James Pickering v. Dr. Dalmacia Paraguya

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1581

JAMES PICKERING, ET AL.

VERSUS

DR. DALMACIA PARAGUYA, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 99-3668
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders,
Jimmie C. Peters, Marc T. Amy, and J. David Painter, Judges.

AMY, J., DISSENTS AND ASSIGNS WRITTEN REASONS.

REVERSED AND RENDERED.

James R. Shelton
Durio, McGoffin, Stagg & Ackermann
Post Office Box 51308
Lafayette, LA 70505-1308
Telephone: (337) 233-0300
COUNSEL FOR DEFENDANTS/APPELLEES:
St. Paul Fire & Marine Insurance Company and Dr. Dalmacia
Paraguya

Edmund M. Thomas
6104 Line Avenue - Suite 4
Shreveport, LA 71106
Telephone: (318) 219-9888
COUNSEL FOR PLAINTIFFS/APPELLANTS:
James Pickering, et al.

Todd A. Townsley
The Townsley Law Firm
3102 Enterprise Boulevard
Lake Charles, LA 70601
Telephone: (337) 478-1400
COUNSEL FOR PLAINTIFFS/APPELLANTS:
James Pickering, et al.

THIBODEAUX, Chief Judge.

Sherry Breaux, the daughter who represents the deceased plaintiff-

appellant, James Pickering, asserts that the trial court erred by giving a wrong jury

instruction regarding the applicable standard of care in this medical malpractice suit

against an endocrinologist, Dr. Dalmacio Paraguya, and his insurer, St. Paul Fire &

Marine Insurance Company. After a trial, the jury found that Dr. Paraguya did not

breach the standard of care he owed to Mr. Pickering. We disagree. We reverse and

set aside the trial court’s judgment because we find that the jury charge was erroneous

and impacted the jury’s decision. After a de novo review of the record, we conclude

that Dr. Paraguya committed medical malpractice which resulted in Pickering’s loss

of a leg, and we enter a judgment in favor of Ms. Breaux for Mr. Pickering’s medical

expenses, $500,000.00 for Mr. Pickering’s loss of his leg, and legal interest.

I.

ISSUES

We shall consider whether in this medical malpractice suit against a

specialist, the trial court gave an erroneous instruction to the jury that contributed to

the jury’s verdict, where: 1) the trial court, after the jury’s request for clarification

on the question of the applicable standard of care, directed the jury to apply the

standard of care physicians exercise in this locale; 2) the defendant, who was the

plaintiff’s treating physician, testified as an expert, and the trial court instructed the

jury to accord more weight to the testimony of the treating physician; and, 3) the

defendant had only Louisiana experts, while all of the plaintiff’s experts were from

out-of-state.

After finding that the trial court committed a legal error that warrants a

de novo review of the record, we shall consider whether the specialist committed

medical malpractice in treating Mr. Pickering for diabetic foot ulcers, who lost his leg

because of a gangrenous infection. If so, we shall determine Mr. Pickering’s

damages, where he was under fifty years of age, underwent several operations, and

endured severe physical and emotional pain.

II.

FACTS

Mr. Pickering entered Moss Regional Hospital in March of 1996 because

of an ulcer on the bottom of his right foot. When he later left the hospital, he began

treatment of his foot ulcer and his underlying diabetic condition with Dr. Paraguya,

a board certified endocrinologist. According to Dr. Paraguya, he instructed Mr.

Pickering to stay off of his feet, except to go to the restroom or to eat, to follow a

strict diet, to take his medications, and to come to all doctor appointments. Mr.

Pickering’s son testified that Mr. Pickering complied with these instructions.

Based on Dr. Paraguya’s records, Mr. Pickering’s pressure ulcer was

improving over the course of several visits to his office. Paradoxically, Dr. Paraguya

scheduled a surgical debridement of the ulcerous area. Dr. Paraguya did not prescribe

any mechanical device to off-load the pressure from the ulcer.

By his July 18, 1996 appointment, Mr. Pickering developed a second

ulcer in the heel area on his right foot. The original ulcer, based on Dr. Paraguya’s

records, was improving. Dr. Paraguya prescribed an ointment for both wounds, did

not order surgical debridement, and asked Mr. Pickering to return six weeks later, on

August 29, 1996.

When Mr. Pickering returned on August 29th, he reported nausea,

vomiting, and fever. Dr. Paraguya’s records from the visit indicated that the original

ulcer continued to improve, but the ulcer on the heel remained unchanged. Dr.

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Paraguya ordered the continued use of the antibiotic ointment and prescribed

medication for the nausea.

While Dr. Paraguya reported no changes in the heel ulcer, Mr.

Pickering’s son testified that, by the time of the August 29th visit, the heel ulcer had

increased in size and was a “pusy, mucusy sore.” The son also reported an odor from

the foot.

Eight days later, Mr. Pickering was admitted to Moss Regional Hospital

for the treatment of a gangrenous right foot. Dr. Walter Ledet surgically debrided the

heel ulcer on September 8, 1996. His operative report described the gangrenous

infection all the way down the bony structures of the mid arch of the foot, continuing

all the way around the ankle. Dr. Shakil Sandozi, who amputated Mr. Pickering’s leg

on September 10, 1996, testified that Mr. Pickering’s wound had been infected for

weeks.

