Samuel F. Patterson, III v. Darryl W. Peterson, MD and Lammico Insurance Company, Inc.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT
V "-'

2019 CA 1604

SAMUEL F. PATTERSON, III

VERSUS

DARRYL W. PETERSON, MD AND LAMMICO INSURANCE COMPANY,
INC.

Judgment Rendered: AUG 0 3 2020

Appealed from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. C643866

The Honorable Janice G. Clark, Judge Presiding

Earl A. Marcelle, III Counsel for Plaintiff/Appellant
Baton Rouge, LA Samuel F. Patterson, III

Janie Languirand Coles Counsel for Defendants/ Appellees
Jonathan E. Thomas Darryl W. Peterson, M.D. and
Baton Rouge, LA LAMMICO

BEFORE: HIGGINBOTHAM, PENZATO AND LANIER, JJ.

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LANIER, J.

In the instant appeal, plaintiff/appellant, Samuel F. Patterson, III, challenges

the judgment of the Nineteenth Judicial District Court, which granted the motion

for summary judgment filed by the defendants/ appellees, Darryl W. Peterson,

M.D., and Louisiana Medical Mutual Insurance Company, Inc. ( LAMMICO), and

dismissed Mr. Patterson' s petition for damages with prejudice. For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 3, 2012, Mr. Patterson underwent a surgical procedure to have

a torn rotator cuff repaired in his right shoulder. The surgery allegedly lasted about

eleven hours and required Mr. Patterson to be admitted into the hospital. Dr.

Peterson performed the surgery, which was non -emergency in nature. Dr. Peterson

received informed consent from Mr. Patterson to perform the rotator cuff surgery,

but during the course of the surgery, Dr. Peterson located a tear in Mr. Patterson' s

labrum and the presence of a cyst. Mr. Patterson alleged that Dr. Peterson

proceeded with repairing the tear and removing the cyst without first obtaining Mr.

Patterson' s consent to do so.

Mr. Patterson alleged that Dr. Peterson' s actions caused the surgery to last

much longer than it should have, and as a result, Mr. Patterson sustained

neurological complications. Mr. Patterson claimed that upon awakening in the

recovery area, the left side of his body was numb and immovable, although the

surgery occurred on his right shoulder. As of November 23, 2015, the date that

Mr. Patterson filed his petition for damages, he claimed that he still walked with a

noticeable limp and had numbness in his left foot. Mr. Patterson, who is

approximately six feet, two inches tall and weighs over 300 pounds, alleged that

Dr. Peterson told him that the traction table on which the surgery was performed

was unsuitable for a man of his size, but Dr. Peterson decided to proceed with the

F)

surgery anyway. Mr. Patterson claims that his injuries stem from the use of this

traction table, which was inappropriate for the surgery. Specifically, he claims that

by having to lie on his left side for such a prolonged period of time, he suffered

vessel compression and sciatic nerve impingement, which resulted in his numbness

and difficulty with walking.

On January 25, 2013, Mr. Patterson filed a petition to establish a medical

review panel ( MRP) with the Patient' s Compensation Fund, in which he alleged

the same facts and injuries. He again named Dr. Peterson as the surgeon. Mr.

Patterson named " ABC Insurance" as Dr. Peterson' s liability insurer, because he

did not know at the time that Dr. Peterson' s insurer was LAMMICO. The MRP

convened on August 10, 2015 and rendered a unanimous decision that there was no

evidence to support Mr. Patterson' s allegations that Dr. Peterson did not meet the

applicable standard of care during the surgery.' The MRP further found that there

was no evidence to support that Dr. Peterson lacked Mr. Patterson' s informed

consent to unilaterally extend the surgery, or that the traction table or surgical

procedure was inadequate for someone of Mr. Patterson' s size. The MRP

concluded with finding there were no remaining issues of material fact.

Mr. Patterson then filed his petition for damages on November 23, 2015,

making the same allegations he made before the MRP, and naming Dr. Peterson

and LAMMICO as defendants. The defendants filed a motion for summary

judgment on August 24, 2017. After a series of continuances, a hearing on the

motion was held on April 11, 2019. Based on the hearing, the trial court signed a

judgment on April 29, 2019, granting the defendants' motion for summary

1 The MRP consisted of three orthopedic surgeons.

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judgment and dismissing all claims in Mr. Patterson' s petition with prejudice. Mr.

