Susan Brown v. Foster R. Stickley, M.D.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-439

SUSAN BROWN, ET AL.

VERSUS

FOSTER R. STICKLEY, M.D., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 71311
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, Glenn B. Gremillion, and Billy H. Ezell,
Judges.

AFFIRMED.

Joseph T. Dalrymple
Rivers, Beck, & Dalrymple
P. O. Drawer 12850
Alexandria, LA 71315-2850
(318) 445-6581
Counsel for Plaintiff/Appellee
Susan Brown, Individually

James R. Shelton
Durio, McGoffin, Stagg & Ackerman
P. O. Box 51308
Lafayette, LA 70505-1308
(337) 233-0300
Counsel for Defendants/Appellants
St. Paul Fire & Marine Ins. Co.
Foster R. Stickley, M.D.

GREMILLION, Judge.

In this case, the plaintiff, Susan Brown individually and on behalf of her

minor son, Arkel Brown, appeals the jury’s judgment in favor of the defendant, Dr.

R. Foster Stickley, finding that he did not commit medical malpractice. For the

following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Brown filed suit against Dr. Stickley in March 1997, claiming that her

son was born with severe deficits and defects due to Dr. Stickley’s negligence.

Brown alleged that Dr. Stickley ordered x-rays, dye tests, and fluoroscopy without

first ascertaining whether she was pregnant, and as a direct result of said tests, her son

was born with severe defects.

A jury trial was held and the jury rendered a verdict dismissing all claims

against Dr. Stickley. Thereafter, Brown filed a motion for JNOV, which was denied.

In denying the JNOV, the trial court stated that the issue at trial was only whether Dr.

Stickley should have administered a pregnancy test before giving her the tests. The

trial court further stated that the jury concluded that Dr. Stickley was justified in

believing Brown was not pregnant. Brown now appeals.

ISSUES

Brown assigns as error:

1. The jury’s findings were not only manifestly erroneous, but
amounted to jury nullification because the jury ignored
certain testimony, including Dr. Stickley’s own testimony
that he committed malpractice.

2. The trial court erred in denying her JNOV.

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3. The jury committed manifest error in disregarding
overwhelming evidence of deviations from the standard of
care by Dr. Stickley.

LAW

A court of appeal may not set aside a jury’s finding of fact in the absence

of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840

(La.1989).

The appellate review of fact is not completed by reading only so much
of the record as will reveal a reasonable factual basis for the finding in
the trial court, but if the trial court or jury findings are reasonable in
light of the record reviewed in its entirety, the court of appeal may not
reverse even though convinced that had it been sitting as the trier of fact,
it would have weighed the evidence differently.

Id. at 844.

Though an appellate court may feel its own evaluations and inferences

are more reasonable than the factfinder’s, reasonable inferences of fact should not be

disturbed upon review where conflict exists in the testimony. Id. “[W]here two

permissible views of the evidence exist, the factfinder’s choice between them cannot

be manifestly erroneous or clearly wrong.” Stobart v. State Through DOTD, 617

So.2d 880, 883 (La.1993). “The issue to be resolved by a reviewing court is not

whether the trier of fact was right or wrong, but whether the factfinder’s conclusion

was a reasonable one.” Id. at 882.

In a medical malpractice action, the plaintiff’s burden is set forth in

La.R.S. 9:2794(A), which states that the plaintiff must prove:

(1) The degree of knowledge or skill possessed or the degree of
care ordinarily exercised by 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

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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 . . . 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.

EVIDENCE

Brown’s pretrial memorandum stated there were three focal issues in this

medical malpractice claim, to wit, that Dr. Stickley was negligent in failing to

appreciate the obvious signs of Brown’s pregnancy and to diagnose the same, in

failing to administer a pregnancy test prior to ordering x-rays and other medications

contraindicated in pregnancy, and in failing to advise Brown of the risk of x-rays.

The uncontroverted evidence is that Brown had been Dr. Stickley’s

patient since 1989, when she was fifteen years old. At that time she began taking

birth control pills. In October 1991, he delivered her first baby, a son. On February

2, 1995, Brown complained to Dr. Stickley that she was having abdominal pain and

that she had missed some of her birth control pills. Dr. Stickley ordered a pregnancy

test, administered on February 16, 1995, which was negative. In March 1995, Dr.

