James Helper, Elizabeth Gail Helper, Etc. v. Dr. Chih Hao Lin

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1217

JAMES HEPLER, ELIZABETH GAIL HEPLER, ET AL.

VERSUS

DR. CHIH HAO LIN, ET AL.

**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-3624
HONORABLE DAVID PAINTER, DISTRICT COURT JUDGE

**********
ULYSSES GENE THIBODEAUX
CHIEF JUDGE
**********

Court composed of Ulysses Gene Thibodeaux, John D. Saunders, and Arthur J.
Planchard*, Judges.

AFFIRMED.

John E. Bergstedt
John Gregory Bergstedt
The Bergstedt Law Firm
P. O. Box 1884
Lake Charles, LA 70602
Telephone: (337) 436-4600
COUNSEL FOR:
Defendant/Appellee - Dr. Chih Hao Lin

Edward J. Fonti
William M. Nolen
Jones, Tete, Nolen, Fonti & Belfour, L.L.P.
P. O. Box 1930
Lake Charles, LA 70602
Telephone: (337) 439-8315
COUNSEL FOR:
Plaintiffs/Appellants - James Hepler and Elizabeth Gail Hepler

*
Honorable Arthur J. Planchard, retired, participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

Benjamin Wakefield Mount
Bergstedt & Mount
1011 Lakeshore Dr. - Suite 200
Lake Charles, LA 70601
Telephone: (337) 433-3004
COUNSEL FOR:
Defendant/Appellee - Galen-Med, Inc.

Michael Keith Prudhomme
Lundy & Davis
P. O. Box 3010
Lake Charles, LA 70602
Telephone: (337) 439-0707
COUNSEL FOR:
Defendant/Appellee - Louisiana Patient’s Compensation Fund

Lisa Coleman Lee
Department of Health and Hospitals
1201 Capitol Access Road
Baton Rouge, LA 70821
Telephone: (225) 342-0207
COUNSEL FOR:
Defendant/Appellee - State of Louisiana, Department of Health and
Hospitals

THIBODEAUX, Chief Judge.

In this medical malpractice case, plaintiffs, James Hepler (James) and

Elizabeth Gail Hepler (Gail), assert that defendant, Dr. Chih Hao Lin (Dr. Lin), a

neonatologist, breached the standard of care while caring for their extremely

premature newborn daughter, Courtney Danielle Hepler (Courtney). At the

conclusion of a jury trial in the matter, judgment was rendered in favor of Dr. Lin and

the hospital where he worked, Galen-Med, Inc. d/b/a Columbia Women and

Children’s Hospital (Columbia Hospital). The Heplers appeal. We affirm.

I.

ISSUES

We shall consider whether:

(1) Dr. Lin deviated from the standard of care in treating
a premature baby when he failed to go to the
hospital to treat the infant who was suffering from
vasospasm;

(2) the trial court erred in rejecting the plaintiffs’
proposed jury charges on res ipsa loquitur and
inconsistent statements of witnesses;

(3) the trial court erred in denying to plaintiffs the
admission of a discovery deposition conducted by
the defendants and submitted to a medical review
panel; and,

(4) the trial court erred in denying the plaintiffs’ post-
trial motion for judgment notwithstanding the
verdict and, alternatively, for a new trial.

II.

FACTS

Gail was pregnant with twins. On September 13, 1998, she was only six

months into her pregnancy when the first of her twins, a boy, Cameron, was born on

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September 13, 1998. On September 15, 1998, the second twin, Courtney, was born.

The twins were born at Columbia Hospital almost four months premature. Evidence

in the record establishes that children born at twenty-three weeks gestation have less

than a fifteen percent survival rate. Due to their prematurity and immediately after

birth, the twins were put under the care of Dr. Lin, a neonatologist. The treatment of

the first born twin, Cameron, who died on February 24, 2002 of liver cancer unrelated

to his prematurity, is not the subject of this appeal. This case involves Dr. Lin’s

treatment of Courtney on the night of September 16, 1998.

At birth, Courtney had a grade III brain hemorrhage that required the

placement of a shunt in her head which led into her stomach. Dr. Lin testified that

Courtney’s lungs were immature and that she had a weak cardiovascular system, low

blood pressure, low body temperature and immature kidneys. Courtney received

nutrition from an I.V. line. Further, by December 1998, Courtney was blind. Dr. Lin

inserted an umbilical arterial catheter (UAC) into one of the two arteries in

Courtney’s umbilical cord. From the UAC Dr. Lin could get vital sign information

as well as administer medicines and nutrients. Gail testified that on the day Courtney

was born, she saw nothing wrong with her leg. However, by 3:25 p.m. the following

day, Dr. Lin was paged by Courtney’s attending nurse, Jackie Shaughnessy (Nurse

Shaughnessy), and informed that Courtney’s lower right leg was turning purple and

had areas of blanching. Dr. Lin surmised that Courtney was suffering from

vasospasm in her right leg, a condition where the blood vessels contract. Dr. Lin

explained that vasospasm and discoloration are often side effects of the use of UAC

lines in infants. To help increase blood circulation to Courtney’s right leg, Dr. Lin

ordered that warm compresses be applied to Courtney’s left leg. By 5:10 p.m.,

Courtney’s right leg was still discolored. Dr. Lin then ordered that the warm

compresses be applied to the affected leg. Gail testified that she last saw Dr. Lin just
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prior to the 7:00 p.m. nursing shift change. Dr. Lin testified that he had an

opportunity to see Courtney’s right leg and did not leave the hospital until 8:00 p.m.

