The opinion
Judgment rendered January 25, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
No. 54,813-CA
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
THOMAS D. FRYE, ET UX. Plaintiffs-Appellants
versus
RICHARD INGRAM BALLARD, Defendant-Appellee
M.D.
*****
Appealed from the
Third Judicial District Court for the
Parish of Lincoln, Louisiana
Trial Court No. 59342
Honorable Thomas Wynn Rogers, Judge
*****
NELSON & HAMMONS, APLC Counsel for Appellants
By: John Layne Hammons
Cornell Rushing Flournoy
Robert Clayton Christian
HUDSON, POTTS, & BERNSTEIN, LLP Counsel for Appellee
By: Gordon L. James
Sara G. White
Jason Richard Smith
*****
Before PITMAN, THOMPSON, and HUNTER, JJ.
THOMPSON, J., dissents with written reasons.
HUNTER, J.
Plaintiff, Thomas D. Frye, filed a medical malpractice lawsuit against
defendant, Richard Ingram Ballard, M.D. Mr. Frye’s wife, Sharon Frye,
asserted a claim for loss of consortium. Following a bench trial, the trial
court rendered a judgment in favor of defendant, dismissing plaintiffs’
claims with prejudice. For the following reasons, we affirm.
FACTS
On September 8, 2014, plaintiff, Thomas Frye, a 73-year-old man, fell
from a forklift and sustained a complex fracture of the right wrist. He was
transported to the emergency room at Northern Louisiana Medical Center in
Ruston, Louisiana. The emergency room staff called defendant, Richard
Ingram Ballard, M.D., the on-call orthopedic surgeon. Dr. Ballard examined
Mr. Frye in the emergency room and reviewed the x-rays. Later that day,
Dr. Ballard performed surgery on Mr. Frye, repairing the fracture by
inserting an external fixation device through the skin into the bone to
stabilize the fracture and maintain proper alignment of the bone.
Mr. Frye’s first post-operative visit was nine days after the surgery.
During the visit, Dr. Ballard noted the insertion sites of the pins “looked
good,” and he instructed Mr. Frye to continue his wound care regimen. Mr.
Frye’s next appointment with Dr. Ballard was on October 7, 2014. During
the visit, the x-ray did not show any soft tissue abnormality. However, the
physical examination revealed Mr. Frye was exhibiting symptoms of an
infection (swelling, pain, and drainage) around the device. Dr. Ballard
prescribed Keflex, a broad-spectrum antibiotic, and arranged for Mr. Frye to
begin occupational therapy, which encompassed whirlpool treatments and
wound care. Mr. Frye’s symptoms persisted. Approximately one week
later, on October 13, 2014, Dr. Ballard noted “quite a bit of swelling” in Mr.
Frye’s wrist. He prescribed Bactrim, another broad-spectrum antibiotic, and
continued occupational therapy. Dr. Ballard did not order any additional
radiological studies at the time.
On October 27, 2014, Mr. Frye returned for a follow-up visit. He
reported swelling in his third finger, bruising on his upper arm, and
difficulty lifting his arm. Dr. Ballard noted the presence of “cellulitis of the
hand due to some lack of care for his fixator.” He removed the external
fixation device and noted a plan to “begin vigorous therapy” to decrease the
swelling.
On November 10, 2014, Mr. Frye presented to Dr. Ballard with
complaints of “sharp, throbbing pains,” redness, and swelling in his wrist.
During a physical examination, Dr. Ballard noted Mr. Frye continued to
experience pain and redness, but the swelling and drainage had improved.
