John Mantiply and Melissa Sue Mantiply v. Joseph I. Hoffman, Jr., M.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-292

JOHN MANTIPLY AND MELISSA SUE MANTIPLY, ET AL.
VERSUS

JOSEPH I. HOFFMAN, JR., M.D.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 242390
HONORABLE WILLIAM GREGORY BEARD, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar, Judges.

AFFIRMED.

Eugene A. Ledet, Jr.

Brian Caubarreaux

Brock H. Duke

Brian Caubarreaux & Assoc.

4501 Jackson St., Ste A

Alexandria, LA 71303

(318) 442-0900

COUNSEL FOR PLAINTIFFS/APPELLANTS:
John Mantiply
Melissa Sue Mantiply

Gregory Engelsman

Eric John Miller

Bolen, Parker, Brenner, Lee & Engelsman, LTD

P. QO. Box 11590

Alexandria, LA 71315-1590

(318) 445-8236

COUNSEL FOR DEFENDANT/APPELLEE:
Joseph I. Hoffman, Jr., M.D.

KYZAR, Judge.

In this medical malpractice action, the Plaintiffs, John and Melissa Mantiply,
appeal the judgment of the trial court dismissing their claims against the Defendant,
Dr. Joseph I. Hoffman, Jr. The judgment arose following a trial by jury and in
accordance with the jury verdict. For the reasons set forth herein, we affirm the
judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On May 21, 2008, Plaintiff John Mantip!y underwent arthroscopic surgery on
his left knee to repair a torn meniscus. The surgery was performed by Defendant
Joseph Hoffman, M.D., an orthopedic surgeon working as an independent contractor
at the Veterans Administration (VA) Hospital. Days after the surgery, John began
experiencing pain, swelling, and drainage in his left knee, causing him to return to
the VA Hospital multiple times. John was seen by numerous doctors at the VA
Hospital, though Dr. Hoffman remained his primary provider post-surgery until June
9, 2008, when Dr. Hoffman aspirated and cultured the fluid from John’s left knee
and injected the knee with cortisone on the same day without awaiting the results of
the culture. Hospital records from the VA do not show an official diagnosis
regarding the cause of John’s knee problems. On June 26, 2008, John met with Dr.
Michael Brunet, an orthopedic surgeon at Mid-State Orthopedic Clinic, regarding
his continuing leg pain and lack of mobility.

The sequence of events leading up to the June 9, 2008 aspiration and cortisone
injection and the current suit are as follows:

e May 21, 2008: John has arthroscopic surgery performed by Dr.
Hoffman at the VA Hospital to repair a torn meniscus in his left
knee.

e May 26, 2008: John presented to the Emergency Room (ER) at

the VA Hospital, reporting redness, swelling, and bleeding from
his left knee. The attending ER physician, Dr. Fitzgerald,

aspirated 12ml of fluid from the knee and prescribed the
antibiotic amoxicillin.

May 27, 2008: John followed up with Dr. Hoffman, who
examined the knee and noted clear drainage from the needle site.
No diagnosis was given, though Dr. Hoffman recommended
John continue with his prescribed amoxicillin and return for his
regularly scheduled follow-up appointment on May 29.

May 29, 2008: John returns to the orthopedic clinic to see Dr.
Hoffman, relating constant pain in his knee, though there was no
more fluid drainage at that time. That evening, however, John
returned to the ER complaining of drainage from the surgical site
and again saw Dr. Fitzgerald, who noted no redness or swelling.

May 30, 2008: John called the ER Department at the VA twice
complaining of excess fluid draining from his knee. John did not
present to the ER for his symptoms.

June 4, 2008: John returned to the VA for a scheduled
appointment but was sent to the ER and seen by Dr. Del Valle
due to swelling and continued pain in his left knee. X-Rays were
taken that revealed a supra patella effusion and soft tissue
swelling. John’s knee was wrapped in an ace bandage, and he
was discharged with instructions to keep the leg elevated.

June 5, 2008: John again returned to the orthopedic clinic for a
follow-up appointment with Dr. Hoffman, where Dr. Hoffman
noted continued drainage of clear fluid from John’s left knee. Dr.
Hoffman ordered a complete blood count (CBC) on this date and
his notes state that this was a “very strange course of events.” Dr.
Hoffman renewed John’s prescription for amoxicillin, though no
official diagnosis was noted in the records.

