Lindsey Lambert Malbrough v. Alycia Rodgers, M.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-10

LINDSEY LAMBERT MALBROUGH

VERSUS

ALYCIA RODGERS, M.D., ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2015-1290
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and
John E. Conery, Judges.

CONERY, J., dissents and assigns reasons.

AFFIRMED AS AMENDED.

Keith Christian Armstrong
Douglas L. Grundmeyer
Chaffe McCall, L.L.P.
8550 United Plaza Boulevard – #103
Baton Rouge, LA 70809
Telephone: (225) 922-4300
COUNSEL FOR:
Defendant/Appellant – The Louisiana Patient’s Compensation Fund &
Oversight Board

Derriel Carlton McCorvey
102 Versailles Boulevard – Suite 620
Lafayette, LA 70502
Telephone: (337) 291-2431
COUNSEL FOR
Plaintiff/Appellee – Lindsey Malbrough

Ryan M. Goudelocke
Jessica R. Reaux
Durio, McGoffin, Stagg & Ackermann
P. O. Box 51308
Lafayette, LA 70505-1308
Telephone: (337) 233-0300
COUNSEL FOR:
Defendants/Appellants - Alycia Rodgers, M.D. and The Pediatric Center
of Southwest Louisiana

THIBODEAUX, Chief Judge.

Plaintiff, Lindsey Lambert Malbrough, individually and on behalf of

the estate of her deceased minor son, Anthony Pitre III, filed suit against Dr. Alycia

Rodgers, Sulphur Pediatric Clinic, Inc. d/b/a The Pediatric Center of Southwest

Louisiana (Center), and their insurer, Louisiana Medical Mutual Insurance Company

(collectively Defendants), seeking wrongful death and survival damages for alleged

malpractice in their treatment of Anthony. Finding that Dr. Rodgers breached the

standard of care and that, consequently, Anthony lost a chance of survival, the trial

court in a bench trial awarded Plaintiff damages of $200,000.00 for lost chance of

survival, $50,000.00 for loss of enjoyment of life, and $8,569.00 for funeral

expenses. Dr. Rodgers and the Center as well as the Louisiana Patient’s

Compensation Fund and its oversight board (PCF) have appealed the judgment.

Finding no manifest error or abuse of discretion, we affirm the trial court’s judgment

as amended to reflect a single lump sum award of $258,569.00.

I.

ISSUES

Defendants raise the following issues for this court’s review:

1. The District Court erred in its award of damages:

a. when it awarded damages for both a “lost chance
of survival claim” and for a “survival action
claim,” despite these two theories of recovery
compensating for the same injury; and

b. when in the absence of evidence suggesting that
any chance of survival was lost, it relieved
Plaintiff of her burden of showing the value of
that lost chance and assigned an entirely
arbitrary value to an unqualified percent chance
of survival.

2. The District Court erred in its factual conclusions
resulting in a finding of liability on the part of
appellant Dr. Alycia Rogers:

a. when it disregarded the opinion of every
testifying physician, including Anthony Pitre’s
treating pediatric oncologist and Plaintiff’s own
retrained expert in that field, that Anthony did
not suffer any reduced chance of survival
between August 10 and August 15, 2010; and

b. when it instead substituted lay opinion,
unsupported by any evidence presented at trial,
that passage of five days caused some
unquantified lost chance of survival, relieving
Plaintiff of her burden to demonstrate that lost
chance by competent evidence.

The PCF raises three alternative issues:

1. the district court manifestly erred in finding that
Plaintiff carried her burden to prove that Defendants
proximately caused the decedent to lose a chance of
survival.

2. alternatively, the district court abused its discretion
and manifestly erred in awarding a speculative and
unproven amount of damages for the lost-chance-
of-survival claim.

3. further in the alternative, the district court legally
erred in awarding survival-action damages and for
funeral and burial expenses in addition to the
specific sum awarded for the lost-chance-of-
survival claim.

II.

FACTS AND PROCEDURAL HISTORY

This medical malpractice action arises out of the treatment provided by

Dr. Albert Richert, Jr. and Dr. Rodgers to Plaintiff’s six-year-old son, Anthony. Dr.

Rodgers was Anthony’s primary pediatrician, and she treated him at the Center from

2

May 2009 until August 2010 for attention deficit hyperactivity disorder (ADHD)

and asthma.

On July 13, 2010, Anthony saw Dr. Richert, a colleague of Dr. Rodgers,

at the Center for chest pain and difficulty breathing. Dr. Richert noted that

Anthony’s chest pain had begun the week before and was located in the anterior mid-

chest. It was further noted that these symptoms occurred at night, that the episodes

occurred daily, and that the symptoms were described as moderate in severity and

worsening. Dr. Richert prescribed asthma medicine and ibuprofen for pain. No

additional testing was performed to determine the cause of Anthony’s chest pain.

Anthony returned to the Center on August 10, 2010. He was seen by

Dr. Rodgers who noted that, in the four weeks prior, Anthony’s shortness of breath

occurred once or twice a week and that his rescue medication was used three or more

times a day. Dr. Rodgers also noted that Anthony’s chest pains were due to “growing

pains” and that Anthony had had fever, but did not include any duration of the fever.

Dr. Rodgers wrote prescriptions for asthma medicine, but there is no record of her

ordering any additional tests to determine the cause of Anthony’s symptoms.

