Beverly Hobbs v. Patrick Savoy, M.D.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

08-119

BEVERLY HOBBS, ET AL.

VERSUS

PATRICK SAVOY, M.D., ET AL.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2004-495
HONORABLE JOHN P. NAVARRE, AD HOC
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GLENN B. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Glenn B. Gremillion, and James T. Genovese,
Judges.

AFFIRMED.

Joseph T. Dalrymple
Rivers, Beck, Dalrymple & Ledet
P. O. Drawer 12850
Alexandria, LA 71315-2850
(318) 445-6581
Counsel for Plaintiffs/Appellees:
Beverly Hobbs
Cecil Hobbs

James R. Shelton
Tiffany C. Babineaux
Durio, McGoffin, Stagg, & Ackermann, P.C.
P. O. Box 51308
Lafayette, LA 70505-1308
(337) 233-0300
Counsel for Defendants/Appellants:
St. Paul Fire & Marine Ins. Co.
Patrick Savoy, M.D.

GREMILLION, Judge.

The defendants, Dr. Patrick Savoy and his insurer, St Paul Fire & Marine

Insurance Co., appeals the trial court’s ruling allowing a physician specializing in

internal medicine to testify during a medical malpractice trial against him, when the

defendant’s specialty is general surgery. We affirm.

FACTS

The plaintiffs, Beverly and Cecil Hobbs, filed a medical malpractice suit

against Dr. Savoy and St. Paul, after two of Beverly’s toes were amputated from her

right foot. Beverly, who was obese, suffered from diabetes, and smoked, was initially

treated by Dr. Dib Caeb, an internist, for pain and discoloration in the first three toes

on her right foot. She was admitted to the Oakdale Community Hospital on April 29,

2002. Dr. Caeb, after consulting with Dr. Savoy, commenced treating Beverly with

Heparin, an anti-coagulant. On April 30, 2002, Dr. Caeb noted that she had less pain

in her right foot and was feeling better. As he was to be out of the country for the

next seven days, he turned Beverly’s care over to Dr. Savoy.

On April 30, 2002, Dr. Savoy noted that Beverly complained of pain in

her right great and third toes and that those areas were starting to demarcate. He

increased the Heparin and, on May 1, 2002, her foot looked better although there was

still some discoloration in the subject toes. Dr. Savoy planned to continue the anti-

coagulation therapy and await events. On May 2, 2002, Beverly’s sister-in-law told

Dr. Savoy that Beverly had suffered from abdominal problems for ten years. When

questioned, she affirmed that she suffered from such pains after eating heavy or fatty

meals. Dr. Savoy noted that she was tender in the right upper quadrant of her

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abdomen and ordered an ultrasound of her gall bladder. That test revealed gall stones

and a thickened gall bladder wall. The decision was made to remove Beverly’s gall

bladder prior to putting her on Coumadin, an anti-coagulant. The Heparain was

stopped at 2:00 a.m. on May 3, 2002. A laparoscopic cholecystectomy was

performed later that day. On May 4, 2002, the date she was released from the

hospital, the nurse’s notes indicate that Beverly’s right toes remained cyanotic and

painful. In addition to pain medication, she was placed on Ecotrin (aspirin) daily,

which is an anti-platelet treatment.

Beverly returned to the emergency room later that day due to a mix-up

with her pain medication. She was given a shot for pain, but refused to see the

emergency room physician. She returned to the emergency room two days later on

May 6, 2002, due to severe pain in her right foot. Her right great toe was purplish in

color with decreased feeling and felt cold to the touch. She was diagnosed with

peripheral vascular disease and was admitted to the hospital by Dr. Savoy. On May

8, 2002, Dr. Savoy amputated the first and third toes on her right foot which had

become gangrenous. She was discharged from the hospital on May 11, 2002.

Beverly was readmitted to the hospital on May 31, 2002, after

complaining of pain in the first three toes of her left foot. She was admitted by Dr.