June 7, 2008: John presented to the ER complaining of sharp
pains and severe burning in his left knee. Dr. Fitzgerald noted
no redness or swelling and recommended John follow-up with
Dr. Hoffman.

June 8, 2008: John experienced a syncopal episode where he lost
consciousness due to the pain in his knee and was admitted to the
VA Hospital. A second CBC was ordered, which showed a
higher white blood count (WBC) than the previous test. Dr.
Clement, who saw John during this visit, also ordered that his
“Sed rate” and uric acid level be checked.

June 9, 2008: While still in the hospital, John was examined by
Dr. Hoffman. Dr. Hoffman did an arthrocentesis, in which he
aspirated fluid from John’s knee, and submitted the fluid for
culture. Before the results of that culture were received, Dr.

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Hoffman also injected cortisone into John’s knee to help with
pain.

e June 10, 2008: Still hospitalized, John reported no complaints of
pain in his knee to his internist, Dr. Ganji, who was treating him
for the syncopal episode. Dr. Ganji ordered a CBC, which
showed a higher WBC than the test done on June 8, and ordered
John to be placed on '‘Clindamycin, a potent antibiotic.

e June 11, 2008: John’s WBC count was notably lower than the
previous day, and he was released from the ER. The culture from
June 9 came back showing a small number of staphylococcus
aureus organisms, 1.e. the results of the synovial fluid culture was
positive for trace amounts of staph. John claims it is during this
hospital stay that he first noticed the restriction of mobility in his
left knee.

e June 19, 2008: John reported to the orthopedic clinic to see Dr,
Hoffman, stating that his knee had become locked, though he
reported no pain in the leg. Dr. Hoffman advised John to
continue his prescription of Clindamycin and to return in three
weeks. No official diagnosis regarding the ongoing issues with
John’s knee is ever recorded.

The June 19, 2008 appointment is the last encounter John has with Dr.
Hoffman. Within a week of that appointment, John met with Dr. Brunet, who
urgently advised him to seek additional treatment as the possibility of infection was
serious. John retumed to Dr. Brunet the next month for continuing knee issues, at
which time Dr. Brunet suspected either a chronic infected knee or gouty synovitis.
Eventually, Dr. Brunet performed a synovectomy surgery on July 23, 2008 on John’s
left knee, noting a thickening of the synovial lining. The mobility in John’s left leg
purportedly did not return, an assertion challenged by the defense at trial.

Trial by jury commenced October 10, 2017. Three medical experts testified
at trial. Following deliberations on October 13, 2017, the jury returned a ten-to-two
verdict in favor of Dr. Hoffman, finding that Plaintiffs failed to prove by a
preponderance of the evidence that Dr. Hoffman deviated from the standard of care

of a reasonably prudent orthopedic surgeon in his post-surgical treatment of John,

thus awarding Plaintiffs no damages. Specifically, the jury answered “NO” to
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question one of the jury interrogatories: “Do nine (9) or more of you find by a
preponderance of the evidence, that Dr. Joseph Hoffman, Jr. breached the applicable
standard of care in his treatment of John Mantiply?” A formal judgment was signed
October 20, 2017. Plaintiffs timely moved for a Judgment Notwithstanding the
Verdict (JNOV), which was denied. Plaintiffs seek appellate review of the jury’s
verdict, alleging that it is predicated on manifestly erroneous factual findings
because there was no competent evidence in the record to support the jury’s
interpretation of the facts. Dr. Hoffman answered the appeal asserting that the trial
court erred in denying his peremptory exception of prescription.
DISCUSSION

Exception of Prescription

In answer to this appeal, Dr. Hoffman asserts that the trial court erred in
denying his exception of prescription. Therein, Dr. Hoffman declares that the claim
against him directly, filed for the first time by an amended complaint in federal court
on June 9, 2011, was untimely as not having been filed within a year of the pureed
malpractice or at the least from one year of discovery of the act. As a finding that
the claim at hand has prescribed would render the rest of the appeal moot, we will
address Dr. Hoffman’s exception of prescription first. In Louisiana, delictual actions
shall be brought within one year of the event causing injury. La.Civ.Code art. 3492.
A hearing on the exception was held on June 13, 2016, and reasons for judgment
were handed down on July 1, 2016, denying the exception. A formal judgment to
that effect was signed on July 28, 2016. Dr. Hoffman thereafter applied to this court
for a writ of review, which was denied. Mantiply, et al. v. Hoffman, 16-708 (La.App.
3 Cir, 11/30/16) (unpublished).