On August 15, 2010, Anthony was brought to Lake Charles Memorial

Hospital Emergency Room with complaints of fever and chest pain, which were

reported to have started a month prior. Upon being informed of Anthony’s

symptoms, the ER physician ordered a chest x-ray, which revealed an increased

pleural density in Anthony’s chest. This finding prompted the ordering of a CT scan,

which revealed that the mass located on Anthony’s third rib was presumptively

3

Ewing sarcoma,1 a form of bone cancer. Anthony was then transferred to Ochsner

Medical Center in New Orleans, Louisiana, where he was admitted on August 16,

2010.

The diagnosis of Ewing sarcoma was confirmed on August 18, 2010.

A CT scan performed on August 19, 2010, confirmed Anthony’s sarcoma was stage

IV.

Anthony’s physicians commenced chemotherapy on August 25, 2010.

Though his primary tumor initially responded to treatment by decreasing in size,

imaging in February and March 2011 showed metastatic lesions in the pelvis,

vertebra, and skull. Tragically, Anthony passed away on March 21, 2011.

Plaintiff filed a complaint with the PCF, which convened a Medical

Review Panel to review Anthony’s care by Dr. Rodgers and the Center. On January

28, 2015, the panel unanimously opined that neither defendant “failed to meet the

applicable standard of care as charged in the complaint.” Thereafter, Plaintiff filed

suit on April 1, 2015.

Prior to trial, the trial court dismissed, with prejudice, all of Plaintiff’s

claims arising out of care rendered to Anthony prior to July 13, 2010, leaving at issue

only Anthony’s visit to Dr. Richert on July 13, 2010, and his visit to Dr. Rodgers on

August 10, 2010.

In its oral reasons for ruling, the trial court opined that Dr. Richert had

not breached the standard of care owed to Anthony on July 13, 2010, and that the

1
Although this sarcoma is referred to interchangeably through out the record as “Ewings”
or “Ewing’s,” we defer to the spelling contained in Dorland’s Illustrated Medical Dictionary 663
(31st ed. 2007).

4

Center faced no liability through him.2 The court did find liability on the part of Dr.

Rodgers, stemming from Anthony’s visit on August 10, 2010, and through her,

vicarious liability of the Center as the latter’s employee. As for damages, the trial

court awarded Plaintiff $200,000.00 for loss chance of survival, reasoning:

What is the chance of survival for a 6-year-old child
valued at. I know that there was extensive testimony by
physicians for the defense that indicate that the chance of
survival was no different on August 15th as it was on
August 10th. I refuse to believe that that is the case. No
doctor has said it hit a brick wall on any particular date.
They all want to say that, yes, early detection always helps,
but not in this case. I just refuse to believe that. An
aggressive condition that this young man had at the time,
five days could have been - - could have been the
difference between life and death.

For loss of enjoyment of life, the trial court awarded $50,000.00, stating:

Loss of enjoyment of life, five days in a young
man’s life. Of course, I have to be practical here. If, in
fact, Dr. Rodgers had ordered the X ray - - no one argues
that the tumor would not have been discovered. It might
have meant just five more days of treatment. . . .

It might have been just ten more days of misery for
this young man. Maybe somebody should be rewarded for
that because he didn’t suffer. He got to live like a normal
kid for five more days; but then maybe his life would have
been extended a little bit, too.

The trial court also awarded $8,569.00 in funeral expenses and signed

his final judgment on June 15, 2018.

2
Dr. Richert, who like Dr. Rodgers was at all pertinent times an employee of the Center,
was not personally named at the Medical Review Panel and so was not a party defendant in this
suit.

5

III.

STANDARD OF REVIEW

An appellate court reviews a trial court’s factual findings under the

manifest error standard. Andrews v. Williams, 281 So.2d 120 (La.1973). In

accordance with this standard:

[A] court of appeal 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,” and where there is conflict in
the testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review, even though the appellate court may feel that its
own evaluations and inferences are as reasonable. The
appellate review of fact is not completed by reading only
so much of the record as will reveal a reasonable factual
basis for the finding in the trial court, but if the trial court
or jury findings are reasonable in light of the record
reviewed in its entirety, the court of appeal may not
reverse even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence
differently. Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be
manifestly erroneous or clearly wrong. In applying the
manifestly erroneous—clearly wrong standard to the
findings below, appellate courts must constantly have in
mind that their initial review function is not to decide
factual issues de novo.

When findings are based on determinations
regarding the credibility of witnesses, the manifest error—
clearly wrong standard demands great deference to the
trier of fact’s findings; for only the factfinder can be aware
of the variations in demeanor and tone of voice that bear
so heavily on the listener’s understanding and belief in
what is said. Where documents or objective evidence so
contradict the witness’s story, or the story itself is so
internally inconsistent or implausible on its face, that a
reasonable fact finder would not credit the witness’s story,
the court of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a
credibility determination. But where such factors are not
present, and a factfinder’s finding is based on its decision
to credit the testimony of one of two or more witnesses,
that finding can virtually never be manifestly erroneous or
clearly wrong.

6

Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations and footnotes omitted).

“In the assessment of damages in cases of offenses, . . . much discretion

must be left to the judge or jury.” La.Civ.Code art. 2324.1. “As a determination of

fact, a judge’s or jury’s assessment of quantum, or the appropriate amount of

damages, is one entitled to great deference on review.” Menard v. Lafayette Ins.