Mr. Pickering had to undergo several surgeries and endured severe

physical pain. After the amputation, Mr. Pickering’s quality of life severely declined,

and he became very depressed, immobile, and struggled with phantom pain. Because

he had difficulties with using a prosthetic limb, he was confined to a wheelchair, and

his depression caused him to seclude himself in his house. Mr. Pickering gradually

deteriorated until his death in 2001.

Mr. Pickering’s daughter, Ms. Breaux, was substituted as the plaintiff

in Mr. Pickering’s medical malpractice suit against Dr. Paraguya. At trial, none of

the expert witnesses Ms. Breaux called to testify as to the standard of care applicable

in this case was from Louisiana. Dr. Paraguya and another doctor from Lafayette,

Louisiana, Dr. Maurice Sullivan, testified as experts for the defense. Before Ms.

Breaux’s witnesses testified, the trial court charged the jury that it could give

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whatever weight it wanted to the expert’s testimony, based on the witness’ training

and expertise. Yet, when it was Dr. Paraguya’s turn to testify, the trial court directed

the jury to give more weight to Dr. Paraguya’s testimony because he was Mr.

Pickering’s treating physician.

Ms. Breaux’s experts testified, relying on endocrinology textbooks, that

the national standard of care applicable to endocrinologists included, at the very least,

off-loading from the wound, proper debridement of the dead tissue, and close follow-

up and monitoring of the wound. Thus, according to Ms. Breaux’s experts, Dr.

Paraguya breached this standard of care when: 1) he did not prescribe a device—a

wheelchair, a cast, or crutches—that would off-load the pressure from the ulcer; the

heel ulcer was probably the result of this failure; 2) he did not surgically debride the

dead tissue and prescribed ointment instead; this, in turn, prevented an accurate

assessment of the true condition of the heel ulcer; and, 3) he failed to closely monitor

the ulcers by allowing six weeks to elapse between the date of the discovery of the

second ulcer on July 18, and the next visit on August 29.

The defense submitted its own exhibits that specified the same basic

principles on the standard of care, i.e., the need for off-loading, debridement, and

close monitoring. Dr. Paraguya along with Dr. Sullivan, who was not an

endocrinologist but an internal medicine specialist who failed his internal medicine

board exam three times, testified as experts for the defense. They stated that even as

of 1999 there were no widely-accepted guidelines for treatment of diabetic foot

ulcers. The above principles, according to the defense, were simply suggestions at

the time Dr. Paraguya treated Mr. Pickering. Thus, the doctor prescribed the care he

found appropriate, based on the condition of the ulcers.

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The defense also submitted into evidence the opinion of the Medical

Review Board (MRB). The MRB relied on Dr. Paraguya’s notes of the unchanged

appearance of the heel ulcer on August 29. The MRB concluded that Mr. Pickering

was not septic as of that date, and, therefore, Dr. Paraguya did not breach the standard

of care.

At the end of the trial, the trial court explained that Ms. Breaux was

required to establish by a preponderance of the evidence “that degree of knowledge

or skill possessed or the degree of care ordinarily exercised by physicians practicing

in the same medical specialty as that in which the defendant practices.” During

deliberations, the jury requested further explanation of Question #1 on the Verdict

Sheet—whether Ms. Breaux proved the applicable standard of care. The trial court

gave a supplemental instruction, the pertinent portion of which was as follows:

Question number 1 is a question that is drawn from our
own Revised Statute 9:2714 which is the statute governing
malpractice in this case. And it reads as follows: . . . “The
plaintiff must prove the degree of knowledge and skill
possessed or degree of care ordinarily exercised by
physicians licensed to practice in the State of Louisiana
and actively practicing in similar community or locale and
under similar circumstances, and whether defendant
practices in a particular specialty and whether last act of
medical negligence raised issues peculiar to the medical
specialty involved. Then the plaintiff has the burden of
proving the degree of care ordinarily practiced by a
physician who treats diabetic foot ulcers within the
involved medical specialty.”

And basically, you have to rely on the testimony of
the many expert doctors that testified on both sides. You
can look at other evidence in the record and you can
consider what the lawyers argued to you even though it’s
not evidence to assist you in trying to determine whether or
not the plaintiffs have proved that there is a standard of
care for treating ulcers, diabetic foot ulcers in this locale
and what that standard is.

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After deliberations, the jury answered “Yes” to: “Do you find, by a

preponderance of the evidence, that the plaintiffs proved the applicable standard of

care owed by Dr. Dalmacio Paraguya to James Pickering.” The jury responded “No”

to: “Do you find, by a preponderance of the evidence, that Dr. Dalmacio Paraguya

deviated from the appropriate standard of care?” This appeal followed.

III.

