David Dunnehoo v. Dr. R. Dale Bernauer

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 09-721

DAVID DUNNEHOO

VERSUS

DR. R. DALE BERNAUER, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2003-2036
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.
Charles Jerome Boudreaux, Jr.
J. Michael Fussell, Jr.
Preis & Roy
P. O. Drawer 94-C
Lafayette, LA 70509
(337) 237-6062
Counsel for Defendants/Appellees:
Dr. R. Dale Bernauer
St. Paul Mutual Insurance Company

Sera Hearn Russell, III
P. O. Box 53866
Lafayette, LA 70505-3866
(337) 237-7171
Counsel for Plaintiff/Appellant:
David Dunnehoo

EZELL, JUDGE.

This is an appeal in a medical malpractice case. David Dunnehoo appeals a

trial court judgment which found that Dr. Dale Bernauer did not breach the standard

of care when performing an anterior lumbar interbody fusion on him in which his left

ureter was torn. Mr. Dunnehoo complains that the trial judge erred in his assessment

of the expert testimony presented by both sides.

FACTS

Mr. Dunnehoo was a patient of Dr. Dale Bernauer, an orthopedic surgeon. In

2000, he was diagnosed with a herniated nucleus pulposus at L5/S1. It was decided

that he was a candidate for an anterior lumbar interbody fusion (ALIF). The

procedure was performed on March 21, 2000.

An ALIF is a fusion performed on the spine in which the surgeon approaches

the back from the front. The assistance of a general surgeon is required who makes

an incision in the abdomen and then pushes the contents to the side to allow the

orthopedic surgeon access to the spine. Retractors are used to keep the contents of

the abdomen out of the way. During this particular procedure, Dr. Bernauer operated

through tubes that are placed in the disk space after it is cleaned out. Fluoroscopy,

a live-time x-ray, is used to perform the procedure once the tubes are in place. Once

the orthopedic surgeon completes the fusion, the tubes are removed and the general

surgeon closes the abdomen. Dr. Joseph O’Donnell was the general surgeon who

assisted Dr. Bernauer.

Prior to the procedure, Dr. O’Donnell noted that the left ureter was identified

and noted to be functioning properly. During closure, an inspection revealed that the

left ureter had been injured. Dr. Tom Alderson, a urologist, was called in to perform

a repair to the ureter before closure.

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Following an unanimous medical review panel opinion which found that Dr.

Bernauer did not breach the standard of care in his treatment of Mr. Dunnehoo, Mr.

Dunnehoo filed a medical malpractice claim on April 23, 2003, against Dr. Bernauer

and his medical liability insurer, St. Paul Mutual Insurance Company, alleging that

Dr. Bernauer had torn the ureter during the procedure. A trial was held on January

23, 2009. After taking the matter under advisement, the trial judge found that Mr.

Dunnehoo failed to show that it is more probable than not that Dr. Bernauer failed to

exercise reasonable care and diligence in performing his surgery. Judgment was

signed in favor of Dr. Bernauer and his insurer. Mr. Dunnehoo filed an appeal in this

court.

EXPERT TESTIMONY

Both of Mr. Dunnehoo’s assignments of error concern the weight the trial court

gave to the testimony of the two experts who testified regarding whether Dr. Bernauer

breached the standard of care in performing the ALIF on Mr. Dunnehoo. He claims

that the trial court erred in failing to assign any substantial weight to the testimony

of his expert, Dr. Frank Barnes, and in assigning any weight to the testimony of

Defendants’ expert, Dr. Scott Blumenthal.

In written reasons for the judgment the trial judge explained his reliance on Dr.

Blumenthal’s conclusions as follows:

In this case, the question of whether Dr. Bernauer breached the
standard of care by failing to exercise reasonable care and diligence is
to be determined by the testimony of each party’s expert witness. Based
on their testimony and qualifications, the Court finds the defendant’s
expert, Dr. Blumenthal, more convincing on the subject of ALIF
surgeries. Additionally, because Mr. Dunnehoo’s ureter was torn, and
not cut, the Court finds that it is more likely that the injury resulted from
one of the scenarios described by Dr. Blumenthal, rather than from
negligence on the part of Dr. Bernauer during the main portion of the
surgery.

