Mr. and Mrs. Wade R. Gibson v. Dr. John A. Digiglia, III

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-1028

WADE GIBSON, ET UX

VERUS

DR. JOHN A. DIGIGLIA, III, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2000-6647
HONORABLE RICK BRYANT, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Jimmie C. Peters, Judges.

AFFIRMED.

Robert L. Hackett
The Hackett Law Firm
3817 Paces Ferry West, S.E.
Atlanta, Georgia 30339-4140
(770) 333-6276
COUNSEL FOR PLAINTIFF/APPELLANT:
Wade Gibson, et ux.

John E. Bergstedt
The Bergstedt Law Firm
One Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70629
(337) 438-2325
COUNSEL FOR DEFENDANT/APPELLEE:
Dr. John A. Digiglia, III, et al.

COOKS, Judge.

STATEMENT OF THE CASE

This is a medical malpractice case. Wade R. Gibson, a professional ice hockey

player, sued Dr. John A. Digiglia, III for damages stemming from the loss of his

central vision and a significant reduction in depth perception in his left eye.1 At the

close of Mr. Gibson’s case, the trial court directed a verdict in favor of Dr. Digiglia.

Mr. Gibson appeals. For the reasons assigned below, we affirm the judgment of the

trial court.

STATEMENT OF THE FACTS

At the time of the accident, Wade R. Gibson was a twenty-four year old

professional ice hockey player with the Lake Charles Ice Pirates. The Ice Pirates are

part of the Western Professional Hockey League. Dr. John A. Digiglia, III is the

medical director for the Ice Pirates and owns a small financial interest in the team.

On the evening of January 20, 1998, the Ice Pirates were playing in an away game in

San Angelo, Texas. During the game, Mr. Gibson was struck on the left side of his

face with a hockey puck. He was immediately taken to a hospital in San Angelo,

Texas and treated by the emergency room physician, Dr. Samuel Kasberg. The

emergency room physician requested a consult with a surgeon and an

ophthalmologist. Dr. Grady Bryan, an oral maxillofacial surgeon, responded to the

call and admitted Mr. Gibson to the hospital for testing and evaluation. A CT scan

of Mr. Gibson’s face confirmed a diagnosis of a left malar fracture and a retinal

hemorrhage. Dr. Bryan testified the following day he spoke to the team physician to

report the extent of the injuries and discuss transferring Mr. Gibson to Lake Charles

1
Mr. Gibson’s claim for workers’ compensation has been on appeal before this court. See
Gibson v. Lake Charles Ice Pirates, 00-1608 (La.App. 3 Cir. 6/6/01), 788 So.2d 720, writ denied,
01-2004 (La. 10/26/01), 799 So.2d 1155.

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for medical treatment.

Dr. Digiglia testified he was called by the hockey coach about 11:00 the night

of the accident and told Mr. Gibson was injured during the game. He understood Mr.

Gibson was taken to a hospital in San Angelo and one of the doctors would call the

next morning to let him know the extent of Mr. Gibson’s injuries. The next morning

Dr. Bryan called and reported Mr. Gibson had sustained a fracture on the left side of

his face and a retinal hemorrhage. Dr. Digiglia testified:

He told me that as far as his fracture was concerned that it was
something that could be fixed now or it could be fixed within seven to
ten days, that some doctor – some surgeon would like to wait until the
swelling goes down before they fix that fracture. I asked him about
were there any other injuries; he said he talked to an ophthalmologist
that was seen there that night, that they spoke in the ER and that he had
some retinal hemorrhage, and I asked him what about his eye and he
said that the ophthalmologist told him that his eye was stable and that if
he wanted to be transferred he could be transferred.

Dr. Bryan testified he spoke to Dr. John Barnes, an ophthalmologist, regarding

Mr. Gibson’s condition:

At the time that I spoke to him, Dr. Barnes had arrived prior to my
arrival. In fact, he was completing his examination at the time that I
showed up, and he basically just gave me a brief overview of what he
had seen on his examination, and indicated that he thought there might
be some injury to the retina but I don’t recall exactly, you know, his
specific words on four years ago; but I remember he said, you know, that
he was a little bit concerned of some possibility of that type of an injury.

The hospital chart reflects the following: “A complete ophthalmologic

examination has been performed by Dr. Barnes and remainder of his physical

examination is unremarkable. Dr. Barnes is to reexamine the patient’s eye in the

morning.” Despite Dr. Bryan’s testimony and the chart notes, Dr. Barnes denies a

complete ophthalmologic examination took place. Dr. Barnes testified he went to the

hospital the day after the accident and found Mr. Gibson had already left for the

airport. Dr. Barnes’s chart notes of January 21st reflect that the patient had been

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discharged prior to his having performed a dilated eye exam. Dr. Barnes testified he

drove to the airport and advised Mr. Gibson to see an ophthalmologist in Lake

Charles. Mr. Gibson confirms that he spoke to Dr. Barnes at the airport. Mr.

