Sherry Patrick v. Center for Restorative Breast Surgery, LLC

SHERRY PATRICK * NO. 2022-C-0550

VERSUS *
COURT OF APPEAL
CENTER FOR RESTORATIVE *
BREAST SURGERY, LLC, ET FOURTH CIRCUIT
AL. *
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-10903, DIVISION “F-14”
Honorable Jennifer M Medley,
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Sandra Cabrina Jenkins,
Judge Dale N. Atkins)

M. H. Gertler
Louis L. Gertler
Helen H. Babin
GERTLER LAW FIRM
935 Gravier Street, Suite 1900
New Orleans, LA 70112

COUNSEL FOR RELATOR

Conrad Meyer
Walter R. Woodruff
CHERHARDY, SHERMAN, WILLIAMS, MURRAY,
RECIILE, STAKELUM & HAYES, L.L.P.

COUNSEL FOR RESPONDENTS

WRIT GRANTED; JUDGMENT REVERSED

SEPTEMBER 2, 2022

TFL
This is a medical malpractice action. Relator/Plaintiff, Sherry Patrick, seeks
SCJ
supervisory review of the trial court’s July 19, 2022 judgment which granted the
DNA
Daubert motion/motion in limine of Respondents/Defendants, Center for

Restorative Breast Surgery LLC, St. Charles Surgical Hospital, LLC, Dr.

Christopher Trahan, Dr. William Karly Ordoyne, and Dr. Scott Sullivan

(collectively, “Respondents”), to exclude the testimony of Relator’s expert, Dr.

Joni Maga. Dr. Maga based her conclusion that Respondents’ treatment of Relator

was outside the standard of care based on representations made by Relator’s

husband, Dr. John Patrick. Dr. Patrick, an anesthesiologist, stated that he observed

that Respondents had maintained Relator’s blood pressure at elevated levels during

her surgery. In granting the motion, the trial court opined that Dr. Maga’s

methodology in reaching her conclusions was flawed in that she relied on the

representations of Relator’s physician husband versus the hospital medical records,

noting that the hospital medical records did not document any elevated blood

pressure findings.

The trial court made a credibility determination of the reliability of a fact

witness, Dr. Patrick, in excluding Dr. Maga as an expert witness. The reliability

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of a fact witness is a credibility determination reserved for the trier of fact.

Accordingly, we grant Relator’s writ application and reverse the judgment.

FACTUAL AND PROCEDURAL HISTORY

On July 31, 2017, Relator was admitted to St. Charles Surgical Hospital,

which houses the Center for Restorative Breast Surgery, for a prophylactic nipple

sparing bilateral mastectomy with immediate breast reconstruction. Relator, a

breast cancer survivor, underwent the procedure as a preventive measure against

the recurrence of the breast cancer. Dr. William Ordoyne performed the

mastectomy. Dr. Christopher Trahan, assisted by Dr. Scott Sullivan, M.D.,

performed the breast reconstruction. Dr. Melvin Triay, M.D was the

anesthesiologist for the operation.

Relator’s husband, Dr. Patrick, a board certified anesthesiologist, was

permitted to observe a portion of the surgery. Dr. Patrick was present strictly as an

observer and was not a part of the surgical team. Dr. Patrick stated that during the

procedure, he observed that Relator’s blood pressure was maintained at a

hypertensive level of “180/105.” After the operation, Relator experienced a

permanent vision loss which she attributed to the elevated blood pressure.

Relator filed a malpractice complaint to the Patients Compensation Fund

pursuant to La. R.S. 40:1231.1 on July 10, 2018, against Respondents, Dr. Triay,

the anesthesiologist for the operation, as well as members of the hospital staff.

Relator’s malpractice claim before the Medical Review Panel (“MRP”) was

premised, in substantial part, on Dr. Patrick’s observation of sustained

hypertensive blood pressure during surgery. In denying the complaint, the MRP

did not consider Dr. Patrick’s elevated blood pressure observations. The MRP

made the following findings:

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Dr. Triay did not deviate from the standard of care required of him.
The records do not indicate that there was an extended period of time
during which Mrs. Patrick’s systolic blood pressure was greater than
180.

Relator filed a petition for damages (“Petition”) on October 16, 2019. In the

Petition, Relator reiterated her claim that “blood pressure was sustained at

approximately 180/105 by the utilization of different pressors (ephedrine and

neosynephrine) for an extended and excessive period during the surgery.” Relator

averred, in pertinent part, that Respondents failed to meet the applicable standard

of care “[b]y maintaining Mrs. Patrick’s blood pressure at a sustained high-level

during surgery, causing permanent vision loss in the left eye and putting remaining

retinal tissue at risk in both eyes.”

In support of her allegations, Relator retained Dr. Joni Maga, a board

certified anesthesiologist and licensed physician in the State of Florida. Dr. Maga

reviewed Relator’s medical records and Dr. Patrick’s affidavit in which he attested

“that the monitor read 180 systolic over 105 diastolic” during Relator’s surgery.