STANDARD OF REVIEW

The trial court must correctly charge the jury. Adams v. Rhodia, Inc., 07-

2110 (La. 5/21/08), 983 So.2d 798. It is the trial court’s duty that “the jury receives

only the correct law.” Id. at 804 (citations omitted). “[W]hen a jury is erroneously

instructed and the error probably contributed to the verdict, an appellate court must

set aside the verdict.” Id. “[T]he determinative question is whether the jury

instructions misled the jury to the extent that it was prevented from dispensing

justice.” Id. (citations omitted).

The appellate court should conduct a de novo review, giving no weight

to the factual findings of the jury when the “jury charges were so incorrect or so

inadequate as to preclude the jury from reaching a verdict based on the law and

facts.” Id. at 805. Thus, before the appellate court reviews the case de novo, it must

first measure the gravity or degree of error, considering the circumstances of the case

and the instructions as a whole. Adams, 983 So.2d 798.

When the trial court fails to find liability and the appellate court reverses

and renders, the appellate court reviews the record de novo to determine damages.

See Ryan v. Zurich Am. Ins. Co., 07-2312 (La. 7/1/08), 988 So.2d 214.

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IV.

LAW AND DISCUSSION

We first evaluate whether the trial court read an erroneous instruction to

the jury. After concluding that it did, we assess the gravity of the error in light of all

of the circumstances of the case. Because we conclude that the jury charge was so

erroneous as to prevent the jury’s verdict based on the law and facts, we review the

record de novo to determine whether Dr. Paraguya’s actions fell below the standard

of care he owed to his patient, Mr. Pickering. Finally, after finding that Dr. Paraguya

is liable, we conclude that Ms. Breaux is entitled to $500,000.00, Mr. Pickering’s

medical expenses associated with his right leg, and legal interest.

A) JURY INSTRUCTION

1) The Error in the Instruction

Dr. Paraguya concedes that the trial court gave an erroneous

supplemental instruction. His main argument is that the supplemental instruction did

not contribute to the verdict. Thus, Dr. Paraguya maintains, the jury found that there

was a standard of care Dr. Paraguya owed to Mr. Pickering because it answered the

question regarding the standard of care in the affirmative. Dr. Paraguya argues that

the jury found that he simply did not breach the standard of care he owed. We

disagree.

In a malpractice action based on the negligence of a
physician . . . the plaintiff shall have the burden of proving:

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

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burden of proving the degree of care ordinarily practiced
by physicians . . . within the involved medical specialty.

La. R. S. 9:2794(A)(1).

It was a prejudicial error for the trial court to read the above statute to

the jury and insert the physician’s name in the portion before the semicolon, the one

that refers to the local standard of care, where the defendant physician was a

specialist, all of the plaintiff’s experts were from out-of-state, and all of Dr.

Paraguya’s experts were from Louisiana. See Todd v. Sauls, 94-10 (La.App. 3 Cir.

12/21/94), 647 So.2d 1366, writs denied, 95-206, 95-219 (La. 3/24/95), 651 So.2d

289. This court also noted that any argument of the attorney in closing as to which

standard of care should apply—local or national—was futile, when the judge

appropriately stated to the jury that he instructed the jury as to the law and the jury’s

duty was to follow that law. Id.

In this case, the trial court’s error was even more significant than in

Todd. The supplemental instruction here was not simply a pairing of Dr. Paraguya’s

name with the locality standard. As in Todd, the trial court gave competing

instructions on the issue of the standard of care by reading the entirety of La.R.S.

9:2714(A)(1). Then, instead of ordering the jury to apply the standard of care

endocrinologists exercise nationally, the trial court directed the jury to apply the

standard of care physicians exercise in this locale. Moreover, the court read the

incorrect instruction at a significant point—when the jury wanted a further

explanation of the applicable standard of care. Thus, it is even more likely here than

in Todd that the charge misled the jury. We find that the supplemental instruction

was so incorrect that even in light of the original instruction, the charge was an

erroneous statement of the law.

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2) The Error’s Contribution to the Verdict

The second prong of our analysis is whether the error contributed to the

jury’s verdict. Dr. Paraguya argues that because “there was essentially no

disagreement concerning the standard of care that would have applied to Dr.

Paraguya,” the standard of care is not a relevant inquiry on this appeal. Dr. Paraguya

asserts that the jury heard the evidence and did not believe that the doctor breached

the standard of care. Paradoxically, later in his brief to this court, Dr. Paraguya

argues that contrary to the assertions of Ms. Breaux’s witnesses, “there were no

widely-accepted evidence-based guidelines for assessing and treating foot ulcers.”

We fail to see how this could be considered as “essentially no disagreement” as to the

applicable standard of care.

Contrary to Dr. Paraguya’s assertions that the standard of care in this

case is irrelevant because the jury found no breach, whether the jury could have found

a breach depended on which standard of care the jury applied. The standard of care

that requires Dr. Paraguya to prescribe a mechanical device to release the pressure

from the foot, to surgically remove the dead tissue from the wound, and to closely

monitor the ulcer by having appointments once a week, is certainly different from the

standard of care where all of the above procedures are optional.

All of Dr. Paraguya’s witnesses were from Louisiana while all of Ms.

