David Bradley Ardoin v. Dr. Douglas McKay

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-0171

DAVID BRADLEY ARDOIN, ET UX.

VERSUS

DR. DOUGLAS MCKAY

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT,
PARISH OF EVANGELINE, NO. 64511-A,
HONORABLE JOHN NAVARRE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Chief Judge Ulysses Gene Thibodeaux and Judges Jimmie C.
Peters and J. David Painter.

AFFIRMED.
Jay Pucheu
Attorney at Law
Post Office Box 310
Marksville, LA 71351
(318) 253-5080
COUNSEL FOR PLAINTIFFS/APPELLANTS:
David Bradley Ardoin and Elizabeth Ardoin

Marc W. Judice
Judice & Adley
Post Office Drawer 51769
Lafayette, LA 70505
(337) 235-2405
COUNSEL FOR DEFENDANT/APPELLEE:
Dr. Douglas McKay

PETERS, J.

The plaintiffs in this medical malpractice case, David Bradley Ardoin and his

wife, Elizabeth Ardoin, appeal a jury verdict rejecting their claim against the

defendant, Dr. Douglas McKay. For the following reasons, we affirm the trial court

judgment in all respects.

DISCUSSION OF THE RECORD

This litigation arises from a September 23, 1997 surgical procedure performed

on Mr. Ardoin by Dr. McKay at the Savoy Medical Center in Mamou, Evangeline

Parish, Louisiana. However, Mr. Ardoin’s extensive medical history with Dr. McKay

actually began in 1989 when the doctor, an orthopedic surgeon, performed a

laminectomy and discectomy for a bulging disc at L5-S1. This initial surgical

procedure proved successful, and Mr. Ardoin returned to work.

For the next four years, Mr. Ardoin saw Dr. McKay occasionally for pain in his

legs or back. However, Mr. Ardoin’s involvement in a 1993 oilfield accident caused

him to return to Dr. McKay with complaints of more severe pain in his neck and

lower back. Over the period of the next three years, Dr. McKay treated Mr. Ardoin

for his complaints and referred him to a number of other medical specialists in an

effort to pinpoint the cause of his pain and symptoms. The other medical specialists

included Dr. Robert Rivet, a neurosurgeon; Dr. Steven Snatic, a neurologist; Dr.

Robert Franklin, a physiatrist; Dr. John Humphries, an orthopedic surgeon; Dr. James

Domingue, a neurologist; and Dr. Thomas Bertuccini, a neurosurgeon. Although Mr.

Ardoin related complaints of severe and constant pain in the neck and low back, these

physicians were unable to find the source of his complaints. MRIs, bone scans, an

EMG, a nerve conduction study, and a myleogram were all negative for isolating the

cause of his constant pain. In fact, only Dr. Bertuccini would hazard a

recommendation for follow-up treatment. Based on the longevity of the symptoms,

he recommended that Mr. Ardoin undergo a lumbar discectomy.

Despite this inability to isolate the cause of Mr. Ardoin’s symptoms, Dr.

McKay believed Mr. Ardoin to be totally disabled and continued to search for a

medical reason for, and a solution to, his complaints. Agreeing with Dr. Bertuccini’s

recommendation as to the next logical step, Dr. McKay concluded that Mr. Ardoin

would be a good candidate for a new procedure with which he had been

experimenting that entailed using a device of his own invention which had proven

successful in its limited use. The device was a pie-shaped titanium steel “wedge,”

which, when surgically placed between the vertebrae of a patient, helped decompress

the intervertebral space and allow it to expand to its normal size. The wedge

contained “teeth” on the surface to help keep it in place once inserted.1

On three different occasions during the summer of 1997, Dr. McKay discussed

with Mr. Ardoin and his wife the prospect of performing a fusion to stabilize the

spine and inserting a wedge or wedges at the L4-5 level. Mr. Ardoin opted for the

procedure, which was performed on September 23, 1997. According to Dr. McKay,

throughout the surgery he was able to see directly into Mr. Ardoin’s back, observe the

exposed nerve, and insert the wedges exactly where they should be placed. The

doctor believed the surgery to be a success although an intra-operative fluoroscopy

film revealed that one of the wedges was protruding two millimeters into the spinal

canal.