After leaving the hospital, Dr. Lin went to his home located about ten

minutes from the hospital. According to Dr. Lin, he received the first of many calls

regarding Courtney’s right leg condition at 9:25 p.m. on September 16, 1998.

Throughout the night of September 16th and into the early morning of September

17th, Dr. Lin gave Courtney’s attending nurses various orders to alleviate what he

thought was a vasospasm; however, he did not return to the hospital to check the leg

himself until the next morning at approximately 7:00 a.m. During the night,

Courtney’s leg greatly deteriorated becoming almost black. Meanwhile, Gail testified

that she was not informed of Courtney’s right leg treatment during the night of

September 16, 1998. She saw Dr. Lin between 8:00 a.m. and 9:00 a.m on the

morning of September 17, 1998.

Gail testified that Dr. Lin told her that Courtney’s leg was burned and

that there was a possibility that it would have to be amputated. She also testified that

she was never told about the many calls which Courtney’s nurses made to Dr. Lin the

night before. Dr. Lin explained that the change in the color of Courtney’s right leg

from light to dark purple and extending to her mid-thigh area is a common result of

vasospasm. He also stated that at one point he ordered the administration of

“priscoline,” a vasodilator that is used to open blood vessels.

In his progress notes Dr. Lin wrote that Courtney sustained a right leg

burn secondary to application of a heel warmer. He explained that he wrote the note

because that was one of several possible causes of the burn. When he actually saw

the purple color of Courtney’s leg, he surmised that it was caused by vasospasm and

not the heel warmer therapy. As noted above, a complication of using a UAC line,

which is inserted in the navel of the baby, is vasospasm. Dr. Lin explained that it
3

could be placed in the wrist or ankle artery by surgical procedure but because of

Courtney’s size it is a more difficult procedure. Eventually, the UAC line was

withdrawn and placed in an ankle artery.

As a result of the injury to her right leg, Courtney had to undergo four

surgeries with a plastic surgeon, Dr. Ralph W. Colpitts (Dr. Colpitts), and a pediatric

orthopedist, Dr. R. Baxter Willis (Dr. Willis). Gail testified that she will have to

undergo at least three additional surgeries on her leg. Courtney also has physical

therapy to stop her leg retracting and to soften the scar tissue. She has no use of her

right leg, has no feeling in that area and must wear braces on her leg. Also, she is

unable to walk. As she grows, the braces will have to be changed. At the time of

trial, Courtney was four-and-a-half years old. Although Dr. Willis testified in his

deposition that regardless of what happened to Courtney’s leg, she would not have

been able to walk due to other medical problems, however, Gail disagreed and

insisted that but for the injury to Courtney’s right leg, Courtney would have been able

to walk.

Courtney’s parents, the Heplers, brought suit against Dr. Lin and

Columbia Hospital. They alleged that Dr. Lin and Columbia Hospital negligently

caused the right leg injuries suffered by Courtney. The Heplers asserted that Dr. Lin

knew that Courtney was experiencing right leg vasospasm yet failed to return to her

bedside after numerous calls from Courtney’s attending nurses during the night of

September 16, 1998. Further, the Heplers asserted that Dr. Lin did nothing to

minimize the damage caused by the vasospasm. With respect to their claim against

the hospital, the Heplers claim that Courtney’s leg was burned because the neonatal

intensive care unit (NICU) nurses negligently applied heat to her right leg.

The Heplers submitted their claim to a medical review panel. The panel

concluded that neither the care by Dr. Lin nor the hospital nurses fell below the
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standard of care in treating their daughter. The Heplers then filed a medical

malpractice action which was tried to a jury. Prior to trial in this matter, the Heplers

settled their case against the hospital for $75,000.00, an amount less than

$100,000.00 which is necessary for an admission of liability. Thus, the Heplers

reserved their right to proceed against the Patient’s Compensation Fund (PCF). At

the conclusion of trial, the jury rendered a verdict in favor of Dr. Lin and the hospital.

It is from that decision that the Heplers appeal.

III.

LAW AND DISCUSSION

Standard of Review

“An appellate court generally reviews the factual findings of a trial court

according to the manifest error standard of review.” This standard applies in jury

trials and judge trials. Powell v. Regional Transit Authority, 96-715, p. 4 (La.

6/18/97), 695 So.2d 1326, 1328. The standard has best been stated in Rosell v.

ESCO, 549 So.2d 840, 844-45 (La.1989):

It is well settled that a court of appeal may not set
aside a trial court’s or a jury’s finding of fact in the absence
of “manifest error” or unless it is “clearly wrong,” 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. (Citations omitted.)

....