Patterson followed with the instant appeal.'

ASSIGNMENTS OF ERROR

Mr. Patterson alleges the following four assignments of error:

1. The trial court erred when it impliedly decreed that Mr. Patterson failed to
show that Dr. Peterson deviated from the pre -operative standard of care after
admitting he had not performed a pre -operative review of Mr. Patterson' s
medical history.

2. The trial court erred when it impliedly decreed that Mr. Patterson failed to
satisfy the elements necessary to show that he could not have provided
informed consent.

3. The trial court erred when it impliedly decreed that Mr. Patterson failed to
satisfy the elements necessary to apply the doctrine of Res Ipsa Loquitur.

4. The trial court erred when it impliedly rejected Mr. Patterson' s contention
that the doctrine of Res Ipsa Loquitur established Dr. Peterson' s liability.

STANDARD OF REVIEW

The summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action. See La. C. C. P. art. 966( A)(2). After an

opportunity for adequate discovery, a motion for summary judgment shall be

granted if the motion, memorandum, and supporting documents show that there is

no genuine issue as to material fact and that the movant is entitled to judgment as a

matter of law. La. C. C. P. art. 966( A)(3).

The burden of proof on a motion for summary judgment rests with the

movant. Nevertheless, if the movant will not bear the burden of proof at trial on

the issue that is before the court on the motion for summary judgment, the

movant' s burden on the motion does not require him to negate all essential

elements of the adverse party' s claim, action, or defense, but rather to point out to

the court the absence of factual support for one or more elements essential to the

Z The appeal was fax -filed on June 27, 2019, but not filed by the Clerk of Court until July 3,
2019. ( R. 368) The trial court signed the order of appeal on July 22, 2019. ( R. 376)

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adverse party' s claim, action, or defense. The burden is then on the adverse party

to produce factual support sufficient to establish the existence of a genuine issue of

material fact or that the movant is not entitled to judgment as a matter of law. See

La. C. C.P. art. 966( D)( 1).

In ruling on a motion for summary judgment, the trial court' s role is not to

evaluate the weight of the evidence or to determine the truth of the matter, but

rather to determine whether there is a genuine issue of triable fact. Raborn v.

Albea, 2016- 1468 ( La. App. 1 Cir. 5/ 11/ 17), 221 So. 3d 104, 113. In determining

whether summary judgment is appropriate on appeal, we review evidence de novo,

using the same criteria that govern the trial court' s determination of whether

summary judgment is appropriate. Id. at 114. Because it is the substantive law

that determines materiality, whether a particular fact in dispute is material can only

be seen in light of the substantive law applicable to the case. Id.

The substantive law applicable to this case, the Louisiana Medical

Malpractice Act, provides that the plaintiff in a medical malpractice action must

establish by a preponderance of the evidence: 1) the standard of care applicable to

the defendant physician; 2) that the defendant physician breached the applicable

standard of care; and 3) that there was a causal connection between the breach and

the resulting injury. See La. R.S. 9: 2794( A); Schultz v. Guoth, 2010- 0343 ( La.

1/ 19/ 11), 57 So. 3d 1002, 1006. In order to meet this burden, the plaintiff is

generally required to produce expert medical testimony. Boudreaux v. Mid—

Continent Cas. Co., 2005- 2453 ( La. App. 1 Cir. 11/ 3/ 06), 950 So. 2d 839, 844, writ

denied, 2006- 2775 ( La. 1/ 26/ 07), 948 So. 2d 171.

DISCUSSION

Standard of Care

Mr. Patterson alleges that Dr. Peterson admitted in his deposition that he did

not review Mr. Patterson' s prior medical history before performing the surgery,
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and that his failure to do so was a breach of the standard of care. In his deposition,

Dr. Peterson stated Mr. Patterson was referred to him by Dr. Joseph Boucree, who

had been treating Mr. Patterson for shoulder pain. Dr. Peterson stated that he did

not receive Mr. Patterson' s prior medical history from Dr. Boucree at the time of

the referral, but a pre -operative MRI was performed, which revealed the tear to the

labrum and the cyst. This is corroborated by Dr. Peterson' s operative report,

which lists three pre -operative diagnoses: "[ p] osterior labrum cyst with possible

tear," "[ r] otator cuff tendinitis with possible tear," and "[ s] ubacrominal

impingement."

