Patricia Goodwin v. Dr. Ernesto Kufoy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 07-737

PATRICIA GOODWIN

VERSUS

DR. ERNESTO KUFOY, ET AL.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2006-1066
HONORABLE STUART S. KAY JR., DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and J. David Painter,
Judges.

REVERSED IN PART, AFFIRMED IN PART.

John E. Bergstedt
The Bergstedt Law Firm
P. O. Box 1884
Lake Charles, LA 70602
(337) 436-4600
Counsel for Defendant/Appellee:
Louisiana Medical Mutual Insurance Company
Dr. Ernesto Kufoy

Randall Scott Iles
Attorney at Law
P. O. Box 3385
Lafayette, LA 70502
(337) 234-8800
Counsel for Plaintiff/Appellant:
Patricia Goodwin

SAUNDERS, Judge.

This is a medical malpractice case. An internist failed to successfully start a

central line in order for the patient to receive her prescribed medication intravenously.

During the attempts to start the central line, the internist made an indeterminate

number of puncture wounds at four different sites on the patient’s body.

The patient experienced pain during that night after the failed procedure, but

her pain was managed successfully with medication and she sought no further

treatment related to the unsuccessful procedure. The patient filed suit against the

internist and a medical review panel was formed. The medical review panel’s opinion

was that the patient failed to show that the treating internist had breached the standard

of care. The patient then brought her case to trial in district court.

The trial court found that the patient failed to establish the applicable standard

of care, failed to prove that the internist had breached any standard of care, and failed

to prove that she suffered any damages as a result of the unsuccessful procedure. The

patient appealed alleging two assignments of error.

We reverse the trial court’s finding that the patient failed to establish the

applicable standard of care, reverse the trial court’s finding that the patient failed to

prove that the internist breached that standard of care, and affirm the trial court’s

finding that the patient failed to prove any damages as a result of the unsuccessful

procedure.

FACTS AND PROCEDURAL HISTORY:

Patricia Goodwin (Goodwin) was a patient of Dr. Ernesto Kufoy (the

defendant) since 1999. Goodwin presented to his clinic in early November 2003 with

complaint of cough and congestion. Goodwin was a 57 year old woman, with a

history of asthma, cirrhosis, high blood pressure, psoriasis, hypercholesterolemia,

hyperthyroidism, peptic ulcer disease and supra ventricular complexes.

The defendant treated her with a nebulizer treatment, a dexamethasone

injection, a Rocephin injection, and prescriptions for Albuterol nebulizers and

prednisone. Goodwin returned to the defendant’s office on November 7, 2003, for

continued cough and congestion. That day the defendant admitted Goodwin to

Beauregard Memorial Hospital due to bilateral wheezes and poor air exchange.

The defendant began treating Goodwin via medication administered by a

peripheral IV. Goodwin’s peripheral IV infiltrated at noon on November 8, 2003.

After successfully starting another peripheral IV, Goodwin began to complain that

this new IV was causing her pain. The defendant then received consent from

Goodwin to start a central line in order to ease the pain of her peripheral line and to

complete the required treatment for her symptoms.

The defendant, despite attempts at four different locations with multiple tries

at each location, was unsuccessful in starting a central line. Goodwin experienced

pain, bruising and eventually some minor scarring at the locations where the

defendant attempted to start the central line. Her pain subsided early the next morning

with pain medication and Goodwin did not seek any further medical treatment for

symptoms related to the failed procedure.

Goodwin filed suit against the defendant on April 7, 2004. Her claims were

submitted to a medical review panel. The panel opined that the evidence did not

support the conclusion that the defendant failed to comply with the appropriate

standard of care as charged in the complaint. On November 21, 2005, Goodwin filed

this suit alleging that the defendant breached the standard of care due by failing to

consult with an expert after excessive unsuccessful efforts to start a central line.

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Goodwin alleged that she experienced physical pain and suffering as a result of the

multiple puncture wounds.

After a bench trial on February 6, 2007, the trial court ruled that Goodwin

failed to prove the applicable standard of care, ruled that Goodwin failed to prove that

there was no breach of the standard of care, and ruled that Goodwin experienced no

discomfort and bruising that was unusual or unexpected, even in a successful central

line insertion. Goodwin appealed alleging two assignments of error and also

requested that this court, if we felt the record was complete, review her damages.

We reverse the trial court’s finding that Goodwin failed to establish the

standard of care applicable to the case at bar and also reverse the trial court’s finding

that Goodwin did not prove that the defendant breached that standard of care. We

grant Goodwin’s request for this court to review the damages awarded her by the trial

court. We affirm the trial court’s finding as reasonable that Goodwin did not prove

that she suffered any damages as a result of the defendant’s failed attempts to start a

central line. Each party will bear its own costs of this appeal.

ASSIGNMENTS OF ERROR:

1. Did the trial court err in finding that Patricia Goodwin failed to establish the
standard of care for an internist unsuccessfully attempting to start a central line
between twenty to forty occasions by proving through specialists in internal
medicine and surgery that the standard of care is to obtain a consult if the
procedure cannot be done under non-emergent circumstances after four or five
puncture wounds?