Mr. Frye underwent occupational therapy at Green Clinic to improve
his mobility and to treat his wounds. The occupational therapy notes
detailed the appearance and function of Mr. Frye’s hand, wrist, and arm
from the date he began therapy, October 7, 2014, until his last date of
treatment, December 30, 2014. According to the notes, Mr. Frye presented
to occupational therapy on October 7, 2014, with “significant swelling” in
his arm and “significant yellow exudate” with a foul odor “oozing from
pins.” On October 13, 2014, Mr. Frye arrived at therapy with a “severely
swollen arm and hand,” and “MD saw [patient] today and decided to change
antibiotics.” Thereafter, the notes detailed Mr. Frye’s treatment and his
response thereto. Although Mr. Frye experienced bouts of swelling in the
hand and wrist, the medical records indicate an overall improvement in the
2
appearance and function of his hand and wrist. On November 25, 2014, the
therapist noted, “Marked decrease in [right] hand swelling” and “Dr. Ballard
saw [patient] today and was very pleased.”
Through the remainder of November and the first half of December,
Mr. Frye reported improvement in mobility, strength, and function of his
hand and wrist, and he did not report any pain. On December 16, 2014, Mr.
Frye presented to occupational therapy complaining of pain in his right
wrist. The therapist further noted his participation in therapy was limited by
his pain. Two days later, Mr. Frye returned to occupational therapy
complaining of severe pain, and his hand was “visibly swollen.” According
to the therapy notes, Mr. Frye was “encouraged to make another
appointment with [Dr. Ballard].” Mr. Frye returned to therapy on December
30, 2014, and he reported is condition was “about the same.” The therapist
noted:
Pt. came to therapy wearing light edema glove on his R hand.
He said he has made an appointment with a hand specialist in
Shreveport because he still has severe pain with wrist extension
and supination. Pt’s hand was visibly edematous; however, the
tissue was soft and pliable. Pt. participated in extremity pump
to decrease edema in the R hand.
***
Pt has made some progress with R hand [active range of
motion] and edema control over time; however, no significant
changes have been noted in past few weeks. *** We will
continue to see pt. once a week until pt. sees specialist in order
to monitor edema and ensure [active range of motion] increases
in wrist and digits.
***
Mr. Frye never returned to Dr. Ballard’s office, and the December 30,
2014, occupational therapy appointment was Mr. Frye’s last appointment at
Green Clinic. During his deposition, Mr. Frye testified he decided to seek a
second opinion because he continued to experience pain, and he “just knew
3
that something wasn’t right inside of my arm and it’d swell up, go down,
swell up, go down.” He stated he spoke to a friend, who is a registered
nurse, and she suggested he make an appointment with Dr. Marion Milstead,
an orthopedic hand specialist in Shreveport.
Mr. Frye was examined by Dr. Milstead on January 6, 2015. Mr. Frye
presented with complaints of “severe pain, stiffness, and difficulty using the
right hand.” The physical examination revealed “tremendous amount of
swelling of the entire right hand,” from above Mr. Frye’s wrist to the end of
his fingers. Dr. Milstead also noted “the entire hand feels warm to touch
with increased pain with any palpation over the radiocarpal joint.” Dr.
Milstead ordered an x-ray, a triple bone scan, and an indium white cell count
test. After reviewing the x-rays, Dr. Milstead noted:
The x-rays that were done today do show an old healed fracture
at the distal radius with collapse of the ulnar half of the articular
surface but with it healed. Also shows significant collapse of
all the entire proximal row, severe osteoporosis of all the carpal
bones, and significant sclerosis of the entire proximal half of
the capitate.
PLAN: I have discussed with him that these x-ray changes look
like it is possible osteomyelitis that could explain the resolution
or absorption of the carpal bones that is occurring. In an effort
to try to prove whether or not this is just old crush injury with
diffuse osteoporosis versus osteomyelitis, we will go ahead and
put him in a wrist forearm splint to immobilize the wrist,
continue doing the therapy they are doing *** and we will set
him up to have first a standard bone scan, and once that is
completed, then follow that with an indium white cell scan[.]
Further, Mr. Frye underwent an MRI on February 1, 2015. The
radiology report provided, in part:
Examination reveals evidence of comminuted fracture
involving distal radius and styloid process of ulna. There is
evidence of marked irregularity and erosive changes involving
the carpal and proximal metacarpal bones. Erosive changes
involving distal radius also seen.
