Connie Jordan v. Rapides Regional Medical Center

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-124

CONNIE JORDAN

VERSUS

RAPIDES REGIONAL MEDICAL
CENTER, ET AL

**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT,
PARISH OF RAPIDES, DOCKET NO. 238,992
HONORABLE HARRY F. RANDOW, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of Elizabeth A. Pickett, James T. Genovese, and Phyllis
M. Keaty, Judges.

AFFIRMED.

John L. Hammons
Nelson & Hammons
A Professional Law Corporation
705 Milam Street
Shreveport, Louisiana 71101
(318) 227-2401
COUNSEL FOR PLAINTIFF/APPELLANT:
Connie Jordan

Nicholas Gachassin, Jr.
Nicholas Gachassin, III
Gary J. Delahoussaye
Gachassin Law Firm
Post Office Box 80369
Lafayette, Louisiana 70598
(337) 235-4576
COUNSEL FOR DEFENDANT/APPELLEE:
Dr. Robert Kendrick

GENOVESE, Judge.

In this medical malpractice case, Plaintiff, Connie Jordan, appeals a jury

verdict rejecting her claims for damages asserted against Defendant, Robert

Kendrick, M.D. Mrs. Jordan also appeals the trial judge’s rulings on certain

evidentiary matters. For the following reasons, we affirm.

STATEMENT OF THE CASE

This litigation originates from the death of Mrs. Jordan’s son, Michael

Leblanc,1 and the medical treatment he received from Dr. Kendrick, the emergency

room physician at Rapides Regional Medical Center (RRMC) in Alexandria,

Louisiana, on March 25, 2008. Mr. Leblanc was transported via ambulance to the

emergency room of RRMC due to the suspicion that he had inhaled gastric

contents after vomiting sometime around 3:30 a.m. He arrived at RRMC at 6:45

a.m. and was seen by Dr. Kendrick at 7:01 a.m. Dr. Kendrick diagnosed

Mr. Leblanc with aspiration pneumonia for which an antibiotic, fluids, and

breathing aids were administered. Dr. Kendrick arranged for Mr. Leblanc’s

admission to the hospital for further treatment by contacting the physicians of the

LSU Family Practice Service.2 Mr. Leblanc’s care was assumed by the physicians

of the LSU Family Practice Service at 8:51 a.m.; however, Mr. Leblanc physically

remained in the emergency department of RRMC awaiting an available hospital

bed. Mr. Leblanc was moved to a medicine floor of the hospital at 3:50 p.m., after

1
At the time of his death, Mr. Leblanc was a thirty-year-old partial quadriplegic, who was
significantly impaired as a result of multiple birth defects and a resident of Pinecrest Supports
and Services Center (Pinecrest), formerly Pinecrest Developmental Center, in Pineville,
Louisiana.
2
According to hospital policy, all Pinecrest residents were admitted through the LSU
Family Practice Service.

which he was moved to the intensive care unit. Mr. Leblanc expired that evening

at 6:45 p.m.

Mrs. Jordan filed a complaint of medical malpractice against Dr. Kendrick

with the Louisiana Patients’ Compensation Fund, alleging that he failed to properly

diagnose and treat Mr. Leblanc while he physically remained in the emergency

department of RRMC on March 25, 2008. On April 12, 2010, a medical review

panel unanimously rejected Mrs. Jordan’s claims and determined that Dr. Kendrick

met the applicable standard of care in his treatment of Mr. Leblanc. Thereafter, on

July 9, 2010, Mrs. Jordan instituted the present lawsuit alleging that Dr. Kendrick,

through his acts and omissions, failed to meet the degree of care ordinarily

exercised by emergency room physicians in his treatment of Mr. Leblanc and that

this failure was a significant, contributing factor in Mr. Leblanc’s demise.

A jury trial was held from August 7, 2013, through August 10, 2013,

wherein the jury returned a verdict in favor of Dr. Kendrick. Specifically, in

answer to the first question on the Jury Verdict Form: “Did Robert Kendrick,

M.D., violate any applicable medical standard with regards to the care and

treatment that he provided, or should have provided to Michael [Leblanc]?” the

jury responded, “NO.” Judgment in accordance with the jury verdict was signed

by the trial court on September 13, 2013.

