Sherry Wedgeworth, Et Ux. v. Tynes E. Mixon, III, M.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-686

SHERRY WEDGEWORTH, ET UX.

VERSUS

TYNES E. MIXON, III, M.D.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 122402
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Phyllis M. Keaty, Judges.

AFFIRMED.

David W. Ardoin
Carson McKowen
Matthew D. Ory
Ardoin, McKowen & Ory, LLC
505 W. Third Street
Thibodaux, Louisiana 70301
(985) 446-3333
Counsel for Plaintiffs/Appellants:
Sherry Wedgeworth
James Wedgeworth

Andrew H. Meyers
Breaud & Meyers
Post Office Box 3448
Lafayette, Louisiana 70502
(337) 266-2200
Counsel for Defendant/Appellee:
Tynes E. Mixon, III, M.D.

1

KEATY, Judge.

Plaintiffs/Appellants, Sherry Wedgeworth and James Wedgeworth, appeal

the trial court’s judgment in favor of Defendant/Appellee, Tynes E. Mixon, III,

M.D. For the following reasons, the trial court’s judgment is affirmed.

FACTS & PROCEDURAL HISTORY

This medical malpractice suit arises from complications occurring after

Mrs. Wedgeworth underwent a revision functional endoscopic sinus surgery (FESS

procedure)1 performed by Dr. Mixon, a board-certified otolaryngologist/ear, nose,

and throat (ENT) physician, on February 1, 2012. Her revision surgery arose from

recurring sinusitis which she experienced since 2006 when she began treating with

him. Prior to this revision surgery, Dr. Mixon performed a FESS procedure on

Mrs. Wedgeworth in 2009.

As to the FESS procedure at issue, on February 2, 2012, the pathologist who

examined Mrs. Wedgeworth’s infected tissue that was removed during her revision

sinus surgery advised Dr. Mixon that it contained a small fragment of brain tissue.

Dr. Mixon subsequently called Mrs. Wedgeworth, who had already been

discharged from the hospital following a one-night, post-surgery stay. During their

telephone conversation, Dr. Mixon advised her of the pathologist’s report,

explained the risks for infection, recommended a computerized tomography (C.T.)

scan, and recommended hospital admission. Mrs. Wedgeworth declined hospital

admission but agreed to return to Dr. Mixon’s office the following day.

During her February 3, 2012 office visit, Dr. Mixon examined

Mrs. Wedgeworth and again recommended a C.T. scan and hospital admission,

1
The terms “FESS procedure” and “sinus surgery” are used interchangeably throughout
this opinion.

although she declined. Mrs. Wedgeworth was admitted to the hospital three days

later on February 6, 2012, following another visit to Dr. Mixon’s office where she

stated that she was feeling poorly. She was initially admitted to Iberia Medical

Center and subsequently transferred to Our Lady of Lourdes Regional Medical

Center (OLOL). Mrs. Wedgeworth remained at OLOL, and, on February 9, 2012,

she began experiencing symptoms of aphasia and was subsequently diagnosed with

cerebritis, a brain infection.

As a result, Mrs. Wedgeworth filed a medical malpractice claim for review

pursuant to La.R.S. 40:1299.41-.49. On March 22, 2013, a three-member medical

review panel unanimously ruled in favor of Dr. Mixon. Plaintiffs subsequently

filed a Petition for Damages on April 17, 2013 against Dr. Mixon, alleging that he

breached the standard of care by failing to properly perform the revision sinus

surgery and by failing to properly monitor and treat her post-surgery.

Mr. Wedgeworth sought damages for loss of consortium, services, and society.

Following a civil jury trial which occurred from September 29, 2014,

through October 2, 2014, the jury ruled in favor of Dr. Mixon. On October 15,

2014, the trial court signed a judgment dismissing all claims against Dr. Mixon

with prejudice in accordance with the jury verdict. Plaintiffs subsequently filed a

Motion For Judgment Notwithstanding Verdict Or Alternatively New Trial on

October 22, 2014. Following a hearing which took place on January 6, 2015, the

trial court orally denied Plaintiffs’ motions, which ruling was reduced to writing

and signed by the trial court that same day. Plaintiffs appealed.

