David Charlie v. Leno Hai Congtang, M.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1426

DAVID CHARLIE

VERSUS

LENO HAI CONGTANG, M.D.

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 69570-A
HONORABLE JOHN LARRY VIDRINE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Nicholas Gachassin, Jr.
K. Nicole Reynolds
Gachassin Law Firm
P. O. Box 80369
Lafayette, LA 70598
Telephone: (337) 235-4576
COUNSEL FOR:
Defendant/Appellant - Leno Hai Congtang, M.D.

James Steven Gates
Morrow, Gates & Morrow, L.L.C.
P. O. Drawer 219
Opelousas, LA 70571-0219
Telephone: (337) 942-6529
COUNSEL FOR:
Plaintiff/Appellee - David Charlie

THIBODEAUX, Chief Judge.

The plaintiff/appellee, David Charlie (“Charlie”), brought this medical

malpractice suit against the emergency room (ER) physician who treated him at

Savoy Medical Center (Savoy) when he arrived there with complaints of abdominal

pain of a week’s duration, nausea, and vomiting. The ER physician,

defendant/appellant, Dr. Leno Hai Congtang, diagnosed gastroenteritis on December

8, 2005. He prescribed medication and discharged Charlie.

Within three days Charlie’s appendix ruptured in half and caused a

massive pelvic abscess. As a result, Charlie underwent a laparotomy, abscess

drainage, and an emergency appendectomy three hours after his arrival at the ER of

Ville Platte Medical Center on December 11, 2005. Following a bench trial, the trial

court found malpractice and awarded Charlie $50,000.00 in damages. Dr. Congtang

brought this appeal. For the following reasons, we affirm the judgment of the trial

court.

I.

ISSUES

We must decide whether the trial court was clearly wrong in its finding

of malpractice under La.R.S. 9:2794.

II.

FACTS AND PROCEDURAL HISTORY

David Charlie was admitted to the Savoy Medical Center ER as an

“urgent” care patient at 12:16 p.m. on December 8, 2005. The triage nurse reported

complaints of vomiting and abdominal pain of approximately one week’s duration.

She recorded nausea, diarrhea, cramping, hypoactive bowel sounds, and tenderness

of the abdomen at the right lower quadrant and the left lower quadrant. Charlie’s pain

level was a five on the pain scale of one to ten; his temperature was 99.5E F; and, he

had not eaten since 6:00 p.m. on the previous day. The nurse also noted a potential

knowledge deficit. When Dr. Congtang examined Charlie a few minutes later, Dr.

Congtang reported a chief complaint of abdominal pain and recorded a soft abdomen

with tenderness in the left lower quadrant only. Dr. Congtang documented no

abnormal bowel sounds and found no guarding or rebound. He obtained x-rays,

urinalysis, and blood work and reported an elevated white blood count and normal

chemistries. Dr. Congtang diagnosed gastroenteritis and discharged Charlie with

prescriptions to alleviate the nausea (Phenergan) and the diarrhea (Lomotil). Having

receiving IV’s of saline, Toradol, and Inapril, Charlie was released from Savoy in

stable condition at 1:55 p.m.

However, Charlie’s pain soon returned, and he saw his family physician,

Dr. David Ware, on the following day, December 9, 2005. Charlie mistakenly told

Dr. Ware that he had been diagnosed with constipation the previous day. Dr. Ware

recorded low abdominal pain, greater on the left than on the right, beginning ten days

prior, with the onset of nausea and vomiting three to four days prior to the visit. He

found a soft and benign abdomen with no palpable masses and no guarding or

rebound. Dr. Ware documented Charlie’s complaints of loss of appetite, fatigue and

fever. Charlie’s recorded temperature was 99.4E F. Dr. Ware recommended

magnesium citrate and fiber based upon the misinformation regarding constipation.

Two days later, at 8:35 a.m. on December 11, 2005, Charlie went to the

Ville Platte Medical Center ER (“Ville Platte”) with hypoactive bowel sounds, a

temperature of 100.7E F, and lower abdominal pain in both quadrants at a level eight

on a pain scale of one to ten. His status was again documented as “urgent” rather

than “emergent.” Blood work again showed an elevated white blood cell count,

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though not as high as before. A CT scan was completed by 10:00 a.m. The CT scan

suggested the presence of an abscess cavity measuring 5 centimeters in diameter, a

thickened appendix, appendicitis and possible rupture with a walled off abscess. Dr.