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Pursuant to La.R.S. 9:2794, a plaintiff in a medical malpractice action must

prove, by a preponderance of the evidence, (1) the standard of care that applies; (2)

that the doctor breached that standard of care; and (3) that the breach caused the

plaintiff’s injuries. Lanningham v. Walton, 06-1103 (La.App. 3 Cir. 2/7/07), 950

So.2d 922. In order to establish the applicable standard of care and whether or not

that standard was breached, testimony from medical professionals is necessary.

Strange v. Shroff, 37,353 (La.App. 2 Cir. 7/16/03), 850 So.2d 1077.

The record in medical malpractice cases contains testimony of a
number of expert witnesses. The trier of fact is in the best position to
evaluate and weigh the testimony of expert witnesses. Therefore, the
evaluations of credibility and the weight given to each expert’s opinion
by the trial court will be given great deference by a reviewing court.
“When the expert opinions contradict concerning compliance with the
applicable standard of care, the trial court’s conclusions on this issue
will be granted great deference. It is the sole province of the factfinder
to evaluate the credibility of such experts and their testimony.”
Charpentier v. Lammico Ins. Co., 606 So.2d 83, 87 (La.App. 3
Cir.1992).

Langlinais v. Dearman, 07-44, p. 5 (La.App. 3 Cir. 5/30/07), 957 So.2d 945, 949.

Both doctors’ opinions were introduced by deposition testimony. Dr. Frank

Barnes, an orthopedic surgeon, testified that he had never performed an ALIF but had

observed four or five of the procedures. Dr. Barnes agreed that Dr. Alderson was of

the opinion that the ureter was torn as opposed to cut because Dr. Alderson indicated

in his deposition that the ends were frayed and he had to cut the ends to clean them

up. Dr. Barnes agreed that Dr. Alderson was of the opinion that it was a “traction

tension tear.” Dr. Barnes also agreed that a traction tear to the left ureter is a potential

risk of retraction of the peritoneal structure during the exposure for the ALIF. Dr.

Barnes then stated that he did not know if Dr. Bernauer cut or tore the ureter during

the procedure, but he knew Dr. Bernauer did it because the general surgeon found the

ureter intact when he turned it over to Dr. Bernauer. Dr. Barnes opined that Dr.

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Bernauer lost track of where the ureter was and it got in the way of one of his

instruments.

Dr. Scott Blumenthal, also an orthopedic surgeon, has performed close to 1,000

ALIF procedures. Dr. Blumenthal agreed that frayed edges of the ureter indicated

some type of tear injury and not a cut. He explained that he has seen damage to the

organs, blood vessels, and ureters with the use of retractors during surgery. Dr.

Blumenthal testified that a traction injury is consistent with a tear.

Dr. Blumenthal said the answer to how the injury occurred is not in the

documents. He offered three explanations for the cause of the injury. He stated that

some of the tissue of the ureter could have seeped underneath the tubes and got

caught in the process. Dr. Blumenthal explained that the orthopedic surgeon relies

on the general surgeon to get all of the structures out of the way. Once the tubes are

in place, most of the focus is on the screen utilizing the fluoroscopy to perform the

procedure. A second possibility is that the ureter tears from tension initially placed

on it by the retractors and the general surgeon does not see it because it is behind the

retractors. A third possibility was that the ureter gradually tore during the procedure

from the tension placed on it by the retractors.

Based on all three of these possibilities, Dr. Blumenthal did not think that Dr.

Bernauer breached the standard of care in his performance of the ALIF on Mr.

Dunnehoo. He further stated that he did not think it was below the standard of care

to have a complication such as a torn ureter during an ALIF. Dr. Blumenthal testified

that it is a rare complication but it does occur.

After reviewing the doctors’ testimony, we find no error in the trial court’s

reliance on Dr. Blumenthal’s testimony as opposed to Dr. Barnes’ testimony. We

further find no error in the trial court’s determination that Dr. Bernauer did not breach

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the standard of care in his performance of an ALIF on Mr. Dunnehoo. The evidence

clearly establishes that the ureter was torn sometime during the procedure. In all

scenarios presented by Dr. Blumenthal, Dr. Bernauer did not breach the standard of

care.

For the above reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to David Dunnehoo.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules-
Court of Appeal. Rule 2-16.3.

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