Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court. No. 2010-0156. Honorable Robert C. Johnson, Judge.
WATSON, BLANCHE, WILSON & POSNER By: Peter T. Dazzio Craig James Sabottke, Counsel for Appellant, Rezaul Islam, M.D.
McNEW, KING, MILLS, BURCH & LANDRY, LLP By: Brady Dean King II, Counsel for Intervenor-Appellant, La. Patients Compensation Fund.
NELSON & HAMMONS By: John L. Hammons Cornell R. Flournoy Chaile Milynn Allen, Counsel for Appellees, Karen and Joe LeBlanc.
Before WILLIAMS, DREW and GARRETT, JJ.
[49,530 La.App. 2 Cir. 1]
The jury in this medical malpractice action concluded that plaintiffs, Karen LeBlanc (" Karen" ) and her husband, Joe LeBlanc, had proven the standard of care applicable to defendant Dr. Rezaul Islam, but had not proven that Dr. Islam breached that standard of care. The trial court granted the LeBlancs' motion for a judgment notwithstanding the verdict (" JNOV" ), rendered judgment in favor of the LeBlancs, and awarded damages. Dr. Islam and the Patient's Compensation Fund appealed.
We reverse the judgment granting the motion for JNOV and reinstate the jury's verdict.
Dr. Islam, who is board certified in cardiology and internal medicine, practices in the Monroe area. He first examined Karen, who was 52 at the time, on July 26, 2007. Karen had a poor family history of coronary artery disease, and her mother had been Dr. Islam's patient. Diabetes was also prevalent in her family.
Karen complained to Dr. Islam of chest pain off and on for a year or so, and that since her mother's death a month earlier,
the chest pain had become more frequent and was going down her left arm and left neck at times. She reported feeling tightness and discomfort in her chest, and that her chest pain had been bad a week earlier. Stenosis of 50-69% was observed in the left distal ICA. Stenosis of over 70% was seen in the left CCA and proximal ICA.
[49,530 La.App. 2 Cir. 2] Karen did not have a history of stroke or heart attack, but she did have a pulmonary embolism when she was younger that was probably related to birth control use. She told Dr. Islam that she had had dyslipidemia, a lipid abnormality, for a year, and had been taking medicine for high blood pressure.
Dr. Islam ordered blood work, and for several tests to be performed on August 16. These tests included an exercise myocardial perfusion study, an echocardiogram, a nuclear stress test, and a carotid duplex ultrasound.
Dr. Islam went over the test results on August 30. Karen's chief complaint at the time was chest pain going down her left arm and sometimes her left neck.
Karen's stress test was positive, which indicated that she had possible heart blockage. Dr. Islam told her that he thought the stress test and echocardiogram showed that she had a heart attack within the last two years.
The ultrasound suggested possible blockage in the carotid arteries (" carotids" ). The flow in the bilateral vertebral arteries (" vertebrals" ) was noted by Dr. Islam to be normal. The carotids provide blood to most of the brain, while the vertebrals provide blood to the cerebellum in the back of the brain.
[49,530 La.App. 2 Cir. 3] Because he considered Karen to be a high-risk patient who had already had a heart attack, Dr. Islam wanted to do a left heart catheterization. He also thought it was best at the same time to do a carotid angiogram of the carotids and vertebrals to evaluate the blockage in the carotids and to explore the vertebrals for any significant blockage. Whether a carotid angiogram also included exploration of the vertebrals as a complete study was much disputed at trial.
Karen signed a consent form on August 30 for the procedures which were scheduled to be done on September 6. Checked off under the " Procedures" section of the consent form were " Left Heart Catheterization" and " Carotid angiogram." Dr. Islam contended that he told Karen that he also wanted to do an angiogram of her vertebrals. Nevertheless, there was no blank for a vertebral angiogram on the form, and the blank for " Others" was neither checked nor filled in. The form stated that the physician authorized to perform the procedure had discussed the alternatives and explained thoroughly the need for the procedures and its description with all possible risks and benefits. Stroke was listed as a very uncommon material risk on the form.