Breaux’s witnesses were from out-of-state. The defense witnesses testified that at the

time of the incident there were no widely-accepted guidelines for treating diabetic

foot ulcers, while the plaintiff’s witnesses testified there were. Under these

circumstances, like in Todd, the trial court’s directive to apply the locality standard

of care further tainted the jury’s fact-finding process by heightening the

differentiation already present by Ms. Breaux’s reliance on the out-of-state witnesses.

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As in Todd, we find that this directive, coupled with the trial judge’s mandate to apply

the law the trial judge read to the jury, in effect, prohibited the jury’s consideration

of Ms. Breaux’s witnesses’ testimony.

Although this court finds sufficient basis in the above analysis for

disregarding the jury’s verdict, we think that the trial court’s direction to accord more

weight to Dr. Paraguya’s testimony because he was Mr. Pickering’s treating

physician, substantially magnified the impact of the trial court’s erroneous

instruction. This kind of instruction is only appropriate in personal injury and

workers’ compensation cases, where the treating physician is not a party.

We believe it is safe to assume that in a medical malpractice suit, a

defendant physician would give exculpatory testimony regarding her or his actions.

Thus, in medical malpractice cases, the instruction to accord more weight to the

testimony of the treating physician, when the treating physician is on trial and testifies

as an expert, allows the defendant to establish the applicable standard of care and

make him or her more credible than the plaintiff’s experts. That is improper.

We find no merit in Dr. Paraguya’s and the trial court’s assertions that

Dr. Sandozi’s testimony diminished the effect of this instruction because he also was

Mr. Pickering’s treating physician and testified favorably to Mr. Pickering. Dr.

Paraguya and Dr. Sandozi, though both were Mr. Pickering’s treating physicians,

were not similarly situated in this case. Unlike an ordinary expert, such as Dr.

Sandozi, whose financial interest in a case is limited to the fee he receives from the

party, a defendant physician, testifying as an expert, has a direct financial and

professional stake in the outcome of the case. Dr. Sandozi’s testimony does nothing

to diminish or neutralize Dr. Paraguya’s interest in the outcome of this case so as to

make the instruction less erroneous or less harmful.

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Based on these considerations, we conclude that the erroneous

instruction given to the jury by the trial court prevented the jury from rendering a

proper verdict based on the law and facts. Accordingly, we shall conduct a de novo

review of the record giving no consideration to the factual findings of the

erroneously-instructed jury.

B) MEDICAL MALPRACTICE

1) Dr. Paraguya’s Breach of the Standard of Care

After a careful review of the record, we find that Dr. Paraguya breached

the standard of care applicable to endocrinologists. Ms. Breaux had several

distinguished experts, including an endocrinologist, a podiatrist, and a vascular

surgeon. They all testified that the standard of care applicable at the time Dr.

Paraguya treated Mr. Pickering required the treating endocrinologist, at the very least,

to off-load the pressure from the diabetic foot ulcer via some mechanical device, to

surgically debride the dead tissue, and to closely monitor the wound.

The essence of Dr. Paraguya’s and Dr. Sullivan’s testimony was: 1) that

a mechanical device to relieve the pressure had its danger, i.e., that the patient would

be tempted to walk more, thereby increasing the pressure; 2) that the prescription of

an ointment debrider instead of the surgical one did not breach the standard of care;

and, 3) that on July 18, Mr. Pickering’s foot appeared to be improving, and, therefore,

the month and a half period between appointments satisfied the requirement of close

monitoring.

Ms. Breaux’s experts testified that the inevitability of the patient’s

walking on the affected foot and the patient’s loss of peripheral sensation are

precisely the reasons why the endocrinology textbooks instruct the doctor to use a

mechanical device to relieve the pressure from the foot ulcer. In fact, Ms. Breaux’s

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expert endocrinologist testified that because Dr. Paraguya did not adequately off-load

Mr. Pickering’s foot, Mr. Pickering most likely walked on his heel to keep the weight

from his original ulcer, thereby developing the second ulcer.

Furthermore, because Dr. Paraguya’s own records indicated that on July

18, 1996, Mr. Pickering had necrotic tissue around the ulcer, Dr. Paraguya should

have used surgical debridement. This would have allowed the identification of what

was underneath the surface. Ms. Breaux submitted evidence that a visual

examination of the ulcer is often insufficient because the ulcer, despite its outwardly

benign appearance, can be much larger in its depth. For this reason, we cannot rely

on Dr. Paraguya’s visual assessment of the wounds which, in Dr. Paraguya’s estimate,

required no surgical debridement. Dr. Paraguya may not fail to diligently examine

underneath the surface of the wound and then claim release from liability because of

this self-imposed ignorance of the true condition of the ulcer.

Finally, to allow six weeks to elapse between the appointments is

anything but close monitoring. All of Ms. Breaux’s witnesses testified that close

monitoring in this case meant doctor visits at least once a week. Even Dr. Paraguya’s

own witness, Dr. Sullivan, testified that six weeks between visits was not “close

monitoring.” Though Dr. Paraguya’s records revealed that the original ulcer

improved, by the June 18, 1996 appointment, Mr. Pickering had developed a second

ulcer on the same foot. Dr. Paraguya asserted that Mr. Pickering’s “pedal pulses were

not palpable, meaning he had severely restricted arterial flow to his feet—putting him

at risk for foot ulcers and complications arising from them.” Thus, Dr. Paraguya,

aware of the dangers associated with Mr. Pickering’s diabetic foot ulcers, aware of

Mr. Pickering’s new ulcer, again breached the standard of care he owed to Mr.

