Terry Lee Johnson, Sr. v. Lynn Edward Foret, M.D.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-446

TERRY LEE JOHNSON, SR.

VERSUS

LYNN EDWARD FORET, M.D.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-2492
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of Billy H. Ezell, James T. Genovese, Shannon J. Gremillion,
Phyllis M. Keaty, and John E. Conery, Judges.

REVERSED AND RENDERED.

Gremillion, S., dissents and assigns reasons.

John L. Hammons
Cornell Flournoy
Nelson & Hammons, APLC
705 Milam Street
Shreveport, LA 71101
(318) 227-2401
COUNSEL FOR PLAINTIFF/APPELLANT:
Terry Lee Johnson, Sr.

J. Gregory Bergstedt
Elizabeth F. Shea
Fraser, Wheeler & Bergstedt
P. O. Box 4886
Lake Charles, LA 70606-4886
(337) 478-8595
COUNSEL FOR DEFENDANT/ APPELLEE:
Lynn Edward Foret, M.D.

CONERY, Judge.

Terry Lee Johnson, Sr. (“Mr. Johnson”) appeals the trial court’s judgment

that Lynn E. Foret, M.D. (“Dr. Foret”), did not breach the standard of care in his

treatment of Mr. Johnson, dismissing his claim against Dr. Foret for medical

malpractice. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Johnson injured or scraped his right knee during Hurricane Rita. It had

become infected when he was exposed to dirty water in a local lake. When the

infection worsened and became serious, Mr. Johnson sought treatment at a Lake

Charles emergency room. In the aftermath of the storm, which caused limited

availability of medical care in the Lake Charles area, the E.R. was unable to

properly treat Mr. Johnson, and he was evacuated by ambulance to Christus

Schumpert Medical Center in Shreveport, Louisiana, where he was diagnosed with

a severe abscess and infection of the right knee. The knee was excised, debrided,

and drained. Mr. Johnson was placed on antibiotic therapy to treat the infection.

He was instructed to return to his physician in Lake Charles for follow up

treatment.

On October 16, 2005, some nine days after his discharge from the

Shreveport hospital, Mr. Johnson sought care from Dr. Foret due to continued pain

and discomfort in his right knee. Dr. Foret confirmed upon examination that Mr.

Johnson continued to suffer from a serious infection of the right knee. The next

day, Dr. Foret performed a second surgery consisting of irrigation and debridement,

with follow up antibiotic treatment.

The infection in Mr. Johnson’s right knee persisted. Multiple laboratory

studies ordered by Dr. Foret confirmed that Mr. Johnson was suffering from

methicillin resistant staphylococcus aureus (“MRSA”), a severe infection of the

right knee which had not resolved. On December 22, 2005, without laboratory

evidence that Mr. Johnson’s right knee infection had cleared, Dr. Foret performed

total right knee replacement surgery, with the insertion of a prosthesis.

After the surgery, Mr. Johnson continued to suffer knee pain and swelling

from the MRSA infection, now exacerbated by the placement of a foreign body,

the prosthesis, into an infected and septic joint. Mr. Johnson returned to Dr. Foret,

who again operated on Mr. Johnson on March 9, 2006, performing an arthrotomy1

and a bursectomy.2 The infection persisted.

Dr. Foret performed yet another surgery on May 8, 2006, removing Mr.

Johnson’s right knee prosthesis. He noted that the infection was still present. Dr.

Foret irrigated and scrubbed the knee joint before inserting a methyl-mathacrylate-

impregnated spacer. Mr. Johnson was once again placed on continuous home IV

antibiotics to be administered via a peripherally inserted central catheter (“PICC

line”) in his upper arm area. On June 10, 2006, Mr. Johnson returned to the

emergency room with complaints of post-operative bleeding. He was continuing

to receive antibiotics via a PICC line.

On September 14, 2006, Dr. Foret performed another total right knee

replacement with placement of a prosthesis in Mr. Johnson’s still infected knee.

Post-surgery, Mr. Johnson’s knee remained red, swollen, and began draining due to

the continuing infection. In response to these complications, on October 17, 2006,

Dr. Foret operated on Mr. Johnson’s right knee yet again, performing an incision

1
An arthrotomy is an incision into the joint.
2
A bursectomy is removal of the bursa, a small sac filled with synovial fluid that
cushions adjacent structures, usually due to infection.

2

and drainage. However, he failed to remove the prosthesis and spacer he had

placed in Mr. Johnson’s still infected knee.

Shortly thereafter, Mr. Johnson was referred by Dr. Foret to Dr. Orlando

Schaening, a board-certified infectious disease specialist in Beaumont, Texas. On

October 25, 2006, Dr. Schaening examined Mr. Johnson and diagnosed him with a

right prosthetic knee infection. He recommended that Mr. Johnson undergo

surgery for the removal of the prosthesis followed by treatment for the infection.

Mr. Johnson informed Dr. Schaening that he did not wish to return to Dr. Foret for

another surgery. At Mr. Johnson’s request, Dr. Schaening referred Mr. Johnson to

Dr. Ronald E. Talbert, a board-certified orthopedic specialist also in Beaumont,

Texas.

Dr. Talbert examined Mr. Johnson on October 26, 2006, and agreed with Dr.

Schaening that the infection could not be resolved without removing the second

prosthesis. He did so on October 30, 2006. Dr. Talbert, with the assistance of Dr.

Schaening, treated Mr. Johnson for four months after the surgery, finally resolving

the infection in his right knee. Nevertheless, Mr. Johnson continued to suffer pain

and his right knee was unstable.