On September 20, 2013, Mrs. Jordan filed a Motion for Judgment

Notwithstanding the Verdict (JNOV) and, Alternatively, Motion for New Trial

(MNT). Following a hearing on October 21, 2013, Mrs. Jordan’s motions were

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denied. Judgment in accordance with the trial court’s ruling was signed on

November 7, 2013. Mrs. Jordan appeals.3

SPECIFICATIONS OF ERROR

Errors of Law

Mrs. Jordan assigns three errors, which she contends are errors of law made

by the trial court, as follows:

I. The trial court erred in refusing to allow Dr. Sheldon Kottle to
testify on rebuttal.

II. The trial court erred in excluding the Rapides Regional
antibiotic protocol that had been identified and discussed by
Dr. Alan Fortier, one of the defense witnesses.

III. The trial court erred in permitting Dr. Eustis [sic] Edwards to
continue testifying after he willingly disobeyed the court’s
order precluding any testimony or evidence suggesting third
party fault of the nursing staff or of the LSU family practice
physicians.

“Appellate review of a question of law is simply a decision as
to whether the [trial] court’s decision is legally correct or incorrect.”
Jim Walter Homes, Inc. v. Jessen, 98-1685, p. 5 (La.App. 3 Cir.
3/31/99), 732 So.2d 699, 702 (citing Ducote v. City of Alexandria,
95-1269 (La.App. 3 Cir. 7/17/96), 677 So.2d 1118). “If the trial
court’s decision was based on its erroneous application of law, rather
than on a valid exercise of discretion, the trial court’s decision is not
entitled to deference by the reviewing court.” Id. (citing Kem Search,
Inc. v. Sheffield, 434 So.2d 1067 (La.1983)). If an appellate court
finds that a reversible error of law was made by the trial court, it must
review the facts de novo and render a judgment on the merits. Lasha
v. Olin Corp., 625 So.2d 1002 (La.1993).

Watkins v. Lake Charles Mem’l Hosp., 12-1320, pp. 6-7 (La.App. 3 Cir. 4/17/13),

114 So.3d 503, 507, aff’d, 13-1137 (La. 3/25/14), 144 So.3d 944.

3
The Motion for Appeal filed on November 15, 2013, declares Mrs. Jordan’s intent to
appeal both the September 13, 2013 Judgment (jury verdict) and the November 7, 2013
Judgment (JNOV/MNT); however, the appeal filed herein presents arguments relative only to the
September 13, 2013 Judgment and does not address the denial of the motions for JNOV and
MNT; therefore, the failure to address these issues constitutes an abandonment thereof pursuant
to Uniform Rules—Courts of Appeal, Rule 2–12.4.

3

Mrs. Jordan’s first and second assignments of error are intertwined.

Mrs. Jordan argues that the trial court committed legal errors when: (1) it refused

to allow Dr. Kottle to testify as her rebuttal witness; and, (2) it excluded the RRMC

antibiotic protocol identified and discussed during the testimony of Dr. Fortier, a

witness called by Dr. Kendrick.

Dr. Fortier, an LSU Family Practice Service physician involved with

Mr. Leblanc’s care, testified by video deposition and mentioned the antibiotic

protocol promulgated by RRMC. Said antibiotic protocol was “attached” to

Dr. Fortier’s deposition; however, when Dr. Kendrick offered Dr. Fortier’s

testimony at trial, the antibiotic protocol was not made a part of his evidentiary

offering. Mrs. Jordan moved to introduce the RRMC antibiotic protocol into

evidence, and Dr. Kendrick objected, arguing that the document, an

unauthenticated copy of the purported RRMC antibiotic protocol, was hearsay.

Dr. Kendrick further argued that Mrs. Jordan had, in pre-trial pleadings, also

moved for its exclusion from evidence on the basis of it being inadmissible

hearsay. The trial court agreed, and the RRMC antibiotic protocol was not

received into evidence.

Mrs. Jordan attempted to call Dr. Kottle on rebuttal. Dr. Kendrick objected,

arguing that Dr. Kottle was never named in discovery as a prospective witness and

that he did not meet the definition of a rebuttal witness since he was being called

by Mrs. Jordan to elicit testimony relative to the RRMC antibiotic protocol, a

document the trial court previously ruled was inadmissible and was not received

into evidence.