Isabel Oschner documented guarding during her examination, contacted the surgeon,

and admitted Charlie at 10:20 a.m. with a diagnosis of acute abdominal pain and

“Diverticulate Abscess vs. Appendiceal Abscess.”

Charlie’s appendix was in fact severely infected, ruptured in half, and

abscessed. Dr. Pedro Mora performed an exploratory laparotomy, drainage of a

massive, “torrential” peritoneal abscess, and an emergency appendectomy, just three

hours after Charlie’s arrival at the Ville Platte ER. Charlie was discharged on

December 14, 2005, with over sixty staples at the incision site. Upon the removal of

the staples, infection was present. Charlie received home health nursing assistance

and wound care and was not released to return to work until March of 2006.

Charlie filed suit for mis-diagnosis and medical malpractice against Dr.

Congtang in February 2008, seeking damages for medical expenses, lost earnings,

physical and mental pain and suffering, and permanent scarring and disfigurement,

not to exceed $50,000.00, exclusive of interest and costs. The trial court entered

judgment in favor of Charlie in the amount requested. Dr. Congtang appeals the trial

court’s judgment.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court’s findings of fact in the

absence of manifest error or unless it is clearly wrong. Stobart v. State, Through

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DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two

tiered test must be applied in order to reverse the findings of the trial court:

a. the appellate court must find from the record that a
reasonable factual basis does not exist for the
finding of the trial court, and

b. the appellate court must further determine that the
record establishes that the finding is clearly wrong
(manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more

reasonable than the fact finders, reasonable determinations and inferences of fact

should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330

(La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s

findings are reasonable based upon the entire record, an appellate court may not

reverse the trial court’s judgment even if it is convinced that had it been sitting as

trier of fact it would have weighed the evidence differently. Housely v. Cerise, 579

So.2d 973 (La.1991). The basis for this principle of review is grounded not only

upon the better capacity of the trial court to evaluate live witnesses, but also upon the

proper allocation of trial and appellate functions between the respective courts.

Medical Malpractice

Doctor Congtang contends that the trial court failed to follow the

elements set forth in the statute governing medical malpractice, La.R.S. 9:2794,

which provides in pertinent part as follows:

A. In a malpractice action based on the negligence
of a physician licensed under R.S. 37:1261 et seq. . . . 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, dentists,

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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 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, 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 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.

Concisely stated, Charlie’s burden consists of proving the standard of

care for emergency physicians such as Dr. Congtang, whether his actions breached

the standard of care, and whether his actions caused Charlie to suffer injuries that he

would not have suffered but for the breach. We note that while the trial court may not

have used all of the “buzz words” in its reasons for judgment and may not have

specifically addressed each element in writing, the record establishes that the trial

court had a reasonable basis for its conclusions.

Specifically in this case, Charlie alleges that Dr. Congtang failed to take

an adequate history of his condition and failed to correlate the complaints of pain

documented by the nursing staff with his own physical findings and with the blood

test results. All of these omissions resulted in a failure to render a proper diagnosis

of appendicitis.

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More precisely, the triage nurse in this case documented Charlie’s

complaints of lower abdominal pain and tenderness in both the left and right

quadrants, while Dr. Congtang only noted tenderness in the lower left quadrant. The

nurse further noted Charlie’s hypoactive bowel sounds and his failure to eat in the

previous eighteen hours, while Dr. Congtang did not. Charlie asserts that the nurse’s

findings are consistent with a diagnosis of appendicitis, and that Dr. Congtang

breached the standard of care by not finding what the nurse found, due to his

inadequate examination and history. Moreover, Dr. Congtang indicated on his

examination report that he had reviewed the nursing assessment of Charlie’s

condition. Therefore, Charlie asserts that Dr. Congtang should have correlated his

findings with the nurse’s findings, looked closer at other tests such as the blood work,

and thereby recognized the possibility of appendicitis and ordered more tests, such

as a CT scan.