Gibson’s transfer was arranged by the Western Professional Hockey League and he

was placed on a commercial flight to Lake Charles the day after the accident. Mr.

Gibson suffered a significant loss of depth perception and central vision in his left eye

which he attributes to a delay in medical treatment coupled with the change in air

pressure on the flight home.

LAW AND DISCUSSION

At the close of Plaintiffs’ case, the trial court granted Dr. Digiglia’s motion for

a directed verdict under La.Code Civ.P. art. 1810. A directed verdict is appropriately

granted in the event that the “facts and inferences are so overwhelming in favor of the

moving party that the court finds that reasonable men could not arrive at a contrary

verdict.” Guste v. Nicholls Coll. Found., 564 So.2d 682, 689 (La.1990). On review,

“an appellate court also considers whether the evidence submitted indicates that

reasonable triers of fact would be unable to reach a different verdict.” McNabb v.

Louisiana Medical Mutual Insurance, 03-0565 (La.App. 3 Cir. 11/5/03), 858 So.2d

808, 816-17. “However, if there is substantial evidence opposed to the motion, that

is, evidence of such a quality and weight that reasonable and fair-minded men

exercising impartial judgment might reach different conclusions, the motion should

be denied, and the case should be submitted to the jury.” Belle Pass Terminal, Inc.

v. Jolin, Inc., 92-1544/1545 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 478, writ

denied, 94-0906 (La. 6/17/94), 638 So.2d 1094. On review, an appellate court

considers the evidence under the substantive law applicable to the nonmoving party’s

claim. Frazier v. Zapata Protein USA, Inc., 02-0605 (La.App. 3 Cir. 12/11/02), 832

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So.2d 1141, writ denied, 03-0145 (La. 3/21/03), 840 So.2d 537, writ denied, 03-0126

(La.3/21/03), 840 So.2d 539.

The substantive law applicable to Mr. Gibson’s claim for medical malpractice

is found in La.R.S. 9:2794(A) which provides, in relevant part:

In a medical malpractice case, the plaintiff has 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 medical
specialty and where the alleged acts of medical negligence raise issues
peculiar to the particular medical specialty involved, then the plaintiff
has the burden or proving the degree of care ordinarily practiced by
physicians, dentists, optometrists, or chiropractic 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 sue 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 occurred.

Plaintiffs assert Dr. Digiglia, as the team physician, fell below the standard of care in

authorizing Mr. Gibson’s transfer to Lake Charles knowing of his retinal hemorrhage.

In response, Dr. Digiglia contends his decision to transfer Mr. Gibson was based on

assurances made by Dr. Bryan that Mr. Gibson was stable and there were no

contraindications for air travel to Lake Charles. Dr. Bryan was the admitting and

discharging physician and the physician in San Angelo primarily responsible for Mr.

Gibson’s care and treatment. Dr. Digiglia asserts he was entitled to rely on the

representations made by Dr. Bryan and Plaintiffs presented no evidence to establish

his actions fell below the standard of care of a team physician.

In support of their claim, Plaintiffs presented the testimony of Dr. David

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Newsome, an ophthalmologist. Dr. Newsome did not testify regarding whether Dr.

Digiglia reliance on the treating physician’s representations fell below the standard

of care. Instead, Dr. Newsome’s testimony focused entirely on the treatment Mr.

Gibson received in San Angelo and the actions of Dr. Bryan in releasing Mr. Gibson

for air travel. Dr. Newsome testified “at a minimum . . . imaging studies and a

thorough eye examination, which could be done right there in the emergency room,

would be helpful in making a decision as to the advisability of moving Mr. Gibson

by air or any other means.” He opined the absence of adequate diagnostic testing and

the delay in the administration of medical treatment, combined with the change in air

pressure, contributed to the loss of central vision and depth perception in the left eye.

Dr. Newsome stated:

In San Angelo, Mr. Gibson never received the necessary standard of
care type evaluation of his eyes, which would include a complete dilated
eye examination to assess the level of injury, to assess whether there was
active bleeding, retinal detachment, and so forth, and he was never given
any kind of appropriate diagnostic testing of the eye. Therefore, he was
transported by air without having the full knowledge of exactly what had
happened to the injured eye. The problem with air transport in this type
of eye injury, where bleeding and swelling can be major causes of
damage to the tissue, is that commercial airliners and others are not
pressurized to sea level, but only to around 5,000 feet or so. Therefore,
there is a reduction in pressure to exacerbate, make a lot worse, bleeding
and swelling in the eye tissues.