Dr. Talbert then referred Mr. Johnson to Dr. Daniel Thompson, an

orthopedic surgeon specializing in difficult fracture and joint management. Both

surgeons recommended that Mr. Johnson undergo a surgical fusion of the right

knee because of the damage caused by the previous surgeries. Mr. Johnson agreed,

and Dr. Thompson performed a successful surgical fusion of the knee joint. As a

result of the right knee fusion, however, Mr. Johnson is now totally and

permanently disabled from his former employment as a painter/sandblaster/truck

3

driver. He has incurred $331,562.49 in medical expenses associated with the

alleged medical malpractice of Dr. Foret, a sum that is not in dispute.

On March 19, 2007, Mr. Johnson filed a timely claim pursuant to the

Louisiana Medical Malpractice Act alleging that despite the overwhelming

evidence of active infection in his right knee, Dr. Foret performed a total knee

replacement and then magnified his own error by failing to provide appropriate

antibiotic therapy and proper post-operative treatment.

A unanimous medical review panel composed of three board-certified

orthopedic surgeons concluded that Dr. Foret breached the standard of care and

caused Mr. Johnson’s damages. The panel opinion stated, “Dr. Foret should not

have gone forward with the surgery until the infection was demonstrated to be

cleared.”

Dr. Foret was a qualified health care provider and was covered by the

Louisiana Patients’ Compensation Fund (“LPCF”). After the medical evidence

was submitted to the LPCF, the fund ultimately settled with Mr. Johnson.3 Mr.

Johnson reserved his right to pursue his damage claims against Dr. Foret, and filed

a timely suit on May 21, 2009. Mr. Johnson alleged in his petition that Dr. Foret

negligently performed a right total knee replacement, with placement of a

prosthesis, without first resolving a severe infection in his knee; that he failed to

provide appropriate post-operative treatment, thereby requiring removal of the

prosthesis in May 2006; and that he negligently performed a second total knee

replacement and inserted another prosthesis in September 2006 while his knee was

still infected.

3
The settlement documents were not filed in evidence and hence this opinion does not
address any continuing potential claims Mr. Johnson may have for future medical expenses
against the LPCF pursuant to La.R.S. 40:1299.43(B)(1)(b).

4

In December 2010, Mr. Johnson filed a motion for summary judgment

arguing that there was no genuine issue of fact that Dr. Foret committed medical

malpractice. He introduced the affidavits of the medical review panel who

unanimously found that Dr. Foret had failed to adhere to the standard of care,

causing Mr. Johnson’s damages. The hearing on Mr. Johnson’s motion for

summary judgment was fixed for May 19, 2011, but was continued without date.

A trial on the merits was later rescheduled for May 22, 2012. On May 22, 2012, a

pre-trial conference was held in chambers.

The transcript of May 22, 2012 reflects that pursuant to the stipulation of

counsel, the parties agreed to and thus submitted the entire case for decision to the

trial court based on documentary evidence in lieu of live testimony. After

reviewing a post-trial memorandum from Mr. Johnson, the trial court issued

written reasons for judgment on August 31, 2012. The trial court found that Dr.

Foret did not breach the standard of care in his treatment of Mr. Johnson and

issued its judgment on October 10, 2012, dismissing Mr. Johnson’s claim with

prejudice at his cost. Mr. Johnson timely appealed, assigning four errors.

ASSIGNMENTS OF ERROR

Mr. Johnson asserts on appeal that:

1. The Trial Court erred in failing to even consider the testimony
of Dr. Ronald E. Talbert, appellant’s treating orthopedist.

2. The Trial Court erred in failing to even consider the testimony
of Dr. William L. Overdyke, a board[-]certified orthopedic surgeon
from Shreveport who specializes in joint replacement surgery.

3. The Trial Court erred in failing to consider or even reference the
admissions of medical neglect made by Dr. Foret in the medical
records themselves.

5

4. The Trial Court erred in concluding that Dr. Foret complied with
applicable medical standards of care in providing treatment to Mr.
Johnson.

DISCUSSION
Standard of Review

In Virgil v. American Guarantee & Liability Insurance Co., 507 So.2d 825

(La.1987), and Shephard v. Scheeler, 96-1690 (La. 10/21/97), 701 So.2d 1308, our

supreme court held that even when a case is submitted to the trial judge for

decision on record evidence only with no live testimony, we are nonetheless

obligated to apply the manifest error standard when reviewing the case on appeal.

When reviewing a summary judgment, likewise submitted on only record evidence

with no live testimony, we are to use the less restrictive de novo standard. Smith v.

Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730; Smitko v.

Gulf South Shrimp, Inc., 11-2566 (La. 7/2/12), 94 So.3d 750.

How do we reconcile the cases using the manifest error standard of review

when reviewing cases submitted for trial on documents, affidavits, and depositions

with those cases using the de novo standard when considering summary judgments

using the same type of evidence? In Virgil and Shephard, the supreme court

attempted to explain by examining the rationale behind the rulings. A trial on the

merits requires the trial judge to find the facts. The proper allocation of trial and

appellate court functions requires deference to the fact finder. Summary judgments,

on the other hand, can only be granted in cases where the material facts are not in

dispute, hence no factual findings and no deference is required. Virgil, 507 So.2d

825; Shephard, 701 So.2d 1308.

Even when applying the manifest error standard, the larger question is how

to decide whether the trial court was clearly wrong, how to apply the proper

6

allocation of trial and appellate court functions. In Virgil and Shepherd, the

supreme court emphasized that even though a trial judge may have decided a case

on a “cold record,” without live testimony that would allow the fact finder to

observe demeanor, inflection, tone, and manner of testifying witnesses, appellate

courts should none the less accord great deference to “the trial court’s factual

findings, both express and implicit, and reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed on appellate review of the

trial court’s judgment.” Shephard, 701 So.2d at 1316.

Immediately after this pronouncement of the standard of review in Shephard,

the supreme court went on to find that the trial court in that case “clearly erred in

finding that the accident was caused by an unreasonably dangerous puddle of

standing water[.]” Id. The court reversed a finding of fact made by the trial court

and found that it was “clearly erroneous” based on review of all evidence of record.