A prior denial of supervisory writs does not preclude

reconsideration of an issue on appeal, nor does it prevent the appellate
court from reaching a different conclusion. State v. Castleberry, 98-

4

1388, p. 5 (La.4/13/99), 758 So.2d 749, cert. denied, 528 U.S. 893, 120
S.Ct. 220, 145 L.Ed.2d 185 (1999). Under the doctrine of “law of the
case,” an appellate court will generally refuse to reconsider its own
rulings of law on a subsequent appeal in the same case. Clement v.
Reeves, 07-1154, 07-1155 (La.App. 3 Cir. 1/30/08), 975 So.2d 170, writ
denied, 08-0482 (La.4/18/08), 978 So.2d 355; State v. Pettus, 11-862
(La.App. 5 Cir. 5/22/12), 96 So.3d 1240. The law of the case doctrine
is discretionary. /d. Reconsideration of a prior ruling is warranted
when, in light of a subsequent trial record, it 1s apparent that the
determination was patently erroneous and produced unjust results. /d.
Although, we find no error in the decision by this court on the writ, and
acknowledge there has been no new evidence presented, we feel it in
the best interests of justice that a written discussion of the parties’
arguments be undertaken. Thus, in our discretion, we decline to apply
the law of the case doctrine in this instance, and will entertain LWCC’s
appeal.

Hernandez v. La. Workers’ Comp. Corp., 15-118, p. 5 (La.App. 3 Cir. 6/3/15), 166
So.3d 456, 458-59.

Similarly, we will address Dr. Hoffman’s assertion in his answer to the appeal
here. In Louisiana, “[n]o action for damages for injury or death against any
physician... arising out of patient care shall be brought unless filed within one year
from the date of the alleged act, omission, or neglect, or within one year from the
date of discovery[.]” La.R.S. 9:5628(A). The events leading to the current suit took
place between May 21, 2008 and June 9, 2008. Dr. Hoffman was first named as a
defendant in Plaintiffs’ amended complaint on June 9, 2011. As noted by Dr.
Hoffman, this is clearly outside of the allotted time period for filing such an action.
Further, “in all events such claims shall be filed at the latest within a period of three
years from the date of the alleged act, omission, or neglect.” La.R.S. 9:5628(A).

Plaintiffs initially began administrative proceedings in March 2010 against
the United States of America and the VA and formally filed suit in federal court on
December 19, 2010. Delictual actions against the United States must be brought to
the appropriate federal agency within two years of the alleged act, omission, or

neglect. 28 U.S.C. § 2401. Plaintiffs assert that it was not until June 8, 2011 that

counsel for the U.S. stated that Dr. Hoffman was not in fact an employee of the VA
but was an independent contractor.

Plaintiffs immediately moved to include Dr. Hoffman individually in the
lawsuit upon obtaining such information, re leave to file an amended complaint
to include Dr. Hoffman as a co-defendant in the federal suit and filing a request for
a medical review panel per the provisions of La.R.S. 40:1231.8 on June 9, 2011,
three years from the date of the cortisone injection. Upon being notified that Dr.
Hoffman was not qualified under the Louisiana Medical Malpractice Act as he was
only licensed in Georgia and New York, John and his wife filed suit against Dr.
Hoffman on August 15, 2011. Dr. Hoffman filed an exception of prescription,
noting that La.R.S. 9:5628(A) requires that medical malpractice suits be brought
within one year, and at no point more than three years, from the date of the acts
causing injury. Further, in actions commenced in an incompetent court or improper
venue, prescription is only interrupted as to the defendant who is served within the
prescriptive period. La.Civ.Code art. 3462.

The trial court denied Dr. Hoffman’s exception of prescription, finding the
principle of contra non valentem applied. It is important to note that despite the
wording of La.R.S. 9:5628(A), both the one-year and three-year time limitations
contained in the statute are prescriptive, not preemptive. Borel v. Young, 07-0419
(La. 11/27/07, 23), 989 So.2d 42, on rehearing (July 1, 2008). Therefore, the
exception of contra non valentem, which suspends prescription, is applicable. /d.
The doctrine itself is based upon the theory that when a plaintiff is not aware of the
facts giving rise to his or her cause of action against a particular defendant, the
running of prescription is suspended until the tort victim discovers or should have
discovered the facts upon which his or her cause of action is based. Jn re Med.