In her brief, Mrs. Jordan argues that Dr. Fortier’s deposition “raised, for the

first time, the existence of specific antibiotic protocols that had been promulgated

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by [RRMC] and were applicable to the care and treatment provided to

[Mr.] Leblanc by both Dr. Kendrick and the LSU [F]amily [P]ractice [Serivce]

physicians.” Mrs. Jordan further elaborates:

[Dr. Kottle’s] testimony was being offered both to rebut any number
of statements by defense witnesses and specifically to confirm the
accuracy of the medical records regarding [Mr.] Leblanc’s diagnosis
of sepsis, septic shock[,] and dehydration and to rebut Dr. Kendrick’s
testimony that the antibiotic therapy that he had instituted complied
with applicable medical standards. Dr. Kottle was prepared not only
to explain the significance of the [RRMC] antibiotic protocols but also
to correlate those standards with universally accepted antibiotic
protocols promulgated by the American Thoracic Society regarding
proper medical management of these particular diagnoses.

Dr. Kendrick disputes that Dr. Fortier’s testimony was surprising to

Mrs. Jordan since his deposition was taken several weeks prior to trial.

Dr. Kendrick also alleges that Mrs. Jordan named Dr. Fortier in discovery as a

prospective expert witness for trial and “is asking this [c]ourt to reverse a jury

finding on the basis that the plaintiff was not allowed the chance to present opinion

testimony to rebut fact testimony of one of her own listed expert witnesses.”

Finally, Dr. Kendrick argues that Mrs. Jordan wanted Dr. Kottle to address the

specific content of the RRMC antibiotic protocol; however, since it was ruled

inadmissible by the trial court and not received into evidence, “there was no need

to allow [her] the extraordinary benefit of calling an unidentified expert to rebut

fact testimony.” The trial court concluded that Dr. Kottle’s testimony was being

offered by Mrs. Jordan as direct evidence of the issue being litigated, not as

rebuttal or impeachment.

In Waste Management of La., LLC v. Tadlock Pipe & Equipment, Inc.,

04-1151 (La.App. 3 Cir. 12/8/04), 889 So.2d 457, writ denied, 05-14 (La. 3/18/05),

896 So.2d 1005, the plaintiff sought to call a witness not named in discovery as a

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prospective witness and who the plaintiff argued was being called as an

impeachment and a rebuttal witness. This court upheld the trial court’s exclusion

of the plaintiff’s witness declaring:

A trial judge has great discretion in conducting a trial. The
judge is required to do so in an orderly, expeditious manner and to
control proceedings so that justice is done. [La.Code Civ.P.]
art. 1631; Pino v. Gauthier, 633 So.2d 638, 648 (La.App. 1st
Cir.1993), writs denied, 94-0243 and 94-0260 (La.3/18/94), 634 So.2d
858 and 859; Hurts v. Woodis, 95-2166 (La.App. 1st Cir.6/28/96),
676 So.2d 1166, 1174. The judge’s discretion includes the
admissibility of a witness’s testimony. Combs v. Hartford Ins. Co.,
544 So.2d 583, 586 (La.App. 1st Cir.), writ denied, 550 So.2d 630
(La.1989). It is only upon a showing of a gross abuse of discretion
that appellate courts have intervened. Pino, 633 So.2d at 648.

Id. at 460 (quoting Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd.

P’ship, 01-2812, pp. 7-8 (La.App. 1 Cir. 12/30/02), 839 So.2d 82, 91, writ denied,

03-306 (La. 4/4/03), 840 So.2d 1219). Further, in Freeland v. Bourgeois, 06-932,

p. 20 (La.App. 3 Cir. 1/24/07), 950 So.2d 100, 114, writ denied, 07-409

(La. 4/5/07), 954 So.2d 144 (quoting Palace, 839 So.2d at 91), this court stated

with regard to the trial court’s discretion:

If a party objects to the offered testimony of a witness not listed on the
pre-trial order, a trial judge has great discretion in deciding whether to
receive or refuse the testimony objected to on the grounds of failure to
abide by the rules, but any doubt must be resolved in favor of
receiving the information. Abdon Callais Boat Rentals, Inc.
v. Louisiana Power and Light Co., 555 So.2d 568, 576 (La.App. 1st
Cir.1989), writ denied, 558 So.2d 583 (La.1990); Curry v. Johnson,
590 So.2d 1213, 1216 (La.App. 1st Cir.1991).

We find that the trial court did not err in excluding from evidence the

document “attached” to Dr. Fortier’s deposition, which was purportedly an

antibiotic protocol promulgated by RRMC. “Before a court may admit the

evidence, there has to be evidence ‘sufficient to support a finding that the matter in

question is what its proponent claims,’ i.e., the evidence must be authenticated.