Co., 09-1869, p. 14 (La. 3/16/10), 31 So.3d 996, 1007. “Because the discretion

vested in the trier of fact is so great, and even vast, an appellate court should rarely

disturb an award on review.” Guillory v. Lee, 09-75, p. 14 (La. 6/26/09), 16 So.3d

1104, 1117.

IV.

LAW AND DISCUSSION

As the parties do not dispute or challenge the trial court’s finding that

Dr. Rodgers breached the applicable standard of care, the primary issues before this

court are (1) whether a lost chance of survival was proven and/or quantified; and (2)

whether the trial court’s award for loss of enjoyment of life damages was duplicative.

We will address each issue in turn.

Loss Chance of Survival

As is well established, medical malpractice plaintiffs to succeed in their

actions must, by a preponderance of the evidence, prove: (1) the applicable standard

of care; (2) the physician’s breach of that standard; and (3) a causal link between the

resulting injury and the breach. La.R.S. 9:2794(A). A loss chance of survival action

allows a medical malpractice plaintiff to recover for the reduction of the patient’s

chance of survival when the physician’s malpractice may not have been the only

cause of the patient’s death, but it increased the risk. Hastings v. Baton Rouge Gen.

7

Hosp., 498 So.2d 713 (La.1986). “Under this theory of recovery, a plaintiff may

carry his burden of proof by showing that the defendant’s negligence was a

substantial factor in depriving the patient of some chance of life, recovery, or, as in

this case, a better outcome.” Burchfield v. Wright, 17-1488, p. 11 (La. 6/27/18), 275

So.3d 855, 863.

Our supreme court in the seminal case of Smith v. State of Louisiana,

Department of Health and Hospitals, 95-38, p. 6 (La. 6/25/96), 676 So.2d 543, 546-

47 (footnotes omitted), recognized that the loss of any chance of survival is

compensable and discussed the proof necessary to establish same:

plaintiffs were not required to prove a “reasonable” or
“substantial” chance of survival. The issues in loss of a
chance of survival cases are whether the tort victim lost
any chance of survival because of the defendant’s
negligence and the value of that loss. The question of
degree may be pertinent to the issue of whether the
defendant’s negligence caused or contributed to the loss,
but such a tort-caused loss in any degree is compensable
in damages.

....

Thus, in a medical malpractice case seeking
damages for the loss of a less-than-even chance of survival
because of negligent treatment of a pre-existing condition,
the plaintiff must prove by a preponderance of the
evidence that the tort victim had a chance of survival at the
time of the professional negligence and that the
tortfeasor’s action or inaction deprived the victim of all or
part of that chance, and must further prove the value of the
lost chance, which is the only item of damages at issue in
such a case.

In reviewing the trial court’s finding as to Anthony’s lost chance of

survival, we must first determine whether there is any factual basis, based on the

record as a whole, for this factual conclusion.

8

Defendants argue that there was no evidence of a lost chance of survival

and that the trial court erroneously rejected the testimony of all the witnesses and

substituted its own opinion. Specifically, they argue that there was no lost chance

proven between August 10, 2010 and August 15, 2010, and no evidence of what that

lost chance of survival would be.

The PCF similarly argues that no evidence was presented that showed

the failure to diagnose the inoperable cancer on August 10, 2010, and the ensuing

five-day delay to August 15, 2010, lessened the chance of survival. Rather, the PCF

asserts that the evidence demonstrated that the cancer had already metastasized to

stage IV on August 10 and remained so on August 15, at which point the tumor was

too large to be removed. Therefore, a speedier diagnosis would not have made a

difference, and it follows that when a decedent’s condition is inoperable on the date

of negligence, causation for any lost chance of survival cannot be established.

Plaintiff argues, however, that Dr. Michael Weiner, an expert in

pediatric hematology-oncology, testified that a delay in diagnosis removed the high

likelihood of Anthony’s successful treatment. The failure to properly diagnose

significantly reduced the chance of survival from July 13, 2010 to August 15, 2010,

from 70-80% to 20-30%. Moreover, he testified that it was logical to assume that

the rapid change that can occur in tumor growth in one-month time would certainly

have impacted the outcome in Anthony’s survival rate.

After reviewing the entirety of the record evidence in accordance with

the guidance provided in Smith, we find a reasonable factual basis does exist for the

trial court’s finding that Dr. Rodgers’s malpractice deprived Anthony of a chance of

survival.

9

Our review of the evidence reveals that the consensus of the expert

testimony establishes that Ewing sarcoma is a fast-growing, aggressive bone cancer

that is not common. According to Anthony’s treating pediatric hematologist-

oncologist, Dr. Rajasekharan Warrier, Ewing sarcoma is even less common in an

African-American child Anthony’s age with an axial (anterior mid-chest)

presentation.

Although all the experts did concede that earlier diagnosis is preferable

for overall outcome, the experts, as well as the peer review literature, had

contradictory opinions as to whether earlier diagnosis statistically made a difference

as to survival in this particular type of cancer. Dr. Weiner opined that it did, while

Dr. Renee Gardner, Defendants’ expert in pediatric hematology-oncology, opined

that it did not. The key factors for treatment as well as prognosis were the primary

site of the cancer, whether the cancer was contained or localized to that site, and

whether the cancer had spread or metastasized.

