.
At trial, Dr. Correa testified as follows. Pfiffner suffered from chemical meningitis, an irritation of the covering of the brain by a toxic substance that is liberated into that space by the rupture of a cerebritis (early stage of an abscess), or an abscess. Pfiffner suffered from a space-occupying lesion with no mass effect. What this means is that Pfiffner had a brain abnormality that takes up space, but which was not pushing one side of the brain over onto the other (mass effect) and causing intracranial swelling. Surgical removal of the lesion affecting Pfiffner's brain was not indicated because the lesion had not encapsulated. Rather it was a "sort of a mashy [mushy?] ... area of the brain contaminated with this chemical irritant that has extruded into ... the ventricle [on] one side and into the surface of the brain." The results of the CT scans indicated that Pfiffner was suffering from cerebritis (an early stage of abscess), chemical ventriculitis (inflammation of the ventricles), and cortical irritation (the cortex is the outside covering of the brain). The CT scans revealed no evidence of mass effect. Cerebritis is an early stage of brain abscess which has not yet encapsulated. Because it is not yet encapsulated, surgery offers no remedy (Dr. Correa's words were "surgery was not indicated"). An abscess, on the other hand, is encapsulated, produces mass effect, and can be surgically removed. In Pfiffner's case, an abscess never formed because the lesion, according to Dr. Correa, had ruptured into the subarachnoid space of Pfiffner's brain as well as into the ventricles. This rupture created the chemical meningitis. If Pfiffner had a lesion with mass effect, then surgery would be indicated. According to Dr. Correa, a lesion with mass effect compresses the brain against the skull and causes swelling. This swelling can lead to a decerebrate condition, coma, and death.
In answering a question at trial regarding the appropriate treatment for chemical meningitis patients, Dr. Correa noted that some patients "do respond by supportive care, but there is no treatment for chemical ventriculitis or chemical meningitis." He testified that such supportive care consists of providing the patient with the proper fluids and general medical care and avoiding any complications while giving the brain the opportunity to recover from the toxic effect. The record clearly demonstrates that Pfiffner was provided with such supportive care. In spite of that care, Pfiffner suffered convulsions caused by the release of toxins resulting
Accordingly, even if Dr. Fontenelle and Dr. Correa or another neurosurgeon had attended Pfiffner at St. Claude Hospital the evening of April 18, 1983, and despite the absence of any symptoms at that time of a serious neurological disorder, had performed a lumbar puncture and CT scan, and had properly diagnosed Pfiffner as suffering from chemical meningitis due to the rupture of an unencapsulated brain lesion, there is no evidence to support a finding that this course of action would have changed the progress of Pfiffner's illness. They would not have operated then, or later. Even if we were to concede that Drs. Correa and Fontenelle should have attended Pfiffner that evening, or Dr. Correa should have seen him five hours earlier on the next day, we find no evidence in the record to support a conclusion that had this earlier intervention taken place, Pfiffner's outcome would have been any different. The only expert's testimony clearly demonstrates that Pfiffner's condition was, at all times up to his death, inoperable. Because earlier medical intervention would not have preserved some chance of survival Pfiffner may have had, we find that the plaintiff has not established the requisite element of causation in this medical malpractice action.
Accordingly, the judgments of the Orleans Parish Civil District Court, and the court of appeal are reversed. The plaintiff's lawsuit is dismissed with prejudice at their cost.
REVERSED AND RENDERED.