Stickley ordered an ultrasound after Brown continued to complain of pain. The

ultrasound revealed an ovarian cyst on her left ovary. At a March 28, 1995

appointment, Dr. Stickley started Brown on birth control pills to treat the cyst. Two

weeks later, on April 11, 1995, Brown returned for another ultrasound to monitor the

cyst. No evidence of pregnancy was revealed at this ultrasound. Dr. Stickley next

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saw Brown on April 20, 1995, when she complained of severe abdominal pain. Dr.

Brown noted in his records “no coitus,” and ordered several tests, which are at issue

in this case.

The tests, which exposed Brown and her embryo to radiation, were

conducted on April 24-25, 1995. Brown was approximately four weeks pregnant at

the time.

Brown testified she dropped out of school in the ninth grade. She stated

that, at the April 20, 1995 appointment, she told Dr. Stickley that she was having

stomach pain, could not keep any food down, and was gaining weight. She stated that

Dr. Stickley told her that she might have an ulcer. Brown testified that she

menstruated in February, twice in March, and not at all in April 2004. Brown

testified that Dr. Stickley did not ask her if she thought she was pregnant nor if she

had been having sex. She also stated that, prior to the April 20th appointment, she

was having sex every night. She again testified that the issues of sex and pregnancy

were never mentioned at the visit.

Brown testified that she was warned about the potential risks x-rays pose

to developing babies, but only after her x-rays were completed. Brown testified that

she realized she might be pregnant sometime in May, so she went and bought a home

pregnancy test, which came back positive.

Brown testified that she called Dr. Stickley’s office and was urged to

come in right away. She stated that Dr. Stickley warned her of the possibility for

severe defects in her unborn child due to the x-rays. She stated that he recommended

she have an abortion. Brown testified that she was so upset by this that she told him

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that she no longer wanted to be his patient. Brown stated that she did not believe in

abortion and was constantly worried and depressed throughout her pregnancy

concerning the state of her baby. Brown went on to describe the difficulties she

encountered following Arkel’s birth. She testified that she signed the consent forms

prior to the x-rays because she did not think she was pregnant since Dr. Stickley did

not tell her she was pregnant.

Dr. Stickley testified that he first began seeing Brown in 1989. He stated

that he delivered her first child in 1991,via caesarean section. In January 1994, Dr.

Stickley removed a Norplant birth control device he had implanted in Brown’s arm

because she wanted to get pregnant. In August 1994, Dr. Stickley prescribed birth

control pills to Brown. In October 1994, Dr. Stickley notated changing Brown’s birth

control pill prescription from one brand to another. Brown next visited Dr. Stickley

in February 1995, complaining of pain in the lower abdomen and nausea. His

records indicate she had her last period in January and had “messed up” on the birth

control pills for two days. Dr. Stickley’s records indicate that he ordered a pregnancy

test on February 16, 1995, which was negative. Dr. Stickley next ordered an

ultrasound on March 24, 1995, to determine the cause of Brown’s irregular menstrual

cycle. The ultrasound showed that she had an ovarian cyst. It also showed no

evidence of intrauterine pregnancy. Brown next visited Dr. Stickley on March 28,

1995, regarding her ovarian cyst. At this time he prescribed birth control pills to treat

the cyst and indicated that a follow-up ultrasound would be done in two weeks. The

follow-up ultrasound was conducted on April 11, 1995, which showed no evidence

of ovarian cyst or intrauterine pregnancy.

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The next time Brown visited Dr. Stickley was on April 20, 1995, the date

of the alleged deviation from the standard of care. Dr. Stickley’s notes read

“Questionable problems. No coitus. Wakes up at six (6:00) a.m.” Dr. Stickley stated

that he palpated Brown’s stomach where she described the pain checking for various

things. He also described the pelvic exam he performed on Brown that day. Dr.

Stickley noted in the diagnosis section: “Work-up. Ultrasound, GI Series, Barium

Enema.”