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La.Code Evid.art. 901.” Ducote v. Union Pac. R.R. Co., 08-1208, p. 4 (La.App. 3

Cir. 2/4/09), 4 So.3d 240, 244, writ denied, 09-940 (La. 6/5/09), 9 So.3d 877. “The

authentication requirement is a condition precedent to the admissibility.” Id. at

245. Mrs. Jordan offered an unauthenticated copy of a document, purportedly the

RRMC antibiotic protocol. The trial court was correct to exclude it from evidence

as inadmissible hearsay.

We also find that the trial court did not abuse its discretion in refusing to

allow Mrs. Jordan to call Dr. Kottle on rebuttal. “Rebuttal evidence by a plaintiff

is limited to countering that evidence raised by a defendant during their case in

chief. Roberts v. Owens-Corning Fiberglass Corp., 03-248 (La.App. 1 Cir. 4/2/04),

878 So.2d 631[, writ denied, 04-1834 (La. 12/17/04), 888 So.2d 863]; La.Code

Evid. art. 611(E).” Waste Mgmt., 889 So.2d 460-61. There being no RRMC

antibiotic protocol in evidence, the trial court did not abuse its discretion in

refusing to allow Dr. Kottle to testify at trial.

Dr. Eustace L. Edwards, III, an expert in the field of emergency medicine,

served as a member of the medical review panel4 that exonerated Dr. Kendrick.

Called by Dr. Kendrick to testify at trial, Dr. Edwards stated that the panel

members reviewed the care provided to Mr. Leblanc by Dr. Kendrick and others.

According to Mrs. Jordan, the trial court allowed the jury to be tainted by

Dr. Edwards’ testimony because he referred to the fault of others when

Dr. Kendrick had judicially confessed that no third party fault existed. As a result

thereby, she moved to strike Dr. Edwards’ testimony. The trial court denied her

motion to strike.

4
Dr. Edwards, Dr. Thomas Fontenot, and Dr. William McBride, III, constituted the
medical review panel.

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Again, the trial court has great discretion in conducting the trial and

controlling its proceedings. Having reviewed the exchange upon which

Mrs. Jordan relies, Dr. Edwards acknowledged that the role of the medical review

panel was to review the care provided to Mr. Leblanc by Dr. Kendrick and other

health care providers. Dr. Edwards did not suggest that other health care

providers, besides Dr. Kendrick, were negligent. Thus, we do not find that the jury

was tainted by Dr. Edwards’ testimony.

Based upon our finding of there being no legal errors made by the trial court,

we review the remainder of Mrs. Jordan’s assigned errors, i.e., errors of fact, under

the manifest error standard of review, as discussed below. The trial court did not

abuse its discretion in refusing to strike Dr. Edwards’ testimony.

Errors of Fact

Mrs. Jordan assigns three errors, which she contends are errors of fact made

by the jury, as follows:

IV. The jury erred in failing to conclude that Dr. Kendrick violated
applicable standards of care by failing to diagnose Michael
Leblanc’s Systemic Inflammatory Response Syndrome (SIRS)
and by failing to institute appropriate therapeutic measures.

V. The jury erred in failing to conclude that Dr. Kendrick violated
applicable standards of care by failing to administer adequate
fluids for Michael Leblanc’s dehydration.

VI. The jury erred in failing to conclude that Dr. Kendrick violated
applicable standards of care by failing to evaluate the patient for
approximately 6 hours in the emergency department and by
failing to timely transfer him to the ICU.

“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.” Doyle v. Ramos, 13-1143, p. 5

8

(La.App. 3 Cir. 3/5/14), 134 So.3d 92, 96. As such, we review the jury’s findings

of fact using the clearly wrong or manifest error standard of review. Id.

In order to reverse a fact finder’s determination of fact, an appellate
court must review the record in its entirety and (1) find that a
reasonable factual basis does not exist for the finding, and (2) further
determine that the record establishes that the fact finder is clearly
wrong or manifestly erroneous. [Rosell v. ESCO, 549 So.2d 840,
844-45 (La.1989).] The appellate court must not re-weigh the
evidence or substitute its own factual findings because it would have
decided the case differently. Id.; Pinsonneault v. Merchants &
Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270,
278-79. Where there are two permissible views of the evidence, the
fact finder’s choice between them cannot be manifestly erroneous or
clearly wrong. Id. However, where documents or objective evidence
so contradict the witness’s story, the court of appeal may find
manifest error or clear wrongness even in a finding purportedly based
on a credibility determination. Rosell, supra at 844-45. But where
such factors are not present, and a fact finder’s finding is based on its
decision to credit the testimony of one or two or more witnesses, that
findings can virtually never be manifestly erroneous or clearly wrong.
Id.