Clearly, great deference does not mean total deference.

In Alexandria v. Pellerin Marble & Granite, 93-1698, p. 1 (La. 1/14/94), 630

So.2d 706, 710, the supreme court re-affirmed Virgil and Shephard’s holding that

the manifest error standard applied, even when documentary evidence is used, but

then reversed a portion of the judgment of the hearing officer and appellate court,

stating:

We find that the court of appeal did not err by applying the
manifest error standard of review. Application of the manifest error
standard of review does not however, mandate the affirmance of a
lower court decision with respect to findings of fact. When an
appellate court finds manifest error, the factual findings of the trier of
fact may be reversed.

See also Magbee v. Federal Exp., 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048

and Racca v. Acme Truck Lines, Inc., 12-1319 (La.App. 3 Cir. 6/12/13), 115 So.3d

7

1222 (both applying the manifest error standard, but finding that the workers’

compensation judge was clearly erroneous). Great deference does have its

limitations. The appellate court can and must review the facts and the entire record

in fulfilling its purpose, role, and function.

Burden of Proof – Medical Malpractice Action

A plaintiff in a medical malpractice action must meet the three-prong burden

provided for in La.R.S. 9:2794(A) by proving:

(1) The degree of knowledge or skill possessed or the degree of
care ordinarily exercised by physicians, dentists, 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.

Thus, a ruling in favor of a defendant means that the plaintiff failed to prove

that the physician breached the standard of care or that the breach caused injury.

“Under the manifest error standard of review, a factual finding cannot be set aside

unless the appellate court finds that it is manifestly erroneous or clearly wrong.”

Salvant v. State, 05-2126, p.5 (La. 7/6/06), 935 So.2d 646, 650. If the trial court’s

decision is based on reasonable factual findings, the trial court’s judgment should

be affirmed.

8

Following a review of the record and for the reasons stated below, we find

that the trial court’s decision in this case was not based on reasonable factual

findings and was clearly wrong. The trial court erred in its conclusion that Dr.

Foret did not breach the standard of care in his treatment of Mr. Johnson, and that

the breach did not cause the injuries claimed by Mr. Johnson.

Assignment of Error One

Mr. Johnson urges that the trial court erred in failing to consider the

testimony of Dr. Ronald E. Talbert, his treating orthopedic surgeon. Mr. Johnson’s

attorney references medical “reports” of Dr. Talbert dated March 27, 2007, and

June 16, 2007, which had been discussed in briefs and argument to the trial and

appellate courts without objection. However, the reports, though obviously

intended to have been filed in evidence, were not in the record as originally lodged.

We remanded this case to the trial court to determine if the referenced reports had

been filed in evidence, or should have been submitted into evidence at trial, and if

so, to allow the record to be supplemented.

By the time the remand reached the district court, the original trial judge

who decided the case had retired. In its January 30, 2014 judgment on remand, the

new trial judge concluded “that only those specific documents presently included

in Trial Exhibit 17 - Beaumont Bone & Joint Institute records were properly

introduced and filed into evidence and any records, reports, or other documentary

evidence from Dr. Talbert not specifically and presently included in Trial Exhibit

17 - Beaumont Bone & Joint Institute records were not introduced and filed into

evidence.” The trial court denied the request to supplement the record with the two

medical reports. The two referenced narrative reports are not contained in Exhibit

17 and, therefore, are not properly before this court and cannot be considered.

9

However, this court is not constrained from considering the remaining

medical records of Dr. Talbert from the Beaumont Bone & Joint Institute that are

part of the record and were filed in evidence in Plaintiff’s Exhibit 17 and further

contained in Plaintiff’s Exhibit 18.

Dr. Talbert’s October 26, 2006 medical record of his initial appointment

with Mr. Johnson correctly summarizes Mr. Johnson’s medical history involving

his right knee, the ongoing MRSA infection, and Dr. Foret’s prior treatment. Dr.

Talbert’s history includes the last procedure performed by Dr. Foret on October 17,

2006, which was irrigation and debridement, which left Mr. Johnson with “drains

in his knee and an open draining wound.”

Dr. Talbert states under the heading of “IMPRESSION: Chronically infected

right total knee arthroplasty with failed two-stage revision. The patient currently

has open draining wounds.” Dr. Talbert’s records include a

“RECOMMENDATIONS” section, which states:

I have discussed with him and his daughters today that I do not think
this could be treated without removal of the prosthetic components. I
would recommend doing that and again putting in antibiotic spacers
and treating him with long-term intravenous antibiotic therapy.

After the infection is felt to be controlled, consideration will be then
be given to whether another implant could be done or whether he
should consider arthrodesis[4] of his knee. They are in agreement with
this plan. We are going to have him be admitted Monday for
prosthesis removal.

Dr. Talbert’s Operative Report gives the details of the surgical procedure he

performed on Mr. Johnson on October 30, 2006, and states under the following

headings:

PREOPERATIVE DIAGNOSIS:
Infected right total knee arthroplasty.

4
An arthrodesis is a fusion of the knee.

10

POSTOPERATIVE DIAGNOSIS:
1. Infected right total knee arthroplasty.
2. Disruption extensor mechanism right knee.

TITLE OF PROCEDURE:
1. Irrigation and debridement of the right knee with removal of
prosthetic component and insertion of antibiotic spacers.
2. Patellectomy[5] right knee.

The surgical procedure performed by Dr. Talbert is contained under the

heading “DESCRIPTION OF PROCEDURE[.]” Dr. Talbert removed the drains

and opened Mr. Johnson’s knee to reveal that “The patella had significant necrotic

material present with minimum bone remaining. Therefore, a Patellectomy was

performed and the patellar tendon debrided. Obvious necrotic material was

removed. Cultures were taken and sent to the laboratory.”

Dr. Talbert then removed the prosthesis, and the knee was debrided,

irrigated, and antibiotic spacers were placed between the tibia and the femur.

