Brenna Davis v. Women & Children's Hospital Lake Charles

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-0318

BRENNA DAVIS

VERSUS

WOMEN AND CHILDREN’S HOSPITAL
LAKE CHARLES

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-4518
HONORABLE ROBERT WYATT, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters,
Judges.

AFFIRMED.

R. Scott Iles
Attorney at Law
P. O. Box 3385
Lafayette, LA 70502
(337) 234-8800
COUNSEL FOR PLAINTIFF/APPELLANT:
Brenna Davis

Kurt S. Blankenship
Christopher Otten
Perrey S. Lee
Blue Williams, L.L.P.
3421 N. Causeway Blvd., Suite 900
Metairie, LA 70002
(504) 831-4091
COUNSEL FOR DEFENDANT/APPELLEE:
Women and Children’s Hospital Lake Charles

PETERS, J.

The plaintiff, Brenna Davis, originally brought this medical malpractice

action against Dr. Richard Shimer and the Women and Children’s Hospital Lake

Charles (hereafter sometimes referred to as the Hospital) to recover damages

sustained as a result of a sponge that was left in her body following a lap band

surgery. However, the matter went to trial against the Hospital only.1 The trial

court awarded Ms. Davis $50,000.00 in damages and apportioned fault equally

between Dr. Shimer and the Hospital. In her appeal, Ms. Davis asserts that the trial

court erred in its apportionment of fault. For the following reasons, we affirm the

trial court judgment in all respects.

REVIEW OF THE RECORD

The underlying facts that gave rise to this litigation are not in dispute. In

2008, Ms. Davis was almost twenty-eight years old and suffered from an excessive

weight problem.2 In an effort to control her weight problem, she contacted Dr.

Shimer, a Lake Charles, Louisiana general surgeon who performs weight reduction

surgeries. After discussing options with Dr. Shimer, Ms. Davis decided to have a

lap band procedure.3

Dr. Shimer laparoscopically performed Ms. Davis’ lap band surgery on June

2, 2008. The surgical procedure is minimally invasive as Dr. Shimer simply makes

a number of very small incisions. Cameras and surgical instruments are inserted in

these incisions and the lap band is connected. During the procedure, Ms. Davis

1
While the record before us is not clear as to the specific dates, it is not disputed that Ms. Davis settled her
claim against Dr. Shimer before the trial on the merits.
2
At the time, Ms. Davis weighed over 200 pounds.
3
A lap band surgical procedure entails inserting an adjustable belt around the top portion of the stomach
immediately below the point where the esophagus connects to the stomach. The presence of the belt is intended to
cause an individual to stop eating sooner because of a full feeling caused by the restrictive belt. Thus, the individual
ingests fewer calories, causing a weight loss.

was under general anesthesia. Two Hospital employees, Sheena LeBoeuf and

Anthony Williams,4 assisted Dr. Shimer in the surgery.

The record establishes without dispute that a three-part procedure exists

during surgery to keep an accurate count of the sponges used. The first count

occurs at the beginning of an operation, even before the patient enters the operating

theater. In the first count, the surgical technician and the circulating nurse count

all the sponges using a consistent procedure. Specifically, the surgical technician

counts out loud while touching each of the individual sponges5 as the nurse looks

over his shoulder. When the surgical technician completes the oral count, the

circulating nurse enters the specific number of sponges on a white board so that the

surgeon is able to see that a count has been performed.

The second count occurs after the laparoscopic instruments are removed

from the patient, but before the incisions are closed. The surgical technician

performs this count in the same manner as the first count by orally counting each

sponge while the nurse observes the count for accuracy. The final count occurs

after the incisions are closed but before the surgeon leaves the operating theater.

Again the surgical technician states the count aloud while being observed by the

nurse.

In Ms. Davis’ case, the final sponge count was inaccurate. When Ms. Davis

began to experience an unexplained post-surgical discharge at an incision site, Dr.

Shimer caused her to undergo a CAT scan. The CAT scan revealed haziness at the

wound site and, on June 19, 2008, Dr. Shimer performed a laparoscopic

exploratory procedure at the Hospital and discovered a crumpled sponge inside

Ms. Davis’ body, underneath the skin and exactly where Dr. Shimer had placed the

4
Ms. LeBoeuf is a registered nurse, and Mr. Williams is a surgical technician.
5
The circulating nurse, who is not sterile, does not touch the sponges for that reason.
2

port for the lap band. Dr. Shimer removed the sponge during the procedure and

Ms. Davis subsequently fully recovered from the procedure.6

After Ms. Davis filed suit against Dr. Shimer and the Hospital, the parties

waived the requirement that the matter be referred to a medical review panel. See

La.R.S. 40:1299.47(B)(1)(c). Additionally, Ms. Davis stipulated that her claim did

not equal or exceed $50,000.00, thereby precluding the availability of a jury trial.

La.Code Civ.P. art. 1732(A)(1).

The November 24, 2010 bench trial resulted in a judgment wherein the trial

court awarded Ms. Davis $50,000.00 in damages and assessed fault equally

between the Hospital and Dr. Shimer. In her one assignment of error, Ms. Davis

asserts that the trial court erred in assigning any fault to Dr. Shimer.