Caed, with a diagnosis of left lower extremity small vessel arterial thrombosis. While

in the hospital, it was discovered that her homocysteine level was 20.9, which was

twice the normal range of 4.0 to 10.0. To counter this, Dr. Caed started Beverly on

Folic Acid and vitamin B-12. Consequently, the condition of her toes improved and

she was discharged home on June 4, 2002.

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The Hobbses instituted a medical malpractice claim against Dr. Savoy,

after which a medical review panel found that the evidence failed to show that Dr.

Savoy breached the applicable standard of care in his treatment of Beverly.

Thereafter, the Hobbses filed the instant medical malpractice action against Dr. Savoy

and his insurer. The matter proceeded to a trial on the merits. At the conclusion of

the trial, the trial court took the matter under advisement. It then rendered an opinion

finding that Dr. Savoy had breached the applicable standard of care in treating

Beverly. As liability had been determined, the parties then submitted post-trial briefs

on the issue of quantum. The trial court then rendered a judgment awarding Beverly

$50,000 in general damages and Cecil $15,000 for loss of consortium. A judgment

was rendered in this matter on October 12, 2007. This appeal by Dr. Savoy followed.

ISSUE

On appeal, Dr. Savoy raises only one assignment of error. He argues that

the trial court committed legal error by allowing Dr. Caed, an internist, to qualify as

an expert regarding the standard of care to be attributed to a general surgeon such as

himself.

STANDARD OF CARE

Dr. Savoy raises the question of whether Dr. Caed, an internist, should

be allowed to offer opinions regarding the standard of care applying to general

surgeons. In this instance, we agree with the trial court that the answer is yes.

Louisiana Revised Statutes 9:2794(A) provides the burden of proof

applying in medical malpractice matters:

In a malpractice action based on the negligence of a physician
licensed under R.S. 37:1261 et seq. . . . the plaintiff shall have the

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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 . . . 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.

(Emphasis added).

In Turner v. Massiah, 94-29, p. 10 (La. 5 Cir. 7/1/94), 641 So.2d 610,

617, aff’d in part and rev’d in part on other grounds, 94-2548 (La. 6/16/95), 656

So.2d 636, the fifth circuit stated:

Generally, where the alleged acts of negligence raise issues
peculiar to the particular specialty involved, then only those qualified in
that specialty may offer evidence of the applicable standards. La.R.S.
2794(A)(1). However, it is a specialist’s knowledge of the requisite
subject matter, rather than the specialty within which the specialist
practices, which determines whether a specialist may testify as to the
degree of care which should be exercised; a particular specialist’s
knowledge of the subject matter on which he is to offer expert testimony
is determined on a case by case basis. McLean v. Hunter, 495 So.2d
1298 (La.1986); Soteropulos v. Schmidt, 556 So.2d 276 (La.App. 4th
Cir.1990).

In this instance, it is not the surgical procedure performed by Dr. Savoy

which is called into question. Rather, it is his treatment of Beverly’s peripheral

vascular disease, which eventually led to the amputation of two toes on her right foot.

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The trial court found that the treatment of an occlusion with anti-coagulant

medications was an internal medicine issue, rather than a surgical issue. Dr. Caeb,

board certified in internal medicine, stated that he had no problem with Dr. Savoy

performing the cholecystectomy. However, he opined that the standard of care

applicable in this instance required Dr. Savoy to delay performing surgery to correct

a ten-year-old chronic problem so that he could continue the beneficial anti-coagulant

treatment until the threatened limb was stabilized. Moreover, Dr. Keith Colomb, a

general surgeon who participated in the medical review panel and testified on behalf

of Dr. Savoy, testified that the treatment of Homocystinuria fell more within the

specialty of internal medicine rather than general surgery.

Based on the foregoing, we find that the alleged negligent acts of Dr.

Savoy do not raise an issue peculiar to the medical specialty of general surgery. As

the trial court found, those acts fall more within the specialty of internal medicine.

Accordingly, we find that the trial court did not commit legal error in allowing Dr.

Caeb to testify in this matter.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

The costs of this appeal are assessed to the defendants-appellants, Dr. Patrick Savoy

and St. Paul.

AFFIRMED.

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