Review Panel of Howard, 573 So.2d 472 (La.1991). The supreme court has
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recognized four instances in which contra non valentem prevents the running of
liberative prescription:
(1) where there was some legal cause which prevented the courts or
their officers from taking cognizance of or acting on the plaintiffs
action;
(2) where there was some condition coupled with the contract or
connected with the proceedings which prevented the creditor from

suing or acting;

(3) where the debtor himself has done some act effectually to prevent
the creditor from availing himself of his cause of action; or

(4) where the cause of action is neither known nor reasonably knowable
by the plaintiff even though plaintiff's ignorance is not induced by
the defendant.

Marin v. Exxon Mobil Corp., 09-2368, 09-2371, p. 12 (La. 10/19/10), 48 So.3d 234,
245.

“Contra non valentem acts to suspend prescription where the action or
inaction of the plaintiff is reasonable.” Eastin v. Entergy Corp., 03-1030, p.8 (La.
2/6/04), 865 So.2d 49, 56. Plaintiffs argue that their ignorance regarding Dr.
Hoffman’s employment relationship with the VA was not willful or inexcusably
negligent but was reasonable in light of the circumstances, and they introduced
exhibits into the record at trial to show this. The supreme court addressed a similar
issue in Howard, 573 So.2d 472.

In Howard, the plaintiff presented to an emergency room for treatment.
However, it eventually came to light over a year after the incident, that the
emergency room physician who provided care for him was not an employee of the
hospital, but rather was employed by a separate medical group hired by the hospital.
Both the trial and appellate courts sustained the doctor’s exception of prescription,
finding that the hospital had no obligation to disclose its contractual relationship
with the emergency room doctor to the plaintiffs. Jd. The supreme court reversed,

finding that prescription did not begin to run until the plaintiff was made aware of

7

the relationship between the emergency room doctor and the hospital, per the
doctrine of contra non valentem. Id. The court found that the key inquiry in a contra
non valentem case is the commencement date of the one-year prescriptive period
contained in the statute, which is dependent upon the “reasonableness of the
claimant’s action or inaction.” /d. at 474.

Constructive knowledge sufficient to commence the running of
prescription requires something more than a mere apprehension that
something might be wrong. Cordova v. Hartford Accident & Indemnity
Co., 387 So.2d 574 (La.1980). Prescription does not run against one
who is ignorant of the facts upon which his cause of action is based, as
long as such ignorance is not wiilful, negligent or unreasonable. Young
v. Clement, 367 So.2d 828 (La.1979).

Td.

In the instant case, John presented himself to the VA. He was treated there
by Dr. Hoffman, who was wearing VA medical center attire. The VA itself defended
Plaintiffs’ claims against it until informing Plaintiffs’ counsel that Dr. Hoffman was
not an employee of the VA, over a year after proceedings were initiated. While
Plaintiffs could have chosen to name Dr. Hoffman personally as a defendant in the
initial petition, it was not necessary for them to do so if Dr. Hoffman was a VA
employee. See Howard, 573 So.2d 472. Based upon the above facts and the
circumstances set up by Dr. Hoffman and the VA, Plaintitfs’ belief that Dr. Hoffman
had an employment relationship with the VA was reasonable. See Eastin, 865 So.2d
49. As such, we find the principle of contra non valentem applies to halt the running
of prescription in the case at hand, and we, accordingly, find no error in the trial
court’s denial of Dr. Hoffman’s exception of prescription.

Breach of the Standard of Care

Standard of Review

The jury in the instant case specifically found that Dr. Hoffman did not breach

the applicable standard of care in his treatment of John. The determination of

&

whether Dr. Hoffman breached the standard of care is a factual determination subject
to the manifest error standard of appellate review and thus a court of appeal may not
set aside the trial court’s or jury’s finding unless it is manifestly erroneous.or clearly
wrong. Greer v. State, Through Dep’t of Transp. & Dev., 06-417 (La.App. 3 Cir.
10/4/06), 941 So.2d:141, writ denied, 06-2650 (La. 1/8/07), 948 So.2d 128. Before
an appellate court can reverse a factfinder’s determination of fact, it must review the
record in its entirety and meet the following two-part test: (1) It must find that a
reasonable factual basis does not exist for the finding; and (2) It must determine that
the record establishes that the factfinder is clearly wrong or manifestly erroneous.
Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993); Smith
v. St. Paul Fire & Marine Ins. Co., 07-285(La.App. 3 Cir. 10/3/07), 966 So.2d 1205.