When findings are based on determinations
regarding the credibility of witnesses, the manifest error-
clearly wrong standard demands great deference to the trier
of fact’s findings, for only the fact finder can be aware of
the variations in demeanor and tone of voice that bear so
heavily on the listener’s understanding and belief in what
is said. (Citations omitted.) Where documents or objective
evidence so contradict the witness’s story, or the story
itself is so internally inconsistent or implausible on its face,
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that a reasonable fact finder would not credit the witness’s
story, the court of appeal may well find manifest error or
clear wrongness even in a finding purportedly based upon
a credibility determination. (Citations omitted.) But where
such factors are not present, and a fact finder’s finding is
based upon its decision to credit the testimony of one of
two or more witnesses, that finding can virtually never be
manifestly erroneous or clearly wrong. (Citations omitted.)

The above principles are based not only on the trial court’s better capacity to evaluate

witnesses in person, but also upon the allocation of trial and appellate court functions.

Canter v. Koehring Co., 283 So.2d 716 (La.1973).

“The manifest error standard of review assumes that ‘consequential

evidentiary rulings and instructions on the law were correct and proper.’” James v.

Beauregard Elec. Co-op., Inc., p. 3, 99-71 (La.App. 3 Cir. 6/9/99), 736 So.2d 353,

355, writ denied, 99-2030 (La. 11/15/99), 750 So.2d 180, quoting, McLean v. Hunter,

495 So.2d 1298, 1304 (La.1986). The manifest error standard is not applied if the

jury verdict is tainted by error. Id. Therefore, we will first examine the Heplers’

assertions dealing with the trial court’s evidentiary rulings and the jury instructions

before we discuss the Heplers’ assignment concerning the jury’s verdict.

Jury Instructions

The Heplers argue that had the trial court given the jury their specific

jury instruction regarding prior inconsistent statements, the jury would have found

in their favor. We disagree.

Jury instructions that identify the issues and provide the correct

principles of law to the jury are adequate. James, 736 So.2d 353. In this case, the

trial court instructed the jury as follows with respect to a witness’s prior inconsistent

statements:

[I]n weighing the testimony of any witness, you may
consider their demeanor on the stand, their interests or
want of interest in the outcome of the suit, their means of
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knowing the facts about which they testified, the
consistency or inconsistency of their statements, whether
they made statements at other times contrary to those made
on the witness stand, and any other circumstances
surrounding the giving of their testimony that may help you
in determining the weight that should be given to their
statements. (Emphasis supplied).

If you believe a witness swore falsely to any fact for the
purpose of deceiving you, you have the right to reject the
entire testimony of that witness, thereby disregarding their
testimony completely.

You also have the right to accept as true or reject as false
any statements of any witness according to the way you are
impressed with his or her truthfulness.

The special jury charges requested by the Heplers come from the case

of State v. Williams, 338 So.2d 672 (La.1976). The Heplers’ interpretation of the

Williams rule is as follows:

If the testimony of a witness here in court is
inconsistent with a prior statement he has made, it is your
duty to determine if the testimony of the witness here in
court should be discredited. If you decide that the
testimony of the witness has been discredited, then you are
to decide what weight, if any, to give to the testimony of
the witness. If you should find that a witness has testified
falsely as to a material fact, then you have the right to
reject the entire testimony of the witness or to reject only
part of the testimony, based upon how you are impressed
with the truthfulness of the witness.

We conclude that the fundamental elements regarding what a jury is to

do when it finds that a witness has made inconsistent statements are present in both

the trial court’s instructions and the Heplers’ proposed jury charge. Therefore, we

find no error in the trial court’s refusal to use the Heplers’ specific jury charge on

prior inconsistent statements made by witnesses.

Res Ipsa Loquitur

The Heplers contend that the trial court erred in failing to give a jury

instruction about res ipsa loquitur to prove that the negligence of Dr. Lin and
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Columbia Hospital resulted in Courtney’s right leg being burned and deformed. They

argue that by not giving any instruction regarding res ipsa loquitur, the jury was

denied the opportunity to find the defendants liable on the basis of that doctrine.

“Res ipsa loquitur is an evidentiary doctrine that requires a defendant to

exculpate himself from an inference of negligence.” Walston v. Lakeview Reg. Med.

Ctr., 99-1920, p. 6 (La.App. 1 Cir. 9/22/00), 768 So.2d 238, 242, writ denied, 00-

2936 (La. 12/15/00), 777 So.2d 1229. The first circuit further explained that the

doctrine “applies when: the accident would not normally occur in the absence of

negligence, there exists an absence of direct evidence to explain the activities leading

to the injury, and the accident or injury was caused by an agency or instrumentality

within the actual or constructive control of the defendant[s].” Id. In the present case,

the Heplers did not present the expert testimony of a neonatologist to meet their

burden of proof. However, it is not always necessary for a plaintiff use expert

testimony to meet his or her burden of proof that the care by a particular physician fell

below the standard of care. Pfiffner v. Correa, 94-924, 94-963, and 94-992 (La.

10/17/94), 643 So.2d 1228. When a physician does an obviously careless act,

negligence may be inferred. Id. Examples of an “obviously careless act” include

fracturing a leg during an examination, amputating the wrong limb, dropping a

surgical instrument on a patient or leaving a sponge in a patient’s body. Id. at 1233.