2. Did the trial court err in finding that Patricia Goodwin did not prove a
deviation of the standard of care for an internist when she demonstrated that
an internal medicine specialist under non-emergent circumstances should
consult a specialist if he is incapable of starting a central line after four or five
occasions where the physician unsuccessfully attempted to start a central line
between twenty and forty puncture wounds?

ASSIGNMENT OF ERROR #1:

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Goodwin contends that the trial court erred in finding that she failed to

establish the standard of care for an internist to obtain a consult from a specialist, if

that internist cannot successfully start a central line in non-emergent circumstances

after multiple puncture wounds. We agree.

Whether the plaintiff establishes the standard of care in a medical malpractice

action is subject to the manifestly erroneous, clearly wrong standard of review.

Martin v. East Jefferson General Hosp., 582 So.2d 1272 (La.1991).

Louisiana Revised Statute 9:2794 states, in pertinent part, the following:

A. In a medical malpractice action. . . 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. . . 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. . . with the involved medical specialty.

Therefore, according to La.R.S.9: 2794 (A) a medical malpractice claimant

must establish the defendant’s standard of care by a preponderance of the evidence.

Newsome v. Lake Charles Memorial Hosp., 06-1468 (La.App. 3 Cir. 4/4/07), 954

So.2d 380.

After reviewing the record, we find that there is no reasonable basis for the trial

court’s finding that Goodwin did not establish the applicable standard of care. Dr.

Patrick Griffith, an internist such as the defendant in a similar community or locale,

testified to the following:

Q: Okay. As a general rule, do you know as an internal medicine
specialist what the rule would be how many punctures a physician

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would in a standard of care situation attempt to start a puncture on
the patient, trying to begin a central line before that physician
consult - - should consult a surgeon? Is there a number in your
mind where you think at this point a surgeon should be
consulted? Is there a number in your mind where you think at this
point a surgeon should be consulted?

A: The situation varies. I guess if there’s a surgeon available, I mean,
I guess after six, seven attempts, if a surgeon was available. And
I - - I throw that number out there. I’ve never been able to find - -
I haven’t been able to find any studies that say this x number of -
- I’ve seen a few studies where they say five or six attempts, you
increase your risk of complications.

The trial court interpreted the testimony above to mean that any number stated

by Dr. Griffith was a guess. We disagree. Later in his testimony, Dr. Griffith clearly

iterated that any number of puncture wounds over seven would be below the standard

of care the following exchange took place:

Q: If a doctor, in fact, is attempting to start a central line, and
if unsuccessful after a period of time, whether the number
[of puncture wounds] is eight or 20 or 40, any number like
that, but runs into a situation where he is unsuccessful in
starting that central line, is it not within the standard of
care for an internal medicine specialist at that point to
consult with someone who has the capability and the
specialty such as a surgeon to start that line?

A: Yes.

In its reasons for judgment dictating why it found that Goodwin failed to

establish the standard of care, the trial court gave great weight to the testimony of Dr.

David Brown. The trial court’s reliance on Dr. Brown’s testimony as evidence of

Goodwin failing to establish a standard of care is clearly wrong. First, Dr. Brown is

a surgeon, not an internist. The standard of care that Goodwin need establish sub

judice is not the standard for a surgeon in starting a central line, but the standard for

an internist in starting a central line. Second, the trial court noted that Dr. Brown

testified to having stuck people more than 3 or 4 or 5 times when necessary.

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However, the trial court fails to note that Dr. Brown goes on to testify, “I have stuck

people more than three or four or five times. But given our situation [as a surgeon],

there’s nobody else to try. . . I’m the end of the chain. . .” (Emphasis added.) In

weighing Dr. Brown’s testimony, it is clear that the trial court fails to fully consider

the ramifications that Dr. Brown is a surgeon, rather than an internist.

According to the testimony of Dr. Griffith, a surgeon is one such speciality

whom an internist should consult if that internist fails to start a central line after more

than six or seven puncture wounds. Here, we have Dr. Griffith clearly stating the

standard of care an internist owes to a patient under similar circumstances, and we

have the defendant failing to put forth any evidence to contradict that standard given

by Dr. Griffith. As such, there is no reasonable basis for the finding that Goodwin

failed to establish the applicable standard of care. Accordingly, we reverse the trial

court’s ruling that Goodwin failed to establish the standard of care applicable to the

case before us.

ASSIGNMENT OF ERROR #2:

In her second assignment of error Goodwin argues that the trial court erred in

finding that she did not prove that the defendant deviated from the standard of care

for the number of puncture wounds an internist should make while attempting to start

a central line before he consults with a specialist. We concur.

Our Louisiana Supreme Court, in Martin v. East Jefferson General Hosp., 582

So.2d 1272, 1276 (La.1991), stated the following:

In a medical malpractice action against a physician, the plaintiff carries
a two-fold burden of proof. The plaintiff must first establish by a
preponderance of the evidence that the doctor's treatment fell below the
ordinary standard of care expected of physicians in his medical
specialty, and must then establish a causal relationship between the
alleged negligent treatment and the injury sustained. Resolution of these

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inquires are determinations of fact which should not be reversed on
appeal absent manifest error. (Citations omitted.)