Localized tumors in resectable sites, such as in lower extremities that

could be amputated or bones that could be easily removed, had the highest survival

rate of 70 to 80%, as per Dr. Weiner, or 65 to 75%, per Dr. Gardner. The survival

rate dropped to 20 to 30% with metastasis. Dr. Warrier testified that the treatment

protocol was standardized with resection, i.e., complete removal, if at all possible.

Chemotherapy is utilized in an effort to shrink the tumor to allow for resection.

Chemo and radiation therapy are employed, with the overall goal to kill the cancer

cells and prevent further growth and metastases.

What is clear from the expert testimony and evidence is that the size,

location, and stage of Anthony’s cancer would be the determining factors as to his

chance of survival. The problem herein is that, as Dr. Weiner, Dr. Gardner, and Dr.

10

Warrier all opined, without x-rays or scans there is no way anyone could even say

what stage or size his tumor was either at the July 13, 2010 visit or the August 10,

2010 visit. Most of the experts agreed that the tumor was probably localized at the

time of the July 13 visit but had most likely metastasized by the August 10 visit

given the metastasis evident in the August 15 scans.

Nevertheless, the evidence does reasonably support a finding that the

tumor was fast-growing and aggressive, more probably than not advancing from an

early localized stage (I or II) to a metastasized stage (IV) within mere weeks or days,

such that every week could very well reduce the chance of survival. And though the

tumor was not resectable on August 15, Dr. Weiner opined that the tumor would

have been easily resectable with the removal of Anthony’s third, right rib bone in an

earlier, localized stage. Moreover, Dr. Gardner testified that the mass would

probably have been present on August 10, but when asked by Plaintiff’s counsel

whether she thought the tumor could have grown to the size documented in the

August 15 scan in just five days, she replied, “And to be honest with you, yes, I have

seen tumors that grow that big that quickly.”

Further, the objective medical records, as well as Dr. Rodgers’s

testimony, reveal that Dr. Rodgers’s examination of Anthony’s chest on August 10

was normal, documenting no respiratory distress or abnormal breathing sounds.

According to the testimony of Plaintiff and Anthony’s grandmother, Laura Lambert,

Anthony’s condition changed on August 15. Plaintiff explained that Anthony’s pain

“got worse and he couldn’t take it anymore.” They both recalled that his crying on

August 15 was “a different cry. It [was] a hurt cry.” It was their testimony that his

“hold[ing] of his chest the whole night and the crying getting worse” prompted them

11

to bring Anthony to the ER. And when Anthony was examined in the ER, his chest

was tender to the touch as documented in the medical records.

From the evidence of record, we also know that a tumor like Anthony’s,

although fast-growing, does take time to metastasize. Dr. Gardner agreed that, in

order to spread, cancer cells have to be able to break away from the original tumor

and move into the bloodstream, lymphatic system, or other surrounding tissue.

In light of this record evidence, we find it is reasonable to conclude that

the tumor, though more likely than not present on July 13 and August 10, was more

probably than not still growing beyond the latter date. We further find that a

factfinder could reasonably conclude that the subsequent growth, reasonably

evidenced in Anthony’s physical presentation on August 15 as opposed to his

presentation on August 10 as documented in the objective medical records, did

reduce his chance of survival. Accordingly, we cannot say the trial court manifestly

erred in finding that Anthony lost a chance of survival between the August 10

malpractice and the August 15 preliminary diagnosis.

As to the valuation of that lost chance of survival, the supreme court in

Burchfield, 275 So.3d at 863-64 (first, third, and fourth alterations in original),

recently explained:

Regarding the calculation of damages and the
nature of such damages in a loss of chance of survival case,
this court in Smith specifically instructed “the factfinder—
judge or jury—to focus on the chance of survival lost on
account of malpractice as a distinct compensable injury
and to value the lost chance as a lump sum award based on
all the evidence in the record, as is done for any other item
of general damages.” Smith, p. 7, 676 So.2d at 547. The
Smith court held that “full recovery is not available for
deprivation of a chance of survival of less than fifty
percent.” Id. The Smith court explained that “[t]o allow
full recovery would ignore the claimants’ inability to
prove by a preponderance of the evidence that the

12

malpractice victim would have survived but for the
malpractice, which is a requirement for full recovery.” Id.,
7–8, 676 So.2d at 547. The loss of a less-than-even chance
of survival is “a distinct injury compensable as general
damages” that cannot be calculated with mathematical
certainty; thus, the factfinder must make a “subjective
determination of the value of that loss, fixing the amount
of money that would adequately compensate the claimants
for that particular cognizable loss.” Id., p. 9, 676 So.2d at
548. The jury must consider “the same evidence
considered by a jury in a survival and wrongful death
action, and the loss-of-chance jury then reaches its general
damages award for that loss on that evidence as well as
other relevant evidence in the record.” Id., p. 11, 676
So.2d at 549. The jury may consider “all the evidence,
including expert medical testimony regarding the
percentage chances of survival, to value directly the lost
chance.” Id.

We, like the Smith court before us, “[r]ecogniz[e] the unfairness to tort

victims who had a chance of [survival] and lost it because of [medical] malpractice,”

in that the factfinder “must engage in a pretend exercise of measuring damages based

on events that never in reality occurred or can occur.” Smith, 676 So.2d at 548, n.

