Doris Doyle v. Liwliwa Ramos, M.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1143

DORIS DOYLE

VERSUS

LIWLIWA RAMOS, M.D., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2010-5761
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
James T. Genovese, Judges.

AFFIRMED.

John L. Hammons
Nelson & Hammons
705 Milam Street
Shreveport, LA 71101
(318) 227-2401
COUNSEL FOR PLAINTIFF/APPELLANT:
Doris Doyle

James R. Shelton
Durio, McGoffin, Stagg & Ackermann
Post Office Box 51308
Lafayette, LA 70505-1308
(337) 233-0300
COUNSEL FOR DEFENDANT/APPELLEE:
Liwliwa Ramos, M.D.

AMY, Judge.

The plaintiff alleged that the defendant internal medicine physician had

undertaken management of her breast health care and that the defendant deviated

from the applicable standard of care by an alleged failure to follow a radiologist’s

recommendation for a surgical biopsy following a mammogram. The plaintiff

alleged that this breach, along with other alleged deviations, resulted in a delayed

diagnosis of breast cancer and a lost chance of survival. The plaintiff filed suit

seeking damages allegedly stemming from that delayed diagnosis. After a jury

found in favor of the defendant, the trial court denied the plaintiff’s motion for

judgment notwithstanding the verdict. The plaintiff appeals. For the following

reasons, we affirm.

Factual and Procedural Background

The record establishes that the plaintiff, Doris Doyle, became a primary care

patient of the defendant, Dr. Liwliwa Ramos, an internal medicine physician, in

1999. During that course of treatment in 2003, Dr. Ramos recommended, and Ms.

Doyle underwent, a screening mammogram. The report of that 2003 mammogram

resulted in the radiologist’s impression of “negative examination.” Ms. Doyle

returned to Dr. Ramos’s office for several, unrelated appointments. During a

March 9, 2005 visit, Dr. Ramos again referred Ms. Doyle for a mammogram.

Although the mammogram appointment was scheduled or rescheduled, Ms. Doyle

did not undergo the test during that time period.

The instant dispute stems from a July 31, 2006 visit during which Dr. Ramos

again recommended a mammogram. As a result, a mammogram was scheduled for

August 7, 2006, at West Calcasieu-Cameron Hospital. However, Ms. Doyle did

not have the mammogram performed at that time. Instead, the mammogram was

performed on September 11, 2006.1 The radiologist’s report from the September

2006 report indicated, in pertinent part, that:

Comparison is made of the previous examination of 3 June 2003.
Since that time the patient has developed two areas of architectural
distortion present in the left breast. One appears to be located in the
upper outer quadrant and one in the medial one-half of the breast.
Both of these are new when compared to the previous examination.
They appear to be of increased density with spiculated borders and
would be highly suspicious for malignancy. I would recommend
obtaining a surgical consultation for biopsy of these areas.

....

IMPRESSION:
TWO AREAS OF ARCHITECTURAL DISTORTION HAVE
DEVELOPED IN THE LEFT BREAST WHICH ARE FELT TO BE
HIGHLY SUSPICIOUS FOR MALIGNANCY. I WOULD
RECOMMEND OBTAINING A SURGICAL CONSULTATION
FOR BIOPSY OF THESE AREAS.

According to the West Cal-Cam Hospital’s Director of Radiology and Nuclear

Medicine, hospital procedure dictated that the report would be delivered via

facsimile to the referring physician and a letter sent to the patient. However, Dr.

Ramos denied having received such a report, and Ms. Doyle denied receiving a

letter regarding the suspicious September 2006 mammogram.

Without apparent knowledge of the radiologist’s report by either the plaintiff

or the defendant, Ms. Doyle returned to Dr. Ramos’s office several times during

the first months of 2007. Subsequently, during a July 2007 visit, Dr. Ramos

learned that Ms. Doyle had undergone the September 2006 mammogram. After

obtaining the radiologist’s report from the mammogram, in August 2007, Dr.

Ramos ordered subsequent testing. Ultimately, in September 2007, Ms. Doyle

underwent a biopsy and modified radical mastectomy of the left breast. Testing

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When asked about the re-scheduling of the mammograms, the plaintiff explained that
her work schedule precluded her from honoring the appointments.

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also revealed a metastatic lymph node. Ms. Doyle underwent subsequent radiation

and chemotherapy treatment.

Thereafter, Ms. Doyle instituted a proceeding before a Medical Review

Panel regarding the treatment provided by Dr. Ramos, the radiologist interpreting

the September 2006 mammogram, and the West Cal-Cam Hospital. The Medical

Review Panel concluded that the evidence did not support Ms. Doyle’s claim that

the health care providers failed to comply with the appropriate standards of care.