In the case before us, the defendant points out that no physician testified that

he breached the standard of care and that the medical review panel found that the

evidence does not support the conclusion that the defendant failed to comply with the

appropriate standard of care as charged by Goodwin. These two points are accurate;

however, Dr. Griffith, both a physician and a member of the medical review panel,

testified that after seven puncture wounds result in a still unsuccessful attempt to start

a central line, an internist should consult a specialist, such as a surgeon. Here, the

defendant did not consult any specialist despite evidence that his attempts to start a

central line on Goodwin resulted in more than seven puncture wounds.

The trial court, in its reasons for judgment, notes that it cannot determine the

exact number of puncture wounds that were made in attempting to start the central

line, therefore, it cannot say that the defendant’s conduct fell below the standard of

care. While it is true that an exact number of puncture wounds cannot be determined

from the record, it is clear that the defendant’s attempt to start the central line resulted

in over seven puncture wounds.

Joan George, a registered nurse who was the charge nurse working on the date

of the incident, testified that she saw Goodwin after the defendant attempted to start

the central line. In her testimony, George stated that she counted greater than eight

puncture wounds on Goodwin’s left side, but did not finish counting because it

seemed to distress the patient.

While George does not testify to an exact number, her testimony gives, at

minimum, a number over the standard established by Dr. Griffith’s testimony.

Moreover, it is not disputed that the defendant attempted to start a central line

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bilaterally, thus, given that George only counted the number of puncture wounds on

Goodwin’s left side, it is clear that George’s testimony, indicates that the defendant

breached the standard of care in this case.

Other evidence that tends to prove the defendant breached the standard of care

was the testimony of Richanna Leonard and Jessica Ashworth, both LPN’ s working

at the hospital and both of whom saw Goodwin on the date of the incident. Leonard

testified that she, didn’t count, but, “I know she had at least 16 puncture wounds.”

Ashworth testified that Goodwin had at least 15 puncture wounds that she counted,

but she stopped at 15and did not finish counting.

There is no number of puncture wounds noted in any of Goodwin’s medical

records. The only other evidence in the record alluding to the number of puncture

wounds made by the defendant was his testimony. In his testimony, the defendant

stated that he had no recollection of the number of puncture wounds he made in

attempting to start the central line, but that he would never do 20 or 40 or 50.

In summation, the only evidence in the record of the number of puncture

wounds that the defendant made to start a central line on Goodwin is that of nurses

George (greater than 8 on half of Goodwin’s body), Leonard (at least 16) and

Ashworth (at least 15), and the proclamation by the defendant that he would never do

20. As such, the only conclusion that a reasonable trier of fact could make from the

evidence presented was that the defendant made, at minimum, over seven puncture

wounds on Goodwin. Given that the standard of care established by Dr. Griffith’s

testimony was an internist should not make over seven puncture wounds on a patient

without consulting a specialist, we can only conclude that the trial court’s

determination that the defendant did not breach the standard of care he owed to

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Goodwin was manifestly erroneous.

DAMAGES:

Goodwin asked in brief for this court to assess damages if it feels that the

record is complete for that purpose. Given that Goodwin testified that she

experienced no further pain after 4AM the day after the incident and Goodwin had

no medical follow-up for symptoms stemming from the failed procedure, we find that

the record is complete in this regard and will address the damages awarded in this

case.

As was the case in the first two assignments of error, the standard of review is

that of manifest error. The trial court found that the discomfort and bruising

experienced by Goodwin from the procedure were not unusual or unexpected, even

in successful central line insertions.

We cannot say that this finding is unreasonable. Goodwin signed a form saying

that hemorrhaging and scarring are known risks to this procedure, even if it is

successful. Dr. Brown testified that scarring is possible any time that a physician

attempts to access any patient’s blood vessels. Dr. Griffith testified that Goodwin

experienced no bruising or pain that was not unusual for a patient that undergoes a

successful insertion of a central line. The defendant testified that Good win did not

experience any unexpected pain and that the pain and bruising she experienced were

normal.

From this evidence in the record, a reasonable person could find that Goodwin

experienced no more bruising, pain, or scarring than she would have otherwise

endured even with a successful insertion of a central line. Accordingly, we affirm the

trial court’s finding that Goodwin experienced no damages as a result of the puncture

wounds she suffered from the failed attempts to start a central line.

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CONCLUSION:

Goodwin raised two assignments of error and, in brief, requested that this

court, if we felt the record was complete, review her damages. We reverse the trial

court’s finding that Goodwin failed to establish the standard of care applicable to the

case at bar and also reverse the trial court’s finding that Goodwin did not prove that

the defendant breached that standard of care. We grant Goodwin’s request for this

court to review the damages awarded her by the trial court. We affirm the trial court’s

finding that Goodwin did not prove that she suffered any damages as a result of the

defendant’s failed attempts to start a central line. Each party will bear its own costs

of this appeal.

REVERSED IN PART, AFFIRMED IN PART.

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