Cami Lindgren, Et Ux. v. John T. Ning, M.D.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1152

CAMI LINDGREN, ET UX.

VERSUS

JOHN T. NING, M.D., ET AL.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 74,568 DIV. B
HONORABLE JOHN C. FORD, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED.

Marc W. Judice
H.L. Tuten III
Judice & Adley
P. O. Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
Counsel for Defendants/Appellees:
Dr. John T. Ning
LAMMICO

R. Scott Iles
Attorney at Law
P. O. Box 3385
Lafayette, LA 70502
(337) 234-8800
Counsel for Plaintiffs/Appellants:
Cami Lindgren
Gordon Lindgren

PICKETT, Judge.

Plaintiffs, husband and wife, in this medical malpractice suit appeal the

jury’s determination that the defendant physician was not negligent in his treatment

of the wife. We affirm.

FACTS

Cami Lindgren sought treatment with Dr. John Ning, a urologist in

Leesville, after her bladder was nicked during a hysterectomy performed by

another physician. Mrs. Lindgren presented to Dr. Ning on August 22, 2002,

complaining of painful urination, frequent urination, hematuria or blood in her

urine, and pain. She reported to Dr. Ning that after her hysterectomy, she began

having issues with urinary frequency and urgency, pelvic pain, blood in her urine,

fever, pain during urination, back pain, and recurrent urinary tract infections.

Mrs. Lindgren was treated by Dr. Ning from August 22, 2002 through May 3,

2003. During her course of treatment, Dr. Ning implanted a medical device known

as InterStim Therapy (InterStim), manufactured by Medtronic, in Mrs. Lindgren’s

lower back in an attempt to alleviate her problems with urinary urgency and

frequency.

In March 2003, the Louisiana State Board of Medical Examiners (Board)

took disciplinary action against Dr. Ning that resulted in his agreeing to voluntarily

surrender his medical license as of August 19, 2003. In the disciplinary action, the

Board made allegations of Dr. Ning (1) employing deceit, perjury, false testimony,

and false information; (2) being professionally or medically incompetent;

(3) failing to satisfy the prevailing and usually accepted standards of medicine; and

(4) knowingly assisting an unlicensed person in the practice of medicine.

Mr. and Mrs. Lindgren instituted a medical review panel proceeding,

asserting claims of medical malpractice against Dr. Ning. The panel concluded

Dr. Ning’s treatment of Mrs. Lindgren did not fall below the applicable standard of

care, and they sued Dr. Ning, seeking damages. A jury trial was held at which the

Lindgrens testified and presented the expert testimony of a urologist, Dr. William

Kubricht III, who testified that Dr. Ning’s treatment of Mrs. Lindgren fell below

the standard of care in two respects. Dr. Ning testified in his defense and

supported his defense with the testimony of two urologists, Dr. Alexander

Gomelsky and Dr. Kenneth Verheek, who opined that his treatment of

Mrs. Lindgren was reasonable under the circumstances.

The jury voted nine to three in favor of Dr. Ning, finding that he was not

negligent. After a judgment in accordance with the jury’s verdict was signed by

the trial court, the Lindgrens filed a Motion for New Trial or, in the alternative,

Motion for Judgment Notwithstanding the Verdict, which the trial court denied.

Thereafter, they perfected this appeal.

ASSIGNMENTS OF ERROR

The Lindgrens assert three assignments of error:

(1) The trial court erred in deleting significant elements of the cross-
examination testimony of Dr. Ning.

(2) The trial court erred in deleting applicable portions of the cross-
examination of medical review panelist Dr. Gomelsky.

(3) The trial court erred in denying the post-trial motions, including
the motion for new trial or, in the alternative, motion for judgment
notwithstanding the verdict.

DISCUSSION

When Mrs. Lindgren began her treatment with Dr. Ning, she presented with

a complicated medical situation. She complained of painful urination, frequent

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urination, blood in her urine, and pain. In addition to her urinary problems,

Mrs. Lindgren indicated on a patient questionnaire that she was not satisfied with

life and was severely depressed.

Dr. Ning initially treated Mrs. Lindgren conservatively in an attempt to

relieve her bladder problems. After a short time, he implanted the InterStim to

help her bladder to function properly. As required by the Food and Drug

Administration, he first implanted a test device to see if it provided Mrs. Lindgren

any relief. Finding that the device improved Mrs. Lindgren’s symptoms, Dr. Ning

proceeded to implant a permanent device.