In turn, Ms. Doyle filed the petition instituting this matter, again naming Dr.

Ramos, the radiologist, and the hospital as defendants and alleging that the delay in

treatment following the September 2006 mammogram resulted in a lost chance of

survival. The latter two defendants were subsequently dismissed, however.

As the matter proceeded to a jury trial, Ms. Doyle alleged that Dr. Ramos

breached the standard of care by failing to timely act upon the September 2006

radiologist’s report recommending surgical consultation for biopsy following the

abnormal mammogram. Ms. Doyle contended that, even if Dr. Ramos’s office did

not receive the September 2006 report, Dr. Ramos’s staff failed to satisfy office

protocol for following up on test results. Additionally, Ms. Doyle suggested that

Dr. Ramos failed to perform breast examinations during her visit and further failed

to instruct her on self-breast examination. Such deviations, Ms. Doyle alleged, led

to an eleven-month delay in diagnosis and progression of the breast cancer to the

point of metastasis. Dr. Ramos noted at trial, however, that Ms. Doyle failed to

have the mammogram completed at the time it was originally scheduled. Dr.

Ramos contends that she had no notice that the mammogram was thereafter re-

scheduled or that it had been completed.

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The jury returned a verdict in favor of Dr. Ramos. Thereafter, Ms. Doyle

filed a motion for judgment notwithstanding the verdict, which the trial court

denied, finding that the evidence could have supported a verdict in favor of either

party.

Ms. Doyle appeals, assigning the following as error:

I. The jury was manifestly erroneous in concluding that appellant
had failed to prove by a preponderance of the evidence that Dr.
Ramos breached the applicable standard of care which was a
proximate cause of Ms. Doyle’s injuries.

II. The trial court erred in failing to grant appellant’s Motion for
Judgment Notwithstanding the Verdict.

Discussion

Trial on the Merits

Burden of Proof

Louisiana Revised Statutes 9:2794 sets forth the burden of proof for medical

malpractice actions, stating, in part, that:

A. In a malpractice action based on the negligence of a
physician licensed under R.S. 37:1261 et seq., . . . the plaintiff shall
have the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of
care ordinarily exercised by physicians . . . licensed to practice in the
state of Louisiana and actively practicing in a similar community or
locale and under similar circumstances; and where the defendant
practices in a particular specialty and where the alleged acts of
medical negligence raise issues peculiar to the particular medical
specialty involved, then the plaintiff has the burden of proving the
degree of care ordinarily practiced by physicians, . . . within the
involved medical specialty.

(2) That the defendant either lacked this degree of knowledge or
skill or failed to use reasonable care and diligence, along with his best
judgment in the application of that skill.

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(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.

A fact finder’s determinations regarding whether a plaintiff proved the elements of

the burden of proof of La.R.S. 9:2794 are findings of fact. Salvant v. State, 05-

2126 (La. 7/6/06), 935 So.2d 646. As such, an appellate court reviews the entirety

of the record and will only reverse a fact finder’s determination of fact upon

determining that a reasonable basis does not exist for the finding and that the fact

finder was clearly wrong or manifestly erroneous. Id. In the event there are “two

permissible views of the evidence, the fact finder’s choice between them cannot be

manifestly erroneous or clearly wrong.” Id. at 650.

Verdict Form

The jury verdict sheet used in the present matter inquired:

1. Do you find, by a preponderance of the evidence, that Dr. Liwliwa
Ramos breached the applicable standard of care owed to Doris Doyle,
and if so, was this breach a proximate cause of injuries, if any, to
Doris Doyle?

(Capitalization omitted). The jury indicated “NO” in answer to the question. Ms.

Doyle recognizes that this interrogatory combined the breach of the standard of

care element with that of causation, but that it omitted the question of whether the

plaintiff proved the applicable standard of care. She contends that such an

omission precludes a determination on review as to the jury’s actual conclusions.

Ms. Doyle suggests that such confusion warrants a de novo review. We find no

merit in that assertion.

While a misleading or confusing jury interrogatory may constitute reversible

error, an appellate court uses the manifest error standard of review unless the

interrogatories are sufficiently inadequate or incorrect so as to prevent the jury

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from reaching a verdict based on the law and the facts. Ardoin v. McKay, 06-171,

(La.App. 3 Cir. 9/27/06), 939 So.2d 698, writ denied, 06-2606 (La. 1/8/07), 948

So.2d 126. In this case, we find no such deficiency indicating that the jury was

unable to return a verdict based on the law and facts. Although the interrogatory

combined the applicable elements, and otherwise referred to an “applicable”

standard of care rather than inquiring whether Ms. Doyle specifically demonstrated

the standard of care, it is clear that, in total, the jury concluded that Ms. Doyle

failed to sustain her burden of proof. See Bourque v. Essex Ins. Co., 12-810 (La.