***
4
IMPRESSION:
1. Abnormal carpal bones and some proximal metacarpal
bones. Abnormal signal intensity of bone marrow
associated with irregularity of bony cortex noted.
Infiltration of fat plane is also seen. Possibility of septic
arthritis cannot be ruled out. ***
2. Evidence of comminuted fracture involving distal radius and
styloid process of ulna. Acquired positive ulnar variance is
noted.
3. Tendinosis of extensor carpi ulnaris.
The bone scan revealed “Osteonecrosis of basically all carpal bones
particularly the proximal carpal row from previous trauma[.]”
On January 20, 2015, Dr. Milstead prepared a progress report, which
stated Mr. Frye’s bone scan and white cell scan were “positive for probable
osteomyelitis involving all the carpal bones.” Dr. Milstead referred Mr.
Frye to Dr. Halim Abou-Faycal, an infectious disease specialist. Thereafter,
Mr. Frye was admitted to Promise Hospital to undergo treatment with
intravenous broad-spectrum antibiotics for approximately six weeks.
Plaintiffs instituted a medical malpractice action against Dr. Ballard.
Plaintiffs asserted Dr. Ballard breached the standard of care for an
orthopedic surgeon because he failed to timely diagnose and treat Mr. Frye’s
bone infection. Plaintiffs also alleged Dr. Ballard’s failure to diagnose and
treat Mr. Frye’s infection caused it to progress into osteomyelitis, which
resulted in the destruction of the carpal bones in his hand.
On November 27, 2017, the medical review panel (“MRP”)
unanimously concluded Dr. Ballard “failed to meet the applicable standard
of care as charged in the complaint [and] [t]he conduct complained of was a
factor in the alleged resultant damages.” In its written reasons for its
conclusion, the MRP stated:
Our review of the care provided to this patient by Dr. Ballard
postoperatively is troublesome. Although Mr. Frye was
5
instructed to follow wound care instructions concerning the
placement of pins with the external fixator, it is well known that
the risk of infection is increased. The medical records are clear
in that this patient did develop redness, swelling, and pus at or
near the pin sites. This was found by both Dr. Ballard and the
therapists at the PT/OT unit. This was also made known by the
patient to these health care providers and specifically, Dr.
Ballard.
Dr. Ballard did order a prescription for Keflex, which is a broad
spectrum antibiotic that was apparently taken by Mr. Frye.
However, Mr. Frye continued to have symptoms even after this
antibiotic was prescribed as well as another medication. In
spite of these developments, Dr. Ballard did not order any
follow-up x-rays of the hand with the exception of October 7,
2014. Moreover, no x-rays were ordered at the time that the
external fixator was removed along with the pins. We believe
that intermittent x-rays should have been ordered and taken at
the time of the removal of the external fixator and pins. This
not only would have provided evidence of proper alignment and
healing, but may have well provided Dr. Ballard with evidence
that some infectious process was underway. Additionally, the
patient related to Dr. Ballard or to the therapist that he had
developed a pus pustule and that he had obtained relief from the
pain when this pustule had spontaneously burst.[1]
We believe that there was ample medical evidence available to
Dr. Ballard to raise a high level of suspicion that an infectious
process was progressing.
***
We think the care and management provided to Mr. Frye by Dr.
Ballard was a deviation from the accepted standard of care for
an orthopedic surgeon. This care and management by Dr.
Ballard was [sic] a factor in the alleged resultant damages in
that the patient’s recovery time was slowed and complicated by
the development of this unaddressed infectious process.
***
1
On October 20, 2014, the occupational therapist noted Mr. Frye had reported the
“base of [his] thumb popped open, and puss [sic] and blood ran out of it[.]” The therapist
also noted the presence of drainage from a “small hole in between pin sites,” an
improvement in skin coloration and redness, and a significant decrease in the amount of
swelling. According to the notes, Dr. Ballard “was informed about opening in palm, and
he refilled [Mr. Frye’s] prescriptions.”