Salvant, 935 So.2d at 650.

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

malpractice actions, in pertinent part, as follows:

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 plaintiff in a medical malpractice action must establish the negligence of a

physician by a preponderance of the evidence. La.R.S. 9:2794(C).

Mrs. Jordan, pursuant to La.R.S. 9:2794 and the jurisprudence interpreting

said statute, had the burden of proving, by a preponderance of the evidence, the

following: (1) the standard of care for treating a patient such as Mr. Leblanc;

(2) that Dr. Kendrick breached that standard of care; and (3) that the breach caused

Mr. Leblanc’s death. See also Browning v. W. Calcasieu Cameron Hosp., 03-332

(La.App. 3 Cir. 11/12/03), 865 So.2d 795, writ denied, 03-3354 (La. 2/13/04), 867

So.2d 691.

Mrs. Jordan asserts that Mr. Leblanc died of dehydration and sepsis. The

final autopsy report states Mr. Leblanc’s death was “natural” and caused by

“aspiration of gastric contents, complicating mental retardation, and seizure

disorder.” Mrs. Jordan seemingly disputes the medical records, the findings of the

autopsy, and the opinion of the medical review panel.

The medical review panel’s opinion was introduced into evidence by

Mrs. Jordan, the most relevant portion of which provides:

The evidence does not support the conclusion that Dr. Robert
Kendrick (Emergency Medicine) failed to comply with acceptable
standard of care for an emergency medicine physician in the treatment
of Michael [Leblanc]. Once triaged by the nursing staff, Dr. Kendrick
examined and evaluated Mr. [Leblanc] within a short time following
presentation to the Emergency [M]edicine Department of Rapides
Regional Medical Center. Dr. Kendrick ordered appropriate
diagnostic tests. He and the staff reviewed the patient’s medical
history as provided by the caregivers. Dr. Kendrick was aware of
Mr. [Leblanc]’s multiple aspirations, surgeries, Nissan fundoplication,
[and] feeding tube. Dr. Kendrick recognized Mr. [Leblanc] was
tachycardic and most likely dehydrated. The patient’s O2 rates were
low upon presentation. Dr. Kendrick appropriately ordered oxygen to

10

raise saturation rates, which occurred. In the [E]mergency [R]oom,
Mr. [Leblanc] received IV fluids. Upon receipt of test results,
Dr. Kendrick diagnosed aspiration pneumonia and ordered antibiotic
regimen. In fact, the antibiotics were expanded to provide broad
coverage to Mr. [Leblanc]. The CBC test results initially indicated
41% bands. However, a repeat CBC negated the original result.
Dr. Kendrick diagnosed aspiration pneumonia; considered and ruled
our [sic] sepsis; provided oxygenation, antibiotic coverage, IV fluids,
and stabilized Mr. [Leblanc] while in the Emergency Room. In
addition, Dr. Kendrick sought admission of the patient to the LSU
Family Practice floor within the hospital. At the time of transfer to
family medicine physicians, the patient was stable.

The allegations made against Dr. Kendrick are without merit.
In fact, Dr. Kendrick did comply with the standards of care raised
against him. The panel finds no deviation of standard of care by
Dr. Robert Kendrick.

In summary, the diagnosis of aspiration pneumonia was
appropriate. Diagnostic tests were ordered and repeated when
necessary throughout the emergency room and hospital care.
Appropriate antibiotics were ordered initially and later added. The
dosages and coverage were appropriate. The cultures for
Mr. [Leblanc] returned negative, indicating Mr. [Leblanc]’s condition
was due to inflammation, not infection and sepsis. Placement initially
of two IV lines is not standard of care. When needed, a PICC line
was timely and appropriately placed. Intubation of Mr. [Leblanc]
initially was not warranted as he responded to oxygen, with his O2
sats improving. Mr. [Leblanc] was properly hydrated. The
administration of Lasix was appropriate after receipt of test results
indicating the patient may have heart failure as well as being helpful
for pneumonia. The [. . .] physician who cared for Mr. [Leblanc]
attended to the patient quickly, thoroughly and appropriately. The
records do not indicate a need for consultation of infectious disease.
Unfortunately, the condition of Mr. [Leblanc] was not a diagnostic
dilemma, but a therapeutic problem.

