Clyde Snider, Jr. v. Louisiana Medical Mutual Ins. Co.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-1068

CLYDE SNIDER, JR. ET UX

VERSUS

LOUISIANA MEDICAL MUTUAL INSURANCE
COMPANY, ET AL.

**********
APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, DOCKET NO. 2010-1220
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, Billy H. Ezell and James David Painter,
Judges.

REVERSED: JUDGMENT RENDERED AS TO LIABILITY: REMANDED
FOR DETERMINATION OF DAMAGES.

Broussard, Halcomb & Vizzier
Daniel E. Broussard, Jr.
P.O. Box 1311
Alexandria, LA 71309-1311
(318) 487-4589
ATTORNEY FOR PLAINTIFFS/APPELLANTS
Clyde Snider, Jr. Et Ux

Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
Benjamin J. Guilbeau, Jr.
P.O. Box 2900
Lake Charles, LA 70602
(337) 436-9491
ATTORNEY FOR DEFENDANT/APPLELLEE
Louisiana Medical Mutual Insurance Comp., Et Al.

Cooks, Judge
PROCEDURAL HISTORY

The Louisiana State Supreme Court in Clyde Snider, Jr. Et Ux. v. Louisiana

Medical Mutual Insurance Company, Et al., 13-579, (La. 12/10/13), 130 So.3d

922, reversed this court’s decision in which we found the jury committed legal

error in rendering a verdict finding Dr. Yue did not commit medical malpractice. It

then remanded the case for this court to consider all of Plaintiffs’ assignments of

error including those not previously addressed by this court. On first review we

found Plaintiff’s alleged consent to the surgical procedure, which is the focus of

his malpractice claim, did not constitute informed consent as required by La. R.S.

40:1299.40. We held the jury legally erred in finding the contrary, and we

reversed the jury’s verdict. The supreme court has instructed us on remand to

reconsider that issue applying the manifest error standard of review. The supreme

court also declared that “compliance with the requirement of informed consent was

alternatively attainable under Subsection (A) or (C) of LSA-R.S. 40:1299.40.” Id.

at 939. In accordance with the supreme court’s instruction we have reviewed the

matter applying the appropriate standard of review on the issues presented by

Plaintiff.

RELEVANT FACTS

Clyde Snider, Jr. (Snider) received medical treatment from Dr. Robin Yue

(Dr. Yue) at Beauregard Memorial Hospital (Beauregard) in August 2007. Dr.

Yue performed a pacemaker implant on Snider. Snider, only twenty-six years old,

had a personal and family history of heart trouble, diabetes, and high blood

pressure. Snider’s primary cardiologist was Dr. J. King White, M.D. (Dr. White)

at Christus St. Patrick Hospital (St. Patrick) in Lake Charles, Louisiana. Snider

went to the Emergency Room at Beauregard on August 28, 2007, because he was

experiencing chest pain and had a low pulse rate. According to Dr. Yue’s

testimony, Snider’s pulse rate was below normal but was not so low as to

constitute an emergency situation.

According to Snider, and his wife at the time, Lisa Snider (Lisa) (now Lisa

Clark), he asked to be transferred to St. Patrick to be attended by his regular

cardiologist, Dr. White, but was told he was in too serious a condition to be sent

anywhere. Snider testified if he would have been told of an alternative to an

immediate implant at Beauregard, which would have allowed him to get the advice

of his regular cardiologist, Dr. White, he would have refused the implant. Dr. Yue

did not “outright” refute Snider’s version of events leading up to the surgery.

Rather, he simply testified he did not recall Snider asking to be transferred. He

also testified he did not offer Snider the option to be transferred so that his regular

cardiologist could oversee his care and treatment. Instead, Dr. Yue performed a

heart catheterization and then proceeded to the operating room to perform a

pacemaker implant. The implant procedure took about twenty minutes with a

small incision made in Snider’s chest leaving a permanent scar. Snider suffered

pain in his left arm and did not have normal use of that arm for several weeks.

Just before the procedure, Snider signed a partially blank consent form

purporting to signify his consent to the procedure. The record contains the consent

form, still displaying several blank lines and containing a typed-in line and a

handwritten note.

After returning home from Beauregard, Snider was injured when his two-

year-old daughter jumped into his arms upon seeing him before she could be

warned to be careful of his pacemaker implant. Snider returned to Beauregard and

was eventually treated for an infection at the site of the pacemaker implant. Snider

then sought examination by his cardiologist, Dr. White, who determined that the
2

implantation of the pacemaker was medically unnecessary and unwarranted. In

due course the pacemaker was surgically removed and Snider has not been the

worse since.