The Heplers have alleged a specific act of negligence by Dr. Lin and the

hospital, i.e. the failure of Dr. Lin to come to the bedside of Courtney during the night

when she was experiencing a vasospasm in her right leg, and the application of a heel

warmer to improve the condition of her leg. There is evidence in the record, through

medical records and witness testimony, that the manner in which the nurses and Dr.

Lin, as a neonatologist, cared for Courtney, including communicating by telephone

throughout the night, did not fall below the standard of care. Further, there is
8

evidence that the injury to Courtney’s leg occurred due to a vasospasm and not a

burn. Thus, we find, as did the trial court, that the application of res ipsa loquitur

was not proper.

Cross Examination of Members of the Medical Review Panel

Drs. Shute and Robinson, two members of the medical review panel in

this case, testified at trial. The Heplers assert that the trial court erred when it denied

them the opportunity to question the doctors regarding the underlying bases of their

opinion. Specifically, the Heplers wanted the trial court to admit into evidence the

discovery deposition conducted by the defendants and submitted to the medical

review panel, to cross examine Dr. Robinson regarding the bases of his opinion.

When the Heplers submitted their case to the medical review panel, their evidence

included an affidavit signed by Dr. Willis. Subsequent to the submission of the

affidavit, the defendants conducted a discovery deposition of Dr. Willis. Their

questions focused on the drafting of his affidavit by plaintiff’s counsel as well as the

modifications he made to the original draft prior to signing the document. When the

case went to trial, the affidavit was attached to the discovery deposition and made

part of the record. As noted above, in his video trial deposition which was presented

to the jury Dr. Willis testified that he would defer to the expertise of Dr. Lin with

respect to his treatment of Courtney as a neonatologist, since pediatric orthopedics

and not neonatology is his specialty. By cross-examination of Dr. Robinson, the

Heplers’ counsel sought to have the contents of Dr. Willis’ affidavit, used by the

medical review panel, presented to the jury to impeach their own witness. To do so,

the Heplers sought to have Dr. Willis’ discovery deposition, to which the affidavit

was attached for trial, admitted into evidence through the testimony of Dr. Robinson.

Dr. Willis’ trial deposition testimony was previously admitted into evidence. Thus,

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the scope of cross examination of Dr. Robinson is not at issue, but it is the trial

court’s ruling excluding the introduction into evidence of Dr. Willis’ discovery

deposition that the Heplers contend was error.

The trial transcript reveals that the Heplers sought to have Dr. Robinson

admit that he reviewed both Dr. Willis’ affidavit submitted to the panel by the

plaintiffs and discovery deposition submitted to the panel by the defendants as part

of the panel’s proceedings. The trial court allowed this line of questioning, and Dr.

Robinson testified in the affirmative. The trial court further allowed counsel for

plaintiffs to ask Dr. Robinson whether the discovery deposition tended to discredit

what Dr. Willis stated in his affidavit, to which Dr. Robinson testified that it did

discredit his affidavit testimony and affected the opinion he rendered in this case.

Next, counsel for the plaintiffs sought to question Dr. Robinson in detail about Dr.

Willis’ affidavit testimony. The trial court denied that request as the information

counsel sought was allowed without submission of the affidavit.

“The trial court is vested with vast discretion in connection with the

admissibility of evidence.” Bertrand v. Air Logistics, Inc., 01-1655, p. 16 (La.App.

3 Cir. 6/19/02), 820 So.2d 1228, 1238. Its decision on evidentiary matters will not

be reversed on appeal in the absence of abuse of that vast discretion. Id. Inasmuch

as the Heplers were allowed to question Dr. Robinson regarding the information they

told the court they wanted, we find that the trial court did not abuse its vast discretion

in excluding the discovery deposition of Dr. Willis, especially given the fact that Dr.

Willis’ had already testified at the trial by deposition.

Medical Malpractice Act—La.R.S. 40:1299.41, et seq.

The Heplers contend that the defendants, Dr. Lin and Columbia Hospital,

10

violated the Medical Malpractice Act (MMA) by treating their daughter in a manner

that is below the standard of care found in the Act. In particular, the Heplers contend

that Dr. Lin did not come to the bedside of their extremely prematurely born daughter

during the night when she was experiencing vasospasm of her right leg. Instead, he

relied on reports made by their daughter’s attending nurses when ordering various

treatments for the condition. The Heplers contend that the nurses’ administration of

warm compresses to their daughter’s right leg during a vasospasm caused a serious

burn in the limb.

Defendant, Columbia Hospital, contends that its nurses properly

followed the orders given to them by Courtney’s neonatologist, Dr. Lin. It further

contends that the nurses regularly reported any change in Courtney’s condition to the

doctor throughout the night and, therefore, the jury was correct in finding that the

Heplers failed to prove that any acts of the attending nurses were the proximate cause

of Courtney’s leg problems. Likewise, Dr. Lin contends that his observance of

Courtney’s right leg vasospasm prior to his departure from the hospital on September

16, 1998, as well as his constant telephone contact with the nursing staff throughout

that night, ordering various treatments to relieve Courtney’s vasospasm, did not fall

below the standard of care of a neonatologist in this situation. Dr. Lin asserts that

Courtney was experiencing various life-threatening complications due to her extreme

prematurity and was vulnerable to vasospasm due to the UAC line necessary to

monitor her condition. He essentially argues that his failure to go to the hospital

during the night Courtney experienced vasospasm in her right leg did not contribute

to the progressive deterioration of her leg.