In support of his claims against Dr. Congtang, in addition to the

evidentiary discrepancies between the doctor’s record and the nurse’s record, Charlie

relied upon the testimony of his expert, an ER physician for over twenty years, Dr.

Gregory Skie. Dr. Skie testified that hypoactive bowel sounds are those that are

barely present or well below normal, meaning that the intestine was decreased in its

motility or its contractual activity in relation to some kind of infectious of

inflammatory process. Dr. Skie stated that hypoactive bowel sounds are consistent

with an infected appendix.

Dr. Skie further testified that in Charlie’s ten days of symptoms,

anorexia, an inability to eat, as well as other symptoms, is intermittent and fluctuates

as the body fights infection, but that anorexia late in the process and prior to rupture

is very common with appendicitis. Dr. Skie also testified that late in the course of an

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acute appendicitis, the pain will gravitate to the right lower quadrant of the abdomen

and will be peritoneal in nature, although it may begin in the epigastrum in the upper

abdomen. As stated, the hypoactive bowel sounds, absence of food intake, and right

lower quadrant pain were documented by the nurse, but not by Dr. Congtang. Dr.

Skie further testified that symptoms less specific but important to appendicitis are

gastrointestinal symptoms such as nausea and sometimes vomiting. An elevation of

the white blood cell count indicates an inflammatory process within the body. These

symptoms were documented by Dr. Congtang, and along with those of the triage

nurse, indicate a diagnosis of appendicitis.

Dr. Skie’s opinion report, in support of Charlie’s allegations of medical

malpractice, stated that the applicable standard of care in the treatment and

assessment of ER patients “includes a thorough history and physical examination and

the use of relevant diagnostic tests to aid in the development of a differential

diagnosis,” which he asserts had to have included appendicitis in this case. Dr. Skie

further stated that a physician has a duty to the patient to fully evaluate and treat those

conditions which threaten “life and limb” on an immediate basis. He opined that Dr.

Congtang’s treatment fell below the standard of care because a more thorough history

would have given him a basis to consider acute appendicitis with a “higher index of

suspicion,” given the presence of right lower quadrant pain, hypoactive bowel

sounds, and the elevated white blood cell count. It was Dr. Skie’s opinion that

infection had started and that immediate surgery would have ensued if Dr. Congtang

had consulted a general surgeon, thereby preventing the rupture, which in his opinion

had not yet occurred, the severe peritonitis and abscess, and the additional medical

expenses and recovery time. Dr. Skie further opined that, given the physical

symptoms and lab results in this case, and the life threatening possibility presented

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by a ruptured appendix, imaging would have shown the infection and should have

been done immediately.

Dr. Congtang, in asserting that he did not breach the standard of care,

relied upon the testimony of his expert, Dr. Joseph Litner. Dr. Litner “vehemently”

disagreed with Dr. Skie’s report, making much of the fact that Dr. Skie criticized Dr.

Congtang’s “benign diagnosis [of] constipation,” which, as indicated, was

misinformation given out by the patient himself and picked up by several doctors in

this case. In fact, Dr. Litner writes about twelve pages on this issue in his two

reports, whereas Dr. Skie mentioned it only briefly. During his deposition, Dr. Skie

acknowledged that he had seen the diagnosis of constipation somewhere in the

material, but not remembering where, he would simply retract “constipation” and

substitute the word “gastroenteritis.” Dr. Skie criticized Dr. Congtang for his benign

diagnosis of gastroenteritis, given the number of symptoms indicating appendicitis.

Dr. Litner pointed to the fact that Dr. Congtang and Dr. Ware both found

that Charlie’s abdominal pain exams did not show “rebound” or “guarding,” which

are symptoms of appendicitis. He explained that a positive rebound sign occurs when

the physician pushes on the patient’s abdomen, and upon the doctor’s release of his

hand, the patient complains of pain. Guarding occurs when the patient’s abdomen is

tense and resistant to palpitation. Positive guarding and rebound are signs of acute

peritoneal irritation/inflammation, as found in appendicitis, diverticulitis,

cholecystitis, or ruptured viscus. Therefore, according to Dr. Litner, a finding that

there is no rebound or guarding contraindicates a finding of appendicitis.