The three members of the Medical Review Panel found Dr. Yue violated the

standard of care in performing the implant on Snider under non-emergent

circumstances. Dr. White and one panel member provided live testimony at trial

and the parties stipulated that the two additional Medical Review Panel members

would have testified the same. Dr. Yue and his medical expert witness testified

that because Dr. Yue’s implantation of the pacemaker was one possible appropriate

choice his decision to immediately perform a permanent pacemaker implant did

not constitute medical malpractice. They agreed, however, with the other medical

experts that another option would have been to temporarily take Snider off of a

particular heart medication he was taking and wait at least twenty-four hours to see

if that helped Snider return to a more acceptable heart rate. According to the

testimony of five medical experts in the field of cardiology, the medical records

show Snider was stable at the time he was initially examined by Dr. Yue.

Additionally, his decision to proceed so quickly with a permanent implant after

administering only one dose of a beta-blocker constituted treatment below the

standard of care and was not in keeping with the national guidelines for

“Indications for Permanent Cardiac Pacing” as published by the joint task force of

the American College of Cardiology, the American Heart Association, and the

Heart Rhythm Society.

After careful review of the record a second time, we now find the jury

manifestly erred in failing to find that Dr. Yue’s actions fell below the acceptable

standard of care in light of the strong preponderance of evidence and testimony at

trial.
3

LEGAL ANALYSIS

Snider argues several assignments of error on appeal. He asserts the jury

erred in concluding that he failed to prove by a preponderance of evidence that Dr.

Yue “deviated from the appropriate standard of care.” He argues the jury erred in

finding he gave informed consent for the procedure under the provisions of La.

R.S. 40:1299.40. Snider also maintains Dr. Yue rushed his decision to perform a

pacemaker implant without all of the necessary medical information available

concerning Snider’s condition and without attempting to contact Snider’s regular

cardiologist. He further contends Defendants failed to show that the opinion

reached by the Medical Review Panel was unreasonable. Additionally, he

maintains Dr. Yue should have disclosed to him his financial incentive

arrangement with Beauregard before performing the pacemaker implant and that

Dr. Yue’s undisclosed financial incentive to perform such an operation was the

reason Dr. Yue failed to contact Snider’s treating physician and refused to consider

transporting him to St. Patrick’s for care and treatment. Snider contends Dr. Yue’s

failure to make this disclosure was a violation of the standard of care.

The law regarding informed consent in medical malpractice claims is well-

settled in Louisiana. It is both statutory and jurisprudential. Tipton v. Campbell,

08-139, 08-140 (La.App. 4 Cir. 9/24/08), 996 So.2d 27, writ denied, 08-2564 (La.

1/9/09), 998 So.2d 720. In Maybrier v. Louisiana Medical Mutual Insurance Co.,

08-1508, p.8, (La.App. 3 Cir. 6/10/09), 12 So.3d 1115, 1121, writ denied, 09-1558

(La. 10/9/09), 18 So.3d 1287 (emphasis added), we explained the doctrine of

informed consent:

The informed consent doctrine is based on the principle that
every adult of sound mind has the right to determine what will be
done to his or her own body. LaCaze v. Collier, 434 So.2d 1039 (La.
1983). Where circumstances permit, a patient should be told the
nature of the pertinent ailment or condition, the general nature of the
4

proposed treatment or procedure, the risks involved, the prospects of
success, the risks of failing to undergo the treatment or procedure,
and the risks of any alternative methods of treatment. Hondroulis [v.
Schumacher], 553 So.2d 398 [(La. 1988)].

In this case, however, it is not necessary for us on remand to visit the

question of informed consent again because even if Snider gave informed consent

under Sections A or B of the statute, which the supreme court finds applicable,

such consent has no bearing on the question of whether Dr. Yue’s actions fell

below the standard of care when he rushed to implant a permanent pacemaker in

the body of Snider. As noted, Dr. Yue maintains his decision to do so did not

constitute malpractice because he deemed it an “appropriate choice.” Therein lies

the legal quagmire upon which Dr. Yue’s position rests.