Dr. Ning’s notes indicate that the InterStim provided her relief from her

bladder symptoms. In stark contrast, Mrs. Lindgren testified that although the test

InterStim provided her three or four days of relief, the permanent InterStim did not

provide her relief. She specifically denied telling Dr. Ning that the permanent

InterStim worked, as he noted in his records. To the contrary, she related that the

permanent device randomly shocked her and, on occasion, would cause her big toe,

vagina area, or rectum to convulse.

After Dr. Ning closed his office, Mrs. Lindgren was treated by

Dr. Chuen Kwok in Leesville. Her complaints to Dr. Kwok were similar to the

complaints she made to Dr. Ning; however, she reported to Dr. Kwok on April 23,

2003, that the InterStim improved her symptoms. In July 2003, Mrs. Lindgren

sought treatment from Dr. Kubricht. When he treated Mrs. Lindgren, Dr. Kubricht

was the chief of female urology and reconstructive pelvic surgery at Louisiana

State University Medical Center-Shreveport. He recommended that she have the

InterStim removed. While Mrs. Lindgren was treating with Dr. Kubricht, her

husband was transferred to Fort Knox, Kentucky. Mrs. Lindgren’s treating

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urologist at Fort Knox taught her to catheterize herself, which Mrs. Lindgren

related “works great” and provides her “great relief.”

In their case, the Lindgrens presented the testimony of Dr. Kubricht to

establish that Dr. Ning’s use of the InterStim was below the standard of care

because he failed to treat Mrs. Lindgren conservatively with medications and

behavior therapy for a longer period of time before implanting the InterStim. They

also sought to prove that Dr. Ning’s treatment after he implanted the device was

below the standard of care.

Dr. Kubricht testified that Dr. Ning’s treatments of irrigating the bladder and

instilling it with antibiotics and pain medication were unusual for a patient with

Mrs. Lindgren’s symptoms. He found it very unusual to recommend InterStim as

early in a patient’s treatment as Dr. Ning did for Mrs. Lindgren and opined that

Dr. Ning’s treatment fell below the standard of care because he did not prescribe

antispasmodic drugs for Mrs. Lindgren on a consistent basis before implanting the

InterStim. Dr. Kubricht further testified that Dr. Ning’s treatment after the device

was implanted made it hard to determine whether the device had any impact on

Mrs. Lindgren’s symptoms. He explained that Dr. Ning’s notes, indicating the

device provided Mrs. Lindgren relief, were at odds with his actual treatment, which

included repeated bladder irrigations, instillations of the bladder with Marcaine,

and prescriptions for Lortab and Phernergan. Dr. Kubricht testified that continued

use of these drugs indicated that Mrs. Lindgren had significant pain.

On cross-examination, Dr. Kubricht was impeached with an earlier report he

had prepared in which he stated that physicians who strongly support use of the

InterStim, go straight to the InterStim with minimal use of the conservative therapy

he recommended. Additionally, when asked whether Dr. Gomelsky’s and the

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other medical review panel members’ opinions that Dr. Ning’s management of

Mrs. Lindgren was within the standard of care were reasonable, Dr. Kubricht

responded, “I think Dr. Gomelsky is more than able to come to that term.”

Dr. Kubricht also testified that InterStim treats some of Mrs. Lindgren’s

symptoms–frequency, urgency, and bladder spasms–but not pain and blood in the

urine.

Drs. Gomelsky and Verheek both testified they had experience with

InterStim. They explained that Dr. Ning had a complex set of problems to address

with Mrs. Lindgren and that his attempts to address her problems were reasonable

under the circumstances. Dr. Gomelsky reviewed Dr. Ning’s treatment of

Mrs. Lindgren and testified that while he tends to try a couple of different

medications for a period of four to six weeks before using InterStim, much

depends on the patient, how she feels, and what previous treatments have been

attempted.

On cross-examination, Dr. Gomelsky pointed out that Dr. Ning’s move to

treating Mrs. Lindgren with the InterStim was five months and five days after the

initial injury to her bladder during the hysterectomy. Lastly, he pointed out that

the number of visits Mrs. Lindgren had per month with Dr. Ning after the

InterStim was implanted was almost reduced by half as compared to the number of

visits she had per month before it was implanted.

Dr. Verheek’s testimony showed that he had thoroughly reviewed

Mrs. Lindgren’s medical records. He disagreed with Dr. Kubricht that Dr. Ning

did not take enough conservative measures before implanting the InterStim,

explaining that Dr. Ning used the only medications available at the time to treat

bladder problems in his treatment of Mrs. Lindgren. He opined that a uroflow test

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Dr. Ning performed on Mrs. Lindgren in September 2002, which showed her

bladder was slow emptying, supported the InterStim. Dr. Verheek’s review of

Dr. Ning’s operative report indicated to him that Dr. Ning had the skill and

knowledge to perform the procedure.