11

Louisiana Revised Statutes 9:27941 provides for a plaintiff’s burden of

proof in a medical malpractice action against various healthcare providers. The

alleged negligence of the healthcare provider must be proved by a preponderance of

the evidence. La.R.S. 9:2794(C). In, Charpentier v. Lammico Ins. Co., 606 So.2d 83,

87 (La.App. 3 Cir. 1992) this court stated:

The law does not require perfection in medical
diagnoses and treatment. On the contrary, a doctor’s
professional judgment and conduct must be evaluated in
terms of reasonableness under the then existing
circumstances, not in terms of results or in light of
subsequent events.

A. In a malpractice action based on the negligence of a physician licensed under R.S.
1

37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S.
37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall
have the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care
ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians
licensed to practice in the state of Louisiana and actively practicing in a similar
community or locale and under similar circumstances; and where the defendant
practices in a particular specialty and where the alleged acts of medical negligence
raise issues peculiar to the particular medical specialty involved, then the plaintiff has
the burden of proving the degree of care ordinarily practiced by physicians, dentists,
optometrists, or chiropractic physicians within the involved medical specialty.

(2) That the defendant either lacked this degree of knowledge or skill or failed
to use reasonable care and diligence, along with his best judgment in the application
of that skill.

(3) That as a proximate result of this lack of knowledge or skill or the failure
to exercise this degree of care the plaintiff suffered injuries that would not otherwise
have been incurred.

B. Any party to an action shall have the right to subpoena any physician, dentist, optometrist,
or chiropractor for a deposition or testimony for trial, or both, to establish the degree of knowledge
or skill possessed or degree of care ordinarily exercised as described in Subsection A of this Section
without obtaining the consent of the physician, dentist, optometrist, or chiropractor who is going to
be subpoenaed only if that physician, dentist, optometrist, or chiropractor has or possesses special
knowledge or experience in the specific medical procedure or process that forms the basis of the
action. The fee of the physician, dentist, optometrist, or chiropractor called for deposition or
testimony, or both, under this Subsection shall be set by the court.

C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden
of proving, by a preponderance of the evidence, the negligence of the physician, dentist, optometrist,
or chiropractic physician. The jury shall be further instructed that injury alone does not raise a
presumption of the physician’s, dentist’s, optometrist’s, or chiropractic physician’s negligence. The
provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found
by the court to be applicable.

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(Citations omitted).

Questions regarding the standard of care in medical malpractice actions

against hospitals under respondeat superior principles are subject to the same burden

of proof as a physician whose treatment actions are questioned. Corley v. State Dept.

Of Health & Hospitals, 32,613 (La.App. 2 Cir. 12/30/99), 749 So.2d 926. The

Louisiana Supreme Court has explained:

A hospital is bound to exercise the requisite amount
of care toward a patient that a particular patient’s condition
may require. It is the hospital’s duty to protect a patient
from dangers that may result from the patient’s physical
and mental incapacities as well as from external
circumstances peculiarly within the hospital’s control. A
determination of whether a hospital has breached the duty
of care it owes to a particular patient depends upon the
circumstances and the facts of that case.

Hunt v. Bogalusa Comm. Med. Ctr., 303 So.2d 745, 747 (La.1974).

As stated above, the Heplers claim that Dr. Lin committed malpractice

by taking telephone calls regarding the condition of Courtney’s leg throughout the

night instead of traveling from his home to the hospital, a ten minute drive, to observe

the condition of Courtney’s leg in person. They claim that had Dr. Lin gone to the

hospital instead of relying on the nurses’ telephone reports of the leg’s condition, he

would have seen that his prescribed treatment caused the leg to develop a serious

burn. The facts indicate that before Dr. Lin left for the night he saw that Courtney

was developing a vasospasm and ordered treatment for the condition. At that point

he did not want to remove the UAC line because the baby needed constant monitoring

of her vital signs. The record also shows that Dr. Lin left instructions to call him at

home throughout the night with updates on the baby’s condition. These orders were

followed by the nurses.

Dr. Willis testified on behalf of the Heplers. He was tendered as an

expert on pediatric orthopedics. His practice is limited to the treatment of orthopedic
13

problems in children. He was originally asked by Dr. Lin to do a consultation on

Courtney regarding her right leg. He opined that Courtney suffered from thrombosis

because he is aware that some premature children develop vascular problems as a

result of the UAC. When he saw Courtney in January 1999, he was aware that she

had undergone a full thickness skin graft. He next saw Courtney in October 1999 for

an evaluation related to removal of scar tissue that caused constriction which, in turn,

caused foot deformity. Dr. Willis operated on Courtney’s right leg on November 11,

1999, and was assisted by a plastic surgeon, Dr. John Lindsey (Dr. Lindsey).