Based on Dr. Patrick’s observation, Dr. Maga concluded that Plaintiff’s blood

pressure was “50% higher than baseline for at least over 30 minutes.” Thereafter,

Dr. Maga opined:

It is inappropriate and outside of the standard of care to maintain
blood pressures in this range even if requested by the surgeon. This
elevation of blood pressure in a normotensive person can be
considered a hypertensive crisis and a medical emergency in itself due
to the consequent increase risk of stroke and end organ damage.

Prior to filing the present motion in limine, Respondents brought a motion

for summary judgment. The summary judgment motion, in part, sought dismissal

of the Petition by raising credibility arguments against Dr. Patrick. The trial court

denied the motion for summary judgment. As to Respondents’ challenge to Dr.

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Patrick’s credibility, the trial court noted that “Louisiana jurisprudence has long

established summary judgment is improper if the Court has to make a credibility

determination, as a determination of that nature is reserved for the trier of fact.”

Thereafter, Respondents filed a Daubert motion/motion in limine to exclude

the testimony of Dr. Maga. Respondents argued, in pertinent part, that Dr. Maga’s

opinion was based on an unreliable methodology, namely, on the observation of a

fact witness, Dr. Patrick. Respondents also argued that Dr. Maga was not qualified

to testify regarding the appropriate standard of care for a breast reconstructive

surgery because she is an anesthesiologist.

Relator’s opposition to the motion contended that there was no flaw in Dr.

Maga’s methodology because, in forming her opinion, she reviewed the medical

records and Dr. Patrick’s sworn testimony. Relator also contended that as an

anesthesiologist, Dr. Maga was qualified to offer an opinion regarding the standard

of care as to the control of a patient’s blood pressure levels during surgery. Relator

attached excerpts of Dr. Patrick’s deposition testimony as an exhibit. These

excerpts referenced Dr. Patrick’s testimony that he had conversations with Dr.

Trahan and Dr. Triay about Relator’s low baseline blood pressure levels during the

actual surgery. The excerpts included the following:

Q. Did you have any conversations with either Dr. Triay or the
CRNA regarding the anesthesia as it presented to you at the moment?

A. No, not to them. Because remember when I first glanced, it was
just the nurse anesthetist.

I looked over at Chris [Dr. Trahan] and said, “Man, you really push up
blood pressures here.”

And he said, “Yeah. You know, we’re worried about”—we’re worried
about the perfusion of the flap.”

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I said, “Well, you know, her baseline pressure is pretty low. She
usually runs anywhere between 105 to 120/60 to 70. We always use
twenty percent as a margin on this. You guys don’t do that?

He said, “No.” We really need to make sure the flap is perfused.”

And then you’re right. Dr. Triay came in. And I asked him, “You
guys usually do this.”

“We do it all the time.”

I said, “”You don’t ever have any problems with this?”

He said, “No.”

And I said, “Okay.”

And I’m looking and looking and looking, and he keeps bumping her
with the ephedrine, and the neo drip is still going.

About half hour, forty minutes, I said, “We’re still at sustained
hypertension. And I asked Chris again. I said, “Ya’ll keep it this high
all the time, really?”

He says, “Yeah, it’s never a problem.”

I said, “Okay.”

Dr. Maga testified at the motion in limine hearing to exclude her testimony.

She acknowledged that her opinion that it was below the standard of care to allow

Relator’s blood pressure to go fifty percent higher than her baseline for over thirty

minutes was based solely on Dr. Patrick’s observations. Dr. Maga also admitted

that Dr. Patrick’s observations conflicted as to what was contained in the Relator’s

medical records. When questioned by Respondents’ counsel, Dr. Maga explained

her decision to rely on Dr. Patrick’s observations over the medical records as

follows:

Q. Okay. Would you agree, Dr. Maga, that an eyewitness is less
reliable than a certified medical record?

A. No.

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Q. Why not?

A. A handwritten medical record can be unreliable.

Q. Well, the question was is would you agree that an eyewitness is
less reliable than a certified medical record?

A. My answer is the same. No, I don’t agree.

Q. And why, again? I’m sorry.

A. I think that a written medical—so there are automated medical
anesthesia records that come directly from the monitor. Those are
reliable. What’s on the monitor gets automatically put into the
medical record. But otherwise, if somebody has to look at the
monitor, interpret what they see and then chart it—sometimes, it’s not
done in real-time, sometimes, it’s done, you know, every half an hour
or every 15 minutes, and you can fill in the blanks. So it can be just—
it can be inaccurate.

And as far as an eyewitness, Dr. Patrick is an eyewitness, but he’s an
eyewitness with a trained eye. So I have no reason to believe that
what he saw wasn’t what he saw. So, I can’t say that the eyewitness
report of Dr. Patrick is less accurate than the medical record—which
is also a human record by what somebody saw.

At the conclusion of the hearing, the trial court granted the motion in limine

to exclude Dr. Maga as an expert witness. The trial court noted that even though

Dr. Maga was “very qualified,” “her methodology is flawed.” The trial court

espoused the following:

Now, I find Dr. Maga to be very qualified, but I find that her
methodology is flawed and that her reliance on what he [Dr. Patrick]
told her versus the record and his role as, you know the husband in
this situation. I think that’s a flawed methodology in this situation
that we have.