“Two large bore drains were inserted.”

On November 7, 2006, Mr. Johnson was discharged from the hospital by Dr.

Talbert. Dr. Talbert’s Discharge Summary states as follows:

FINAL DISCHARGE DIAGNOSIS:
1. Infected right total knee arthroplasty.
2. Acute blood loss anemia.

FOLLOW UP:
Patient is discharged to home. He has arrangements for home IV
antibiotic therapy and outpatient hyperbaric oxygen therapy. He will
be seen in the office in about a week.

Following his discharge from the hospital subsequent to his surgery, Mr.

Johnson continued to see Dr. Talbert and Dr. Schaening for treatment of his knee

infection and monitoring of his condition. On February 8, 2007, Dr. Talbert’s

records show that Mr. Johnson is three months post-surgery, and “There are no

5
A patellectomy is the removal of the patella.

11

signs of inflammation with the knee.” Further, “At this point he is showing no

signs of active infection.”

At this juncture, Dr. Talbert referenced Mr. Johnson’s pending afternoon

appointment with Dr. Schaening. Dr. Talbert also indicated that Mr. Johnson had

seen Dr. Thompson during his appointment with Dr. Talbert to discuss fusing his

knee and he had agreed to have this procedure done by Dr. Thompson once Mr.

Johnson had been cleared for surgery by Dr. Schaening and Mr. Johnson was ready

to schedule the surgery.

Dr. Talbert’s medical records contained in the record in Plaintiff’s Exhibits

17 and 18 should have been considered by the trial court, as they provide support

for the opinions of the other experts and the medical review panel that the infection

suffered by Mr. Johnson had not resolved either before or after any of the multiple

surgical procedures performed by Dr. Foret, including two total knee replacement

procedures, all of which resulted in Mr. Johnson’s damages. We find merit in Mr.

Johnson’s first assignment of error that the trial court did not properly consider the

findings of Mr. Johnson’s treating orthopedic surgeon, Dr. Talbert.

Assignments of Error Two, Three, and Four

This court finds that errors two and three are subsumed into error four. In

error four, Mr. Johnson urges the trial court erred in concluding that Dr. Foret

complied with the applicable standard of care in his treatment of Mr. Johnson. For

the following reasons, we find this assignment error also has merit.

12

Record Evidence Supporting Dr. Foret’s Breach of the Standard of Care
Thereby Causing Mr. Johnson’s Injuries.

Dr. William L. Overdyke – Board-certified Orthopedic Surgeon

Dr. Overdyke is a board-certified and renowned orthopedic surgeon from

Shreveport, Louisiana. He reviewed all of Mr. Johnson’s medical records,

including all the laboratory work preceding the December 22, 2005, total knee

replacement surgery with prosthesis performed by Dr. Foret.

In his March 5, 2007 letter opinion to Mr. Johnson’s attorney, John

Hammons, Dr. Overdyke specifically details his review of the medical records of

Mr. Johnson beginning on October 17, 2005. Dr. Overdyke’s opinion letter states

in pertinent part:

The next notes are hospital notes than began on 10-17-05 with an
arthrotomy, irrigation and debridement. Mr. Johnson was already on
antibiotics at that point. Cultures were negative. Follow-up laboratory
began on October 20 with a sedimentation rate of 85 with normal
being less than 10. He had multiple sedimentation rates as follows:
On 10-27, his SED rate was 30, white court was 11.3, which is
elevated. On 11-15 his SED rate was 77, white blood count was 10.6.
On 11-30 his SED rate was 61. On 12-7 his SED rate was 42. The last
recorded SED rate in these records was 12-13, his SED rate 30. He
had a culture done on December 7 which again grew a methicillin
resistant Staph aureus. He had an MRI obtained on 11-14-05 that was
consistent with septic arthritis. Subsequently, he underwent a primary
right total knee replacement on December 22, 2005.

In his September 21, 2010 affidavit, Dr. Overdyke reprises his opinion from

his earlier March 5, 2007 letter opinion to counsel. Dr. Overdyke clearly states

that Dr. Foret’s decision to perform total knee replacement surgery on Mr. Johnson

in December 2005 was below the standard of care and resulted in all of the

subsequent medical procedures Mr. Johnson was forced to undergo. Dr.

Overdyke’s affidavit states in pertinent part:

In review of the course of lab work including SED rates,
positive cultures, an MRI consistent with septic arthritis, I believe it

13

was ill advised to proceed with a total knee replacement in the face of
an active infection, which all evidence pointed to. Again, to clarify
my position, I believe that a right total knee replacement performed in
the face of overwhelming evidence of an active infection in the right
knee was below medical standards.

The remainder of Mr. Johnson’s medical problems including
the necessity for re-operation, revision, and ultimately probably a
fusion of his right knee is a direct result of the initial infection as a
result of the procedure done on December 22, 2005.

Opinion of the Medical Review Panel Consisting of Three Board-Certified
Orthopedic Surgeons

The medical review panel consisted of three board-certified orthopedic

surgeons, Dr. Michael Acurio, Dr. J. David DeLapp, and Dr. Bryan Frentz. The

panel concluded that Dr. Foret breached the standard of care in operating on Mr.

Johnson’s knee in the face of a documented infection. The panel members noted in

its written reasons for the opinion that:

The patient, Terry Lee Johnson, Sr., presented with infection of
the right knee prior to total right knee replacement. The culture of
12/7/05 was positive for MRSA with SED rate of 42. No other
cultures were ordered prior to the 12/22/05 surgery.

From a review of the records, the panel concluded that the
infection was not cleared at the time of surgery, since no follow-up
culture and lab work was done to demonstrate that reasonably the
infection had cleared and immediate post-op infection ensued. It is
the opinion of the panel that Dr. Foret should not have gone forward
with the surgery until the infection was demonstrated to be cleared.
For this reason, the panel finds that Dr. Foret failed to adhere to the
appropriate standard of care and that Dr. Foret’s failure to do so is the
cause of petitioner’s damages.