Pickering by scheduling his next visit a month and a half later.

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2) Dr. Paraguya’s Breach Caused Pickering’s Damages

Although Dr. Paraguya argues he did not breach the standard of care, we

believe that his main argument is that his breach did not cause Mr. Pickering’s

damages. Thus, he asserts that his records indicated that, as of August 29, 1996, Mr.

Pickering’s original ulcer had improved and his heel ulcer remained unchanged.

Therefore, Dr. Paraguya maintains, Mr. Pickering’s foot problems that required the

emergency room visit on September 6, 1996, occurred after August 29, 1996. In

essence, Dr. Paraguya argues that what he did or failed to do prior to the August 29

visit is irrelevant because Mr. Pickering’s ulcers were not deteriorating as of that date.

Thus, Dr. Paraguya asserts, the jury believed his account of the condition of the ulcers

on August 29 and not Mr. Pickering’s family members, who testified to the oozing

and the odor of the heel ulcer.

As explained above, we do not give any deference to the findings of fact

of the erroneously-instructed jury. There is an abundance of evidence in the record

to support the causation element in this case. Although Dr. Paraguya focuses on the

condition of the foot on August 29, 1996, that date is only one of several relevant

dates in this case. Thus, although the condition of the foot on August 29, 1996, is

important and is disputed, we emphasize that Dr. Paraguya’s failure to properly off-

load Mr. Pickering’s foot prior to August 29, 1996, probably caused the heel ulcer

to appear in the first place. Moreover, while Dr. Paraguya surgically debrided the

initial ulcer, which was, in fact, healing, prior to August 29, 1996, he failed to

surgically debride the heel ulcer, which ultimately started the infection process,

resulting in Mr. Pickering’s loss of his leg.

Furthermore, because a foot ulcer can be much larger and deeper despite

its benign appearance, Dr. Paraguya’s record that the heel ulcer’s condition was

13

unchanged based on his visual inspection on August 29, 1996, is of no consequence.

We presume that Dr. Paraguya’s awareness of this fact explains the paradox of Dr.

Paraguya’s debridement of the original ulcer when his records indicated that the ulcer

was visually improving.

At no point did Dr. Paraguya surgically debride the heel ulcer to

accurately assess its true condition. Consequently, the Medical Review Board’s

reliance on Dr. Paraguya’s notes that the heel ulcer was unchanged, and, therefore,

Mr. Pickering was not septic on August 29, 1996, was misplaced. Moreover, because

Dr. Paraguya never recorded the size of the ulcer, his record on August 29 that the

appearance of the heel ulcer did not change from Mr. Pickering’s previous visit on

July 18, was only as good as his memory.

On the other hand, there was testimony of Mr. Pickering’s family

members that the heel ulcer significantly increased in size and had an odor by August

29. Ms. Breaux’s expert endocrinologist testified that it made no medical sense that

Mr. Pickering’s ulcer could have gone from a small grade one ulcer to essentially his

whole foot being infected in eight days. He also testified that Mr. Pickering’s fever

and vomiting were Mr. Pickering’s systemic reactions to the foot infection. Dr.

Sandozi, Mr. Pickering’s other treating physician, testified that the condition of Mr.

Pickering’s foot was so dire that the infection had to have been present and noticeable

for at least two to three weeks prior to the September emergency room admission.

Finally, Mr. Pickering’s family members testified that he was compliant with all of

Dr. Paraguya’s instructions. Based on this evidence, we find that Ms. Breaux

established Dr. Paraguya’s liability.

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C) DAMAGES

An award of $600,000.00 in general damages for the negligence of a

nursing home operator that resulted in an amputated foot and a heart attack of the

resident was not abusively high. Short v. Plantation Mgmt. Corp., 99-899 (La.App.

1 Cir. 12/27/00), 781 So.2d 46. An award of $500,000.00 to a sixty-seven year old

man in a medical malpractice suit for a lost leg was not an abuse of discretion, where

the amputation rendered the patient almost completely immobile, despite a prosthesis

and a walker. Williams v. Jefferson Parish Hosp. Serv. Dist. No. 2, 604 So.2d 1046

(La.App. 5 Cir.), writ denied, 609 So.2d 260 (La.1992). Finally, this court held in a

medical malpractice suit that the trial judge correctly increased the award from

$150,000.00 to $350,000.00 for physical and mental pain and suffering, loss of

enjoyment of life, and scarring and disfigurement that resulted from the patient’s loss

of a leg. Blocker v. Rapides Reg’l Med. Ctr., 03-745 (La.App. 3 Cir. 12/23/03), 862

So.2d 1220, writ denied, 04-215 (La. 3/26/04), 871 So.2d 351.