6
After obtaining the favorable MRP opinion, plaintiffs filed a medical
malpractice lawsuit on December 14, 2017. Mr. Frye’s wife asserted a claim
of loss of consortium.
A bench trial was held June 2-3, 2021.2 There was no live testimony
presented at trial. However, Mr. Frye’s medical records, medical bills, and
the MRP opinion and written reasons were introduced into evidence. The
video depositions of Mr. Frye, Mrs. Frye, Drs. Ballard, Milstead, Houtz,
Ritter, Morris, and Blair were admitted into evidence and played in open
court. The deposition of Dr. Abou-Faycal was read in open court.
After reviewing the evidence present, the trial court entered a
judgment in favor of Dr. Ballard and dismissed plaintiffs’ claims. In its
lengthy reasons for judgment, the trial court stated, in pertinent part:
***
Based on Dr. Milstead’s testimony, the report of the Medical
Review Panel and the testimony of 2 of the 3 doctors on the
panel, Dr. Ballard’s breach of the standard of care centers
around his failure to have Mr. Frye’s hand and wrist x-rayed
more than the one time it was x-rayed postoperative[ly] on
October 7, 2014. However, no one specified a specific
frequency such as once a week. ***
The secondary reason for an X-ray would be to monitor for
other issues such as an infection. When physical examinations
of Mr. Frye on October 7, 2014, revealed signs of a possible
infection, Dr. Ballard prescribed Keflex, a broad spectrum
antibiotic. When the infection persisted, Dr. Ballard changed
from Keflex to Bactrim, another broad spectrum antibiotic,
which resulted in intermittent improvements from October 15,
2014, through November 10, 2014, when noticeable
improvement was noted. No signs of infection are noted
throughout except for swelling which required drainage from
time to time. This was sometimes attributed to Mr. Frye’s
exercise at home.
***
2
Initially, Dr. Ballard requested a jury trial; however, he later withdrew the
request. On February 20, 2020, plaintiffs filed a motion for a jury trial and paid the
appropriate bond. The trial court granted the motion. Thereafter, plaintiffs filed a motion
to waive the request for a jury trial and requested a bench trial.
7
Since Mr. Frye never went back to Dr. Ballard, we can never
know what treatment he would have prescribed or what tests he
would have ordered after December 18, 20[14]. According Dr.
Morris, the October 7, 2014, X-ray showed nothing significant.
According to Dr. Milstead, the X-ray of January 6, 2015,
showed osteomyelitis which would have been caused by the
infection which Dr. Ballard failed to adequately treat.
However, Dr. Morris and Dr. Blair disagreed with this
assessment. Dr. Milstead also ordered 2 additional tests, a
triple-phase bone scan and an indium white cell scan, both of
which he claims showed vague positive activity in the right
wrist. He said this was also indicative of an infection which
would confirm osteomyelitis. Here again, both Dr. Morris and
Dr. Blair dispute this finding.
The question was never asked whether X-rays and tests taken
between October 7 and December 18, 2014, would have shown
anything that would have alarmed either Dr. Ballard or Dr.
Milstead. If Dr. Morris and Dr. Blair didn’t see any clear
evidence of osteomyelitis from the X-rays and tests of January
6, 2015, its [sic] even less likely that they would have seen
them on an earlier date.
Dr. Milstead testified that the proper treatment for an infection
would be to start with a broad spectrum antibiotic and monitor
the results. This is exactly what Dr. Ballard did. Dr. Milstead
would have followed up [on] this 3-4 days later. Dr. Ballard
waited a longer period. Dr. Milstead testified that if the
infection failed to respond the first antibiotic, he would then
prescribe a different broad spectrum and monitor its
effectiveness. This is also what Dr. Ballard did, but on a longer
time frame. Dr. Milstead would have also ordered X-rays to
monitor the progress, which Dr. Ballard did not.