Dr. Stickley testified that his notation “no coitus” indicated that Brown

had told him that she had not had sex since the last pregnancy test. He stated that he

is well aware of the dangers of doing x-rays on a pregnant woman and that he would

never have ordered them if she had indicated that she had sex since the previous

pregnancy test. He stated that Brown did not tell him that she was having sex every

day as she and her then-boyfriend, Jimmy Thomas, testified. Dr. Stickley went on to

describe the various reasons he ordered the tests: the GI Series to determine if she

had an ulcer, the KUB or plain x-ray of the kidneys, uterus, and bladder to determine

what was causing her pain upon urination, urinalysis to make sure there was no

infection or blood in her urine, and the barium enema to rule out diverticulitis.

Dr. Stickley went on to testify that he did not refer Brown to a

gastroenterologist because there are none in the area who accept Medicaid patients.

When Dr. Stickley was questioned as to why he does not perform pregnancy tests on

every single woman of child-bearing age before ordering x-rays, he stated that urine

pregnancy tests, especially at the time, were not accurate and that they had many false

negatives. He further stated that they do not do blood pregnancy tests in the office;

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they send those out to a lab. Dr. Stickley went on to testify that Brown ended up in

the emergency room due to her stomach pain on April 27, 1995, and that the records

indicate that she told the nurse that her last period was in “4/95."

Dr. Stickley next saw Brown on May 3, 1995, at which time he

prescribed antibiotics for a vaginal infection. Thereafter, Dr. Stickley received a

phone call from Brown indicating that a home pregnancy test had come back positive.

Dr. Stickley ordered an ultrasound for May 18, 1995, and prescribed some prenatal

vitamins.

On May 22, 1995, Dr.Stickley noted that Brown had received radiation

while pregnant. He testified that he discussed the radiation and its effects on the baby

with the radiologist, Dr. Pam Darr, who performed the tests. Dr. Stickley next saw

Brown on May 30, 1995, at which time he discussed the possibility of her having an

abortion. However, he stated that she did not believe in abortions and instead, would

be monitored via ultrasound.

On cross-examination, Dr. Stickley admitted that another time in

Brown’s records he noted “no coitus,” but that this was an admonition not to have

sex. He also did not know why he did not use the terminology “LMP” or “last

menstrual period” to note when she last menstruated.

Dr. Pamela Darr testified that, on two separate occasions on April 24 and

25th, 1995, Brown signed a sheet of paper stating “I AM NOT PREGNANT AND

HAVE NO REASON TO BELIEVE I AM PREGNANT. I AM NOT LATE FOR A

MENSTRUAL CYCLE.” Dr. Darr stated that it is her routine practice to question

women in their child-bearing years as to whether or not they could possibly be

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pregnant. Dr. Darr also testified that she routinely asks all patients whether or not

they are having unprotected sex, and if they are, she will not perform any tests on

them.

Dr. Bruce Halbridge, an obstetrician/gynecologist in Houston, Texas,

testified as an expert on behalf of Brown. He said that he has delivered

approximately 7,000 babies over the course of his career. Dr. Halbridge testified that,

after reviewing all of the documentary evidence, he believed Dr. Stickley deviated

from the standard of care by not being certain that Brown was not pregnant before

ordering diagnostic radiology tests such as x-rays. Dr. Halbridge described a series

of questions and examinations that Dr. Stickley should have asked and conducted.

Dr. Halbridge testified that Dr. Stickley’s brief notations in his charts on April 20,

1995, were inadequate in that it did not go through the series of questions he felt

should be asked such as documenting the patient’s menstrual history, sexual history,

whether or not she is taking her medicines, including birth control pills, or has

forgotten to take some. He further stated the notation does not describe the pain, her

bowel habits, or whether she had any chills or fever, which would be important in

determining what is wrong. He also stated Dr. Stickley failed to conduct an

abdominal and pelvic exam. Dr. Halbridge further testified that the notation “no

coitus” was insufficient to indicate Brown had not had sex in the two months

following her most recent pregnancy test. Dr. Halbridge indicated that the standard

of care would require more detailed notations regarding sexual history and birth

control use. He further testified that, in a twenty-year-old patient experiencing

abdominal pain, his first instinct would be to conduct a pregnancy test to rule out

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ectopic or tubal pregnancy or impending miscarriage. Dr. Halbridge stated that the

standard of care compelled the administration of a blood pregnancy test based on her

complaints. He further testified it was a deviation from the standard of care to fail to

conduct an abdominal examination based on the symptoms she presented. He went

on to state, that no matter what information was given by the patient as to sexual

history, the standard of care required a blood pregnancy test to rule out pregnancy

before proceeding with any further tests.