1
The device Dr. McKay had designed and was using was not yet approved by the FDA, but,
subsequent to September 23, 1997, the date of the surgery involved in this case, Johnson & Johnson
obtained the licensing right for the device (differing only in respect to the material used to form it),
and it became FDA approved.

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For the next fourteen months, Dr. McKay followed Mr. Ardoin’s progress and

thought his patient was progressing. However, because of continued complaints from

the patient, Dr. McKay referred him to Dr. John D. Jackson, a Metairie, Louisiana

neurosurgeon, for a second opinion.

Dr. Jackson first saw Mr. Ardoin on December 3, 1998. According to Dr.

Jackson, Mr. Ardoin informed him that, immediately after Dr. McKay’s surgery, he

knew his back was not corrected and that his pain was still present. Mr. Ardoin’s

initial complaint to Dr. Jackson was that of pain extending from his neck and upper

extremities through his low back and lower extremities. Dr. Jackson reviewed x-rays

of the lower back taken in December of 1997 and interpreted these to reflect a

projection of the wedges posteriorly into the spinal canal at the L4-5 level. Dr.

Jackson’s own x-ray revealed a six millimeter protrusion of a wedge into the spinal

canal.

Dr. Jackson initially informed Mr. Ardoin that he believed the lower back pain

was caused by the protruding wedge. However, when he reviewed the results of a

post-operative normal EMG study, Dr. Jackson decided to initially treat Mr. Ardoin’s

complaints conservatively.

Dr. Jackson’s continued conservative treatment for the next year and one-half

resulted in no improvement in Mr. Ardoin’s symptoms. On May 31, 2000, Dr.

Jackson performed surgery on Mr. Ardoin wherein he removed the protruding wedge

from the disc space at L4-5 and decompressed the nerve roots by replacing the wedge

with another type of spacer. Mr. Ardoin’s pain was not resolved by this subsequent

surgery.

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On August 17, 2000, the Ardoins filed a request for review of their malpractice

claim by a medical review panel as provided for in La.R.S. 40:1299.47. In their

claim, they asserted that Dr. McKay had committed medical malpractice by

improperly placing the wedges during the surgical procedure of September 23, 1997,

and by not informing them of the possibility of migration of the wedges. After

reviewing the evidence presented, the medical review panel found no medical

malpractice on the part of Dr. McKay. Specifically, it found that the condition

corrected by Dr. Jackson’s surgery resulted from migration of the wedges, and not

improper placement; that the Ardoins were properly informed of the procedure and

the possible complication of migration; that the use of the non-FDA approved wedges

was not a breach of the standard of care required of Dr. McKay; and that the doctor’s

post-operative decision to wait and see if the complaints of pain would resolve

themselves was an acceptable course of action and one similarly followed by Dr.

Jackson. The medical review panel was comprised of three Lafayette, Louisiana

orthopedic surgeons—Dr. John E. Cobb, Dr. David Muldowny, and Dr. John R.

Budden. All three of the physicians testified at trial as witnesses for Dr. McKay.

After the medical review panel’s decision, the Ardoins filed the instant medical

malpractice suit against Dr. McKay. In this suit, they again asserted that Dr. McKay

failed to obtain informed consent for the procedure and that he improperly placed the

wedges during the surgical procedure. After a jury rejected their claims, the Ardoins

perfected this appeal.

APPLICABLE STANDARD OF REVIEW

As a preliminary matter, we must consider and respond to the Ardoins’

contention, ranked in their appellate brief as their “principle argument,” that the

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appeal should be reviewed de novo. This contention is based on the interpretation of

the jury verdict as being manifestly wrong and so contradictory that it should be

ignored.