Essentially, Dr. Willis did surgery to release the scar tissue and to release her tendons

and muscles. Dr. Lindsey was present to correct any further defects. In his

deposition testimony, Dr. Willis opined that “the only plausible explanation . . . that

could have caused this was . . . a burn or thermal injury from the outside in.” Dr.

Willis explained that with the type of problem Courtney had, future surgery would

be necessary due to the scarring contracture.

Dr. Willis testified that it was difficult for him to testify regarding the

actions taken by Dr. Lin. He emphasized that it is especially difficult when the

physician is within another specialty other than his own. He also stated that

knowledge of the particular hospital’s nursing care is important. Dr. Willis agreed

that the nurses’ notes indicating some pinking to the right leg showed improvement

in Courtney’s condition and that he has no criticisms of Dr. Lin’s decision to maintain

Courtney’s UAC. He also agrees that Dr. Lin’s use of warm compresses and the

administration of a vasodilator was proper to remedy the vasospasm. Dr. Willis

admitted that he knew of nothing else he would have done differently and that

neonatology is outside of his area of expertise. Dr. Willis testified that he would

defer to Dr. Lin’s expertise in the standard of care to be given to a neonate in

Courtney’s condition.
14

The defendants presented the testimony of three doctors: Dr. Patrick

Robinson, a pediatrician; Dr. Claudia Shute, a neonatologist; and, Dr. Colpitts, a

plastic surgeon who performed surgery on Courtney. Drs. Robinson and Shute served

on the medical review panel convened in connection with this case. Dr. Robinson

agreed that it was very important for Dr. Lin to maintain the UAC line even though

it comes with its own set of possible complications, including vasospasm. He

stressed that the UAC for a baby as premature as Courtney is a lifeline; without it, she

would surely not survive. Dr. Robinson further testified that the use of a heating pad

when a vasospasm occurs is a treatment that has been around for “twenty-five years.”

The treatment protocol followed by Dr. Lin—first applying the heating pad to the

unaffected leg then to the affected leg—is proper even knowing that the chance of

further injury to the affected leg could occur, because a doctor would want to preserve

the baby’s lifeline. As to whether he would have gone out to the hospital to observe

Courtney’s condition, Dr. Robinson testified that it depended on the experience of the

nurse, the nurses’ description of the condition, as well as whether the nurse

specifically asked him to go out. Dr. Robinson did admit that because Courtney’s

skin was extremely thin due to her prematurity, that it would be more likely to burn

by application of heat than a baby with normal type skin. However, in his experience,

heating pads do not get hot enough to cause burns. Essentially, Dr. Robinson testified

that Dr. Lin did not fall below the standard of care when he did not go to the hospital

on the night of September 16, 1998, to check Courtney’s condition, and chose instead

to rely on updates by Courtney’s attending nurses as to her condition.

Dr. Shute, who primarily practices neonatology, also testified on behalf

of the defendants. She explained that a baby born at twenty-three weeks gestation,

as Courtney was, is “on the edge of viability” with very low chance of survival. She

further explained that methods other than the UAC do not measure the carbon dioxide
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level, the acid level or the pH. Thus, a baby like Courtney would need the UAC line.

Her testimony supported that of Dr. Lin and Dr. Robinson, that the UAC is a

premature baby’s “life line.” She further stated that the smaller the baby, the harder

it is to get the catheter into peripheral blood vessels as in the ankle or wrist. Thus, the

greater need for insertion into the umbilical vessels. Dr. Shute testified that, from her

review of the records, Courtney had low blood pressure and was on three different

drugs to help increase her pressure. Without the proper blood pressure, babies like

Courtney die due to lack of oxygen. Dr. Shute explained that a complication of

treating the low blood pressure is that the treatment causes the blood vessels to the

skin, a non-essential organ, to constrict. Keeping the blood pressure high to areas

like the brain, kidneys and heart are essential. According to Dr. Shute, the goal is to

keep the baby alive until she matures.

Dr. Shute stated that premature babies lack the ability to maintain a

proper body temperature due to the lack of subcutaneous fat and must be heated by

external means. There is no question that Courtney needed the UAC. Further, the

occurrence of vasospasm in a baby of Courtney’s age is more likely to happen. Dr.

Shute opined that Dr. Lin’s treatment of Courtney’s vasospasm of her right leg—heat

applied to opposite leg, heat applied to affected leg and use of vasodilator

medications—is the standard progression of treatment. When Dr. Shute was asked

why the panel found that the issue of what caused the damage to Courtney’s leg was

irrelevant, she responded “everything was being addressed appropriately. The

standard of care was being met. . . . [T]hat is the standard of care of how you manage

these problems. So it didn’t matter to us what the injury was; . . . things were being

done appropriately.” Dr. Shute testified that the panel considered the maintenance

of the UAC, the resultant leg injury as well as Dr. Lin’s phone consultations

throughout the night in reaching its conclusion that Dr. Lin’s treatment was not below
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the standard of care. The panel had a similar opinion with regard to the nursing care

Courtney received at the hospital. Although Dr. Shute admitted that personal

observation of an injured body part makes it easier to determine the cause of the

injury, she felt that personal observation by experienced nurses with whom the doctor

has a close relationship and with whom he is in constant communication is a proper

manner of treatment when a doctor is not present.