In addition, Dr. Peterson' s own medical record of Mr. Patterson contains a

brief medical history, which was given to Dr. Peterson by Mr. Patterson. Mr.

Patterson indicated his right shoulder pain stemmed from a car accident on

September 21, 2011. He then began treatment with Dr. Boucree on his cervical

and lumbar spine. Dr. Peterson also included that an MRI was conducted on Mr.

Patterson' s shoulder. This report from Dr. Peterson' s initial visit with Mr.

Patterson on January 26, 2012 and the operative report indicate that Mr. Patterson

was incorrect in his allegation that Dr. Peterson discovered these abnormalities

during the course of the surgery.

To refute the defendants' motion for summary judgment, Mr. Patterson

obtained an independent medical examination ( IME) from Dr. Douglas C. Brown

on September 6, 2018. Dr. Brown stated that Mr. Patterson had a history of

lumbosacral problems for approximately two years prior to the surgery and had

received epidural steroid injections for lumbar radiculitis. Mr. Patterson told Dr.

Brown that Dr. Peterson told him after the surgery that a larger table should have

been used, but Dr. Brown also states that Mr. Patterson' s contention is not

reflected in any of Dr. Peterson' s notes. Dr. Brown' s physical examination of Mr.

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Patterson indicated a smooth gait, no evidence of foot drop, and good heel and toe

balance.

Dr. Brown commented in the IME that he discussed Mr. Patterson' s case

with other orthopedic surgeons, and although he had performed shoulder

arthroscopy numerous times himself, he and his fellow orthopedic surgeons had

never heard of a sciatic nerve injury related to shoulder arthroscopy or that a larger

table would be necessary for a larger patient such as Mr. Patterson. Dr. Brown

also agreed with the MRP doctors that Dr. Peterson did not deviate from the

standard of care that was required in Mr. Patterson' s surgery. We therefore agree

with the trial court that there is no issue of material fact as to whether Dr. Paterson

deviated from the applicable standard of care.

Informed Consent

In his petition, Mr. Patterson alleges that he gave Dr. Peterson informed

consent only to repair his torn right rotator cuff, and that Dr. Peterson went outside

the scope of that informed consent when he repaired the tear to Mr. Patterson' s

labrum and removed the paralabral cyst. The consent form, signed by Mr.

Patterson on the day of the surgery, February 3, 2012, at 6: 08 a. m., describes the

procedure for which Mr. Patterson gave consent as " Right shoulder arthroscopic

subacromial decompression Superior labral Anterior Posterior reconstruction with

arthroscopic synovectomy." Immediately following, the consent form states:

I further authorize Dr. Peterson to perform any other procedure that in
his judgment is advisable for my well being. This operation has been
explained to me. Alternative methods of treatments, if any, have also
been explained to me, as have the advantages and disadvantages of
each. I am advised that though good results are expected, the

possibility and nature of complications cannot be accurately
anticipated and, therefore can be no guarantee, either expressed or

implied as to the results of surgery or as to cure.

Informed consent is a claim that can be separate from a medical malpractice

claim. See Lugenbuhl v. Dowling, 96- 1575 ( La. 10/ 10/ 97), 701 So. 2d 447, 456.

Under the Louisiana informed consent law in effect at the time of Mr. Patterson' s

surgery, La. R.S. 40: 1299.40 ( repealed, effective June 12, 2012), a physician is

required to provide his patient with sufficient information to allow the patient to

make an informed and intelligent decision on whether to submit to the proposed

course of treatment.' This information should include, if possible, " the nature of

the pertinent ailment or condition, the general nature of the proposed treatment or

procedure, the risks involved in the proposed treatment or procedure, the prospects

of success, the risks of failing to undergo any treatment or procedure at all, and the

risks of any alternate methods of treatment." Suarez v. Mando, 2010- 0853 ( La.

App. 5 Cir. 3/ 29/ 10), 62 So. 3d 131, 135, writ denied, 2011- 0885 ( La. 6/ 17/ 11), 63

So. 3d 1036, oting Hondroulis v. Schuhmacher, 553 So. 2d 398, 410 ( La. 1988)
u

on rehearing).