The verdict form provided to the jury was proposed by the Ardoins and was

still labeled as “PLAINTIFF’S PROPOSED JURY VERDICT FORM” when it

was returned to the trial court after the jury reached its verdict. The relevant part of

this verdict form appears as follows:

1. Did plaintiff establish by a preponderance of evidence the standard
of care applicable to Dr. McKay? Yes No T

2. Did Dr. McKay breach the standard of care? Yes No T

(If “Yes”, continue to No. 3. If “No”, report your verdict.)

In compliance with the instruction following the second interrogatory, the jury

returned its verdict without answering the remaining interrogatories. The verdict was

unanimous.

The questions raised by the jury verdict are the focus of both of the Ardoins’

assignments of error. In those assignments of error, they assert:

(1) The jury committed manifest error in finding that the
plaintiffs failed to prove the standard of care where the
panel members, a treating neurosurgeon and the defendant
himself agreed on the standard of care in the testimony
presented.

(2) The jury committed manifest error in answering the second
Jury interrogatory when its answer to the first precluded an
answer.

Basically, they argue that we should find manifest error in the responses to both

interrogatories, perform a de novo review of the record, find that Dr. McKay breached

the standard of care applicable to him, and award them damages for that breach.

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In making this argument, they rely on the principle of appellate review as stated

in Oubre v. Eslaih, 03-1133 (La. 2/6/04), 869 So.2d 71. In that case, the supreme

court stated that, “if a court finds that the trial court committed a reversible error of

law or manifest error of fact, the court of appeal must ascertain the facts de novo from

the record and render a judgment on the merits.” Id. at 76. The Ardoins argue that

they established the standard of care through the testimony of at least five doctors,

including Dr. McKay himself. That being the case, the Ardoins assert that the jury’s

answer to the first interrogatory was manifestly erroneous and that we should ignore

the response to the second interrogatory because, assuming the jury believed that no

standard of care had been established, it should not have answered the second

interrogatory.

We agree that the standard of care on both the question of informed consent

and the placing of the wedges was well established by the trial record. However,

there are a number of reasonable explanations for the jury’s responses to the

interrogatories. One is that the jury did not appreciate the precise meaning of the first

interrogatory. That is to say, the jury could well have thought that the two

interrogatories were asking essentially the same question. Another is that the jury

believed the standard of care was established, but by Dr. McKay, and not by the

Ardoins.

A third and more likely explanation for the apparent inconsistency is that the

parenthetical instruction following the second interrogatory, (If “Yes”, continue to

No. 3. If “No” report your verdict.), was itself confusing. A negative answer to the

first interrogatory essentially terminated the litigation and eliminated the need to

answer the second interrogatory. However, because it contained no parenthetical

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instruction similar to that following the second interrogatory, the jury could have

construed the instruction as applying to both interrogatories and could have

concluded that a verdict for the doctor required it to answer “No” to both

interrogatories.2

In any event, whatever the jury’s confusion may have been as to the first

interrogatory, there can be no doubt it understood the second. This interrogatory

asked for the jury’s verdict on the heart of the case—whether Dr. McKay breached

the standard of care applicable to his treatment of Mr. Ardoin. The jury’s answer to

that question and its compliance with the parenthetical instruction following that

interrogatory leave no doubt concerning the jury’s belief on this issue.

Misleading or confusing interrogatories may constitute reversible error, but the

manifest error standard of appellate review still applies except where the jury

interrogatories are so inadequate or incorrect as to preclude the jury from reaching a

verdict based on the law and the facts. Doyle v. Picadilly Cafeterias, 576 So.2d 1143

(La.App. 3 Cir. 1991). We do not find that the exception applies in this case. Thus,

we reject the Ardoins’ argument that we should review the verdict de novo.