Charlie testified that Dr. Congtang did not press on his abdomen, but

merely laid his hand on it. Dr. Skie’s testimony on this issue was that one would

expect guarding and rebound only in the right lower quadrant of the abdomen and that

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there was no evidence that Dr. Congtang palpitated Charlie’s right lower quadrant

because he did not document it. The triage nurse did examine the right lower

quadrant and did document tenderness there. In fact, a major criticism by Dr. Skie

was that Dr. Congtang did not document a thorough examination of the patient, and,

therefore, it could not be known whether he examined areas which should have been

examined.

Dr. Michael Peebles, a member of the medical review panel which found

no malpractice on the part of Dr. Congtang, testified that the lab results could be

consistent with appendicitis because the white blood cell count was elevated, but this

also occurs with gastroenteritis, diverticulitis and food poisoning. He opined that the

lab results showed no shift to the left in certain cells that would occur in appendicitis.

Dr. Peebles stated that the white blood cell count is a number and that one does not

treat a number on a lab result; one treats the whole patient. He said one would expect

to see a shift to the left in the lab work; one would expect to see fever, anorexia, and

vomiting with appendicitis, but this “constellation of symptoms doesn’t occur in

everyone.”

The trial court in this case noted the conflicting expert testimony, the

resolution of which is essentially a factual evaluation and is particularly within the

province of the trial court. See Foley v. Entergy Louisiana, Inc., 06-0983 (La.

11/29/06), 946 So.2d 144. We have specifically indicated that when expert opinions

conflict concerning compliance with the applicable standard of care in a medical

malpractice action, the trial court’s conclusions will be granted great deference, as it

is the sole province of the fact finder to evaluate the credibility of such experts and

their testimony. Primeaux v. St. Paul Fire & Marine Ins. Co., 03-466 (La.App. 3 Cir.

12/17/03), 862 So.2d 496, writ denied, 04-186 (La. 4/2/04), 869 So.2d 878.

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Here, in addition to other evidence in the record, the trial court

referenced five “flags” in the blood work results which indicated abnormalities and

required further investigation by the ER physician. We note that the column in the

referenced report is actually entitled “Flag,” and it contains three “H’s” for out of-

range high counts and two “L’s” for out-of-range low counts. The white blood cell

count is one of the five abnormal counts. In summary, the trial court stated:

It appears from the nurse notes that there was some
indication of both left and right lower quadrant pain. After
considering the testimony of Doctor Pebbles[sic], and the
CBC Results with five (5) flags it is the opinion of this
Court that had Dr. Congtang paid closer attention to the
nurses notes, the CBC results and the complaints and
symptoms of Mr. Charlie, he could have and should have
ordered a C.T. Scan which would have showed the
appendix in distress with the accompanying abscess. It is
the Judgment of this Court that his failure to so recognize
these signs and symptoms and his failure to order a C.T.
Scan amounted to a breaching of the standard of care.

Based upon the totality of the evidence in the record, and the standard

of review to which we are held, we cannot say that there is no reasonable basis for the

trial court’s judgment awarding $50,000.00 to Charlie for the mis-diagnosis of his

condition by Dr. Congtang. The record reveals that an ER physician has a duty to

perform an adequate examination of the patient and order further testing where

indicated. Except for guarding and rebound, which in this case was not documented

until after the appendix ruptured into two pieces, Charlie’s symptoms were very

similar at both ER facilities, Savoy and Ville Platte, indicating that infection was

present and that the appendix was in distress in the first ER visit. If Dr. Congtang at

Savoy had found the additional symptoms that his triage nurse found, or at least had

correlated his findings with hers, there is a reasonable basis to conclude that he would

have or should have ordered a CT scan, which would have led to a proper diagnosis

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of appendicitis. It was, therefore, reasonable to find that his actions constituted a

breach in the standard of care for ER physicians.

The record further supplies a reasonable basis to conclude that Dr.

Congtang’s failure to diagnose appendicitis on December 8, 2005, caused Charlie

additional and more severe pain and suffering, and more medical expenses and lost

wages, than would have otherwise occurred. We cannot find that the trial court was

clearly wrong in its conclusions.

IV.

CONCLUSION

Finding that the record establishes no manifest error on the part of the

trial court, we hereby affirm the judgment below.

All costs are assessed to Leno Hai Congtang.

AFFIRMED.

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