Similarly, Mr. Pickering underwent several operations and experienced

severe physical and mental pain, a dramatically deteriorated quality and enjoyment

of life because of his loss of mobility, as well as phantom pain. Although he suffered

from diabetes and received benefits for psychological injuries, at the time of the

amputation Mr. Pickering was under fifty years of age. After the amputation, he

continued to deteriorate physically and emotionally until his death five years later.

Thus, the above jurisprudence leads us to award $500,000.00 for Mr. Pickering’s loss

of his leg in addition to his medical expenses, and legal interest.

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V.

CONCLUSION

The trial court’s judgment for the defendants is reversed. This court

awards to Sherry Breaux $500,000.00, Mr. Pickering’s medical costs associated with

the amputation of his right leg, and legal interest. Costs of this appeal are assessed

to Dr. Dalmacio Paraguya and his insurer, St. Paul Fire & Marine Insurance

Company.

REVERSED AND RENDERED.

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NUMBER 07-1581

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

JAMES PICKERING, ET AL.

VERSUS

DR. DALMACIA PARAGUYA, ET AL.

AMY, J., dissenting.

I disagree that a reversal is appropriate. Undoubtedly, the trial court erred in

referencing the local standard of care in its supplemental instruction since the

defendant was practicing as an internist and endocrinologist in the treatment of Mr.

Pickering’s foot ulcers. However, an erroneous instruction, alone, does not

necessarily require reversal of a jury verdict. Adams v. Rhodia, Inc., 07-2110 (La.

5/21/08), 983 So.2d 798. In Adams, the Louisiana Supreme Court spoke extensively

about the necessity of exercising great restraint before reversing a jury verdict “based,

in part, on respect for the jury determination rendered by citizens chosen from the

community who serve a valuable role in the judicial system.” Id. at 804.

Rather, in the presence of an erroneous jury instruction, an appellate court must

consider the entirety of the jury charge to assess whether it provides the “correct

principles of law as applied to the issues framed in the pleadings and the evidence and

whether the charges adequately guided the jury in its deliberation. Ultimately, the

determinative question is whether the jury instructions misled the jury to the extent

that it was prevented from dispensing justice.” Adams, 983 So.2d at 804 (citations

omitted). Significantly, the assessment of an erroneous jury charge “requires a

comparison of the degree of error with the jury instructions as a whole and

circumstances of the case.” Id. The supreme court further explained that:

[T]he manifest error standard for appellate review may not be ignored
unless the jury charges were so incorrect or so inadequate as to preclude
the jury from reaching a verdict based on the law and facts. Thus, on
appellate review of a jury trial the mere discovery of an error in the
judge’s instructions does not of itself justify the appellate court
conducting the equivalent of a trial de novo, without first measuring the
gravity or degree of error or considering the instructions as a whole and
the circumstances of the case. Brown, 405 So.2d at 558.

Id. at 805. As in the present case, the jury instruction contested in Adams was

provided in response to a question from the jury. This type of supplemental charge

must not be considered independently, but as an addition to the original instruction.

Id., quoting U.S. v. L’Hoste, 609 F.2d 796, 805 (5 Cir.), cert. denied, 449 U.S. 833,

101 S.Ct. 104 (1980). Considering the circumstances of this case, I find no indication

that the jury was misled, much less to the point where it was prevented from

dispensing justice.

First, the trial court’s initial instructions correctly stated that the plaintiff was

required to establish by a preponderance of the evidence “that degree of knowledge

or skill possessed or the degree of care ordinarily exercised by physicians practicing

in the same medical specialty as that in which the defendant practices.” The

supplemental instruction at issue was provided during deliberations when the jury

asked merely: “Please elaborate/explain the Question #1 in further detail of the

‘Verdict Sheet’.” Question #1 inquired only: “Do you find, by a preponderance of the

evidence, that the plaintiffs provided the applicable standard of care owed by Dr.

Dalmacio Paraguya to James Pickering?” Neither Question #1 nor the jury’s inquiry

suggest that the jury’s inquiry related to whether the standard of care was a local one

or a national one. To draw an inference of intent from these general statements is

speculative. The jury’s question could have been equally directed to the

“preponderance of the evidence” portion of the question.

2

Further, the trial court’s supplemental instruction in response to the jury’s

inquiry was a lengthy one, with the objectionable phrase included only at the end of

the statement, after setting forth the standard of La.R.S. 9:2714. The trial court

responded:

Question number 1 is a question that is drawn from our own
Revised Statute 9:2714 which is the statute governing malpractice in
this case. And it reads as follows: . . . “The plaintiff must prove the
degree of knowledge and skill possessed or degree of care ordinarily
exercised by physicians licensed to practice in the State of Louisiana
and actively practicing in similar community or locale and under
similar circumstances, and whether defendant practices in a particular
specialty and whether last act of medical negligence raised issues
peculiar to the medical specialty involved. Then the plaintiff has the
burden of proving the degree of care ordinarily practiced by a physician
who treats diabetic foot ulcers within the involved medical specialty.”

And basically, you have to rely on the testimony of the many
expert doctors that testified on both sides. You can look at other
evidence in the record and you can consider what the lawyers argued to
you even though it’s not evidence to assist you in trying to determine
whether or not the plaintiffs have proved that there is a standard of care
for treating ulcers, diabetic foot ulcers in this locale and what that
standard is.