As in cases alleging breach of the standard of care, the plaintiff in an

informed consent case bears the burden of proving: ( 1) the existence of a material

risk which the physician must disclose; ( 2) the failure of the physician to inform

the patient of a material risk; ( 3) the realization of the material risk; and ( 4) a

causal connection between the failure to inform the patient of the risk and the

realization of the risk. Suarez, 62 So. 3d at 135.

The consent form, which was submitted with the defendants' motion for

summary judgment, contains a paragraph that gives a non -exhaustive list of some

of the known risks involved with the surgery that Mr. Patterson underwent. One of

these risks named in the list is " damage to nerves." Mr. Patterson complains of

this very injury in his petition when he alleges " neurological impairment that

affected the functionality of his left -side." The record is therefore clear that Mr.

Patterson was informed by Dr. Peterson of this risk. Furthermore, Mr. Patterson

Louisiana' s informed consent law is currently found in La. R.S. 40: 1157. 1.
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gave Dr. Peterson consent to " perform any other procedure" that was advisable in

Dr. Peterson' s judgment for Mr. Patterson' s well-being. As stated earlier, the tear

and the cyst were discovered by MRI prior to the surgery and prior to Mr.

Patterson' s signing the consent form. Furthermore, they were directly related to

the planned procedure. We agree with the MRP and find there is no issue of

material fact that Mr. Patterson had given appropriate informed consent prior to the

surgery.

Res Ipsa Loquitur

Mr. Patterson did not raise the issue of res ipsa loquitur in his original

petition for damages, nor in his supplemental and amending petition for damages,

filed on February 23, 2017. It was not until he filed his second supplemental and

amending petition for damages, on January 8, 2019, that Mr. Patterson invoked res

ipsa loquitur by alleging " the aforementioned events could not have reasonably

occurred absent the negligence on the part of Dr. Peterson," and that " the sciatic

nerve injury... is of a type that is not an inherent risk of the surgical procedure."

emphasis his). Mr. Patterson' s inclusion of res ipsa loquitur as a claim is largely

due to the statement in Dr. Brown' s report, dated September 6, 2018, that neither

Dr. Brown nor any orthopedic surgeon with whom he discussed Mr. Patterson' s

case ever encountered a sciatic nerve injury arising out of a shoulder arthroscopy.

Although the fact that an accident has occurred does not alone raise a

presumption of the defendant' s negligence, the doctrine of res ipsa loquitur (" the

thing speaks for itself') permits the inference of negligence on the part of the

defendant from the circumstances surrounding the injury. Cangelosi v. Our Lady

of the Lake Regional Medical Center, 564 So. 2d 654, 665 ( La. 1989) ( on

rehearing). The doctrine of res ipsa loquitur involves the simple matter of a

plaintiff' s using circumstantial evidence to meet the burden of proof by a

preponderance of the evidence. Id. However, res ipsa loquitur does not apply if
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there is sufficient direct evidence explaining the occurrence and establishing the

details of the negligence charged. Linnear v. CenterPoint Energy Entex/Reliant

Energy, 2006- 3030 ( La. 9/ 5/ 07), 966 So. 2d 36, 42, quoting Walker v. Union Mill,

Inc., 369 So. 2d 1043, 1048 ( La. 1979).

In the instant case, there is ample direct evidence to point to whether or not

Dr. Peterson was negligent. Mr. Patterson' s medical history, taken by both Dr.

Boucree and Dr. Peterson, the MRI, the operative report, the IME performed by

Dr. Brown, Dr. Peterson' s deposition, and the consent form, among other things,

are all direct evidence to be used in the determination of negligence on the part of

Dr. Peterson. The one comment by Dr. Brown, which could also be interpreted as

evidence that Mr. Patterson' s injury could not have been caused by the surgery, is

insufficient to raise the doctrine of res ipsa loquitur when there is a wealth of

direct evidence that exists in the instant case. We therefore find the doctrine of res

ipsa loquitur to be inapplicable. See Linnear, 966 So. 2d at 42.

DECREE

The judgment of the Nineteenth Judicial District Court, granting summary

judgment on behalf of the defendants/ appellees, Darryl W. Peterson, M.D., and

LAMMICO Insurance Company, Inc., and dismissing with prejudice the petition

for damages filed by the plaintiff/appellant, Samuel F. Patterson, III, is affirmed.

All costs of this appeal are assessed to Mr. Patterson.

AFFIRMED.

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