According to four medical experts who testified in this matter, including

Snider’s treating physician, Snider’s condition was not critical or life-threatening at

the time. Dr. Yue and his expert witness agree with that assessment. Dr. Yue

testifies in his own opinion, although Snider’s heart rate was abnormally low it was

not so low as to pose an immediate threat. Additionally, Dr. Yue’s expert witness,

Dr. Freddy Michel Abi-Samra, (Dr. Samra) testified Snider’s condition was a Class

II situation, meaning it was not mandatory that a pacemaker be immediately

implanted, and that Snider was indeed in good enough condition to be transferred

to St. Patrick’s hospital in Lake Charles where he could have been attended by his

regular cardiologist.

The document introduced into evidence entitled “Indications for Permanent

Cardiac Pacing” lists three classifications for permanent pacing as established by a

joint task force formed by the American College of Cardiology, the American

Heart Association, and the Heart Rhythm Society. Under these national

guidelines, the three classifications are described as follows (emphasis added):

5

Class I -- Conditions in which permanent pacing is definitely
beneficial, useful, and effective. In such conditions, implantation of a
cardiac pacemaker is considered acceptable and necessary, provided
that the condition is not due to a transient cause.

Class II – Conditions in which permanent pacing may be
indicated but there is conflicting evidence and/or divergence of
opinion; class IIA refers to conditions in which the weight of the
evidence/opinion is in favor of usefulness/efficacy, while class IIB
refers to conditions in which the usefulness/efficacy is less well
established by evidence/opinion.

Class III -- Conditions in which permanent pacing is not
useful/effective and in some cases may be harmful.

Symptoms – Patients frequently present for consideration of
pacemaker placement because of symptoms that may be due to
bradyarrhythmias (e.g. dizziness, lightheadedness, syncope, fatigue,
and poor exercise tolerance). These patients will often have evidence
of mild or intermittent sinus node dysfunction or conduction
abnormalities. It is critical to attempt to establish a direct correlation
between symptoms and bradyarrhyythmias. This is done via a careful
history and ambulatory monitoring.

A direct correlation between symptoms and bradyarrhythmias
will increase the likelihood of recommending pacemaker placement.
On the other hand, failure to document such a correlation or the
presence of an alternative explanation for symptoms will make
pacemaker placement less likely or even contraindicated.

The medical records of Beauregard Hospital concerning Snider’s condition

when he was admitted on August 28, 2007, indicate Snider had no new onset of

fatigue, no “chronic headaches, dizziness, syncope, stroke seizures, or numbness or

tingling” though he was experiencing some episodes of nearly passing out. He was

“alert, awake, in mild acute distress” with a pulse rate of 35. He is described as a

“well developed, well nourished” person with a “regular [heart]rhythm S1 S2”

with “no significant heart murmur.” There was “no edema” in his legs. In Dr.

Yue’s consultation report on this same date he notes Snider “developed

bradycardia” after his heart attack three months earlier and that “[h]is symptoms

[progressively got worse after] he started taking Atenolol [2 weeks earlier].” He

also noted that although chest pains brought Snider to the E.R. that day, by the
6

time Dr. Yue saw him he was “chest pain free”. In Dr. Yue’s Consultation Report

he diagnosed Snider with “Symptomatic bradycardia” but notes “[a]lthough patient

is on beta blocker, patient has bradycardia before he started Atenolol. Atenolol

just made his symptoms worse.”

Despite these observations, and being informed of Snider’s ongoing

treatment under the care of a cardiologist, and, knowing at that time Atenolol was

an experimental drug, Dr. Yue admits he did not attempt to contact Snider’s

regular cardiologist in Lake Charles. Further, he acknowledges that it would not

have posed any serious threat to Snider to wait at least twenty-four hours or more

to see if Snider’s slow heart rate would normalize after discontinuing Atenolol

before implanting a pacemaker as a solution to Snider’s immediate symptom. The

record clearly supports a finding that Dr. Yue failed to follow the protocol

established in the guidelines for “Indications for Permanent Cardiac Pacing”.

Significantly, he did not “attempt to establish a direct correlation between

symptoms and bradyarrhyythmias” which “is done via a careful history and

ambulatory monitoring.” He did not heed the warning in the guidelines that

“failure to document such a correlation or the presence of an alternative

explanation for symptoms will make pacemaker placement less likely or even

contraindicated”. It is clear that, when contemplating the pacemaker implant, Dr.

Yue was aware of strong “alternative explanations” for Snider’s symptom which

had already begun to abate after his arrival at Beauregard Hospital. His decision to

perform the invasive implant procedure clearly fell outside the guidelines

established by the joint task force of the American College of Cardiology, the

American Heart Association, and the Heart Rhythm Society; and fell below the

standard of care in this specialized field.

