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Sappington v. Southern Pain and Anesthesia Consultants, L.L.C.

Court of Appeals of Louisiana, Fifth Circuit

October 23, 2019

BRENDA SAPPINGTON, WIFE OF AND DANIEL SAPPINGTON
v.
SOUTHERN PAIN AND ANESTHESIA CONSULTANTS, L.L.C. AND PAUL J. HUBBELL, III, M.D.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 757-587, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, BRENDA SAPPINGTON, WIFE OF AND DANIEL SAPPINGTON Eric A. Bopp Walter R. Woodruff, Jr. Tyler S. Loga

          COUNSEL FOR DEFENDANT/APPELLEE, SOUTHERN PAIN AND ANESTHESIA CONSULTANTS, L.L.C. AND PAUL J. HUBBELL, III, M.D. Bruce A. Cranner Molly L. Manieri

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.

          JOHN J. MOLAISON, JR. JUDGE

         In this medical malpractice action brought by Brenda and Daniel Sappington against a pain management physician who performed a diagnostic nerve block injection procedure on Mrs. Sappington's cervical spine, plaintiffs appeal a judgment dismissing their damage claims against the physician, Dr. Paul J. Hubbell, III, and his employer, Southern Pain and Anesthesia Consultants, LLC, with prejudice after a jury trial.

         Plaintiffs alleged that Dr. Hubbell punctured Mrs. Sappington's spinal cord with a needle and injected anesthetic medication into it while performing medial branch block injections, causing her to suffer a cerebrospinal fluid leak that required surgical repair by another doctor, as well as other injuries to her spinal cord. Plaintiffs also alleged that Dr. Hubbell modified the procedure without Mrs. Sappington's consent by performing injections at a different level of her spine than the levels specified in the consent form she signed before undergoing the elective procedure.

         The jury heard extensive and conflicting evidence on these issues and resolved the conflicts in defendants' favor. The assignments of error on appeal relate solely to the issue of informed consent and are governed by the manifest error standard of review. Finding no clear error in the jury's verdict, we affirm.

         FACTUAL BACKGROUND AND ISSUES PRSENTED

         Mrs. Sappington was referred to Dr. Hubbell, a pain management specialist, in November 2012 by her orthopedic surgeon, Dr. James Butler, for medial branch block injections to assist in diagnosing the cause of her lingering neck pain following cervical disc removal and fusion surgery by another doctor. Dr. Butler suspected that her pain was being caused by movement of the facet joints running along the back of her spine at the fusion site because the fusion was still healing and was not stable. The purpose of the medial branch blocks was to find out whether the injection of a local anesthetic into or near the nerves crossing the facet joints would relieve her pain temporarily. If it did, this would indicate that she was a good candidate for a longer-lasting pain management procedure to be done at a later date.

         Mrs. Sappington signed a consent form authorizing Dr. Hubbell to perform medial branch block injections on both sides of her spine at levels C3-4, C4-5, C5-6 and C6-7, the levels involved in the fusion surgery and specified in Dr. Butler's referral order. Instead, based on information Dr. Hubbell learned about Mrs. Sappington's physical condition during the procedure, he injected both sides of her spine at levels C2-3 (just above the top of the fusion site) and C3-4. He did not inject any levels below C3-4.

         Mrs. Sappington was sedated during the procedure and did not specifically consent to having injections at the C2-3 level. There was conflicting expert testimony as to whether certain standard language contained in the consent form she signed for injections at levels C3-4 through C6-7 authorized Dr. Hubbell to inject the C2-3 level without consulting with her.

         Mrs. Sappington awoke from the procedure with increased neck pain, numbness in her right arm, hand and leg, and a severe, intractable headache, which was later diagnosed as a spinal headache. She ultimately had surgery to repair a cerebrospinal fluid leak at level C2-3 of her spine, the level Dr. Hubbell added to the procedure he performed. After the leak was repaired, her headaches resolved, but she continued to have neck pain and numbness on her right side.

         Plaintiffs do not dispute that Mrs. Sappington was informed of the material risks of injections at levels C3-4 through C6-7 of her spine. Those risks included nerve injury, numbness, pain, cerebrospinal fluid leak, and spinal headache, all of which she experienced after the procedure. She had experienced some, but not all, of those issues in the past, as documented in her medical records.

         The material risks of injections at the level added by Dr. Hubbell were the same as the material risks of injections at the levels listed in the consent form, according to expert witnesses on both sides of the case. Plaintiffs assert on appeal that the risks at the C2-3 level were different for Mrs. Sappington because she did not have any fusion hardware there. However, they did not present any evidence at trial to support that assertion. At trial, plaintiffs claimed that Mrs. Sappington should have been given the opportunity to discuss Dr. Hubbell's proposed modification of the injection levels specified in Dr. Butler's referral order with Dr. Butler before deciding whether to consent to the modification.