OPINION

Because the Hospital neither appealed the trial court’s judgment nor

answered Ms. Davis’ appeal, the sole issue before us is whether the trial court

abused its discretion in not assigning all of the fault for Ms. Davis’ damages to the

Hospital.7 Under La.Civ.Code art. 2323, when there are multiple tortfeasors the

trier of fact must allocate fault so that each tortfeasor pays only for that portion of

the damages it has caused. However, before fault can be allocated, there must be a

finding that there are multiple tortfeasors. To put the inquiry another way, we

must determine whether the trial court erred in finding that Dr. Shimer bore any

fault in causing Ms. Davis’ damages.

With regard to a medical malpractice claim against a physician the party

claiming negligence on the part of the physician must prove:

6
One of Ms. Davis’ complaints is that the second procedure increased the size of the scar caused by the
initial procedure.
7
It is well established that under the doctrine of respondeat superior a hospital can be liable for the
negligence of its employees. Odom v. State Dep’t of Health and Hosps., 98-1590 (La.App. 3 Cir. 3/24/99), 733
So.2d 91; Little v. Pou, 42,872 (La.App. 2 Cir. 1/30/08), 975 So.2d 666, writ denied, 08-806 (La. 6/6/08), 983 So.2d
920.
3

(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.

La.R.S. 9:2794(A)(1-3).

In this case, the only evidence of the standard of care applicable to Dr.

Shimer is his testimony. He specifically testified that the standard of care

applicable to him as a surgeon does not require him to stand over the surgical

technician’s shoulder and count the sponges along with him. In other words, his

task is to perform the surgery, inserting and removing the sponges when necessary.

During most of the laparoscopic surgery, Dr. Shimer is looking through a camera

into the field of surgery, and he relies on the other personnel to keep track of the

sponges as he inserts and removes them. He suggested that the only obligation he

has toward seeing that nothing remains in the patient before closing is that he

palpates around the incisions to see if he feels anything before closing them. In

this case, he felt nothing that would cause him to believe a sponge remained in the

patient8 and relied on the correctness of the counts by the surgical technician and

the circulating nurse.

Mr. Williams testified that his duties were to set up a sterile field before an

operation, to have the instruments ready for the surgeon, and to keep everything

sterile during the operation. Although he had little memory of Ms. Davis’ first
8
According to Dr. Shimer, the three and one-half by four inch sponge that remained in Ms. Davis would
become the size of a small egg yolk when saturated with blood.
4

operation, he did acknowledge that the medical records from that procedure

reflected that he and Ms. LeBoeuf had accounted for all the instruments and

supplies used in the surgery, including the sponges. He testified that in the critical

third count of the sponges, he would normally ask the nurse whether she was

comfortable with the count. If she answered in the affirmative, they would inform

the surgeon that the counts were correct and the surgeon would be able to leave the

operating theater. According to Mr. Williams, a discrepancy in any count would

be reported to the surgeon and everyone, including the surgeon, would begin

looking for the missing item. Mr. Williams emphasized that the surgeon does not

participate in counting the sponges, and that the surgeon relies on the surgical

technician and the nurse to count them correctly.

Ms. LeBoeuf explained that her role was to prepare and position the patient.

She acknowledged the counting process previously described and stated that she

made the appropriate entries on the medical chart reflecting that all sponges were

accounted for in all three counts. Neither she nor Mr. Williams could account for

the error in Ms. Davis’ procedure.

In rendering its decision to assess Dr. Shimer with fifty percent of the fault

in failing to remove the sponge, the trial court first recognized that the plaintiff was

not obligated to present expert evidence to establish a standard of care different

from that testified to by Dr. Shimer because expert testimony was not necessary to

establish that Dr. Shimer was negligent in leaving a sponge in his patient’s body.

See Pfiffner v. Correa, 94-924 (La. 10/17/94), 643 So.2d 1228 and Hastings v.

Baton Rouge Gen. Hosp., 498 So.2d 713 (La.1986). Additionally, the trial court

relied on jurisprudence holding that a physician cannot delegate his obligation to

count the sponges used in a surgical procedure in finding Dr. Shimer partially at

fault in this matter. See Grant v. Touro Infirmary, 223 So.2d 148 (La.1969),

overruled on other grounds by Garlington v. Kingsley, 289 So.2d 88 (La.1974);

5

McLin v. Breaux, 05-1911 (La.App. 1 Cir. 11/3/06), 950 So.2d 711, writ denied

06-2822 (La. 1/26/07), 948 So.2d 177; Romero v. Bellina, 01-274 (La.App. 5 Cir.

9/25/01), 798 So.2d 279, writ denied 01-2852 (La. 1/11/02), 807 So.2d 237;

Johnston v. Sw. La. Ass’n, 96-1457 (La.App. 3 Cir. 4/2/97), 693 So.2d 1195; Seals

v. Gosey, 565 So.2d 1003 (La.App. 1 Cir.), writ denied 569 So.2d 983 (La.1990);

Kelly v. Riverside Med. Ctr., 499 So.2d 1135 (La.App. 1 Cir. 1986); Guilbeau v.

St. Paul Fire and Marine Ins. Co., 325 So.2d 395 (La.App. 3 Cir. 1975), writ

denied 329 So.2d 454 (La.1976); Chappetta v. Ciaravella, 311 So.2d 563 (La.App.

4 Cir.), writ denied 313 So.2d 841 (La.1975).

We find ourselves obligated to follow the well-established jurisprudence

on this issue and, in doing so, must affirm the trial court judgment in all respects.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects.

We assess all costs of this appeal to Brenna Davis.

AFFIRMED.

6