9. Nevertheless, in accordance with the directive in Smith, we have reviewed the

percentages testified to by the medical experts regarding the survival rates for

children with Ewing sarcoma, particularly from the early, localized stages (I or II)

of 70-80% to the metastasized stage (IV) of 20-30%. Without scans documenting

the exact growth within the relevant five-day period, a factfinder could, based upon

the objective medical records and Anthony’s subsequent presentation, reasonably

find that the cancer advanced in stages within that limited time period, limiting his

chance of survival anywhere from 70 to 20%.

The losses, especially of love, affection, and companionship, incurred

as a result of that lost chance of survival are more than reasonably evident in the

testimony, particularly the testimony of Plaintiff and her mother. Anthony’s pain

13

and suffering along with the change in his overall quality and enjoyment of life are

likewise documented through their testimony to which the medical records lend even

further support. Given that Plaintiff requested a total award of $1,508,569.00 in

compensation for these losses, we cannot say the trial court abused its vast discretion

in awarding a total of $258,569.00, which is less than 20% of the sum requested.

Duplication of Damages

As to the duplicative nature of the loss of enjoyment of life award, we

again look to the record. Although parties appeal judgments and not reasons for

judgment, the trial judge’s oral ruling herein provides insight to this court as to his

factual findings regarding his quantum awards. In that ruling, the trial court

responded in the affirmative when asked whether the loss chance of survival

damages “replace[d] the wrongful death claim” and the damages awardable in

conjunction therewith, i.e., the damages sustained by Anthony’s mother as a result

of the malpractice. See La.Civ.Code art. 2315.2. Loss of enjoyment of life, the trial

court further explained, was awarded as survival damages, i.e., the damages for

injuries to Anthony resulting from the malpractice. See La.Civ.Code art. 2315.1.

Although Defendants argue that the lost chance of survival award and

loss of enjoyment of life award compensate for the same injury, their argument

disregards the fact that both Plaintiff and Anthony suffered injuries and losses arising

from the malpractice and are separate tort victims, to whom compensatory damages

are due under La.Civ.Code art. 2315. It follows, therefore, that the $50,000.00

awarded for loss of enjoyment of life was intended to compensate Anthony for his

loss of enjoyment of life, whereas the $200,000.00 award was intended to

14

compensate Anthony’s mother for the damages she sustained, which would include

the loss of love, affection, and companionship.3

The PCF also challenges the trial court’s award of funeral expenses.

Recently, however, our supreme court in Burchfield, 275 So.2d at 868, again

reaffirmed that a factfinder “could consider all factors of damages in fashioning a

lump sum award for lost chance,” including general as well as special damages, like

funeral expenses. Under the Smith methodology, all the various items or elements

of compensatory damages—loss of enjoyment of life; loss of love, affection, and

companionship; and incurred expenses—can and even should be taken into

consideration in the formulation of a single lump sum award. All the individual

elements of damages suffered by the various tort victims arising from the

malpractice are, therefore, to be considered and apportioned for, but then lumped

together to form a single lump sum award.

Based upon the present record, we cannot say that the awards for loss

of enjoyment of life and funeral expenses are duplicative in that all of the trial court’s

awards compensate for separate and independent damages, which are more than

reasonably supported by the record. However, we do find that the trial court erred

in failing to compile all these separate items of damages into a single lump sum

award as per Smith and its progeny. Therefore, we must amend the trial court’s

judgment to consolidate its awards into a single lump sum of 258,569.00.4

3
Notably, under the holding in McGee v. A C And S, Inc., 05-1036 (La. 7/10/06), 933 So.2d
770, Plaintiff could only assert Anthony’s loss of enjoyment of life under the survival action as he
was the primary tort victim. Loss of enjoyment of life “is not recoverable by the primary tort
victim’s family members who are eligible to recover for loss of consortium, service and society
under La. C.C. art. 2315(B).” Id. at 779.
4
In Bianchi v. Kufoy, 10-607 (La.App. 3 Cir. 12/8/10), 53 So.3d 530, this court awarded
special damages of $100,000.00 in past and future medical care and related expenses and awarded
$300,000.00 in general damages to the primary tort victim and loss of consortium damages to his

15

Having found no manifest error or abuse of discretion, we affirm the

judgment of the trial court as amended.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed as

amended to reflect a single lump sum award of $258,569.00.

Costs of this appeal are assessed to Defendants/Appellants, Dr. Alycia

Rodgers, Sulphur Pediatric Clinic, Inc. d/b/a The Pediatric Center of Southwest

Louisiana, and Louisiana Medical Mutual Insurance Company.

AFFIRMED AS AMENDED.

wife. This court then awarded $400,000.00 as a “lump sum” inclusive of these special and general
damages. While the supreme court in Burchfield, 275 So.3d at 867, n. 5, disapproved of Bianchi
to the extent that it “may be interpreted contrary to our holdings in Smith and Graham [v. Willis-
Knighton Medical Center, 97-188 (La. 9/9/97), 699 So.2d 365,]” the court did not find fault with
this court’s “lump sum” award or our compilation of same.

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NUMBER 19-10

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

LINDSEY LAMBERT MALBROUGH

VERSUS

ALICIA RODGERS, M.D., ET AL.

CONERY, J., dissenting.

Plaintiff filed this medical malpractice matter alleging that the defendant

pediatrician, Dr. Alicia Rodgers, failed to order diagnostic testing for her son,

Anthony, that could have earlier revealed Ewing’s Sarcoma, the malignant cancer

that resulted in his death, thus causing a legally compensable loss of chance of

survival. A Medical Review Panel was convened and ruled in favor of Dr. Rodgers.