Dr. Verheek opined that in addition to her complaints of pelvic pain,

continued infections, and hematuria that she had before seeing Dr. Ning,

Mrs. Lindgren developed interstitial cystitis, a chronic and painful condition of the

bladder, when her bladder was nicked. He testified that there is no cure for this

condition, that its symptoms can increase during treatment, and that the disease can

be debilitating. Dr. Verheek testified that none of Dr. Ning’s treatment would have

aggravated or increased Mrs. Lindgren’s symptoms and that his care of her was

within the standard of care. He did admit, however, that there was a disconnect

without his hearing Mrs. Lindgren’s testimony and relying on Dr. Ning’s records

in light of his suspension from medical practice.

Did the trial court err in deleting significant elements from the cross-
examination of Dr. Ning?

Dr. Ning did not attend the trial; his trial deposition was videotaped and

shown to the jury. The Lindgrens complain the trial court erred in excluding

twelve pages of his deposition from presentation to the jury. The excluded

testimony pertains to Dr. Ning’s leaving the general surgery residency at the

Medical University of South Carolina to attend the urology residency at Brown

University, to the representation on his curriculum vitae that his service in the

Public Health Services, a branch of the uniformed service of the United States, was

military service, when it was not, and what InterStim training he received prior to

his implantation of Mrs. Lindgren’s InterStim device.

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As part of their argument, the Lindgrens assert that Dr. Ning was not

tendered as an expert during his trial deposition and that the excluded testimony

shows his testimony is baseless. To the contrary, Dr. Ning was tendered as an

expert in urology during his trial deposition. Counsel for the Lindgrens, however,

did not challenge Dr. Ning’s credentials. Accordingly, Dr. Ning testified as an

expert in urology. Hayne v. Woodridge Condos., Inc., 06-923 (La.App. 4 Cir.

4/11/07), 957 So.2d 804.

The Lindgrens also contend the excluded testimony shows Dr. Ning lied

regarding the grounds under which left the general surgery residence at the

Medical University of South Carolina. In the excluded testimony, Dr. Ning

testified that he left the general surgery residency for a urology residency at Brown

University because the general surgery residence was a demanding five-year

program, while the urology residency was two-year program.

Counsel for the Lindgrens attempted to impeach Dr. Ning’s explanation of

why he left the general surgery residency with testimony from his discovery

deposition that referenced hazing in that residency. They contend this attempt at

impeachment shows Dr. Ning lied. First, as explained by the trial court, counsel

did not follow the proper procedure for impeachment. Second, the testimony does

not show Dr. Ning lied.

Counsel questioned a statement made by Dr. Ning in his discovery

deposition in which he referenced hazing, asking, “Did you quit the program

because of hazing?” Dr. Ning responded that he left the program to enter a

specialty program, urology. Dr. Ning’s statement in his discovery deposition was,

“What I saw was hazing.” The excluded testimony does not establish, or even

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imply, that Dr. Ning lied about his reason for leaving the general surgery

residency.

The Lindgrens also urge a portion of the excluded testimony shows Dr. Ning

made an “early departure (AWOL) from his military obligation.” Dr. Ning’s

curriculum vitae showed that he worked for Public Health Service for a period of

time at a hospital in Alaska. He indicated thereon that his work for the Public

Health Service was “military service” but admitted in his deposition that the

service was not military service. He explained, however, that service in the Public

Health Service is “a uniformed service, [as] the Commission Corps of the Public

Health Service [is] operated under the Department of Defense.”

Continued questioning segued into whether Dr. Ning received InterStim

training in Alaska. Dr. Ning explained that he worked in Alaska before he

attended Brown University for his urology residency and that his work in Alaska

was not training. Counsel continued his questioning, stating he wanted to confirm

that Dr. Ning had not received InterStim training through his formal education or

through his training in the hospitals at which he had worked. In response, Dr. Ning

further explained that he did not receive any training in the hospitals at which he

had worked.

Dr. Ning’s trial testimony established that he learned about InterStim

implantation at programs and seminars he attended after his residency.

Additionally, Drs. Ning, Gomelsky, and Verheek testified that before any doctor

can perform InterStim implants, MedTronic requires him to be proctored by a

doctor qualified by MedTronic who verifies the training doctor can properly

perform the test implant and the permanent implant. Accordingly, the evidence

established InterStim training is provided by MedTronic, not by educational or

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training institutions. Furthermore, Dr. Kubricht’s testimony did not dispute this

evidence.

Trial courts are afforded broad discretion regarding the admissibility of

evidence. Williams v. Lafayette City-Parish Consol. Gov’t, 11-281 (La.App. 3 Cir.