On appeal, Plaintiffs assert the following two assignments of error:

1. The trial court erred by not instructing the jury that negligence is
malpractice within the context of a medical malpractice action and
by not ordering the jury to consider damages when the jury asked:

2

“Is there a way that the Plaintiff can be awarded damages without
the Dr. being found guilty of malpractice? All members are in
agreement of neghince [sic] but not malpractice.”2

2. The trial court erred by not granting a Judgment Notwithstanding
Verdict or new trial when the jury’s verdict was usurped by the
[trial] court’s response to the jury’s question and statement.

DISCUSSION

I. First Assignment of Error

A. Standard of Review

Plaintiffs’ first assignment of error deals with allegedly erroneous jury

instructions. An appellate court “may not set aside a trial court’s or a jury’s

finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong[.]’”

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (quoting Arceneaux v. Domingue,

365 So.2d 1330, 1333 (La.1978)). Jury instructions are generally reviewed under

the manifest error standard of review. See Wooley v. Lucksinger, 09-571, 09-584,

09-585, 09-586 (La. 4/1/11), 61 So.3d 507. An appellate court must exercise great

restraint before reversing a jury verdict based on erroneous jury instructions.

Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08), 983 So.2d 798. “Trial courts are

given broad discretion in formulating jury instructions and a trial court judgment

should not be reversed so long as the charge correctly states the substance of the

law.” Id. at 804. When a jury is erroneously instructed, however, “and the error

probably contributed to the verdict, an appellate court must set aside the verdict.”

Id. An appellate court assesses an allegedly erroneous jury instruction “in light of

the entire jury charge to determine if the charges adequately provide the correct

principles of law as applied to the issues framed in the pleadings and the evidence

2
We note that although Plaintiffs use the word “negligence” in their appellate brief, the
jury question contained in the record shows that “negligence” was misspelled, i.e., “neghince”.
We accept “neghince” to mean “negligence.”

3

and whether the charges adequately guided the jury in its deliberation.” Id. at 804.

“[T]he determinative question is whether the jury instructions misled the jury to

the extent that it was prevented from dispensing justice.” Id. (quoting Nicholas v.

Allstate Ins. Co., 99-2522, p. 8 (La. 8/31/00), 765 So.2d 1017, 1023).

Additionally, “when small portions of the instructions are isolated from the

context and are erroneous, error is not necessarily prejudicial.” Id. at 805. “[T]he

manifest error standard for appellate review may not be ignored unless the jury

charges were so incorrect or so inadequate as to preclude the jury from reaching a

verdict based on the law and facts.” Id. Therefore, the mere discovery of an error

in the judge’s instructions on appellate review of a jury trial does not warrant the

appellate court to conduct “the equivalent of a trial de novo, without first

measuring the gravity or degree of error and considering the instructions as a

whole and the circumstances of the case.” Id. In cases wherein supplemental

charges are given by the judge, “‘[t]he supplemental charge must be considered as

an addition to the original instruction rather than as an independent charge. As

long as the combined charges accurately cover the point of law at issue, no

reversible error exists.’” Id. (quoting United States v. L’Hoste, 609 F.2d 796, 805

(5th Cir. 1980)).

B. Allegedly Erroneous Jury Instructions

In their first assignment of error, Plaintiffs contend that the trial court erred

by not informing the jury that negligence equates to malpractice with respect to a

medical malpractice suit. This alleged error, according to Plaintiffs, occurred

during the middle of the jury deliberations when it sent the following note to the

trial court: “Is there a way that the Plaintiff can be awarded damages without the

Dr. being found guilty of malpractice? All members are in agreement of neghince

4

[sic] but not malpractice.” Over Plaintiffs’ objection, the trial court answered “no”

and then instructed the jury to return to deliberations. Plaintiffs argue that the trial

court’s response was incorrect and that it should have instructed the jury to

consider damages at that point.