Having concluded that the standard of care applicable to Dr. McKay was

established, we turn to the issue of whether the jury committed manifest error in

concluding that Dr. McKay did not breach that standard of care. In addressing this

issue, we note that the Ardoins’ assignments of error relate solely to the answers to

the interrogatories and their request for a de novo review. In doing so, they do not

particularly specify, as an alternate assignment of error, manifest error on the merits

2
Neither the jury charges nor the closing arguments directed the jury’s attention to the
interrogatories specifically. The closest that anyone came to guiding the jurors in their consideration
of the specific interrogatories was when one of the attorneys told them to “follow the instructions
on the sheet.”

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of the jury’s findings on the standard of care issue. Under Uniform Rules—Courts

of Appeal, Rule 1-3, this court “will review only issues which were submitted to the

trial court and which are contained in specifications or assignments of error, unless

the interest of justice clearly requires otherwise.” Thus, the question arises whether

a review based on manifest error is properly before this court. We have answered that

question in the affirmative for several reasons.

One reason is that nowhere in his appellate brief does Dr. McKay take the

position that, if we reject the request for a de novo review, that action would terminate

the litigation. Instead, he treats the appeal in his brief as addressing manifest error

and responds accordingly. Additionally, we are mindful of the supreme court’s

decision in Nicholas v. Allstate Insurance Co., 99-2522, (La. 8/31/00), 765 So.2d

1017, where the supreme court concluded that the appellate court should have

addressed a particular issue in that litigation even though it had not been assigned as

error. In reaching that conclusion, the supreme court cited La.Code Civ.P. art. 2129,

which provides that an assignment of error is not necessary in any appeal, and

La.Code Civ.P. art. 2164, which provides that an appellate court “shall render any

judgment which is just, legal, and proper upon the record on appeal.” The Nicholas

court also emphasized that Uniform Rules—Courts of Appeal, Rule 1-3, was

applicable “unless the interest of justice clearly requires otherwise.”

Liberally construing the Ardoins’ argument in brief, we can glean from it that

they are also challenging the verdict from the standpoint of manifest error as to its

findings on the merits that there was no breach of the standard of care. Therefore,

we will now address that issue.

OPINION

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Louisiana Revised Statutes 9:2794 sets forth the burden of proof required in

a medical malpractice case and provides in pertinent part:

A. In a malpractice action based on the negligence of a physician
licensed under R.S. 37:1261 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.

Our review of the factual findings of the jury must be conducted in accordance

with the familiar precept announced by our supreme court that, “[i]f the trial court or

jury’s 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.” Sistler v. Liberty Mut. Ins.

Co., 558 So.2d 1106, 1112 (La.1990). Also, “[w]here there are two permissible views

of the evidence, the factfinder’s choice between them cannot be manifestly erroneous

or clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

“[E]xpert witnesses who are members of the medical profession are necessary

sources of proof in medical malpractice actions to determine whether the defendant

doctor possessed the requisite degree of skill and knowledge, or failed to exercise

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reasonable care and diligence.” Martin v. E. Jefferson Gen. Hosp., 582 So.2d 1272,

1277 (La.1991). “The determination of an expert’s credibility is also a factual

question subject to the manifestly erroneous/clearly wrong standard of review.” Id.

Informed Consent Issue

With regard to the question of informed consent, La.R.S. 40:1299.40(A)(1)

provides:

Notwithstanding any other law to the contrary, written consent to
medical treatment means a handwritten consent to any medical or
surgical procedure or course of procedures which: sets forth in general
terms the nature and purpose of the procedure or procedures, together
with the known risks, if any, of death, brain damage, quadriplegia,
paraplegia, the loss or loss of function of any organ or limb, of
disfiguring scars associated with such procedure or procedures;
acknowledges that such disclosure of information has been made and
that all questions asked about the procedure or procedures have been
answered in a satisfactory manner; and is signed by the patient for whom
the procedure is to be performed, or if the patient for any reason lacks
legal capacity to consent by a person who has legal authority to consent
on behalf of such patient in such circumstances. Such consent shall be
presumed to be valid and effective, in the absence of proof that
execution of the consent was induced by misrepresentation of material
facts.