6/15/12), 90 So.3d 1031. As reviewed below, the record permitted such a verdict.

Additionally, we point out that the record contains no indication that Ms. Doyle

objected to the jury verdict sheet as submitted to the jury. See Kose v. Cablevision

of Shreveport, 32,855 (La.App. 2 Cir. 4/5/00), 755 So.2d 1039, writ denied, 00-

1177 (La. 6/16/00), 764 So.2d 964, writ denied, 00-1289 (La. 6/16/00), 765 So.2d

340. Rather, the transcript indicates that Ms. Doyle’s counsel had “no objections

to the Verdict Form[.]

Accordingly, we turn to review of Ms. Doyle’s central contention on appeal.

Merits

In questioning the jury’s verdict, Ms. Doyle returns to the assertion that the

evidence demonstrated that Dr. Ramos breached the applicable standard of care in

various respects. She notes that Dr. Sheldon Kottle, her expert in the field of

internal medicine, nephrology, public health, and hypertension found that Dr.

Ramos failed to apply the applicable standard in: 1) failing to perform periodic

breast examinations of Ms. Doyle; 2) failing to teach Ms. Doyle how to conduct

her own regular self-breast exams; and 3) failing to follow up on the ordered

mammogram. Ms. Doyle asserts that, at trial, Dr. Ramos judicially confessed that

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she breached these standards. In light of that confession, Ms. Doyle argues, the

evidence regarding causation is clear. Here, Ms. Doyle points to her expert in the

fields of obstetrics and gynecology, Dr. William K. Hardin, Sr., who explained that

the eleven-month period between the September 2006 mammogram and the

eventual diagnosis and treatment contributed to the tripling of the mass and the

metastasis to the lymph node.

Notwithstanding the jury’s prerogative to reject Ms. Doyle’s experts’

opinions in their entirety, we turn to consideration of the various alleged breaches

of the standard of care. First, Ms. Doyle testified that Dr. Ramos never performed

a breast exam during her various office visits. Dr. Ramos admitted at trial that she

had not, in fact, performed such an exam during the period of concern. However,

Dr. Ramos further explained that: “I usually offer breast exams. I usually actually

do breast exams not only on those who come in for wellness exams, but also

especially for those who are refusing mammogram. Unfortunately, most, if not all

of these patients refusing - - refusing for mammogram, usually also refuses [sic]

breast exam.” Dr. Ramos acknowledged that she had not documented Ms. Doyle’s

refusal of such an exam.

In addition to the fact that the jury could have credited Dr. Ramos’s account

of the offer and refusal of breast examinations, the jury further heard from Dr.

Lowell Anthony, Dr. Ramos’s expert in the fields of internal medicine and medical

oncology. When asked whether he would consider such breast examinations to be

part of the standard of care for a clinician undertaking a patient’s breast care, Dr.

Anthony explained that he “would not consider it to be.” Certainly, evaluation of

expert opinion is a matter left to the fact finder. See Fontenot v. Patterson Ins., 09-

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669 (La. 10/20/09), 23 So.3d 259. Additionally, however, the jury could have

rejected an argument that such a breach caused the delay in diagnosis.

Similarly, with regard to Ms. Doyle’s assertion that Dr. Ramos failed to

teach her how to perform a self-breast exam, we note that, when asked if she had

taught Ms. Doyle how to perform such a test, Dr. Ramos explained: “I can’t teach

someone breast exam [sic] if they don’t allow me to do breast exam. I usually

teach them how to do it when I’m doing it.” Further, when Dr. Anthony was asked

whether he was of the opinion that “teaching a woman how to do self breast exams

is not part of the standard of care for the clinician undertaking breast care

management[,]” he responded: “Correct. Correct.” Additionally, and as with the

physician-performed breast exams, there was no evidence requiring a finding that a

failure to instruct as to self-breast exams again contributed to the delay in

diagnosis.2

Finally, we turn to Ms. Doyle’s central argument at trial, i.e., that Dr.

Ramos’s failure to follow up on her July 31, 2006 order for a mammogram

breached the applicable standard of care and, ultimately, caused the progression of

the breast cancer. On this point, the jury heard evidence indicating that upon the

order of the mammogram, Dr. Ramos scheduled Ms. Doyle’s mammogram for

August 7, 2006. Yet, Ms. Doyle did not attend that appointment and, instead, re-

scheduled that appointment for the September 2006 date to better comport with her

work schedule. This pattern was consistent with Ms. Doyle’s previous pattern of

not obtaining a mammogram as recommended by Dr. Ramos. In this particular

instance, Dr. Ramos explained that her staff will follow up on an order of a

2
We note, too, that Ms. Ramos testified that she did, in fact, perform self-examinations
on occasion, even without instruction.