I mean, it’s an unusual circumstance to have the husband in the OR,
but this is where we find ourselves. You know, I think she’s
qualified. I think she’s got great credentials and she’s done wonderful
things, but I’m going to grant the motion in limine in this case.

Relator timely filed the present writ application.

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DISCUSSION

In her sole assignment of error, Relator argues that the trial court erred in

excluding the expert testimony of Dr. Maga based upon its own credibility

judgment of a fact witness, Dr. Patrick. Relator asserts that the trial court

improperly decided to believe the handwritten medical records which did not

reflect any sustained elevated blood pressure levels over Dr. Patrick’s sworn

affidavit and deposition testimony that Relator’s blood pressure levels were

elevated during the surgery. Relator argues that such a credibility determination

should have been left to the jury or the fact finder; as such, the trial court erred in

excluding Dr. Maga’s expert testimony. We agree.

This Court has held that “[e]videntiary rulings of a trial court are reviewed

under an abuse of discretion standard.” Becnel v. Northrop Grumman Ship

Systems, Inc., unpub., 2009-0982, p.1, (La. App. 4 Cir. 9/28/09), 2009 WL

5667696 at *1 (citing Vaughn v. Progressive Sec. Ins. Co., [20]03-1105, p. 3 (La.

App. 3 Cir. 3/2/05), 896 So.2d 1207, 1213)). The abuse of discretion standard is

highly deferential to the trial court’s determination under consideration.

Boudreaux v. Bollinger Shipyard, 2015-1345, p. 16, (La. App. 4 Cir. 6/22/16), 197

So.3d 761, 771 (citing LCR–M Ltd. P'ship v. Jim Hotard Prop., L.L.C., [20]13–

0483, p. 9 (La. App. 4 Cir. 10/9/13), 126 So.3d 668, 675). An abuse of discretion

generally results from a conclusion reached capriciously or in an arbitrary manner.

Boudreaux, 2015-1345, p. 16, 197 So.3d at 771 (citing Tugwell v. Plaquemines

Parish Gov't, [20]14–0657, p. 5 (La. App. 4 Cir. 11/19/14), 154 So.3d 695, 699).

“[A] trial court abuses its discretion if its ruling is based on an erroneous view of

the law.” Boudreaux, 2015-1345, p. 16, 197 So.3d at 771 (citing Show & Tell of

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New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, [20]14–0843, p. 8

(La. App. 4 Cir. 12/17/14), 156 So.3d 1234, 1240).

The admissibility of expert testimony is governed by Article 702 of the

Louisiana Code of Evidence, which provides in pertinent part:

A. A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:

(1) The expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and methods;
and

(4) The expert has reliably applied the principles and methods to the
facts of the case [emphasis added].

The standard for determining whether a witness is qualified to testify in a

matter as an expert is governed by Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as adopted by the

Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1121 (La. 1993). The

Supreme Court in Daubert required a “preliminary assessment [by the trial court]

of whether the reasoning or methodology underlying the [expert’s] testimony is

scientifically valid….” Id. at 592-593, 113 S.Ct. at 2796. “[T]he factual basis for

an expert’s opinion determines the reliability of the testimony….” Giavotella v.

Mitchell, 2019-0100, p. 16 (La. App. 1 Cir. 10/24/19), 289 So.3d 1058, 1071-1072,

writ denied, 2019-01855 (La. 1/22/20), 291 So.3d 1044.

In the case sub judice, the trial court accepted Dr. Maga’s qualifications as

an expert witness. The trial court’s challenge to the “methodology” employed by

Dr. Maga emanated from Dr. Maga’s reliance on Dr. Patrick’s observations that

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Respondents maintained Relator’s blood pressure at a hypertensive level during

surgery which contradicted the findings in the medical records. We find the trial

court’s exclusion of Dr. Maga as an expert witness on that basis does not go to

methodology, but rather, amounts to a determination of Dr. Patrick’s credibility.

As noted by Relator, “[t]he rule that questions of credibility are for the trier of fact

applies to the evaluation of expert testimony unless the stated reasons of the expert

are patently unsound.” See Marshall v. Air Liquide-Big Three, Inc., 2011-0990, p.

19 (La. App. 4 Cir. 9/7/12), 107 So.3d 13, 19 (quoting Lirette v. State Ins. Co., 563

So2d 850, 853 (La. 1990). As referenced herein, Dr. Maga provided sound reasons

for her reliability on Dr. Patrick’s observations over that of the hospital’s certified

medical records. She specifically noted that hand-written medical records may be

unreliable. Accordingly, as noted by the trial court in its denial of Respondents’

motion for summary judgment, a determination regarding the issue of the

credibility of Dr. Patrick’s observations versus that of the findings of the hospital

medical records is one that should be decided by the trier of fact at the trial on the

merits.

CONCLUSION

Based on the foregoing, we find that the trial court abused its discretion in

granting Respondents’ motion to exclude Dr. Maga as an expert witness.

Accordingly, we grant Relator’s writ application and reverse the judgment.

WRIT GRANTED; JUDGMENT REVERSED

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