Burden of Proof

In order to establish a medical malpractice claim, La.R.S. 9:2794(A) provides
that the plaintiff has the burden of proving three essential elements:

(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[;]

(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, Plaintiffs had the burden of proving, by a preponderance of the

evidence, the standard of care for treating a patient such as John, that Dr. Hoffman

breached that applicable standard of care, and that Dr. Hoffman’s breach was the

9

cause of John’s injuries. See 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.

Standard of Care

In malpractice actions, the degree of knowledge or skill possessed, or the
degree of care ordinarily exercised is commonly referred to as the standard of care.
Vaughan v. Sanders Vision Ctr. & Children’s Eye Clinic, 06-651 (La.App. 3 Cir.
11/2/06), 941 So.2d 682. Medical specialists are held to a uniform standard of care
based upon national standards existing within the specialty, as codified in La.R.S.
9:2794. Matthews v. Louisiana State Univ. Med. Ctr. in Shreveport, 467 So.2d 1238
(La.App. 2 Cir. 1985). The jurisprudence of this state makes clear that a physician’s
duty is to “exercise the degree of skill ordinarily employed by his professional peers
under similar circumstances. He must use reasonable care along with his best
judgment in the exercise of that skill.” Jd. at 1241 (citing Meyer v. St. Paul-Mercury
Indem. Co., 225 La. 618, 73 So.2d 781 (1953), overruled on other grounds, 360
So.2d 1331 (La.1978)). Absolute precision in medica! diagnoses is not the required
standard of care in this state, which standard is best determined from testimony of
other experts in the field. /d.

Three medical experts testified in the instant case in order to establish the
requisite standard of care: Dr. Brunet, Dr. Foster, and Dr. Hoffman, himself, all
board-certified orthopedic surgeons. Dr. Brunet saw John multiple times for
treatment for his leg after John’s May 21, 2008 surgery with Dr. Hoffman and an
eventual, second surgery on the same knee on July 23, 2008. Dr. Foster’s original
involvement in the case was on behalf of the VA as an independent medical
examiner, though he testified at trial on John’s behalf. Dr. Hoffman served as a

medical expert in his own defense.

10

Drs. Brunet and Foster testified as to the standard of care required for the
treatment of an infected knee. Dr. Hoffman, in contrast, consistently testified that
he believed John’s knee problems to be the result of synovitis caused by gout. Dr.
Brunet testified that even if gout was suspected, in cases of differential diagnoses,
the potential infection should have been confirmed and/or treated first, as it would
be the more serious threat. Dr. Brunet stated that the fluid aspirated from John’s
knee on his first return to the VA after surgery should have been cultured. and that
bloodwork and investigation was required by the standard of care as early as May
29, 2008. He testified that the standard of care mandates that culture results from
the aspirate should have been obtained before injecting a potentially infected knee
with cortisone.

Dr. Foster testified that the standard of care required a recognition of the
possibility of infection, motivating an aspiration and culture with at least some form
of treatment, such as a washout or debridement. Dr. Foster further stated that an
administration of intravenous antibiotics until infection was ruled out by a culture of
the knee fluid would have been the applicable standard. However, Dr. Foster agreed
that an injection of cortisone and Marcaine, as given to John by Dr. Hoffman, is
consistent with a diagnosis of gout and treatment thereof. All three experts agreed
that knowingly injecting cortisone into an infected knee is a serious breach of the
standard of care required by physicians.

Breach

In order to recover, Plaintiffs must have not only established the standard of
care, but they had the burden of showing, by a preponderance of the evidence, that
said standard was breached by Dr. Hoffman in his treatment of John. See Browning,
865 So.2d 795. Both Drs. Brunet and Foster rendered opinions that Dr. Hoffman

breached the standard of care. Both medical experts testified that Dr. Hoffman’s

1}

failure to aspirate, culture, and debride John’s knee in a timely manner, combined
with his failure to administer antibiotics, fell below the required standard of care for
an orthopedic surgeon. Ali three testifying medical experts agreed that injecting an
infected knee with cortisone, as Dr. Hoffman did to John’s knee on June 9, 2008,
would be a significant breach of the requisite standard of care, and both Drs. Brunet
and Foster opined that Dr. Hoffman’s injection of cortisone without the benefit of a
bacterial culture confirming that the knee was not infected was, likewise, a breach.
Dr. Hoffman, in contrast, testified that John never suffered from an infected knee,
but was suffering effects caused by a gouty flare-up. It is undisputed that Dr.
Hoffman’s actions constituted standard treatment for gout.