Dr. Newsome did not testify regarding whether Dr. Digiglia’s reliance on the

statements made by Dr. Bryan, that the necessary diagnostic tests were performed on

the eye and the treating ophthalmologist had cleared Mr. Gibson for travel to Lake

Charles, fell below the standard of care. 2

Dr. Bryan testified he consulted with Dr. Barnes, an ophthalmologist,

2
We note, as well, Dr. Newsome’s testimony that Mr. Gibson’s eye injury was exacerbated
by air travel was refuted by Dr. Barnes, the ophthalmologist. Although Dr. Barnes denied that he
examined Mr. Gibson, he stated air travel was not contraindicated for a retinal hemorrhage.
Significantly, he stated: “I would not have advised him against air travel” but would “tell him to see
a retinal specialist when he got to Lake Charles.”

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regarding Mr. Gibson’s eye injury. The hospital chart reflects the following: “A

complete ophthalmologic examination has been performed by Dr. Barnes and

remainder of his physical examination is unremarkable. Dr. Barnes is to reexamine

the patient’s eye in the morning.” Testifying regarding the conversation with Dr.

Digiglia, Dr. Bryan stated: “I was given the indication that it was desired for him to

go back to Lake Charles, which they asked me if that was okay by me and I said there

wasn’t any contraindication from my standpoint, and then I did – I did want to make

sure that Dr. Barnes had had an opportunity to see him once again.” Dr. Barnes did

see Mr. Gibson at the airport the next morning and Dr. Bryan assumed “he was

examined later that morning once again prior to dismissal.” The emergency room

physician’s report of January 20 states: “We have consulted with Dr. Barnes and Dr.

Grady Bryan, who are both in to evaluate the patient.” Dr. Digiglia testified he relied

on Dr. Bryan’s assurance that Dr. Barnes had examined Mr. Gibson and had no

problem with the transfer.

I asked him [Dr. Bryan] about were there any other injuries; he
said he talked to an ophthalmologist that was seen there that night, that
they spoke in the ER and that he had some retinal hemorrhage, and I
asked him what about his eye and he said that the ophthalmologist told
him that his eye was stable and that if he wanted to be transferred he
could be transferred.

The Plaintiffs assert Dr. Digiglia had a duty as the team physician to obtain Mr.

Gibson’s test results and medical reports to confirm the accuracy of the medical

information he received from Dr. Bryan before allowing the transfer of Mr. Gibson

by air to Lake Charles. Plaintiffs assert medical clearance to travel should have come

from Dr. Digiglia, the primary care physician, and not from Dr. Bryan, a surgeon.

Further, Plaintiffs assert Dr. Digiglia should have consulted directly with Dr. Barnes,

the ophthalmologist. Plaintiffs argue the team physician has a duty to check on the

competency of other physicians and the accuracy of the information supplied by them.

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They assert Dr. Digiglia fell below the standard of care in relying solely on

information given to him by the treating physicians in San Angelo. However,

Plaintiffs have presented no evidence to establish the standard of care required of a

“team medical director/coordinator” nor have they presented any evidence to support

a claim that Dr. Digiglia’s actions fell below the standard of care for that alleged sub-

specialty of physicians.

Dr. Digiglia testified as the medical director/coordinator for the Ice Pirates, his

responsibilities include performing physicals and treating minor injuries and illnesses.

He was only one of a team of physicians, which included orthopedic surgeons,

ophthalmologists, neurologists and neurosurgeons, who were responsible for the care

of the players. Dr. Digiglia testified he was not going to assume the care for Mr.

Gibson when he arrived in Lake Charles, a fact he made clear to Dr. Bryan: Dr.

Digiglia testified: “He [Dr. Bryan] knew I was a family practice doctor and that I

wouldn’t be taking care of his further injuries. I told him that we would have to get

ophthalmology to look at him, and a facial surgeon to look at him.”

We have reviewed the record under the substantive law and find Plaintiffs

failed to present an expert witness to testify Dr. Digiglia had a duty to confirm the

accuracy of the medical information he received from the treating physicians in San

Angelo or that he fell below the applicable standard of care in relying on the

assurances that Mr. Gibson was able to travel by air. The record does not contain any

other evidence which could lead reasonable, fair-minded jurors to conclude Dr.

Digiglia was negligent in his treatment of Mr. Gibson. Accordingly, we affirm the

decision of the trial court directing a verdict in favor of Dr. Digiglia.

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DECREE

Based on our review of the record, we affirm the judgment of the trial court

directing a verdict in favor of Dr. Digiglia. All costs of this appeal are assessed to

Wade Gibson.

AFFIRMED.

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