In opposition, Defendant contends that the trial court’s foregoing

supplemental charge was an adequate response to the jury’s question and that its

response was correct when compared to the jury instructions as a whole and the

circumstances of the case. Defendant alleges that the supplemental charge failed to

taint the jury’s verdict. We agree based upon the evidence contained in the record

and the law regarding jury charges.

Pursuant to La.Code Civ.P. 1792(B), when charging the jury following trial

of the matter and presentation of all of the evidence and arguments, the trial court

“shall instruct the jurors on the law applicable to the cause submitted to them. . . .

reduce such instructions to writing. . . . [and] instruct the jury that it may take with

it or have sent to it a written copy of all instructions and charges . . . .” The

lengthy jury instructions contained in the trial transcript show that following trial

and after presentation of all of the evidence and arguments, the trial court complied

with the requirements of La.Code Civ.P. art. 1792(B). The transcript reveals that

after the trial court instructed the jury, the jury retreated to deliberate. During the

deliberations, the transcript shows that the trial court received the note at issue and

read it aloud to both parties’ counsel. According to the transcript, the trial court

subsequently opined that the jury may have been “hung up” on question number

three of the jury verdict form since it mentions malpractice rather than negligence

and that the jury may be misinterpreting “what malpractice and negligence is.”

Question number three asks, “[d]o you find from a preponderance of the evidence

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that Dr. Tynes Mixon was guilty of substandard conduct which constitutes

malpractice?” Despite the trial court’s statement contained in the transcript that

question number three “may have not been worded as good as we could have on . . .

the verdict form[,]” and that the trial court “may not have instructed them well on

that[,]” it held: “I just have to answer the question, which is no, at this particular

time.”

After the trial court advised the jury of its answer, the transcript and the

evidence reveal that the jury sent the trial court another note which asked: “May

we review the laws as written?” In response, the trial court sent the jury

instructions to the jury room. After deliberations, the transcript shows that the jury

found that Dr. Mixon was not guilty of substandard conduct which constitutes

malpractice.

We find that the trial court’s response to the jury’s initial question was not

erroneous in light of Louisiana jurisprudence which provides: “Except for

determining whether certain types of irregularities have occurred, the law does not

permit inquiry into the thought processes by which a jury reached a verdict.”

Cosie v. Aetna Cas. & Sur. Ins. Co., 527 So.2d 1105, 1107 (La.App. 1 Cir. 1988)

(citing Louisiana Farm Bureau Cas. Ins. Co. v. Williams, 476 So.2d 810

(La.1985)). In their brief, however, Plaintiffs attempt to inquire into the jury’s

thought process by assuming that the question referred to Dr. Mixon. Plaintiffs’

assumption is faulty, however, since the jury could have been referring to Mrs.

Wedgeworth’s possible comparative negligence in light of question number five on

the jury verdict form which states: “Do you find from a preponderance of the

evidence that Sherry Wedgeworth was guilty of negligence which contributed to

her own damage?” Plaintiffs also presuppose that the jury believed that Dr. Mixon

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was guilty of negligence based upon the jury’s statement that “[a]ll members are in

agreement of neghince [sic].” The foregoing, however, can also be interpreted as

meaning that all members were in agreement that there was no negligence on Dr.

Mixon’s part.

The transcript further shows that the trial court explained the concept of

negligence with respect to a medical malpractice matter by stating the following in

its instructions to the jury: “In an action such as this, the plaintiff has the burden of

proving the negligence of the defendant physician.” The record also contains the

jury instructions which state the following law regarding negligence under the

section heading entitled “MALPRACTICE”:

In order to discharge the burden of proving negligence on the
part of the defendant, plaintiff must prove:

(1) the degree of knowledge or skill possessed, or the degree of
care ordinarily exercised by physicians licensed to practice in
Louisiana and actively practicing a particular medical specialty under
similar circumstances;

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

(3) that, as a proximate result of this lack of knowledge or skill,
or failure to exercise this degree of care, plaintiff suffered injuries
which would not otherwise have been incurred.

