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Smith v. Lexington Ins. Co.

Court of Appeal of Louisiana, Third Circuit

February 18, 2015


Page 1214



George Arthur Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, COUNSEL FOR PLAINTIFF/APPELLANT: Jerome Smith.

Randall M. Seeser, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, COUNSEL FOR DEFENDANT/APPELLEE: Dr. Jay Piland.

Court composed of John D. Saunders, Elizabeth A. Pickett, and John E. Conery, Judges.


Page 1215

[14-781 La.App. 3 Cir. 1] SAUNDERS, Judge

This is a medical malpractice case. Plaintiff, Jerome Smith (hereafter " Appellant" ) appeals the judgment of the trial court finding that Appellant did not prove that treatment rendered by Jay Piland, M.D. (hereafter " Appellee" ) caused injury to him by a preponderance of the evidence. For the following reasons, we affirm.


On April 11, 2007, Appellant was admitted to Crossroads Regional Hospital for depression and threats to harm himself and others. Appellant had a significant medical history, including chronic paranoid schizophrenia, depression, homicidal and suicidal ideations, and a history of alcohol abuse. It was documented that Appellant reported suffering from auditory and visual hallucinations. Appellant tested positive for cocaine upon admission, although he denied using it when confronted.

Appellee served as the Medical Director of Crossroads and performed a medical history and physical consultation on April 11, 2007, during which he discovered a foreign body in Appellant's right ear. Appellee removed the foreign body on April 12, 2007. Appellant contends that, during the removal of the foreign body, Appellee punctured his tympanic membrane. It is this assertion that forms the basis of the instant matter.

Appellant timely submitted his claims against Appellee to a medical review panel. The panel issued an opinion dated August 24, 2010, finding Appellee had not breached the standard of care in his treatment of Appellant. Thereafter, on October 6, 2010, Appellant filed a petition for damages against Appellee.

On July 29, 2013, a bench trial was held on the merits. Written reasons for judgment were issued on November 29, 2013. In its reasons for judgment, the trial [14-781 La.App. 3 Cir. 2] court found that the Appellant failed to prove by a preponderance of the evidence that Appellee had perforated Appellant's right eardrum. On December 10, 2013, judgment was rendered in Appellee's favor dismissing Appellant's claims. In his appeal, Appellant asserts that the trial court erred in finding that Appellant " punctured his own eardrum prior to his admission to Crossroads on April 11, 2007." For the reasons articulated below, we affirm the judgment of the trial court.


" An appellate court may not set aside a trial court's finding of fact absent manifest error or unless it is clearly wrong." Succession of Moss, 00-62, p. 3 (La.App. 3 Cir. 6/21/00), 769 So.2d 614, 617, writ denied, 00-2834 (La. 12/8/00), 776 So.2d 462 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). As our supreme court explained in Stobart v. State through Department of Transportation & Development, 617 So.2d 880, 882-83 (La.1993)(citations omitted):

This court has announced a two-part test for the reversal of a factfinder'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).

Page 1216

This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. . . . this Court has emphasized that " the reviewing court must always keep in mind that 'if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced [14-781 La.App. 3 Cir. 3] that had it been sitting as the trier of fact, it would have weighed the evidence differently.'"

The trial court found that " [Appellant] simply could not prove by a preponderance of the evidence that his right eardrum was perforated by the treatment of [Appellee]. The court believes it is just as likely that [Appellant] caused this injury." To warrant reversal, Appellant must show the trial court's conclusion was not " reasonable in light of the record reviewed in its entirety," and, therefore, was manifestly erroneous.


Louisiana Revised Statutes 9:2794 provides, in pertinent part:

A. In a malpractice action based on the negligence of a physician . . . the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians . . . 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.

In Fusilier v. Dauterive, 00-151, p. 7 (La. 7/14/00), 764 So.2d 74, 79, the supreme court explained a medical malpractice plaintiff's burden of ...

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