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mammogram within one week of its scheduled date. While Dr. Ramos explained

that her staff did not recall whether this particular test was followed up on within

that period in light of the period of time up to trial, it is clear that the jury was

aware that such a follow up would have indicated only that Ms. Doyle did not

attend the appointment. There is no indication, otherwise, that Dr. Ramos became

aware that the appointment was re-scheduled or that a September 2006 report was

generated. No documentation indicated that Dr. Ramos’s office received that

report from the hospital. Instead, the evidence reflected uncertainty regarding

whether the radiologist’s report and the corresponding letter to Ms. Doyle were

delivered.3

Additionally, Dr. Ramos expressed to the jury that Ms. Doyle had a history

of not timely complying with her recommendations regarding mammogram

screening. On this point, Dr. Peter Warren Karam, Dr. Ramos’s expert in internal

medicine, explained the process of an ordering physician’s tracking of the results

of an ordered test and stated that “if you did not receive the results and you

3
The Director of Radiology and Nuclear Medicine from the hospital, Jerry W. Peloquin,
II, explained that the facility’s Picture Archival and Communication System initiates the sending
of a facsimile of the radiologist’s report to the referring physician upon the report’s transcription.
Mr. Peloquin explained that, in reviewing the hospital’s documentation, he found no indication
that there had been a problem with the transmittal.

However, Mr. Peloquin also testified that the hospital had a system in place where the
mammography technicians followed up on abnormal mammograms with a telephone call to the
referring physician’s office. He explained that, to his knowledge, all reasonable efforts were
made to contact the physician’s office “with no resolution as to what took place with the
patient.” He explained that a letter was also mailed out to the patient, but that it was not sent by
certified mail.

On this point, the radiologist producing the report also testified generally regarding the
hospital’s follow-up procedure. He explained that a suspicious mammogram such as that
involved in this case would be listed in a booklet maintained by the mammogram technicians.
Those technicians were responsible for contacting the referring physician in order to confirm that
the information had been received. The radiologist explained that when this matter was filed, he
obtained the booklet and that it was his understanding that the patients listed were “crossed off”
when the physician’s office was contacted and confirmation that subsequent treatment would be
pursued. Although other patients listed in the book were crossed off, Ms. Doyle’s name was not.

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repetitively tracked it, . . . it would lead you to believe that it probably just wasn’t

done again[.]” In light of Ms. Doyle’s history of irregular mammogram

compliance and the confusion surrounding the delivery of the radiologist’s report

from the September 11, 2006 mammogram, we conclude that the jury was not

required to find that the plaintiff demonstrated a breach of standard of care

regarding the follow up to the mammogram. Instead, the jury could have found the

evidence on this point unpersuasive. We do not disturb any such credibility

determination.

Further, and although Ms. Doyle’s expert testified regarding the progression

of the breast cancer during the subject eleven-month period, it is noteworthy that

Dr. Ramos presented evidence regarding causation as well. Dr. Anthony explained

to the jury that, in his opinion, even if the point of diagnosis had been made at the

time of the radiologist’s report, in September 2006, Ms. Doyle’s diagnosis would

have been the same. He suggested that, even with an earlier diagnosis, Ms. Doyle

would have required a mastectomy and would have been treated with both

radiation and chemotherapy. Again, to the extent the jury may have relied on this

expert opinion, we leave that determination undisturbed.

For these reasons, we find that the jury’s verdict is supported by the record.

Accordingly, this assignment of error lacks merit.

Motion for Judgment Notwithstanding the Verdict

Finally, we note here that Ms. Doyle specified the trial court’s denial of her

motion for JNOV as error. That assignment is not separately briefed, however, and

may therefore be deemed abandoned pursuant to Uniform Rules—Courts of

Appeal, Rule 212.4. Additionally, as noted above, we have found that the jury’s

verdict is supported by the record. See Joseph v. Broussard Rice Mill, Inc., 00-

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628, p. 5 (La. 10/30/00), 772 So.2d 94, 99 (wherein the supreme court explained

that, on review of a denial of a motion for JNOV, an appellate court considers

whether “the facts and inferences point so strongly and overwhelmingly in favor of

the moving party that reasonable persons could not arrive at a contrary verdict[.]”)

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed. All costs of

this proceeding are assessed to the plaintiff—appellant, Doris Doyle.

AFFIRMED.

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