Moreover, even though Plaintiffs’ counsel objected to the trial court’s

supplemental jury instruction wherein the trial court said “no,” the transcript is

void of any objection being made with respect to the original jury instructions. We,

therefore, find that the combined charges, i.e., the initial jury instructions and the

supplemental charge, accurately covered the point of law at issue. Accordingly,

we find that no reversible error exists, and the trial court did not manifestly err in

this regard.

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II. JNOV/New Trial

A. Standard of Review

Plaintiffs’ second assignment of error deals with the trial court’s denial of its

motion for a judgment notwithstanding the verdict (JNOV) or its alternative

motion for a new trial. “The motion for a [JNOV] may be granted on the issue of

liability or on the issue of damages or on both issues.” La.Code Civ.P. art. 1811(F).

The criteria used in determining whether a JNOV has been properly granted was

discussed in Davis v. Wal-Mart Stores, Inc., 00-445, pp. 4-5 (La. 11/28/00), 774

So.2d 84, 89 (citations omitted), as follows:

A JNOV is warranted when the facts and inferences point
so strongly and overwhelmingly in favor of one party that
the court believes that reasonable jurors could not arrive
at a contrary verdict. The motion should be granted only
when the evidence points so strongly in favor of the
moving party that reasonable men could not reach
different conclusions, not merely when there is a
preponderance of evidence for the mover. If there is
evidence opposed to the motion which is of such quality
and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different
conclusions, the motion should be denied. In making this
determination, the court should not evaluate the
credibility of the witnesses and all reasonable inferences
or factual questions should be resolved in favor of the
non-moving party.

The applicable standard of review therefore requires a two-part inquiry. Id.

First, the appellate court must determine whether the trial court erred in not

granting the JNOV by using the foregoing criteria. Id. Second, “[a]fter

determining that the trial court correctly applied its standard of review as to the

jury verdict, the appellate court reviews the JNOV using the manifest error

standard of review.” Id.

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With respect to a motion for a new trial, it is granted “[w]hen the verdict or

judgment appears clearly contrary to the law and the evidence.” La.Code Civ.P.

art. 1972(1). When reviewing the grant or denial of a motion for a new trial, an

appellate court cannot reverse the trial court’s decision unless an abuse of

discretion can be demonstrated. Harbor v. Christus St. Frances Cabrini Hosp., 06-

593 (La.App. 3 Cir. 11/2/06), 943 So.2d 545.

B. Evidence Supporting Verdict

Keeping in mind the foregoing standard of review, Plaintiffs argue in their

second assignment of error that the trial court erred by not granting its Motion For

Judgment Notwithstanding Verdict Or Alternatively New Trial since the jury’s

verdict was tainted by the [trial] court’s response to the jury’s question.

Pursuant to the transcript of the hearing on Plaintiffs’ motions, the trial court

noted the jury’s possible confusion with the terms “malpractice” and “negligence”

when it received the jury’s note stating that “[a]ll members are in agreement of

neghince [sic] but not malpractice.” The trial court indicated its problem with the

note and attempted to remedy any possible future confusion between the two terms

when it stated: “And I’m changing my instructions based on this trial. I’m not

going to even mention malpractice anymore in my instruction. It’s just going to be

medical negligence . . . . [b]ecause I don’t want to confuse them based on what

happened in this trial.” The transcript also shows that the trial court noted that the

jury “got the [jury] instructions later in deliberation[s][.]” The transcript reveals

that although the trial court was unsure as to whether the jury read the requested

instructions, it ruled against Plaintiffs stating: “I don’t like to invade the province

of the jury. . . . They were given the instructions subsequently. They rendered a

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verdict. I’m going to deny the judgment notwithstanding the verdict and also the

motion for the new trial.”