Plaintiff pursued her suit in the Fourteenth Judicial District Court claiming damages

for failing to timely diagnose her son resulting in a loss of chance of survival.

Following a bench trial, the trial court determined Dr. Rodgers, one of the child’s

treating pediatricians, breached the standard of care in failing to pursue further

testing at a visit five (5) days prior to the child’s eventual diagnosis. The trial court

awarded damages for the survival action and loss of chance of survival claims as

well as funeral and burial expenses.

The defendants question that ruling, arguing that Plaintiff failed to prove

causation and the damage awards were erroneous. The majority opinion affirms the

judgment of the trial court. I respectfully dissent as I do not find that the record

offers a sufficient evidentiary basis for the trial court’s determination that Plaintiff

satisfied her burden of proving causation of a lost chance of survival and of the

damages awarded. I would find manifest error and reverse.

After rejecting Plaintiff’s claim that Dr. Rodgers’ partner, Dr. Richert,

deviated from the standard of care during an office examination of the child on July

13, 2010, the trial court addressed Dr. Rodgers’ examination on August 10, 2010.

The medical records reveal that when young Anthony saw Dr. Rodgers on August

10, he had complaints of ADHD and asthma. Dr. Rodgers noted a symptom of

“Chest Pain (sometimes)” and reported as “social history” that Anthony’s asthma

seemed to have worsened after moving into a new apartment four months earlier.

Dr. Rodgers did not order a chest x-ray. The trial court rejected the Medical Review

Panel’s opinion that the medical records clearly revealed “complaints of chest pain

that were infrequent, intermittent and not progressive. This precluded the necessity

of a chest x-ray as part of the diagnostic evaluation of these complaints.” The

Medical Review Panel found that Dr. Rodgers did not deviate from the standard of

care under these circumstances.

The record shows that a chest x-ray was performed when Plaintiff brought the

child to the emergency room on August 15, five (5) days after Dr. Rodgers’

examination of August 10. An x-ray showed a tumor which was eventually

diagnosed as Ewing’s Sarcoma. Anthony tragically passed away a short time later

on March 21, 2011. Plaintiff claims that if only Dr. Rodgers had ordered an x-ray

on August 10, it would have shown the tumor. Her failure to do so, Plaintiff argues,

caused Anthony’s loss of chance of survival. The trial court agreed and found a

breach of the standard of care in the failure of Dr. Rodgers to order a chest x-ray and

to render further care at Anthony’s visit on August 10, 2010.

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I find that this compassionate trial judge substituted his own views and

inferences from the evidence, rather than base his opinion on expert medical

testimony as required by the Medical Malpractice Act and the jurisprudence.

Consider the wording of the trial judge’s findings and ruling:

Now, the court moves onto August 10th, 2010. As it related to Dr.
Rodgers, a little different situation, I believe. I believe that Dr. Rodgers
had a little more information than Dr. Richert had. The doctors that
were asked to render opinions regarding Dr. Rodgers’s visit that day -
- I’m still trying to understand exactly that - - they state that if there is
infrequent, inter[mitten], or not progressive, then it doesn’t necessarily
call for anything more than what was performed by Dr. Rodgers on that
date. But even in their attempts to explain to me that - - the fact that
this was the second time within a 30-day period this patient had been
there for what appeared to be continuing chest pains and acknowledge
from the first visit of those two with Dr. Richert that it was worsening,
I just believe that something more could have been done at that
time.

....

All of that being said, I believe Dr. Rodgers made a mistake on
August 10th. To be sure, the fact that it was discerned, or brought out,
that Dr. Rodgers had other complaints filed against her is not something
taken into consideration. I believe Dr. Rodgers is a fine pediatrician.
Very unfortunate these things happen. It is not an indictment on her
abilities or whether or not I would take my child to her. In all other
purposes, I would suggest that she’s probably very thorough. I’m afraid
this is one that she missed.

(Emphasis added.)

Not only did the trial court fail to identify a proper evidentiary basis in the

record for finding a loss chance of survival, but instead only briefly touched on that

element in its award of damages, stating that:

What is the chance of survival for a 6-year-old child valued
at. I know that there was extensive testimony by physicians for the
defense that indicate that the chance of survival was no different on
August 15th as it was on August 10th. I refuse to believe that that
is the case. No doctor has said it hit a brick wall on any particular
date. They all want to say that, yes, early detection always helps,
but not in this case. I just refuse to believe that. An aggressive

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condition that this young man had at the time, five days could have
been – could have been the difference between life and death.

The trial court’s conclusion reflects the overall speculative nature of his

findings and amounts to a complete rejection of the expert testimony, all of which

establishes that the five (5) day delay in discovery of the young child’s tumor from

Dr. Rodgers’ August 10, 2010 visit until the emergency room visit of August 15,

2010, when the tumor was discovered on x-ray, did not contribute to a loss chance

of survival. The trial judge did not identify any reasons for his rejection of all the

uncontradicted expert testimony and did not explain how and on what evidentiary

basis Plaintiff met her burden of proving causation. Exhaustive review of the record

fails to show any proper evidentiary basis in the record for such a finding.