In addition, the signed affidavits of the three panel members were submitted

into evidence. All three physicians attested in pertinent part:

I served on the medical review panel that considered the evidence
submitted in this matter and after due consideration of all the evidence
including joint discussions with the other panelists, I and the other
panelists unanimously concluded that the evidence supports the
conclusion that the defendant, Dr. Lynn E. Foret, did not adhere to the
appropriate standard of care, and the damages complained of by the

14

petitioner were caused by negligent care or failure to adhere to the
appropriate standards of care by the defendant.
Dr. Orlando Schaening – Mr. Johnson’s Board-Certified Infectious Disease
Specialist

Dr. Foret referred Mr. Johnson to Dr. Schaening, an infectious disease

specialist in Beaumont, Texas, for an evaluation of his “Right prosthetic knee

infection.” Dr. Schaening saw Mr. Johnson on October 25, 2006, and found that

he did indeed have a “Prosthetic right knee infection.” Under the heading

“PLAN,” Dr. Schaening indicated that he discussed with Mr. Johnson at great

length “about treatment and management of this kind of infection.” Dr. Schaening

also talked with Dr. Foret and “suggested removal of the prosthesis followed by six

weeks of intravenous antibiotics. An antibiotic impregnated spacer should be

considered at the time of the joint removal surgery.”

Once the course of antibiotics was complete, Dr. Schaening suggested that

Mr. Johnson undergo an observation period of two weeks. If no signs of infection

were present after the two week period, Mr. Johnson should undergo “another

aspiration of the knee for culture.” If the culture was negative, Dr. Schaening

thought that Mr. Johnson could undergo another knee replacement surgery.

However, Dr. Schaening suggested that a repeat culture be taken at the time of the

latter surgery, and “If the cultures are positive then he should have six months of

oral antibiotics.”

Dr. Schaening’s consultation report is filed in the record and provides in

pertinent part as follows:

Physical Examination:
He has no fever and does not look toxic. However, there is diffuse
swelling of the right knee. He has three drains in place and the
surgical wound is open at the center. There is significant purulent
drainage at the time of my exam.

15

Impression:
Right prosthetic knee infection. I had a long conversation with the
patient and his daughters about this problem. They were told that at
this point in time I do not know whether he is a candidate for another
replacement surgery. However, the first step is to eradicate this
infection is to remove the infected hardware. Then we have to
analyze his bone stock and determine whether he needs fusion or if he
can tolerate another prosthesis.

Plan:
They did not want to go back to Dr. Foret if this could be avoided.
They asked me if I could contact another surgeon. Therefore, I
contacted Dr. Ronald Talbert and explained the situation to him. Dr.
Talbert will see Mr. Johnson over the next few days. Appointment
with me in one week.

Since Mr. Johnson did not want to continue to see Dr. Foret, an appointment

was made for him to see Dr. Talbert. Dr. Talbert saw Mr. Johnson on October 26,

2006, and scheduled him for surgery to remove the infected prosthesis on October

30, 2006. Dr. Talbert asked Dr. Schaening to consult after the surgery, and his

consultation report reflects the following plan of treatment for Mr. Johnson post-

surgery:

PLAN:
Secondary to the patient’s bone necrosis and surrounding tissue
necrosis, hyperbaric will be advantageous for this patient. The patient
will also continue IV antibiotics and has IV antibiotic feeding in place
at the surgical site. We will follow the patient along for wound care
and hyperbaric treatments. The patient states that he has stopped
smoking and will seek assistance if this begins to be a problem for
him.

Dr. Ronald Talbert – Mr. Johnson’s Board-Certified Orthopedic Surgeon

We have previously discussed Dr. Talbert’s medical records detailing his

care and treatment of Mr. Johnson in Assignment of Error One.

Dr. Daniel Thompson – Mr. Johnson’s Other Board- Certified Orthopedic Surgeon

16

On October 30 2007, one year after Dr. Talbert’s successful surgery and

after he and Dr. Schaening had successfully cleared all infection, Dr. Daniel

Thompson, a board-certified orthopedic surgeon with a specialty in cases such as

Mr. Johnson’s, in consultation with Dr. Talbert and Dr. Schaening, operated on Mr.

Johnson. Dr. Thompson debrided and irrigated the area including the bone of the

tibia and femur, removed the non-biodegradable antibiotic beads, and fused Mr.

Johnson’s right knee. In follow-up on April 14, 2008, Dr. Thompson’s records

indicated that Mr. Johnson was five-and-a-half months removed from the knee

fusion. The records showed that his right knee was well healed and that he was

able to walk without significant difficulty, but with the use of a cane.

Dr. Foret’s Office Records

Dr. Foret did not testify at trial in his own defense. Instead, his attorney

submitted Dr. Foret’s office records into evidence, as well as the hospital records.

However, a review of the records submitted by Dr. Foret confirms the findings of

Dr. Overdyke and the medical review panel that “The culture of 12/7/05 was

positive for MRSA with SED rate of 42. No other cultures were ordered prior to

the 12/22/05 surgery.” The failure of Dr. Foret to clear the infection in Mr.

Johnson’s right knee prior to his first knee replacement surgery was the initial

breach of the standard of care by Dr. Foret, as unanimously found by the medical

review panel and Dr. Overdyke. Dr. Foret’s records clearly demonstrate that he

performed the December 22, 2005 total right knee replacement with prosthesis

without clear evidence that the infection had cleared.