To meet the burden of proof in an informed consent case, a plaintiff must prove

the existence of a material risk unknown to the patient, a failure on the part of the

physician to disclose the risk, that disclosure of the risk would have led a reasonable

person in the plaintiff’s position to reject the procedure or to choose a different course

of treatment, and injury arising from the procedure. Fremin v. Continental Ins. Co.,

02-1157 (La.App. 3 Cir. 3/5/03), 839 So.2d 1137, writs denied, 03-966, 03-979, 03-

981 (La. 6/27/03), 847 So.2d 1271, 1272. With regard to the materiality issue, the

supreme court in Hondroulis v. Schuhmacher, 553 So.2d 398, 412 (La.1989), stated:

The determination of materiality is a two-step process. The first
step is to define the existence and nature of the risk and the likelihood
of its occurrence. “Some” expert testimony is necessary to establish this

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aspect of materiality because only a physician or other qualified expert
is capable of judging what risk exists and the likelihood of occurrence.
The second prong of the materiality test is for the trier of fact to decide
whether the probability of that type harm is a risk which a reasonable
patient would consider in deciding on treatment. The focus is on
whether a reasonable person in the patient’s position probably would
attach significance to the specific risk. This determination of materiality
does not require expert testimony.

In reviewing an informed consent decision, we must not substitute our own factual

findings for that of the trier of fact, and the evidence must be viewed in the light most

favorable to the party who prevailed before the trier of fact. Thibodeaux v. Jurgelsky,

04-2004 (La. 3/11/05), 898 So.2d 299.

The Ardoins argue that Dr. McKay failed to inform them of the existence of

posterior migration of the wedge and that such a possibility was a material risk which

would have lead Mr. Ardoin to reject the procedure and choose another course of

treatment. Put another way, the Ardoins argue that Dr. McKay should have

specifically informed them that posterior migration was a possibility of the procedure

and that it might cause nerve irritation. The evidentiary record is clear that Dr.

McKay did not make the specific disclosure suggested by the Ardoins.

Dr. McKay testified that he met with the Ardoins three times before the surgery

and that at those meetings he used illustrations to explain the procedure, invited

questions, and answered all questions that were asked. Four days before the surgery,

Mr. Ardoin signed four different consent forms authorizing Dr. McKay to perform the

anticipated procedure. One of the forms contained general warnings that the wedge

or wedges “may sink into the bone,” or “may slip,” or “may become loose.” It further

warned that the wedges could cause bleeding, leakage of spinal fluid, allergic

reaction, or infection. Furthermore, it warned that the infection could result in blood

clots, additional surgical intervention, and neurological weakness. However, one of

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the forms contained the statement that, should a wedge slip, it “should slip anteriorly

and not cause any problems,” but made no mention of posterior slippage.

In support of their position, the Ardoins submitted the testimony of Dr. Cobb

and Dr. Budden. Dr. Cobb testified that, when the surgeon places the wedge in the

intervertebral space from the back, or posteriorly, he should expect any migration to

be posteriorly. Thus, he always informs his patient that the chance of migration is

greater posteriorly than anteriorly. Dr. Budden also testified that the risk of posterior

migration into the spinal canal was one which should be related to the patient, but he

did not believe that it was a significant risk.

On the other hand, Dr. Muldowny, whose orthopedic surgical practice

emphasizes spine surgery, testified that the applicable standard of care does not

require a specific warning that the instrumentation might migrate and pinch a nerve.

He felt it would suffice “to make a more general statement that there may be . . . a

problem with the instrumentation that might damage a nerve that might require

additional surgery.”