A plaintiff in a medical malpractice case involving a claim for a loss chance

of survival must prove that “the decedent had a chance of survival or recovery that

was denied him as a result of the defendant’s negligence.” Burchfield v. Wright, 17-

1488, p. 11 (La. 6/27/18), 275 So.3d 855, 863. In her appellee’s brief, the plaintiff

observes that Dr. Michael Weiner, Plaintiff’s own expert in the field of pediatric

hematology-oncology and pediatrics, testified as to the aggressive nature of Ewing’s

Sarcoma and that, on July 13, 2010, when Anthony first saw Dr. Richert, the tumor,

presuming that it was local in nature, was associated with a 70-80 percent survival

rate. But by the time of the tumor’s identification on August 15, 2010, the tumor

was metastatic, representing an estimated survival rate of only 20-30 percent.

Plaintiff acknowledges Defendants’ contention that no evidence was

introduced for the proposition that the chance of survival was reduced to 20-30

percent between August 10, the pertinent date of Dr. Rodgers’ examination, and

August 15, 2010, the date on which the tumor was identified. Plaintiff contends,

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however, and the majority agrees, that Dr. Weiner’s testimony is sufficient to permit

an inference that, due to the aggressive nature of the cancer “that a rapid change

can occur in a five (5) day period.” (Emphasis added.) Dr. Weiner’s opinion,

Plaintiff suggests, provides a rational and reasonable basis for the trial judge’s

finding that Anthony “sustained a loss of chance of survival and that an award of

damages was appropriate,” as jurisprudence permits recovery of a loss of chance of

survival of any degree. See Smith v. State, Dep’t of Health & Hosps., 95-38 (La.

6/25/96), 676 So.2d 543.

In general terms, Plaintiff accurately reports Dr. Weiner’s testimony regarding

the aggressive nature of Ewing’s Sarcoma and the drastic reduction in the chance of

survival at the point of metastasis. However, the trial court found a breach of the

standard of care at the time of the August 10 visit with Dr. Rodgers, not the July 13

visit with her colleague, Dr. Richert. Dr. Weiner, Plaintiff’s own expert, testified

that by the August 10 visit with Dr. Rodgers, metastasis had already occurred. He

explained on questioning that:

Q Is it more probable than not that the deviation from the standard
of care that Dr. Rodgers and the Southwest Pediatric Center committed
by failing to obtain an x-ray as early as July 10th - - July 13, 2010,
delayed Anthony’s diagnosis of Ewing’s sarcoma?

A It is more probabl[e] than not that the failure to obtain the chest
x-ray led to the delay in diagnosis of the Ewing sarcoma.

Q And when you say, “They,” you’re referring to Dr. Rodgers and
Dr. Richert; is that correct?

A That is correct.

Q And that would be for the dates of July 13, 2010, as well as
August 10, 2010; is that correct?

A I would qualify that slightly. I think by August 10, of 2010,
that four to five-week time period from July 13 to August 10, I
believe the tumor back in August probably would have been

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metastatic, a larger tumor, unresectable. So I don’t think that what
you’re stating is entirely right.

(Emphasis added.)

At most, Plaintiff’s expert testimony generally addressed a decrease in the

chance of survival had it been discovered at the July exam with Dr. Richert. It

squarely contradicts a finding of loss of chance of survival at the time of the subject

August 10, 2010 examination by Dr. Rodgers. Dr. Weiner instead specifically

described the tumor as “metastatic” and “unresectable” by that time.

Additionally, the defendants’ experts testified that by the time of the August

10, 2010 visit with Dr. Rodgers, the tumor had metastasized. Dr. Warrier was the

pediatric oncologist who diagnosed and treated Anthony and was accepted as an

expert in both pediatric hematology-oncology and pediatrics. He testified regarding

the potential result even if Dr. Rodgers had ordered an x-ray and found the tumor on

August 10:

A Sure. Let me put it this way, my basic conclusion is if this child
was seen a month ago with the same kind of lesion in the lung and the
bones and soft tissue, it would not have changed the outcome at all. It
would have been the same. If it could not [sic] have been caught earlier,
it might have changed the - - but the location, the age, his prognosis is
very poor as it is. So I am not sure that a delay of one month in
diagnosis made a big difference in what happened; does that make
sense?

Q Yes.

A My final conclusion after looking at the patient, seeing him,
looking at his x-ray when he came from July 10th to August 10th or
August 10th to August 16th would not have made any difference at
all in the outcome because his tumor was fairly large, involving the
pleura and the lung. . . .

(Emphasis added.)

While Dr. Warrier explained that an earlier diagnosis of a tumor improves a

patient’s outcome, he clarified that: “In this particular case, I can’t say with

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confidence if it was one month ago and say for sure it would have been better.” He

stated that:

There’s always a likelihood if [Anthony] was seen a month ago,
the tumor is small if they caught it early. We don’t have no - - we have
no proof how big it was, how large it was. I don’t think with the
Ewing’s Sarcoma that makes a big difference at all. That’s my opinion.

When asked specifically about Dr. Rodger’s examination on August 10, Dr.

Warrier explained that an x-ray on that date “would have been positive for sure.”

However, on questioning specific to loss of chance of survival on Dr. Rodgers’

August 10 visit, he conclusively stated:

Q Let’s assume Dr. Rodgers did indeed have a chest x-ray done on
that date [(August 10)] and the Ewing’s diagnosis followed. Do you
have an opinion on whether Anthony’s outcome had that happened,
would have been different than it turned out to be?