Further, Dr. Foret’s office records and the hospital records continue to

document the presence of the MRSA infection throughout Dr. Foret’s treatment of

Mr. Johnson from December 2005 through October 2006. Dr. Foret’s narrative of

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June 2006 documents the multiple surgeries undergone by Mr. Johnson in an

attempt “to clear this infection from his right knee.” These include the one in

Shreveport and the four performed by Dr. Foret. Dr. Foret’s narrative further

states, “This patient will need to have at least one more surgery to replace the total

knee prosthesis. The patient only has a methyl mathacrylate spacer in his right

knee that is not permanent.”

Dr. Foret performed yet another total knee replacement with placement of a

prosthesis in Mr. Johnson’s still infected knee in September 2006. He also

performed an incision and debridement in October 2006. Dr. Foret’s own records

clearly show that the infection was never cleared by Dr. Foret, not before his first

procedure in December 2005 or after his last procedure in October 2006. When Dr.

Foret referred Mr. Johnson to Dr. Schaening, the infection was still present, as

confirmed by both Dr. Foret’s and Dr. Schaening’s records.

We find no support in Dr. Foret’s medical records for the trial court’s ruling

that Dr. Foret did not breach the standard of care in his treatment of Mr. Johnson.

Dr. Michael McGuire – Dr. Foret’s Expert Orthopedist

Dr. Michael McGuire, an orthopedist from Nebraska, submitted an affidavit

on behalf of Dr. Foret as follows:

In analyzing the facts that I obtained from my review of the
medical records of Terry Lee Johnson in light of my education,
training and experience, it is apparent that Terry L. Johnson became
disabled by osteoarthritis of the right knee and underwent right total
knee arthroplasty in December of 2005. The procedure was performed
despite a history of a right knee prepatellar bursal infection in October
of 2005. That infection was appropriately treated by Dr. Foret. The
decision to proceed to total joint arthroplasty was made after
calculation of the risk versus benefits ratio. I am confident from my
review of the records that Dr. Foret understood and fully explained the
risk involved. Because of the severity of his pain, Mr. Johnson chose
to accept those risks and to proceed with surgery in an effort to
overcome his disability. I disagree with the statement that the

18

decision to proceed with surgery was made in the face of
overwhelming evidence of a septic knee. Unfortunately, as noted
above, Mr. Johnson’s total knee arthroplasty was complicated by post-
operative infection.
For the reasons outlined above, and based upon my analysis of
the medical records provided in light of my education, training and
experience, it is my opinion that Lynn Foret, M.D. did adhere to the
appropriate standard of care in his treatment of Terry Lee Johnson
under the facts and circumstances of this case and that the patient did
not suffer any damage which he would not otherwise have
experienced due to any act or failure to act on the part of Dr. Foret.

The trial court relied heavily, if not exclusively, on the affidavit from Dr.

Michael McGuire in its reasons. Dr. McGuire apparently ignored the laboratory

findings of MRSA infection in Mr. Johnson’s right knee, a septic knee shown on

the MRI, and the cultures showing the continued presence of infection prior to Mr.

Johnson’s total knee replacement surgery performed by Dr. Foret in December

2005.

Instead of facts from the medical records, Dr. McGuire relied on his

unsupported opinion that Dr. Foret “fully explained” the serious risks inherent in

operating on an infected knee to Mr. Johnson, and the risks associated with placing

a knee replacement prosthesis in a severely infected knee. Dr. McGuire, without

any evidence in the record to back up his statement, then opined that Mr. Johnson

voluntarily accepted the risks “because of the severity of the pain” and elected to

proceed with the surgery “in an effort to overcome his disability.” Mr. Johnson’s

“informed consent” form is in the record and fails to mention anything about the

particular risks of performing a total knee replacement with insertion of prosthesis

in a severely infected knee.

Mr. Johnson’s deposition and his wife’s affidavit also directly contradict Dr.

McGuire’s unsupported opinion of Mr. Johnson’s understanding of the risks and

need for the initial December 2005 knee replacement surgery. Yet, the trial court

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failed to mention Mr. Johnson’s deposition or Mrs. Johnson’s affidavit in its

reasons for judgment, nor did it even discuss or mention the overwhelming

evidence in the medical records that Dr. Foret operated on a septic knee.

A review of Mr. Johnson’s pre-trial deposition that was filed in the record

fails to demonstrate a true understanding and appreciation by Mr. Johnson of the

actual risk of severe continued infection following total knee replacement with the

insertion of a prosthesis in an already infected knee.

Q. Okay. All right. And I’m not trying to, you know,
make you guess a date; but I mean, how did it come up? Did
Dr. Foret bring it up to you or . . .

A. Yes, Dr. Foret brought it up to me, yes.

Q. What do you recall him telling you?

A. Well, my knee was pretty - - pretty well messed up and
that it would be better to have it taken out because it was - - it
was pretty - - pretty messed up on the inside. I’d have been
better off with getting a new knee replacement. So, I left it up to
him - -

Q. All right.

A. - - for that.

Q. Were you involved in the decision-making process
as to when to do it?

A. I don’t know. I don’t - - I don’t know that.

....

A. Yeah. I think the way he said it, we would - - you
know, he’d put it in there and I could be back to work and that’s
what I wanted to do was go back to work.

....

Q. Did you-all at that time discuss the fact that
infection was a possibility, especially since you had already
been treated for an infection in the fall?

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A. I don’t know. I can’t - - couldn’t tell you. I don’t
know.

Q. Okay. In the document that you signed, did you
understand that infection was a possibility from the surgery?

A. Well, I knew there was - - there was - -

Q. A risk?

A. Yeah.

Mrs. Karen Johnson’s affidavit stated:
Terry went to see Dr. Foret in October 2005 for
treatment of his still infected leg. Terry was told that he
needed a total knee replacement by Dr. Foret and agreed to
have the procedure done. However, if we had known that
there was still an active infection and this would lead to
further complications and the lost use of Terry’s right knee
joint we certainly would not have consented to this operation.

(Emphasis added.)