When the jury is the fact finder such as in this case, the following two-part

test enunciated in Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880,

882 (La.1993), is employed to determine whether to reverse the jury’s

determinations:

1) The appellate court must find from the record that a reasonable
factual basis does not exist for the finding of the trial court, and

2) the appellate court must further determine that the record
establishes that the finding is clearly wrong (manifestly
erroneous).

This test requires review of the entire record to determine the occurrence of

manifest error. Purvis v. Grant Parish Sch. Bd., 13-1424 (La. 2/14/14), 144 So.3d

922. “Thus, the issue before the court of appeal is not whether the trier of fact was

right or wrong, but whether the fact-finder’s conclusion was a reasonable one.” Id.

at 926.

In this case, the jury heard the trial testimony of Defendant’s expert,

Dr. Newland Knight Worley, a board-certified ENT. Dr. Worley testified that he

had been practicing for over twenty years, had performed over one thousand sinus

surgeries, and taught as an associate clinical professor at Tulane University School

of Medicine. He admitted to being a member of the three-member medical review

panel which found that Dr. Mixon did not breach the applicable standard of care.

Dr. Worley testified as to the medical standards regarding FESS procedures and

stated that he formulated his opinion after reviewing the applicable medical charts,

documents, Mrs. Wedgeworth’s medical records, and the parties’ position papers.

Dr. Worley testified that an “injury through the skull base to the base of the

10

brain. . . . is a well-recognized complication that can occur even in the best

surgeon’s hands.” He testified that the foregoing complication is listed on the

informed consent and that “[t]he fact that it happens during a surgery, in itself, is

not a breach of the standard of care.” Similarly, Dr. Worley’s testimony indicates

that an infection developed by a patient post-surgery often occurs without a breach

in the standard of care. He concluded that the care provided by Dr. Mixon before,

during, and after Mrs. Wedgeworth’s surgery was within the applicable standard of

care.

Dr. Worley’s conclusions were supported by the trial testimony of Dr. Guy P.

Zeringue, III, a board-certified ENT and expert witness provided by Defendant.

Dr. Zeringue’s testimony reveals that he had been practicing for eleven years and

was the second member of the medical review panel. Dr. Zeringue stated that he

performed approximately two hundred sinus surgeries a year, and he opined that

Dr. Mixon did not breach the standard of care with respect to his treatment

rendered to Mrs. Wedgeworth before, during, and after surgery. He formulated

this opinion, according to his testimony, after reviewing the applicable documents,

charts, Mrs. Wedgeworth’s medical records, and both parties’ position papers.

Dr. Zeringue further testified that a brain biopsy, brain damage, and infection are

risks associated with undergoing a FESS procedure, and the complications

Mrs. Wedgeworth experienced following her revision sinus surgery can occur

without breaching the standard of care. Dr. Zeringue testified that if he had been

Mrs. Wedgeworth’s treating physician and had become aware that during surgery,

her skull had been penetrated, which exposed her brain, he would have

recommended that she return for a follow-up appointment.

11

Dr. Chester Finley, the third member of the medical review panel, was also

presented at trial to testify on behalf of Defendant. In lieu of hearing his testimony,

which would have mirrored Dr. Zeringue’s trial testimony, the parties stipulated

that Dr. Finley’s opinion was consistent with that of Dr. Zeringue.

Dr. Mixon also testified at trial, stating that he had been practicing for

approximately eighteen years as a board-certified ENT. He indicated that he had

performed approximately two thousand FESS procedures during his career. As to

his treatment rendered to Mrs. Wedgeworth, he testified that he had met the

applicable standard of care before, during, and after surgery. Dr. Mixon believed

that he had exceeded the standard of care when he initially recommended that

Mrs. Wedgeworth be admitted to the hospital and undergo a C.T. scan as opposed

to recommending only a follow-up appointment. As discussed above, Dr.

Zeringue, and Dr. Finley by stipulation, testified that they would have only

recommended a follow-up appointment.