A No, not at all. Five days in the life of a tumor, specifically
Ewing’s Sarcoma, is not that crucial. It would not change the
outcome at all. No.

Q And that’s without qualification?

A Without qualification. It was six days, right?

Q Yep.

A No. It would not change the outcome at all as far as the
ultimate prognosis is concerned.

(Emphasis added.)

Dr. Gardner, an expert in the fields of pediatric hematology-oncology and

pediatrics, similarly testified regarding the significance of metastases in a patient’s

outcome. Like Dr. Warrier, Dr. Gardner opined that even if an x-ray had detected

the tumor at Dr. Rodgers’ visit on August 10, a more “speedy diagnosis” would not

have made a difference. She attributed that opinion to the location of the tumor. Dr.

Gardner confirmed, as she indicated in her report, that: “I do not think that the

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physician, Dr. Rodgers, can be faulted in the care of this patient. Nor do I think that

a more speedy diagnosis in this child with axial location of his tumor, a poor

prognostic indicator in and of itself, would have made a difference.”

In short, there is no evidentiary basis in the record for the trial court’s

speculative determination that: “An aggressive condition that this young man had

at the time, five days could have been – could have been the difference between life

and death.” Significantly, Plaintiff did not offer expert testimony to the contrary

and, in fact, the plaintiff’s own expert, Dr. Weiner, testified otherwise as set forth

above.

Plaintiff suggests that an expert opinion on the issue of causation is

unnecessary in this case as Dr. Weiner’s testimony provided a basis for the trial court

to make “factual inferences” as to causation. The supreme court has explained that:

[E]xpert testimony is not always necessary in order for a plaintiff to
meet his burden of proof in establishing a medical malpractice claim.
Though in most cases, because of the complex medical and factual
issues involved, a plaintiff will likely fail to sustain his burden of
proving his claim under LSA-R.S. 9:2794’s requirements without
medical experts, there are instances in which the medical and factual
issues are such that a lay jury can perceive negligence in the charged
physician’s conduct as well as any expert can, or in which the
defendant/physician testifies as to the standard of care, and there is
objective evidence, including the testimony of the defendant/physician
which demonstrates a breach thereof. Even so, the plaintiff must also
demonstrate by a preponderance of the evidence a causal nexus
between the defendant’s fault and the injury alleged.

Pfiffner v. Correa, 94-924, pp. 9-10 (La. 10/17/94), 643 So.2d 1228, 1234 (emphasis

added).

As in this case, the plaintiff in Pfiffner sought to establish “that her husband’s

death was caused by an unnecessary delay in diagnosis and treatment.” Id. at 10.

The supreme court remarked that, while “[t]here are surely cases in which there are

obvious unnecessary delays in treatment which constitute medical malpractice and

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where causation is evident[,]” the situation presented in Pfiffner was not such an

exception. Id. It explained instead that:

The causal connection between a patient’s death and
unreasonable delay vis a vis a neurosurgeon’s diagnosis and treatment
of a patient in circumstances involving a complex medical condition,
however, is simply beyond the province of lay persons to assess.
Plaintiff here needed to establish, either through her own experts or the
testimony of the defendants or defense experts, that given her husband’s
medical history and condition, as well as the defendants’ clinical and
diagnostic findings, [the defendants] breached a specified standard of
care (perhaps that under these circumstances, more expeditious
treatment was necessary) and that this breach caused Pfiffner’s death
or loss of a chance of survival. In the absence of such testimony,
and even assuming all other facts favorable to the plaintiff, the
decision of the lower courts must be reversed because there is no
proof that Pfiffner would have fared any better had [the
defendants] seen him any earlier than they did. In fact, the
evidence is to the contrary, Mrs. Pfiffner did not meet her burden
of establishing that the alleged unreasonable delay in the diagnosis
and treatment of Pfiffner contributed, in whole or in part, to her
husband’s death or loss of a chance of survival.

Id. (Emphasis added.)

It is apparent that the inquiry as to causation in this case is similarly complex.

The physicians identified a number of variables underlying a prognosis for Ewing’s

Sarcoma and the difficulties in early diagnosis. None of the physicians could

identify the point of metastasis, a variable repeatedly identified as a critical factor.

But all agreed that metastasis had already occurred by the time of Dr. Rodgers’

August 10 visit. Additionally, the date of identification and actual diagnosis of the

Stage 4 tumor in this case came within five (5) days following the August 10, 2010

examination by Dr. Rodgers, the only date on which Dr. Rodgers was found to have

rendered treatment allegedly deviating from the standard of care. The trial judge

had found no deviation from the standard of care during Dr. Richert’s examination

on July 13. Plaintiff did not appeal that ruling. Given the unknown factors, even

the experts acknowledged that this is not a case “in which causation is evident.”

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Expert testimony cannot be said to be unnecessary to the plaintiff’s burden of proof.

Instead, the trial court’s conclusion as to causation of loss chance of survival is

contrary to all the expert testimony introduced by the parties and has no evidentiary

basis in the record.

Conclusion

In short, no expert testified that the five (5) day delay between Dr. Rodgers’

last visit and the hospital x-ray showing the tumor made any difference at all in this

young man’s chance of survival. I am constrained to find that the record simply

does not offer a sufficient evidentiary basis for the trial court and majority’s

determination that Plaintiff satisfied her burden of proving causation of a lost chance

of survival and of the damages awarded.

I therefore respectfully dissent.

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