The three nurses who attended Courtney during the time in question,

Christine Bergeron, Jackie Shaughnessy and Carrie Bradley, also testified at the trial.

Nurse Shaughnessy, an NICU nurse for fifteen years, was Courtney’s nurse from 7:00

a.m. through 7:00 p.m, September 16, 1998. At the beginning of her shift, she saw

no problems with Courtney’s leg. According to Nurse Shaughnessy, she observed

that Courtney’s right leg turned purple with areas of blanching by 3:25 p.m. All of

the nurses testified similarly to the physicians stating that discoloration of the legs

due to vasospasm is a common occurrence with the use of a UAC line. The use of

warm compresses was ordered by Dr. Lin. Later in the evening, the leg still had

problems, and Dr. Lin was at Courtney’s beside at 6:10 p.m. to examine her leg. His

orders were to continue the warm compresses—a heel warmer wrapped in gauze.

With respect to Dr. Lin’s care of Courtney, Nurse Shaughnessy testified that the care

of the babies in the NICU is a team effort, and that it is normal procedure to

communicate with the doctors by telephone when they are not present. She further

testified that Dr. Lin never failed to respond when she called him, and had she asked

him to be present, he would have gone to the hospital. With respect to the heel

warmer used on Courtney, Nurse Shaughnessy testified that she has never known one

to cause damage or injury to an infant.

Nurse Bergeron’s shift began on September 15, 1998, at 11:00 p.m. and

ended at 7:00 a.m. the next morning when Nurse Shaughnessy came to the unit for
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her shift. She saw no problems with Courtney’s leg during her shift. During her

shift, she stayed at Courtney’s bedside. She did not return to the NICU until

September 17, 1998, at 7:00 a.m., when she relieved Nurse Bradley, who had stayed

by Courtney’s bedside during the night. At that time she was told about the problems

with Courtney’s right leg. She testified that Nurse Bradley’s notes indicated several

calls to Dr. Lin about the discoloration of Courtney’s right leg as well as Dr. Lin’s

orders. Like the doctors who testified in the case and the other nurses, Nurse

Bergeron said that the condition of Courtney’s leg did not cause her concern because

it was typical complication of using a UAC line. At 8:20 a.m., she saw Dr. Lin in the

NICU. She explained that when the doctor is not present in the NICU, it is normal

practice for the nurse attending the babies to keep in contact with, and get orders

from, the doctor by telephone. She further testified that from the nurses notes, she

saw that no nurse requested that Dr. Lin come into the hospital during the night of

September 16, 1998.

Nurse Bradley, who had worked in the NICU of the hospital for four

months prior to becoming Courtney’s attending nurse, was present during Courtney’s

delivery and was part of the team that admitted her into the NICU. Her shift began

at 7:00 p.m. September 16, 1998, and ended at 7:00 a.m. the next morning. Thus, she

was Courtney’s nurse on duty during the night in question. While in NICU, three

sources of heat were applied to Courtney due to her severe prematurity. Heat is

necessary to help premature babies maintain a normal body temperature. The heat

from the heel warmer was needed to alleviate the vasospasm Courtney experienced

as a result of the use of the UAC line.

Nurse Bradley testified that she called Dr. Lin four times during the night

to report Courtney’s condition. During the calls, she described the condition of

Courtney’s right leg. Dr. Lin asked questions and gave orders for its treatment.
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Although she testified that she would have felt better if Dr. Lin had gone out to the

hospital to examine the leg, she did not request that he do so. Although it appeared

that the condition of Courtney’s leg was getting worse, Nurse Bradley’s call to Dr.

Lin at 3:30 a.m. indicated otherwise when she told him that the leg appeared purple

with small patches of pink. Further, she stated that if she thought Courtney’s leg was

being burned by the heel warmer, she would have told Dr. Lin to come to the hospital.

She felt that all along that the vasospasm was causing the leg problems. All of the

nurses testified that they have never heard of a heel warmer burning an infant.

Subsequent to her work at Columbia Hospital, Nurse Bradley worked in NICUs in

New Orleans and Baton Rouge. She testified that in those units, contact by phone

with the neonatologist when he or she is not present is how the care of infants in the

NICU is conducted.

After hearing all of the above testimony regarding how babies in a NICU

are cared for when the neonatologist is not present and how Dr. Lin and the nurses

cared for Courtney during the night of September 16, when her right leg experienced

a vasospasm, the jury found that Dr. Lin’s and the nurses’ care did not fall below the

standard of care of neonatologists. Thus, Dr. Lin and the nurses did not commit

malpractice. We cannot say that the jury erred in its conclusion.

Post Trial Motions

Judgment Notwithstanding the Verdict/New Trial

At the conclusion of trial in this matter, the Heplers filed a motion for

judgment notwithstanding the verdict (JNOV) and, in the alternative, a new trial.

Based on their above arguments, the Heplers assert that the trial court erred in not

granting their motions. The defendants argue that the Heplers did not meet the

standard for a grant of a JNOV because there is support in the record for the factual

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findings of the jury. “[A] motion for JNOV is appropriately granted only in the event

that ‘the evidence points so strongly in favor of the moving party that reasonable

persons could not reach different conclusions, not merely when there is a

preponderance of evidence for the mover.’” Sturlese v. Six Chuter, Inc., 01-1634, p.