10/5/11), 72 So.3d 1023. Unless an abuse of discretion is shown, a trial court’s

decision to exclude evidence will not be reversed. Id. We find no error with the

trial court’s exclusion of Dr. Ning’s testimony as to why he left the Medical

University of South Carolina because the excluded testimony does not show that

Dr. Ning lied in any respect. We also find no error with the trial court’s exclusion

of the testimony regarding Dr. Ning’s training on InterStim implantation, as the

information sought was provided at trial by Drs. Ning, Gomelsky, and Verheek.

Additionally, to the extent that Dr. Ning’s representation on his curriculum vitae

that his work for the Public Health Service was military service called his

credibility into question, the Board’s representations in the disciplinary action

taken against Dr. Ning clearly established that Dr. Ning’s credibility was highly

questionable. Therefore, any error in this regard was harmless.

As part of their argument, the Lindgrens also contend Dr. Ning’s failure to

respond to discovery they propounded to him after the trial court ordered him to

respond to the discovery warranted the excluded testimony being presented to the

jury. Article 1471 of the Louisiana Code of Civil Procedure provides that trial

courts can sanction a disobedient party’s refusal to respond to discovery by

dismissing the party’s suit or defaulting the party. Lasseigne v. Gerald E. Landry,

L.L.C., 11-584 (La.App. 3 Cir. 12/14/11), ___ So.3d ___. The Lindgrens did not

seek this relief from the trial court, and their attempts to sanction Dr. Ning for his

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failure and/or refusal to respond to the requested discovery in this manner are

improper.

For these reasons, the Lindgrens’ assignment of error regarding the trial

court’s exclusion of portions of Dr. Ning’s testimony lacks merit.

Did the trial court err in deleting portions of the cross-examination of
Dr. Alexander Gomelsky, a medical review panelist?

The Lindgrens argue the trial court’s exclusion of a portion of

Dr. Gomelsky’s testimony constitutes reversible error pursuant to a motion in

limine filed by Dr. Ning. When examining Dr. Gomelsky as to his qualifications

as an expert, the Lindgrens’ attorney asked Dr. Gomelsky if he knew

Dr. Kubricht’s qualifications as an expert. In the excluded testimony,

Dr. Gomelsky acknowledged that he knew Dr. Kubricht’s qualifications, that

Dr. Kubricht was his predecessor at Louisiana State University Medical Center-

Shreveport, and that they are experts in the same field.

We find no error in the trial court’s exclusion of this segment of

Dr. Gomelsky’s testimony. Dr. Gomelsky’s knowledge of Dr. Kubricht’s

qualifications and his recognition of him as an expert are irrelevant. In its role as

the trier of fact, the jury determined the weight of Dr. Kubricht’s expertise as

compared to the other experts who testified and whether to accept or reject any of

his opinion. McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La. 7/1/11), 65

So.3d 1218. Moreover, other than acknowledging that he and Dr. Kubricht are

experts in the same field, Dr. Gomelsky’s testimony did not provide the jury any

more information than Dr. Kubricht’s testimony regarding his qualifications did.

The trial court also excluded Dr. Gomelsky’s response to a question which

asked if he agreed that a certain action “would not be what most urologists would

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be considering.” Pursuant to La.R.S. 9:2794(1) and (2), the Lindgrens had to

prove Dr. Ning “either lacked [the] degree of knowledge or skill [practiced by

physicians within urology] or failed to use reasonable care and diligence, along

with his best judgment in the application of that skill.” The trial court determined

this question was irrelevant. We agree. It does not address whether Dr. Ning

“failed to use reasonable care and diligence.” Moreover, Dr. Gomelsky’s answer

was not responsive to the question. His response addressed what his

considerations were in light of the referenced test results, not what “most urologists

would be considering.”

Did the trial court err in denying Plaintiffs’ Motion for New Trial or, in the
alternative, Motion for Judgment Notwithstanding the Verdict?

In their last assignment of error, the Lindgrens argue the trial court erred in

denying their post-trial motions in which they sought a new trial or JNOV. In

support of this assignment of error, the Lindgrens discuss the legal requirements

for the grant of a directed verdict as provided in La.Code Civ.P. art. 1810. They do

not address the legal requirements for proving a new trial or a JNOV should be

granted, nor do they outline any facts which prove they are entitled to either

remedy. For these reasons, we consider this assignment of error abandoned and do

not address it. See Uniform Rules−Courts of Appeal, Rule 2-12.4.

DISPOSITION

The judgment of the trial court is affirmed. All costs of this appeal are

assessed to Cami and Gordon Lindgren.

AFFIRMED.

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