The procedures took place as scheduled at Dr. Islam's office on the morning of September 6, 2007, beginning at 8:48. The carotid angiogram started at 9:13 and ended at 9:24.
The heart cath showed a 100% blockage in the front of her heart, which was what Dr. Islam suspected from the earlier tests. He found 60-70% blockage in a carotid, but the rest of the arteries were okay.
[49,530 La.App. 2 Cir. 4] At 10:00, LeBlanc reported feeling nauseous and then vomited, but was fully alert and oriented, and was able to move all limbs. Dr. Islam thought it was most likely she was having an adverse reaction to the dye. She vomited twice more by 11:00, and Phenergan was administered for the vomiting. By 1:00, she was feeling much better and denied any more nausea. She felt sleepy, but not dizzy, had no speech problems, and was alert and oriented. Her neurological exam was again normal, and there was no sign of any cranial nerve impairment. Karen was discharged in stable condition to her sister's home and to be seen in the morning. Karen and her family were told to call anytime if there was a problem.
Dr. Islam and his staff called her sister's home that night and also in the morning to inquire about Karen's well-being. Dr. Islam was told when he called at 9:00 or 9:30 in the morning that Karen had slept well during the night and vomited once. She had thrown up once in the morning and also complained of diplopia. Dr. Islam was concerned, so her told her family to bring her to his office.
Dr. Islam examined Karen immediately upon her arrival at his office and suspected a stroke. He called Dr. Vipul Shelat, a local neurologist, about advice on what to do next. Dr. Shelat, who was out of town, told Dr. Islam to admit Karen to the hospital for a CT scan of the brain and the administration of Lovenox and Plavix.
St. Francis North Hospital called Dr. Islam back and told him that a bed would not be available for Karen until around 3:00 that afternoon. Dr. Islam apprised Dr. Shelat of this development, but was not told to send her to [49,530 La.App. 2 Cir. 5] the Emergency Room (" ER" ) or to check bed availability at another local hospital.
Dr. Islam told Karen and her husband that they could either wait at his office, or return home and then go to the hospital at 3:00. They chose the latter option.
Karen was admitted into St. Francis with a diagnosis of a cerebral vascular accident, or stroke. Dr. Islam thought she had vertebrobasilar insufficiency based on her symptoms. Dr. Islam's admit orders stated that Dr. Shalet was to be consulted, and that he was to be asked to see LeBlanc that day and that he may call Dr. Islam. As per Dr. Shelat's instruction, Dr. Islam ordered a CT scan of the brain with/without contrast to be done on September 7. He also ordered a MRI of the head in the morning. Dr. Islam wrote on his admission report that Karen would be started on Lovenox.
The radiologist's impression of the CT scan of her head was a lacunar infarct in the right thalamus that was probably acute or subacute, and a smaller old lacunar infarct in the left thalamus.
The brain MRI the next day showed multiple infarcts involving both thalami and the right cerebellar hemisphere, that were all acute and probably a day or two old.
A magnetic resonance angiogram (" MRA" ) of the neck was done on September 10. It showed that the vertebrals were widely patent with no stenosis or occlusion, but there was 40-50% lumen stenosis of the left ICA, thought to be due to arteriosclertoic plaque.
[49,530 La.App. 2 Cir. 5] Karen was discharged from St. Francis on September 14 and began the process of inpatient followed by outpatient physical and occupational therapy.
Lawsuit and trial
The LeBlancs contended that Dr. Islam committed medical malpractice when he performed the vertebral angiogram without first obtaining Karen's informed consent to the procedure, and that he committed medical malpractice in his management of her stroke condition following the procedures on September 6.
After an extensive trial in which the jury heard testimony from the parties, an expert economist, and four medical experts, the jury concluded that the LeBlancs failed to prove that Dr. Islam had breached the standard of care. The LeBlancs filed a motion for JNOV and, in the alternative, a motion for new trial.
When granting the motion for JNOV, the trial judge admitted that " this was a highly contested case and the testimony and evidence conflicted greatly on the major issues[.]" However, he found that several material facts pointed so strongly in the LeBlancs' favor on the issue of breach of the standard of care regarding Karen's consent to the procedure and Dr. Islam's management of her stroke that a reasonable person could not have reached a different conclusion.