Now, the time period in question is the treatment period when - -
from April the 2nd to August the 29th, the period of time that Dr.
Paraguya treated Mr. Pickering. And it could be a standard developed
during anytime during that period. If you find that any time during that
period, from April the 2nd through August 29th, ‘96, I think it was, that
there was a standard that Dr. Paraguya was required to maintain in the
treatment of the diabetic ulcers to Mr. Pickering; then you must answer
the question, yes.

If you find during that time period that there was not a required
standard expected of a physician treating diabetic foot ulcers, then you
answer the question, no. And that ends the considerations.

If you answer yes, then you go to the next question. So, it can be
any time period between April the 2nd and August the 29th. Okay? It
doesn’t have to be the whole time period. It can be any time period
during that treatment process. Okay? And you have to rely upon your
recollection of the testimony and your recollection of the evidence that
was presented and your recollection, if you find that the arguments of
counsel assists you of that; and then, you make a decision whether or not
there was a standard. And did they prove that standard. Okay?

3

All right. Now, I’m going to file this supplemental jury
instruction that I read to you and I further explained it. So, then you go
back and continue deliberation with regard to question number 1.

(Emphasis added.) In my view, the trial court’s reference to the treatment of “diabetic

foot ulcers in this locale,” was limited and outside of the formal instruction.

The plaintiff and the majority contend the erroneous supplemental instruction

requires a de novo review in light of Todd v. Sauls, 94-10 (La.App. 3 Cir. 12/21/94),

647 So.2d 1366, writs denied, 95-206, 95-219 (La. 3/24/95), 651 So.2d 289, a case

also involving the national standard of care. However, in its initial instruction to the

jury, the trial court in Todd, 647 So.2d at 1371, explained that:

In a malpractice action based on the negligence of a licensed physician,
such as Dr. F. Clark Sauls, the plaintiff has the burden of proving first
the degree of knowledge and 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 any
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 within the involved medical specialty. The
degree of care ordinarily exercised is the degree of care that the
physician gave his other patients when he performed this procedure.

The Todd panel concluded this instruction required reversal as it coupled the

competing local and national standards with the defendant’s name, before concluding

that, in light of this inclusion, “the jury was misled by that juxtaposition.” Id. The

panel also found that the reference to “similar community or locale” was only

“heightened” by the fact that all three of the plaintiff’s medical experts were from

outside of Louisiana whereas a number of the defendant’s experts were from within

Louisiana with the majority from Alexandria, the defendant’s locale of practice. Id.

at 1372. In sum, it was determined that “this differentiation misled the jury.” Id. The

panel, therefore, conducted a de novo review.

4

However, the circumstances in this case render Todd distinguishable from this

situation. Here, the trial court initially instructed the jury correctly; the problem only

arose with a supplemental instruction. Also, the Todd panel based its opinion, in part,

on the coupling of the defendant’s name with the local standard. The majority

references this point. However, Dr. Paraguya’s name was not inserted into the

instruction as in Todd. And again, the reference to the locality standard was limited

when taken in context of the instruction as a whole. Finally, the jury in this matter

ultimately determined that the plaintiff, in fact, established the standard of care. This

finding is supported by the record, thus revealing no indication that the jury was

likely misled.

The plaintiff presented two options for standard of care, including the opinions

of Dr. Michael Cooperman and Dr. Ralph Donald Patman, who each testified as to

the existence of a national standard of care. However, the plaintiff also presented, by

way of cross-examination during its case, the defendant. Dr. Paraguya testified that,

at the time he treated Mr. Pickering, nationwide standards for the treatment of

diabetic foot ulcers were not yet established. Instead, he explained that there were

basic principles in ulcer management and that they were dependent on the physician’s

judgment given the plaintiff’s presentation. He specifically disagreed that many of

the standards set forth by Dr. Cooperman were appropriate in the present case given

Mr. Pickering’s condition as he presented at each of his appointments.

In short, the jury could have accepted the defendant’s assertion that nationwide

standards had not yet been established. Unlike in Todd, the initial contest in this case

was whether there was, in fact, a nationwide standard. In this sense, Todd’s focus on

whether the jury could have been misled by the jury’s instructions when the experts

were primarily from outside of Louisiana differs from the present case.

5

Additionally, as the trial court observed when providing the supplemental jury

instruction, the critical inquiry for the jury became whether there was proof of the

standard of care at the time of the August 29th visit and whether that standard was

breached. The jury was presented with starkly different accounts of Mr. Pickering’s

foot on that date. As described by Mr. Pickering’s family members, Mr. Pickering’s

heel ulcer was obviously advanced at the time of the August 29th visit. They

explained that the heel ulcer was “oozing” and had a pronounced odor at the time of

the examination. Yet, the defendant’s record describes the ulcer as unchanged. Dr.

Paraguya denied that he would have or could have overlooked the type of ulcer

described by Mr. Pickering’s family. The defendant admitted that had he done so, he

would have breached the standard of care.