Specifically, the record shows Snider’s low heart rate could have been
7

caused by the new medications he was prescribed by his treating physician. The

evidence also shows other reasonable alternatives to an immediate “emergency”

pacemaker implant in this instance including transferring Snider to St. Patrick’s for

treatment by his regular cardiologist who was more knowledgeable about his

condition and/or simply waiting at least twenty-four hours to see if the

administration of more than one dose of a beta-blocker and/or discontinuance of

Atenolol would allow Snider’s heart rate to return to a more normal range. All of

these options were “appropriate” choices for Snider’s circumstances under the

published guidelines and according to the experts in the field who testified. Five

medical experts agreed on the availability of these alternatives, and all opined that

the standard medical practice would have been to employ these alternatives before

“rushing” to a pacemaker implant which this patient ultimately did not need.

We point out the Medical Review Panel unanimously found “Dr. Yue rushed

the decision for implantation of a permanent pacemaker in this patient.” According

to these three highly qualified medical experts, and Snider’s treating physician,

“[Dr. Yue] should have stopped the beta-blocker and the rivaroxabhan for 24-48

hours, and monitored the patient for possible improvement or deterioration in heart

rate, before making the decision about a permanent pacemaker.” (emphasis added).

This finding is consistent with the nationally established “Indications for

Permanent Cardiac Pacing.” Dr. Yue’s action was wholly inconsistent with the

established guidelines and prescribed protocol. It simply was not an “appropriate

choice” as he maintains. As Dr. Yue testified, Snider’s condition at the time he

recommended the pacemaker implant was not life-threatening. All medical experts

in the case agreed with that assessment. Instead, as the Medical Review Panel

acknowledged, Dr. Yue made the decision for Snider and inappropriately “rushed”

to that decision. Snider’s treating cardiologist and another expert in the field later
8

removed the pacemaker finding it was never necessary to implant and was not

appropriate cardiac care for Snider. We therefore find the jury manifestly erred in

concluding that the evidence did not preponderate in Snider’s favor.

A plaintiff’s burden of proof in a medical malpractice case against a

physician was set forth by the supreme court in Martin v. East Jefferson General

Hospital, 582 So.2d 1272, 1276 (La.1991):

In a medical malpractice action against a physician, the plaintiff
carries a two-fold burden of proof. The plaintiff must first establish
by a preponderance of the evidence that the doctor’s treatment fell
below the ordinary standard of care expected of physicians in his
medical specialty, and must then establish a causal relationship
between the alleged negligent treatment and the injury sustained.
LSA-R.S. 9:2794; Smith v. State through DHHR, 523 So.2d 815, 819
(La.1988); Hastings v. Baton Rouge General Hospital, 498 So.2d 713,
723 (La.1986). Resolution of each of these inquiries are
determinations of fact which should not be reversed on appeal absent
manifest error. Housley v. Cerise, 579 So.2d 973 (La. 1991); Smith,
523 So.2d at 822; Rosell v. ESCO, 549 So.2d 840 (La.1989);
Hastings, 498 So.2d at 720.

See also Goodwin v. Kufoy, 07-737, (La.App. 3 Cir. 1/16/08), 974 So.2d 815.

Snider has shown that Dr. Yue’s action fell below the standard of care, and

he has shown that Dr. Yue’s breach of his duty was the cause-in-fact of his

damages. Because we have found the jury could not reasonably conclude that Dr.

Yue’s actions did not fall below the standard of care, we need not address the

issues raised by Snider concerning Dr. Yue’s failure to disclose his personal

financial interest in performing the procedure nor is it necessary to address

Snider’s contention that Defendant improperly appealed to local bias by counsel’s

remarks to the jury in closing argument.

We therefore reverse the judgment of the trial court and render judgment in

favor of Plaintiffs. Although the record contains some stipulations as to medical

costs and references to the costs of the litigation, the trial judge elected to bifurcate

the evidence concerning damages pending the jury’s decision in the matter. The
9

jury’s decision finding no liability aborted further proceedings in the matter. We

therefore remand the matter to allow the parties an opportunity to complete the

record regarding damages which may be due Plaintiffs.

DECREE

Judgment is rendered in favor of Plaintiffs. All costs of this appeal are

assessed against Defendants/Appellants. The case is remanded to the district court

for a determination of the amount of damages to be awarded to Plaintiffs.

REVERSED: JUDGMENT RENDERED AS TO LIABILITY: REMANDED
FOR DETERMINATION OF DAMAGES.

10