Defendant also presented the video tape deposition testimony of its expert

neurosurgeon, Dr. Jason Cormier. Dr. Cormier testified that he examined

Mrs. Wedgeworth on February 7, 2012, during her hospital stay at OLOL.

Dr. Cormier’s results indicated a normal examination with no signs of an infection.

Dr. Cormier’s testimony was supported in part by the trial testimony of

Plaintiffs’ expert neurosurgeon, Dr. Leo DeAlvare, who testified that he also

examined Mrs. Wedgeworth on February 7, 2012, at OLOL. On cross-

examination, Dr. DeAlvare agreed that his examination of her was normal, even

though he testified on direct examination that Mrs. Wedgeworth’s brain infection

was a direct result of the revision FESS procedure at issue.

12

Plaintiffs also presented their expert ENT at trial, Dr. John Bogdasarian.

Dr. Bogdasarian testified that he was board-certified and had been practicing for

approximately thirty-six years. According to his testimony, during this time, he

performed approximately ten to fifteen sinus surgeries per year. His testimony

indicates that after reviewing the applicable office and hospital records and charts,

Mrs. Wedgeworth’s medical records, and depositions of Plaintiffs and Dr. Mixon,

he disagreed with the medical review panel’s opinion. Dr. Bogdasarian stated that

he was in a better position than Drs. Worley, Zeringue, and Finley to render an

opinion as they were unable to review Plaintiffs’ depositions since Plaintiffs had

not been deposed prior to the medical review panel’s finding. According to his

testimony, Dr. Bogdasarian had never witnessed a brain being biopsied during a

FESS procedure, and Dr. Mixon breached the standard of care by biopsying the

brain. At trial, he criticized Dr. Mixon’s post-surgical care which consisted of

performing two endoscopic procedures on Mrs. Wedgeworth in his office on

February 2, 2012. Dr. Bogdasarian opined that since Dr. Mixon knew that there

was a hole in Mrs. Wedgeworth’s brain but was unsure as to its location, the

correct procedure would have been to perform a C.T. scan that day.

Dr. Bogdasarian stated that it would have been proper to insist that the patient

present to the hospital while the treating physician consulted an infectious disease

physician and possibly a neurosurgeon. Dr. Bogdasarian opined that Augmentin,

the antibiotic prescribed by Dr. Mixon, does not protect the brain from infection.

He concluded that had Mrs. Wedgeworth been hospitalized on February 2, 2012,

she likely would not have developed a brain infection.

After hearing the foregoing testimony, the jury determined that, under the

facts and circumstances of this case, Dr. Mixon did not breach the applicable

13

standard of care. The jury chose to believe the testimony of Defendant’s experts,

Drs. Worley, Zeringue, and Finley, two of whom had performed approximately

3,2003 sinus surgeries over the course of their careers, rather than the testimony of

Plaintiffs’ expert ENT, Dr. Bogdasarian, who performed approximately 540 sinus

surgeries throughout his career. Moreover, both Dr. Cormier and Plaintiffs’ expert

neurosurgeon, Dr. DeAlvare, testified that their examinations of Mrs. Wedgeworth

yielded normal results. “Where the fact-finder’s determination is based on its

decision to credit the testimony of one or more witnesses, that finding can virtually

never be manifestly erroneous.” Purvis, 144 So.3d at 926. It was, therefore,

reasonable for the jury to rely upon Defendant’s experts’ opinions rather than the

opinion of Dr. Bogdasarian. Accordingly, we find that the trial court did not

manifestly err in denying Plaintiffs’ Motion For Judgment Notwithstanding

Verdict Or Alternatively New Trial.

DECREE

The trial court’s judgment is affirmed. All costs of this appeal are assessed

to Plaintiffs/Appellants, Sherry Wedgeworth and James Wedgeworth.

AFFIRMED.

3
This takes into account only the surgeries performed by Drs. Worley and Zeringue, as
there is no information regarding the amount of surgeries performed by Dr. Finley.

14