Despite the overwhelming evidence in the record of the breach of the

standard of care in Dr. Foret’s treatment of Mr. Johnson, the trial court concluded

in part:

Upon weighing all the evidence presented, the Court finds the
Dr. Foret’s evidence more credible. It is the Court’s opinion that Mr.
Johnson was well aware of the inherent risk of infection, but because
of the severe pain, and his desire to return to work he chose to proceed
with the surgery.

In light of Mr. Johnson’s continuing knee problems, Dr. Foret
with Mr. Johnson’s consent took a calculated risk to resolve the severe
pain of his patient. The Court finds the plaintiff has not shown by a
preponderance of the evidence that Dr. Foret’s standard of care
reached a negligent level.

In applying the manifest error standard of review, we find that the trial court

erred in its conclusion that Mr. Johnson knew, understood, and accepted the risks

involved in allowing Dr. Foret to operate on his seriously infected right knee and

21

introduce into that infected knee a foreign body in the form of a prosthesis. All

experts, except Dr. McGuire, whose opinion is not supported by the record, agreed

that Dr. Foret breached the standard of care and that breach was the cause of Mr.

Johnson’s damages.

Although Mr. Johnson may have been understandably anxious to resolve his

knee problem and thereby relieve his pain, Dr. Foret, as determined by at least four

other board-certified orthopedic surgeons, and as supported by the medical

evidence in the record, was bound by the standard of care to postpone the knee

replacement surgery until there was a resolution of the MRSA infection. There

was no indication in the record that if Dr. Foret had postponed the December 5,

2005 surgery until after the infection had cleared, that delaying this elective

surgery would have resulted in an unreasonable danger to Mr. Johnson’s health or

caused him further harm.

To the contrary, all the medical evidence in the record clearly demonstrates

that Dr. Foret’s decision to proceed to perform this elective procedure while the

knee was still infected did actually cause substantial harm to Mr. Johnson. The

standard of care for an elective procedure requires that the patient be in the best

possible medical condition to tolerate the stress and trauma which is inherent in a

surgical procedure. In Re Dunjee, 10-1217 (La.App. 4 Cir. 1/26/11), 57 So.3d 541.

Likewise, there is no evidence in the record demonstrating that an

emergency situation existed which required Dr. Foret to operate on Mr. Johnson

on December 22, 2005 without first clearing the infection in his right knee. While

a patient may give informed consent to a risky emergency surgery, a patient cannot

give informed consent to medical malpractice. A physician must heed his

22

Hippocratic Oath, “I will prescribe regimens for the good of my patients according

to my ability and my judgment and never do harm to anyone.”

This court does not agree with the conclusion of the trial court that Dr. Foret

did not breach the standard of care by operating on Mr. Johnson’s knee because

Mr. Johnson acquiesced to a knee replacement procedure that on its face was

below the standard of care required by Dr. Foret. In its ruling, the trial court

completely ignored the deposition testimony of Mr. Johnson, the affidavit of his

wife, as well as the affidavits of four expert Louisiana board-certified orthopedic

surgeons, the medical records of Dr. Foret, the hospital, and the medical records of

Mr. Johnson’s treating physicians in Texas, Dr. Talbert, Dr. Thompson, and Dr.

Schaening. We find that the trial court committed manifest error in its ruling and

hereby reverse its judgment of October 10, 2012 in favor of Dr. Foret.

DAMAGES

We now address the issue of damages based on our finding that Dr. Foret

breached the standard of care in his medical treatment of Mr. Johnson and that his

subsequent injuries were the result of that breach. In Robicheaux v. Adly, 02-37, p.

19 (La.App. 3 Cir. 6/12/02), 827 So.2d 429, 441, writ denied, 02-2783 (La.

2/7/03), 836 So.2d 100) (quoting Craven v. Universal Life Ins. Co., 95-1168, pp.

16-17 (La.App. 3 Cir. 3/6/96), 670 So.2d 1358, 1367, writ denied, 96-1332 (La.

9/27/96), 679 So.2d 1355), this court stated:

Where a fact finder does not reach an issue because of an
“earlier” finding which disposes of the case, the appellate court, in
reversing the earlier finding, must make a de novo determination of
the undecided issues from the facts in the record. Lasha v. Olin Corp.,
625 So.2d 1002 (La.1993); Austin v. Fibrebond Corp., 25,565
(La.App. 2 Cir. 2/23/94), 638 So.2d 1110, writ denied, 94-1326
(La.9/2/94), 643 So.2d 149.

23

We have conducted a complete review of the record before us. We find, and

the record supports, that Mr. Johnson underwent multiple unsuccessful surgical

procedures by Dr. Foret, none of which alleviated his pain and discomfort. The

failed surgeries resulted in significant damage and deterioration to his right knee

requiring a Patellectomy and ultimately, a complete fusion of his right knee. As a

result of the surgical fusion to Mr. Johnson’s right knee, he is totally and

permanently disabled from his previous employment as a painter/sandblaster/truck

driver and has a continuing risk of osteomyelitis with the need for future medical

care.

Mr. Johnson’s related medical expenses total an undisputed $331,562.49.

Mr. Johnson also seeks an award of $500,000.00 for loss of earnings, future loss of

earnings and earning capacity, and an award of general damages in the amount of

$750,000.00. The record before us supports a finding that Mr. Johnson has a

serious disability, a fused right knee, but has no real evidence of past or future

economic loss. Moreover, except for future medical expenses, the damages

claimed are in excess of the statutory cap of the Medical Malpractice Act, La.R.S.

40:1299.42(B). Though Mr. Johnson’s injuries and pain and suffering may justify

a substantial award, the Louisiana Supreme Court in Oliver v. Magnolia Clinic, 11-

2132, 11-2139, 11-2142 (La. 3/13/12), 85 So.3d 39, reiterated its holding in Butler

v. Flint Goodrich Hospital of Dillard University, 607 So.2d 517 (La.1992), cert.

denied, 508 U.S. 909, 113 S.Ct. 2338 (1993), which found the medical malpractice

cap constitutional. Any award for general damages and loss of earnings and

earning capacity is limited to $500,000.00 pursuant to La.R.S. 40:1299.42(B)(1),

“exclusive of future medical care and related benefits as provided in R.S.