Dr. Halbridge stated that the tests Dr. Stickley ordered deviated from the

standard of care because none of her symptoms indicated they were necessary. He

further stated that other tests existed to check for the problems Dr. Stickley suspected

that Brown might have, which did not involve any radiation exposure, including

sonograms to check for gallbladder disease, blood tests to check the functioning of

the pancreas, and referral to a gastroenterologist who can use a fiberoptic scope

placed in the throat to see if an ulcer exists.

Dr. Halbridge also testified that Brown’s signature on the consent forms

indicating that she was not pregnant is not an adequate way to ensure a patient is not

pregnant. He stated it is the doctor’s responsibility to determine whether or not the

patient is pregnant before ever sending her to radiology to undergo tests. Dr.

Halbridge stated this failure was a deviation from the standard of care. Dr. Halbridge

further testified that this responsibility cannot be delegated and that the standard of

care required Dr. Stickley to conduct a pregnancy test. Dr. Halbridge also stated that

he has never seen a case of diverticulitis in a twenty-year-old woman and that no

rationale existed for the studies that Dr. Stickley ordered.

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On cross-examination, Dr. Halbridge stated that doctors vary in their way

they keep their charts. After being shown Dr. Stickley’s charts he admitted that he

did not know what Dr. Stickley’s notations and markings meant. He further admitted

that Dr. Stickley did conduct a pelvic examination, but that he could not decipher the

findings from examining Dr. Stickley’s charts. He further admitted that Dr. Stickley’s

suspicions that Brown had an ulcer turned out to be correct. Dr. Halbridge also

admitted that he has no idea how doctors in Crowley, Louisiana, conduct their

business or what effects a Medicaid card would have on the administration of tests.

Dr. Halbridge was then questioned regarding Dr. Stickley’s contention

that “no coitus” meant no sexual intercourse since the previous pregnancy test and

whether a doctor should rely on the fact that a patient says she has not had sexual

intercourse. He noted that sometimes patients forget whether or not they have had

sexual intercourse, but admitted it would be hard to forget to having sex every day as

testified to by both Brown and Jimmy Thomas.

Dr. Marshall St. Amant, an obstetrician/gynecologist with a specialty in

maternal fetal medicine, was a member of the medical review panel that reviewed the

claim against Dr. Stickley. Dr. St. Amant testified that it was his, and the other two

panel members’ opinion, that Dr. Stickley did not breach the standard of care. Dr. St.

Amant testified that, since the medical review panel convened, he further reviewed

the expert testimony of Drs. Brenner, Willis, and Bushong and that his opinion that

Dr. Stickley did not breach the standard of care had not changed.1 Dr. St. Amant

further testified that Dr. Stickley’s charting methods are quite common and do not fall

1
These doctors all testified regarding the amount of radiation that Arkel received as well
as the effects, if any, of the radiation.

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below the standard of care. Dr. St. Amant further testified that it has never been

incumbent upon a physician to order either a serum or urine pregnancy test before

proceeding with necessary tests such as x-rays. Dr. St. Amant further testified that

the various tests ordered by Dr. Stickley did not breach the standard of care. He

stated that the treating physician has an impression as to what may be wrong with the

patient and is in the best position to make decisions about which tests to administer.

After reviewing the evidence and testimony submitted to the jury, even

though we may have felt differently, we cannot say it committed manifest error in

finding that Dr. Stickley did not breach the standard of care. A doctor’s professional

judgment and conduct is to be evaluated in terms of reasonableness under the then

existing circumstances, not in terms of results or in light of subsequent events.