Obviously, the jury chose to believe Dr. Muldowny, and we find no manifest

error in that conclusion with regard to the issue of informed consent. That is to say,

we cannot say that the jury erred in concluding that a specific disclosure of the risk

of posterior migration, in those terms, would have led a reasonable person in Mr.

Ardoin’s position to reject the procedure or to choose a different course of treatment.

This aspect of the Ardoins’ argument has no merit.

Insertion of Wedges Issue

All of the physicians who testified stated that it would be a breach of the

standard of care required of Dr. McKay if he placed the wedges in such a manner as

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to touch a nerve. Specifically, had the wedges been placed where they protruded six

millimeters into the spinal canal, that would have been a breach of the standard of

care. Additionally, there was general agreement among the physicians who testified

that migration is one of the hazards of the procedure and that the existence of

migration does not indicate a breach of the standard of care.

In their opening statement, the Ardoins informed the jury that they would prove

by a preponderance of the evidence that the wedges were initially placed by Dr.

McKay in a position where they were protruding into the spinal canal and irritating

nerve roots. They further asserted that the wedges continued to irritate the nerve

roots until their removal by Dr. Jackson. It is not disputed that Dr. Jackson removed

the wedges from a position where one was protruding six millimeters from its proper

position and was impinging on a nerve. However, no physician testified that the

wedges were protruding six millimeters when placed by Dr. McKay. Thus, the

question is whether the Ardoins established by a preponderance of the evidence that

Dr. McKay’s initial placement resulted in nerve root irritation, regardless of the

extent of protrusion.

Dr. Stephen Pflug, a radiologist, testified for the Ardoins and is basically the

only physician who testified that the initial placement breached the standard of care.

He testified that, when he examined two x-ray images ordered by Dr. McKay on the

date of the surgery, he observed that the wedge protruded approximately two

millimeters into the spinal canal. However, he acknowledged on cross-examination

that the normal posterior projection of the annulus fibrosis is about two millimeters,

and, therefore, he could not state for a fact that the two millimeter protrusion

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impinged on a nerve. Additionally, Dr. Muldowny testified that the two millimeter

protrusion was not a breach of the appropriate standard of care.

According to Dr. Muldowny, the posterior margin of the spinal canal is not

necessarily the same as the posterior margin of the bone. He suggested that there

could be additional material such as a fibrous cartilaginous implate that sticks beyond

the bone that x-rays would not detect. Thus, the x-rays may provide a false picture

concerning the location of the wedge, even to the extent of showing that it appears

to be placed right on the edge of a nerve root. He testified that the surgeon

performing the procedure can clearly see the nerve root and has a much better view

of the wedge’s specific location in relation to that nerve root. He further noted that

the outside portion of the disc itself, the annulus fibrosis, normally projects into the

canal about two millimeters. In his opinion, Dr. McKay placed the wedges properly

during surgery, and at least one migrated thereafter.

Even Dr. Jackson was of the opinion that Dr. McKay placed the wedges in

proper position and that they migrated thereafter. Although he testified that, at the

time he performed surgery to remove and replace the wedges, one had migrated

backwards into the spinal canal and slightly laterally to the edge of the dura and was

encroaching on the neural foramen, he further stated that “[t]hose things sometimes

move” and that “that’s just one of the complications that can occur.”

Given the medical testimony, we find no error in the jury’s determination that

Dr. McKay did not breach the standard of care in placing the wedges during the

September 23, 1997 surgery.

PRESCRIPTION

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After trial and before appeal, Dr. McKay filed a peremptory exception of

prescription, urging the application of the one-year prescriptive period established in

La.R.S. 9:5628. The jury’s verdict mooted that issue at the trial level, and the trial

court never considered it. Dr. McKay has again urged that exception on appeal.

Because we affirm the jury’s verdict in full, we find it unnecessary to address that

exception.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects. We

tax all costs of this appeal to David Bradley Ardoin and Elizabeth Ardoin.

AFFIRMED.

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