In Matthews, 467 So.2d 1238, the second circuit was presented with a similar
case. In it, the plaintiff was admitted for a successful surgery, and the surgery site
was subsequently closed with braided polyester sutures. The plaintiff returned
multiple times for post-surgery checkups, complaining of pain, drainage, and
puffiness around the wound, though medical records had previously noted the wound
was healing nicely. /d. On each visit, the wound was cleaned and repacked by the
attending physician. /d. It was not until seven months after the plaintiff's first visit
complaining of pain that she was diagnosed with spitting sutures and treated
accordingly. /d. The plaintiff sued, asserting that the spitting sutures causing her
pain should have been diagnosed much sooner. /d. The trial court found that the
plaintiff had not established a negligent misdiagnosis by a preponderance of the
evidence. /d. The second circuit affirmed, finding that though the expert testimony
presented at trial was conflicting, the standard requires a physician’s use of
“reasonable care along with his best judgment” in the exercise of skill ordinarily
employed by his professional peers and that as long as a reasonable basis existed for

the trial court’s findings, those findings would not be disturbed. /d. at 1241.

12

Dr. Brunet’s official report states that Dr. Hoffman’s injection of cortisone
into a knee he knew to be infected was a “serious deviation” from the standard of
care. However, the dates written in this report do not match the dates of treatment
on John’s medical records. Specifically, the cuiture of the fluid aspirated from
John’s knee containing trace amounts of bacteria was not received until after the
injection of cortisone. Further, the culture’s results do not conclusively prove that
John’s knee was infected at the time of the injection. Dr. Brunet noted, when he
examined John’s knee on June 23, 2008, that he was unsure if John’s symptoms were
caused by a chronic infectious synovitis or gouty synovitis. He did not mention his
own potential breach of the standard of care during his treatment of John when he
also injected cortisone into John’s knee to ease pain before testing for infection.

Dr. Foster’s testimony regarding Dr. Hoffman’s potential breach of the
standard of care centered mainly around Dr. Hoffman’s failure to diagnose infection
of the knee as the cause of John’s problems and failure to take measures consistent
with that diagnosis. Dr. Foster stated that Dr. Hoffman deviated from the standard
of care by not recognizing the signs and symptoms of a possible infection and by
injecting cortisone without awaiting the results of the culture taken immediately
prior. He testified that it was error to not actively consider infection as the cause of
John’s issues. He opined that Dr. Hoffman erred by not interpreting John’s WBC as
a sign of worsening infection, even though those numbers were improving at the
time of the cortisone injection. Piaintiffs assert the decreased count was attributable
to the in-hospital administration of antibiotics John received, rather than a sign that
the knee was not infected; although John did not take any of his prescribed
antibiotics while not admitted to the VA and his knee was shown to be free of
infection at the time of Dr. Brunet’s surgery some six weeks later. Even Dr. Foster

testified that it would be highly unlikely that a knee joint infection would have

13

resolved itself on its own before the surgery performed by Dr. Brunet in this time
period and further that the dosage of antibiotics given to John at the VA was unlikely
to have been an effective dose.

Dr. Hoffman, who was also certified as an expert witness by the trial court,
maintained throughout trial and this appeal that John was not suffering from an
infected knee, but rather from an episode of gout, with which he had a history of
problems. Though such a diagnosis cannot be found written in any of John’s relevant
medical records, Dr. Hoffman’s injection of cortisone and Marcaine into John’s knee
after his continued complaints of pain was consistent with a diagnosis of gout, as
confirmed by Dr. Foster. Dr. Foster noted that if John’s knee had been infected when
it was injected with cortisone, he most likely would have lost his leg at that time,
rather than have the improvement in his condition that actually resulted.

The jurisprudence of this state confirms that a general physician

or surgeon is not required to exercise the highest degree of care

possible. His duty is to exercise the degree of skill ordinarily employed

by his professional peers under similar circumstances. He must use

reasonable care along with his best judgment in the exercise of that

skill. Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d

781 (La.1953); Borne v. Brumfield, 363 So.2d 79 (La.App. 4th

Cir.1978); Lauro v. Travelers Insurance Company, 261 So.2d 261

(La.App. 4th Cir.1972). The law does not require absolute precision in

medical diagnoses. Acts of professional judgment are evaluated in

terms of reasonableness under the circumstances then existing, not in

terms of result or in the light of subsequent events. It is not malpractice

to simply miss a diagnosis. Gendusa v. St. Paul Fire & Marine Ins.