         Dr. Hubbell and other expert witnesses testified that there is a risk of injury with each injection and that Mrs. Sappington's overall risk was reduced by Dr. Hubbell's modification of the injection levels because he injected her spine only six times rather than ten times, as originally contemplated.[1]

         Before trial, defendants filed a motion for partial summary judgment on the issue of informed consent. The trial court granted the motion as to the injections at level C3-4, which was listed in the consent form, and denied it as to the injections at level C2-3, which was not listed in the consent form.

         The jury heard lengthy and conflicting testimony on the allegations of lack of informed consent to the injections at the C2-3 level, and on other issues that are not before us on appeal, including the manner in which Dr. Hubbell performed the injection procedure. After a six-day trial, the jury found that plaintiffs did not prove the standard of care by a preponderance of the evidence and did not prove that defendants failed to obtain Mrs. Sappington's informed consent to the injections at level C2-3 of her spine.

         ASSIGNMENTS OF ERROR

         On appeal, plaintiffs contend there was no reasonable basis for the jury's determination that they did not establish the standard of care for a pain management physician with respect to obtaining informed consent.[2] They claim the expert witnesses on both sides agreed that the standard of care requires the doctor to discuss his intended medical plan of action with a patient before undertaking an invasive procedure, particularly when his plan differs from the procedure ordered by the referring doctor and consented to by the patient.

         Plaintiffs also assert that the jury was clearly wrong in finding that they did not prove a lack of informed consent to the injections at level C2-3.

         STANDARD OF REVIEW

         The standard of care in a medical malpractice case is determined from the facts and circumstances of the case, including the evaluation of expert testimony. Fischer v. Megison, 07-1023 (La.App. 5 Cir. 5/27/08), 986 So.2d 95, 101.

         The question of whether informed consent was or was not given is also a question of fact to be resolved by the factfinder, and the manifest error standard of review applies to such a finding on appellate review. Snider v. Louisiana Medical Mut. Ins. Co., 13-0579 (La. 12/10/13), 130 So.3d 922, 938.

         When the medical experts express opposing opinions on a factual issue such as what the standard of care is in a particular case or whether it was met, a reviewing court must give great deference to the trier of fact's evaluation of the conflicting expert opinions and assessment of witness credibility. Fischer, 986 So.2d at 101; Snider, 130 So.3d at 938-939. An appellate court may not re-weigh the evidence or substitute its own factual findings for those of the trial court even though it may have decided the case differently. Fischer, 986 So.2d at 101; Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1277 (La. 1991).

         When there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly wrong. Martin, 582 So.2d at 1277; Fischer, 986 So.2d at 102. An appellate court may not reverse a factfinder's factual determination unless it finds, after reviewing the record in its entirety, that a reasonable factual basis does not exist for the factual determination, and the record establishes that the factual determination is clearly wrong or manifestly erroneous. Snider, 130 So.3d at 938; Fischer, 986 So.2d at 102. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether its conclusion was reasonable. Snider, 130 So.3d at 938.

         BURDEN OF PROOF

         In a medical malpractice action against a specialist such as Dr. Hubbell, the plaintiff has the burden of proving the standard of care ordinarily practiced by physicians in that specialty, the defendant's breach of the standard of care, and a causal connection between the breach and the plaintiff's claimed injuries. La. R.S. 9:2794(A); Fischer, 986 So.2d at 101.

         A plaintiff who alleges lack of informed consent based on a physician's failure to disclose the material risks of a medical treatment or procedure must prove the existence of a material risk that should have been disclosed, the physician's failure to inform the patient of that risk, the realization of that risk, and a causal connection between the failure to inform the patient of the risk and the realization of the risk. Suarez v. Mando, 10-853 (La.App. 5 Cir. 3/29/10), 62 So.3d 131, 135, writ denied, 11-0885 (La. 6/17/11), 63 So.3d 1036. A risk is considered material if it could have influenced a reasonable person making a decision to give or withhold consent. Former La. R.S. 40:1299.39.5(D) (in effect at the time of Mrs. Sappington's procedure in November 2012); now La. R.S. 40:1157.1(D); Hondroulis v. Schuhmacher, 553 So.2d 398, 412 (La. 1989) (on rehearing).

         Because of the likelihood that a patient who suffers adverse results after a medical treatment or procedure will believe, in hindsight, that those results were caused by inadequate disclosure of the risks, courts have adopted an objective standard of causation: whether a reasonable patient in the plaintiffs position would have consented to the treatment or procedure had the material information and risks been disclosed. Hondroulis, 553 So.2d at 412; Lugenbuhl v. Dowling, 96-1575 (La. 10/10/97), 701 So.2d 447, 454. If a reasonable person would have consented, the failure to disclose, however wrongful, is legally inconsequential. Lugenbuhl, 701 So.2d at 454. A patient has the absolute right, for whatever reason, to prevent unauthorized intrusions and treatments, but he or she can only recover damages for those intrusions in which consent would have been reasonably withheld if the patient had been adequately informed. Id.

         In this case, it is undisputed that Mrs. Sappington was informed of the material risks of injections at levels C3-4 through C6-7 of her spine-but not at level C2-3-before she consented to the procedure; that the material risks at level C2-3 were the same as the risks at the levels to which she ...


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