Given his admission that he would have breached the applicable standard of

care if the ulcer was as pronounced as the plaintiff urges, it seems clear that the jury

could have either believed or discounted the plaintiff’s version of events. Also, the

jury could have found that Dr. Paraguya set forth the applicable standard of care

under these circumstances. It could have done so without having been misled by the

jury instructions.

Further, the record reveals no manifest error in the jury’s subsequent

determination that the plaintiff failed to establish a breach of the standard of care. See

Adams, 983 So.2d 798. First, the jury could have chosen to place little weight on, or

afford little credibility to, the deposition testimony of Mr. Pickering and that of his

family regarding the deteriorated condition of the heel ulcer. Instead, it could have

favored Dr. Paraguya’s testimony as well as his notations from the August 29th visit.

The notes indicate that, instead of obvious deterioration, the wound was unchanged.

Although Mr. Pickering’s condition clearly deteriorated by the time of his admission

6

to the hospital on September 6th, testimony was presented supporting the view that

such a rapid demise was possible in a diabetic foot ulcer. Finally, the Medical

Review Panel opinion was entered into evidence and revealed the following decision:

“The evidence does not support the conclusion that the defendant, Dr. Dalmacio S.

Paraguya, failed to comply with the appropriate standard of care as charged in the

complaint.” The panel’s written reasons indicate:

A vascular work up was not indicated since most diabetics at this
stage of diabetic foot disease do not have palpable pedal pulse.
Revascularization often fails due to small vessel disease common to
diabetics.

Hospital records indicate that the patient received diabetic
education including foot care.

Dr. Paraguya did do a chemical debridement with Elase at the
appropriate time, and later also did surgical debridement.

A second ulcer would not trigger the need for more aggressive
treatment absent any signs of acute infection.

On the August 29, 1996, visit when the patient presented
complaining of nausea and vomiting, Dr. Paraguya noted “Right foot
ulcer anteriorly continues to improve. The ulcer in the right heel is
unchanged.” We do not feel that the patient was septic at the time due
to lack of signs of acute infection in the foot, and if the patient were
septic he would have been expected to develop vascular collapse prior
to the September 6, 1996 hospitalization.

In light of this evidence, I conclude that the record supports the jury’s determination

that the plaintiff failed to satisfy its burden of proving breach of the applicable

standard of care.

Finally, I reject the plaintiff’s assertion, and the majority’s conclusion, that the

error in the trial court’s jury instruction was compounded by the reference to the

premise that a treating physician’s testimony is generally accorded more weight than

that of a physician who reviews records for purposes of testifying at trial. This

instruction provided:

7

The testimony of a treating physician is generally accorded more
weight than that of a physician who merely examines records for
purposes of testifying at trial.

The trial court addressed the plaintiff’s argument that this instruction should be

inapplicable when the defendant is the treating physician and noted that the plaintiff

also presented the testimony of Dr. Shakeel Sandozi, Mr. Pickering’s subsequent

treating physician, who testified in favor of the plaintiff. The colloquy on this point

reflects:

MR. TOWNSLEY:

. . . We had an objection to a paragraph on page four. It’s the second
full paragraph. And it says, quote, “The testimony of the treating
physician is generally accorded more weight than that of a physician
who merely examines records for purposes of testifying at trial.”

It’s my position, Judge, that that is an appropriate charge for a
personal injury case, an auto accident case or Worker’s Compensation
case. It’s not an appropriate charge for a medical malpractice case. And
you can see why, Judge, its - - Paraguya was the treating physician. And
so, you are instructing the jury to give him more weight than all of the
other physicians who came in here to testify. That’s inappropriate in a
malpractice case, and I think it could be extremely harmful and
prejudicial to the jury here.

THE COURT:

You know, I thought about that; however, one of the issues is
whether or not the time period for the onset of this infection started prior
to August 29th, certainly prior to September 6th when he [was] brought
too [sic] Memorial Hospital - - Moss Regional Hospital. And in fact, the
treating physician that did the surgery at Moss indicated he thought it
was around about the 20th or earlier that it started. So, that worked both
ways. The doctor that testified for the Plaintiff was a treating physician
on that question, and that’s a very important question. I think that is,
perhaps the key issue in the case, whether or not the doctor should have
seen something on the 29th of August, an infection, according to your
treating physician that did the surgery said had to exist at that time.

So, I think it worked both ways. So, I decided to leave it in
because in this particular case, it goes both ways. Dr. Paraguya is a
treating physician, but most of the stuff that he testified about would
come down to the 29th, what he saw, should have seen on the 29th. So,
I think it works for the Plaintiff as well.

8

While the majority discounts this reasoning, I find no error therein as it accurately

reflects a jurisprudential presumption and, again, two treating physicians testified in

this case. The charge referred generally to the treating physician and did not

specifically reference either of the two treating physicians presented. The above

colloquy occurred outside the presence of the jury. Moreover, this charge was part

of the initial instructions and was not a part of the supplemental instruction at issue.

In my view, these factors militate against the conclusion of the majority, that this

instruction magnified the trial court’s error in the supplemental instruction.

As I find that a de novo review is not warranted and that the record supports

the jury’s determination in favor of the defendant, I respectfully dissent from the

majority opinion.

9