Co., 435 So.2d 479 (La.App. 4th Cir.1983); Tillman v. Lawson, 417

So.2d 111 (La.App. 3d Cir.1982).

Matthews, 467 So.2d at 1241.

Dr. Hoffman, based upon his professional knowledge and judgment, found
John to be suffering from synovitis caused by gout and treated him accordingly.
Both Dr. Brunet and Dr. Foster admitted in testimony that all of John’s symptoms

could have been explained by gout. John had a history of gout and gouty flare-ups

in response to previous surgeries. Further, though Dr. Hoffman did not record his

14

purported diagnosis of gout in John’s medical record, neither was John explicitly
diagnosed with an infection despite being treated by multiple other physicians during
his post-surgery visits to the VA. Although one of the physicians did place him on
antibiotics without recording a diagnosis. of infection, a second physician treating
John in the ER of the VA ordered a test for gout and placed John on gout medication.
Dr. Brunet also included gout in his original differential diagnosis and initially
concluded that it was the cause of John’s continuing knee issues. This diagnosis did
not change until well after his treatment of John had concluded.

The jury in the instant case found that Dr. Hoffman did not breach the standard
of care in his treatment of John. A jury’s finding of fact may not be set aside unless
it is manifestly erroneous or clearly wrong. Sistler v. Liberty Mut. Ins. Co., 558
So.2d 1106 (La.1990). “In order to reverse a jury’s determination of fact, an
appellate court must review the record in its entirety and find that: 1!) a reasonable
factual! basis does not exist for the jury’s finding; and 2) the record establishes that
the factfinder is clearly wrong.” Stobart, 617 So.2d at 882. Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot be
manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).
Further, where the findings are based on determinations regarding the credibility of
witnesses and the factfinder’s decision to credit the testimony of one of two or more
witnesses, the manifest error standard demands great deference to the findings of
fact, and such findings can virtually never be manifestly erroneous. /d. “This rule
applies equally to the evaluation of expert testimony, including the evaluation and
resolution of conflicts in expert testimony.” Bellard v. Am. Cent. Ins. Co., 07-1335,
07-1339, p. 27 (La. 4/18/08), 980 So.2d 654, 672 (citing Lasvone v. Kansas City S.

R.R., 00-2628, (La.4/3/01), 786 So.2d 682).

The jury was presented with testimony from three, separate, qualified medical
experts. This expert evidence differed regarding Dr. Hoffman’s treatment of John’s
knee and its relation to the required standard of care. Though both Dr. Brunet and
Dr. Foster testified that Dr. Hoffman breached the standard of care, it is clear from
the evidence that at least one other treating physician, i.e. Dr. Brunet, found gout to
be a reasonable diagnosis based upon John’s symptoms. While this court reviews
the record in its entirety, our function is to determine “only whether there is sufficient
evidence before the trier of fact to furnish a reasonable basis for its findings where
contradiction occurs. We are not to disturb those findings in the absence of clear
error, even if other conclusions from the same evidence are equally reasonable.”
Matthews, 467 So.2d at 1243.

The jury heard all of the expert testimony, made determinations based upon
the credibility of said expert testimony, and found Dr. Hoffman did not breach the
standard of care. Where there is conflicting expert testimony, the jury’s decision to
credit the testimony of one witness of two or more should not be disturbed on appeal
in the absence of manifest error. Bellard, 980 So.2d 654. Based on our thorough
review of the record, we find that two permissible views of the evidence exist, as
shown by the conflicting expert testimony. As such, we cannot say that the jury was
manifestly erroneous or clearly wrong in finding that Plaintiffs failed to prove that
Dr. Hoffman breached the standard of care, as is required by La.R.S. 9:2794 in order
to prevail in such instances. See Rosell, 549 So.2d 840. Having concluded that the
jury was not manifestly erroneous in their finding, we do not consider to what extent
Plaintiffs suffered damages.

DISPOSITION

In accordance with the foregoing, we affirm the ruling of the trial court,
dismissing the claims of John and Melissa Mantiply against Dr. Joseph I. Hoffman,
Jr. All costs of this appeal are assessed to John and Melissa Mantiply.

AFFIRMED.