8 (La.App. 3 Cir. 6/26/02), 822 So.2d 173, 179, writ denied, 02-2385 (La. 11/22/02),

829 So.2d 1049, quoting Joseph v. Broussard Rice Mill, Inc., 00-628, p. 4 (La.

10/30/00), 772 So.2d 94, 99.

The supreme court instructed appellate courts in the proper method of

review for the JNOV, explaining:

[T]he appellate court must first determine if the trial judge
erred in granting the JNOV. This is done by using the
aforementioned criteria just as the trial judge does in
deciding whether to grant the motion or not, i.e., do the
facts and inferences point so strongly and overwhelmingly
in favor of the moving party that reasonable persons could
not arrive at a contrary verdict? If the answer to that
question is in the affirmative, then the trial judge was
correct in granting the motion. If, however, reasonable
persons in the exercise of impartial judgment might reach
a different conclusion, then it was error to grant the motion
and the jury verdict should be reinstated.

Joseph, 772 So.2d at 99.

The supreme court further detailed the standard for granting a JNOV as

follows:

[A] JNOV is warranted when the facts and inferences point
so strongly and overwhelmingly in favor of one party that
the trial court believes that reasonable persons could not
arrive at a contrary verdict. The motion should be granted
only when the evidence points so strongly in favor of the
moving party that reasonable persons could not reach
different conclusions, not merely when there is a
preponderance of evidence for the mover. The motion
should be denied if there is evidence opposed to the motion
which is of such quality and weight that reasonable and
fair-minded persons in the exercise of impartial judgment
might reach different conclusions. In making this
determination, the trial court should not evaluate the
credibility of the witnesses, and all reasonable inferences
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or factual questions should be resolved in favor of the
non-moving party. This rigorous standard is based upon
the principle that “[w]hen there is a jury, the jury is the trier
of fact.”

Id. at 99. (Citations omitted).

In the present case, the jury found that Dr. Lin’s care of Courtney during

the night of September 16, 1998, did not fall below the standard of a neonatologist

rendering care to an extremely premature infant. In its oral reasons for judgment

denying the Heplers’ motion for JNOV the trial court acknowledged that a motion for

JNOV presents “one of the toughest standards . . . in the law to overcome.” The trial

court believed that the jury was made up of reasonable persons and that the judgment

was reasonable based on the evidence in the case. We agree. In fact, in our reading

of the record there is virtually no evidence that Dr. Lin fell below the standard of

medical care in taking care of Courtney by not going to the hospital during the night

to personally examine her leg. Therefore, the trial court did not commit manifest

error when it denied the JNOV motion.

Alternatively, the Heplers assert that the trial court should have granted

their motion for a new trial based on La.Code Civ.P. art. 1972(1), i.e., “the verdict or

judgment appears clearly contrary to the law and the evidence.” The test with respect

to whether a new trial should be granted is less stringent than that of a JNOV because

if a new trial is granted, the parties are not denied the opportunity to have the issues

decided by a jury. Davis v. Walmart Stores, Inc., 00-445 (La. 11/28/00), 774 So.2d

84. The trial court must balance many factors in making its decision to grant or deny

a motion for new trial. Id. In Davis, the supreme court stated:

[T]he trial judge may evaluate evidence without favoring
any party and draw his own inferences and conclusions.
Perhaps the significant authority is the ability to assess the
credibility of witnesses when determining whether to grant
or deny the motion for new trial.

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(Citations omitted). Id. at 93. The trial court has great discretion in ruling on a new

trial motion and its determination will not be disturbed on appeal absent an abuse of

discretion. Id. In further explaining the trial court’s discretion, the supreme court

instructed:

The fact that a determination on a motion for new trial
involves judicial discretion, however, does not imply that
the trial court can freely interfere with any verdict with
which it disagrees. The discretionary power to grant a new
trial must be exercised with considerable caution, for a
successful litigant is entitled to the benefits of a favorable
jury verdict. Fact finding is the province of the jury, and
the trial court must not overstep its duty in overseeing the
administration of justice and unnecessarily usurp the jury’s
responsibility. A motion for new trial solely on the basis of
being contrary to the evidence is directed squarely at the
accuracy of the jury’s factual determinations and must be
viewed in that light. Thus, the jury’s verdict should not be
set aside if it supportable by any fair interpretation of the
evidence.

Davis, 774 So.2d at 93. (Citations omitted) (Emphasis in original).

In denying the Heplers’ alternative motion for a new trial, the trial court

stated in its oral reasons for ruling that the jury’s verdict was not “clearly contrary to

the law and the evidence.” We agree with the trial court. A fair interpretation of the

evidence as set out above in this opinion, supports the jury’s verdict. Thus, the trial

court did not abuse its great discretion when it denied the Heplers’ new trial motion.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court, in favor of the

defendants-appellees, is affirmed. Costs of this appeal are assessed against the

plaintiffs-appellants.

AFFIRMED.

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