Mrs. Jordan sought to discredit the panel’s decision that Dr. Kendrick did not

deviate from the applicable standard of care by arguing that the evidence before the

panel was incomplete, inaccurate, or both.

In support of her position, Mrs. Jordan presented Dr. Walter Simmons as an

expert in the fields of emergency medicine and quality control of medical services.

According to Dr. Simmons, Dr. Kendrick violated the standard of care by not

11

recognizing when Mr. Leblanc first arrived that he was excessively dehydrated and

had a significant respiratory rate. Dr. Simmons listed Dr. Kendrick’s alleged

breaches as: (1) a failure to treat; (2) a failure to assess; and, (3) a failure to consult

appropriate physicians. According to Dr. Simmons, Mr. Leblanc’s demise was a

result of Dr. Kendrick’s failure to administer appropriate fluids resulting in

dehydration and his failure to administer appropriate antibiotics, resulting in

systemic inflammatory response syndrome (SIRS) and sepsis. Dr. Simmons found

fault with Dr. Kendrick’s administration of 500 milligrams of the antibiotic

Levaquin in his treatment of Mr. Leblanc. Instead, Dr. Simmons opined that

Dr. Kendrick should have administered 750 milligrams of Levaquin and a second

antibiotic, either Vancomycin or Clindomycin, to Mr. Leblanc. Finally,

Dr. Simmons was critical of the care Mr. Leblanc received the entire time he

physically remained in the emergency department, regardless of that fact that the

medical records reflect Mr. Leblanc’s care was assumed by the physicians of the

LSU Family Practice Service at 8:51 a.m.

Dr. Robert Anderson was called to testify by Dr. Kendrick and was accepted

as an expert in the field of emergency medicine. Dr. Anderson explained that the

duty of an emergency room physician is to get treatment started and get the patient

admitted into the hospital for treatment by another doctor if necessary. According

to Dr. Anderson, Dr. Kendrick’s care of Mr. Leblanc was reasonable and

appropriate. Dr. Anderson also testified that at 8:51 a.m., Mr. Leblanc was no

longer Dr. Kendrick’s patient.

As a witness for Dr. Kendrick, Dr. Edwards refuted the accusation that the

evidence before the medical review panel was erroneous and that its opinion was

flawed. According to Dr. Edwards, the medical review panel based its decision

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upon a complete, precise, and accurate record of the treatment received by

Mr. Leblanc. Dr. Edwards was unequivocal in his opinion that Dr. Kendrick met

the applicable standard of care in his treatment of Mr. Leblanc.

Dr. Kendrick testified that when Mr. Leblanc presented to the emergency

room, he was diagnosed as suffering from aspiration pneumonia. He administered

an antibiotic, fluids, and oxygen, which improved Mr. Leblanc’s condition.

Because he felt that Mr. Leblanc needed continuing treatment, Dr. Kendrick

contacted a physician with the LSU Family Practice Service and transferred

Mr. Leblanc’s care accordingly.

This court has often held that the fact finder’s choice between two

permissible views of the evidence cannot be manifestly erroneous or clearly

wrong. See Stobart, 617 So.2d 880. We are further cognizant that when “expert

witnesses differ, it is for the trier of fact to determine the most credible evidence

and a finding of fact in this regard will not be overturned absent manifest error.”

Smith v. Cappaert Manufactured Housing, Inc., 11-1464, p. 11 (La.App. 3

Cir. 4/10/12), 89 So.3d 1234, 1242-43, writs denied, 12-1418 (La. 10/8/12), 98

So.3d 857, and 12-1516 (La. 10/12/12), 98 So.3d 871. The jury was presented

with alternative permissible views of the evidence of what occurred during

Dr. Kendrick’s treatment of Mr. Leblanc. The jury found that Dr. Kendrick had

not violated any applicable medical standard with regards to the diagnosis, care,

and treatment that he provided, or should have provided to Mr. Leblanc, evidently

adopting the views expressed by Dr. Kendrick’s experts. The jury decided which

experts were credible, and its adoption of those opinions cannot be considered

manifestly erroneous. Therefore, we find Mrs. Jordan’s alleged errors of fact to be

without merit.

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DECREE

For the foregoing reasons, we affirm the trial court judgment pursuant to

jury verdict and the trial court’s evidentiary rulings. Costs are assessed to

Plaintiff/Appellant, Connie Jordan.

AFFIRMED.

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