[49,530 La.App. 2 Cir. 6] The trial judge noted that Dr. Islam's chart notations and records did not mention that he discussed or obtained consent from Karen for the vertebral angiography. In addition, while the consent form referred to alternative procedures, it did not name or detail the alternative procedures and their advantages or disadvantages. The trial judge concluded that Dr. Islam was obligated under La. R.S. 40:1299.40 to explain the alternative procedures, including the CTA and MRA, and that they carried zero risk of stroke.
The trial judge referred to testimony from the plaintiffs' two expert witnesses that Dr. Islam had breached the standard of care regarding informed consent by performing an unnecessary vertebral angiogram and in not informing her of the CTA and MRA, which were accepted and safe medical procedures in 2007.
The trial judge also noted that Dr. Islam's expert witnesses testified that a vertebral angiogram is a separate procedure from a left heart cath and carotid study, that vertebral angiogram was not listed on the consent form, and that Dr. Islam's records did not show that Dr. Islam informed Karen of the procedure before performing it. The trial judge further noted that while Dr. Islam's experts disagreed with the LeBlancs' experts on whether there were breaches of the standard of care, they testified that CTA and MRA were accepted medical procedures in 2007, and that both presented zero risk of stroke. According to the trial judge, the experts for Dr. Islam also testified that they would not have sent LeBlanc home to wait on a hospital bed after she suffered a stroke.
[49,530 La.App. 2 Cir. 7] The trial judge noted that Dr. Islam confirmed that the vertebral angiogram was a separate procedure from a carotid study, and that the procedures were billed separately. It was also noted that even though Dr. Islam confirmed that the consent form did not list vertebral angiogram as a procedure that was discussed and consented to by Karen, he also testified that he verbally explained to Karen that he intended to perform a vertebral angiogram. The trial judge added that not only did the consent form not list CTA and
MRA as alternative procedures, but Dr. Islam testified that he did not discuss, explain, or offer the CTA and MRA alternatives to LeBlanc. After reviewing his medical records, Dr. Islam concluded that the vertebral angiogram caused Karen's strokes.
The trial judge concluded that Dr. Islam violated the standard of care regarding informed consent by failing, among other things, to discuss, explain and offer the CTA and MRA procedures. The court further concluded that Dr. Islam violated the standard of care in his post-procedure management of LeBlanc's strokes. These violations caused damages to the plaintiffs. The trial judge granted the motion for JNOV and awarded damages of over $1.6 million, reduced to $109,475 in past medical costs and $500,000 under the medical malpractice cap. The judge also found that Karen was entitled to future medical treatment. Dr. Islam and PCF appealed.
In Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La. 10/30/00), 772 So.2d 94, 99, the supreme court explained the principles to be applied in determining whether JNOV is appropriate as well as this court's review of the granting of the JNOV:
[49,530 La.App. 2 Cir. 8] La. Code Civ. Proc. art. 1811 controls the use of JNOV. Although the article does not specify the grounds on which a trial judge may grant a JNOV, in Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270 (La. 1986), we set forth the criteria used in determining when a JNOV is proper. As enunciated in Scott, a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons 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 persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Scott, 496 So.2d at 274. In making this determination, the trial 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. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La. 1991) . This rigorous standard is based upon the principle that " [w]hen there is a jury, the jury is the trier of fact." Scott, 496 So.2d at 273; Jinks v. Wright, 520 So.2d 792, 794 (La.App. 3d Cir. 1987).
In reviewing a JNOV, the appellate court must first determine if the trial judge erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated. Anderson, 583 So.2d at 832.
DISCUSSION - INFORMED CONSENT
A plaintiff in an action based on a failure to obtain informed consent must prove the following four elements in order
to prevail: (1) a material risk existed that was unknown to the patient; (2) the physician failed to disclose the risk; (3) the disclosure of the risk would have led a reasonable patient in [49,530 La.App. 2 Cir. 9] the patient's position to reject the medical procedure or choose another course of treatment; and (4) the patient suffered ...