Charpentier v. Lammico Ins. Co., 606 So.2d 83 (La.App. 3 Cir. 1992). Moreover,

“[w]hen the expert opinions contradict concerning compliance with the applicable

standard of care, the trial court’s conclusion on this issue will be granted great

deference. It is the sole province of the factfinder to evaluate the credibility of such

experts and their testimony.” Id. at 87.

Dr. Stickley testified that his records stating “no coitus,” indicated that

Brown told him she had not had sexual intercourse since her last pregnancy test.

Brown testified that she never told him that. Instead, she testified that she and

Thomas were having sex on a daily basis. Dr. Stickley testified he is well aware of

the risks that x-rays pose to pregnant women and that he would never have ordered

the tests without first asking Brown if she was pregnant.

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Dr. Halbridge testified that he felt Dr. Stickley deviated from the

standard of care basically because his documentation was inadequate and in failing

to be 100% certain that Brown was not pregnant before administering the tests. Dr.

St. Amant, on the other hand, testified that there is no standard requiring a doctor to

administer a blood or urine pregnancy test before ordering x-rays. He testified that

a doctor can make this determination based on numerous factors, such as his

relationship with the patient and the responses he receives to the questions he asks.

Finally, the patient herself noted on the forms that she was not pregnant, had no

reason to believe that she was pregnant, and was not late for a menstrual period.

There was a multitude of testimony regarding the amount of radiation,

as well as the effects the radiation, on Brown’s fetus. Because we have found that the

jury did not err in finding that Dr. Stickley did not breach the standard of care, we

need not address these issues.

JNOV

Finally, Brown centers her appeal on the ordering of the various tests

alleging that they were medically unnecessary, which she claims Dr. Stickley

admitted. However, and as noted by the trial court in reasons for denying the JNOV,

the

issue of whether or not Dr. Stickley deviated from the standard of care
by ordering tests that were not medically indicated was not . . . properly
before the jury. The issue for the jury to decide was whether he should
have given her a pregnancy test before ordering tests that exposed the
fetus to radiation.

We agree. In Love v. Lewis, 00-06, pp. 4-5 (La.App. 3 Cir. 10/12/00), 771 So.2d 220

222, writ denied, 00-3506 (La. 2/16/01), 786 So.2d 102, we stated:

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La.Code Civ.P. art. 1811 provides the basis for filing a Motion for
JNOV. However, Article 1811 does not set forth any specific grounds
on which a trial court may set aside a verdict. Therefore, we rely on the
well-settled jurisprudence that a JNOV may only be granted when the
evidence points so strongly and overwhelmingly in favor of the moving
party that reasonable people could not arrive at a contrary verdict on the
facts at issue. Peterson v. Gibraltar Sav. & Loan, 98-1601(La.5/18/99);
733 So.2d 1198. Additionally, "[t]he trial court may not weigh the
evidence, pass on the credibility of witnesses, or substitute the
reasonable inferences of the facts for those of the jury." McBride v. H.
Brown Machine Shop, 98-1271, p. 3 (La.App. 3 Cir. 3/31/99); 732 So.2d
650, 652, writ denied, 99-1288 (La.7/2/99); 747 So.2d 20, quoting Webb
v. Goodley, 512 So.2d 527, 530 (La.App. 3 Cir.1987). In reviewing the
grant of a JNOV, an appellate court must first determine whether the
trial court erred in granting the JNOV. The appellate court does this by
applying the same criteria as the trial court. Anderson v. New Orleans
Public Service, Inc., 583 So.2d 829 (La.1991). If reasonable people
could have arrived at the same verdict, given the evidence presented to
the jury, then the JNOV is improper. Id.

We find no error in the trial court’s refusal to grant the motion for JNOV.

Furthermore, even if we considered Brown’s argument, that the tests were

unnecessary, we still conclude that reasonable people could find that Dr. Stickley did

not breach the standard of care. Despite Brown’s allegations, the testimony reveals

that Dr. Stickley ordered the various tests to rule out possible problems. It was only

in hindsight that he determined that they were “medically unnecessary” as Brown did

not have the problems he was suspicious of. Accordingly, this assignment of error

is without merit.

CONCLUSION

The judgment in favor of the defendant-appellee, Dr. R. Foster Stickley,

is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Susan

Brown.

AFFIRMED.

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