24

40:1299.43.” Dr. Foret is a covered health care provider whose liability is limited

to $100,000.00, pursuant to La.R.S. 40:1299.42(B)(2).

“Future medical care and related benefits” are defined under La.R.S.

40:1299.43(B)(1)(a) & (b). Section (a) states as follows, “All reasonable medical

surgical, hospitalization, physical rehabilitation, and custodial services and

includes drugs, prosthetic devices, and other similar materials reasonably necessary

in the provision of such services, incurred after the date of the injury up to the date

of the settlement, judgment, or arbitration award.” Section (b) provides for all of

the above, but covers the period from “after the date of the injury that will be

incurred after the date of the settlement, judgment, or arbitration award.”

In accordance with the supreme court’s decisions in Oliver and Butler,

future medical expenses can only be claimed against the LPCF. Thus, the LPCF

would have been responsible for all of Mr. Johnson’s medical bills totaling

$331,562.49, plus any additional medical bills in the future that are medically

related to the malpractice of Dr. Foret, payable in accordance with the statute.

La.R.S. 40:1299.43(B)(1)(b). As previously noted, however, Mr. Johnson settled

his claims against the LPCF, and the settlement documents are not in evidence.

Hence, we express no opinion on whether any further sums are or may be owed to

Mr. Johnson by the LPCF. Thus, Mr. Johnson’s claim against Dr. Foret is limited

to $100,000.00, plus legal interest from the date of judicial demand and all court

costs. La.R.S. 40:1299.42(B)(2).

CONCLUSION

For the forgoing reasons, the judgment of the trial court in favor of Lynn E.

Foret, M.D., finding that he did not breach the standard of care in his treatment of

Mr. Terry Lee Johnson, Sr. and cause his subsequent injuries, is reversed. Based on

25

the record before this court, pursuant to the provisions of the Medical Malpractice

Act, La.R.S. 40:1299.42(B)(1) & (2), and considering Mr. Johnson’s settlement

with the LPCF, we hereby award damages in favor of Mr. Terry Lee Johnson, Sr.

and against Lynn E. Foret, M.D., in the amount of $100,000.00, plus legal interest

from March 19, 2007, the date of judicial demand until paid, plus all court costs.

All costs of this appeal are assessed against Lynn E. Foret, M.D.

REVERSED AND RENDERED.

26

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-446

TERRY LEE JOHNSON

v.

LYNN EDWARD FORET, M.D.

GREMILLION, J., dissents.

The majority ignores the manifest error standard of review in order to reach

the conclusion it deems more reasonable. First, rather than noting the manifest

error standard of review, the majority spends several pages attempting to

“reconcile” some issue regarding summary judgments despite the fact that there is

no summary judgment at issue here. Furthermore, no appellate court in this state,

nor the supreme court, has ever identified such a need for reconciliation.

The trial court was tasked with determining whether Dr. Foret breached the

applicable standard of care. Instead of reviewing the testimony of the witnesses

who addressed this question, the majority examined page after page of medical

records from health care providers who never answer the question; that is, they

never opine that Dr. Foret breached the applicable standard of care.

For example, the majority exhaustively recites the medical records of Dr.

Ronald E. Tolbert. However, Dr. Tolbert’s opinion as to whether Dr. Foret

breached the applicable standard of care is not found in the record. The majority

tries to sanitize that fact by pointing out that Dr. Tolbert’s opinion was “obviously

intended to have been filed into evidence.”

The majority goes through the medical records of Dr. Orlando Schaening to

try to answer the question “Does Dr. Schaening believe that Dr. Foret breached the

applicable standard of care?” We obviously cannot know, as his answer to that

question is not expressed in his records.

What about Dr. Daniel Thompson? Again, the majority thoroughly reviews

Dr. Thompson’s records. However, this record does not contain Dr. Thompson’s

opinion as to whether Dr. Foret breached the applicable standard of care.

When all of this clutter is cleared away, the record contains the opinions of

four doctors (Dr. Michael Acurio, Dr. J. David DeLapp, Dr. Brian Frentz, and Dr.

William L. Overdyke) who were asked the proper question. Those four doctors

clearly opined that Dr. Foret breached the applicable standard of care. But it is

well established that “witnesses are weighed and not counted, and the weight to be

given evidence is not determined by the number of witnesses.” Duhon v. Slickline,

Inc., 449 So.2d 1147, 1151 (La.App. 3 Cir.), writ denied, 452 So.2d 172 (1984).

The court of appeal is not entitled to reverse the trial court’s opinion merely

because it would have weighed the evidence differently. Sistler v. Liberty Mut.

Ins. Co., 558 So.2d 1106 (La.1990).

The last step in the majority’s long trip around manifest error is to attack the

evidence that requires that we affirm the trial court. There is absolutely nothing in

the record before us that would render the opinion of Dr. Michael McGuire, a

board-certified orthopedist, any less competent or credible than the other doctor

witnesses. Dr. McGuire opined that Dr. Foret “did adhere to the appropriate

standard of care.” The majority repeatedly disparages Dr. McGuire’s opinion as

being from out of state, as being relied upon too heavily, and as being

“unsupported.” Ironically, however, the majority relies heavily on experts who, in

fact, provide no opinions at all, be they “unsupported” or otherwise.

2

“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).

The majority does not like it, but this is the essence of the manifest error

standard of review. The trial court was clearly within its province when it found

Dr. McGuire’s expert opinion more credible than those of the other experts who

provided the necessary opinions. I, therefore, would affirm the trial court, and I

respectfully dissent.

3