***
The court will never know what X-rays between October 7,
2014 and January 6, 2015 would have shown. It is only logical
to assume that evidence of osteomyelitis would have been less
evident the closer you go back to October 7, 2014. Dr. Morris
said that on October 7, there was nothing significant. If a
highly qualified radiologist saw nothing significant to indicate
osteomyelitis on January 6, it is even more unlikely he would
have seen it earlier.
The way in which Mr. Frye’s recovery waxed and waned over
the course of his post-operative care under Dr. Ballard is
disconcerting. Progress followed by regression followed by
regression. However, Mr. Frye’s injury was a serious fracture
requiring an external fixator pin, which undoubtedly slowed the
healing process, complicated therapy, and increased the
likelihood of infection. Mr. Frye was 7[3] years old, a smoker
and his wrist and hand showed signs of osteopenia or thinning
8
of the bones due to loss of bone mineral density on the date of
the surgery.
***
[T]he court finds Mr. and Mrs. Frye have not shown by a
preponderance of the evidence that Dr. Ballard breached the
standard of care. Dr. Ballard’s approach to Mr. Frye’s post-
operative care impressed the court as both logical and
reasonable. Taking into consideration Mr. Frye’s age, health,
attitude and the serious nature of his injury, the intermittent
progress of his recovery was not surprising. Up until December
16, 2014, the court can find no fault in what Dr. Ballard did.
Thereafter, he was never given a chance to respond to the
sudden change in Mr. Frye’s condition.
***
Plaintiffs appeal.
DISCUSSION
Plaintiffs contend the trial court erred in failing to consider the
“judicial confessions” contained in Dr. Ballard’s deposition testimony.
Plaintiffs also assert the record shows Dr. Ballard failed to diagnose and
treat Mr. Frye’s infection and resulting osteomyelitis, and the trial court
erred in concluding they failed to meet their burden of proving Dr. Ballard
breached the applicable standard of care. Further, plaintiffs argue three
medical experts testified Mr. Frye developed osteomyelitis, which led to the
destruction of the bones in his hand, and the trial court erred in failing to
give greater weight to his treating physician, Dr. Milstead. Additionally,
plaintiffs maintain the trial court erred in failing to award damages for the
prolonged pain and suffering he endured. He argues he introduced into
evidence proof of his medical expenses, which totaled $183,296.10, the
evidence established he has lost at least 50% function in his hand and wrist
as a result of the destruction of the bones, and he should have been awarded
general damages in the amount of $750,000, in addition to damages for lost
earnings, lost earning capacity, and past and future medical expenses.
9
La. R.S. 9:2794(A) provides the plaintiff has the burden of proving:
(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.
The plaintiff has the burden of proving, by a preponderance of the
evidence, (1) the doctor’s treatment fell below the standard of care expected
of a physician in his medical specialty; and (2) the existence of a causal
relationship between the alleged negligent treatment and the injury
sustained. Fusilier v. Dauterive, 00-0151 (La. 7/14/00), 764 So. 2d
74, citing Gordon v. Louisiana State Univ. Bd. of Sup’rs, 27,966 (La. App. 2
Cir. 3/1/96), 669 So. 2d 736, writ denied, 96-1038 (La. 5/31/96), 674 So. 2d
263; Powell v. Merriman, 53,757 (La. App. 2 Cir. 3/3/21), 314 So. 3d 1097.
A physician is required to exercise that degree of skill ordinarily
employed under similar circumstances by others in the profession and also to
use reasonable care, diligence, and judgment. Hastings v. Baton Rouge Gen.
Hosp., 498 So. 2d 713 (La. 1986); Powell, supra. A physician is not
required to exercise the highest degree of care possible; rather, his duty is to
exercise the degree of skill ordinarily employed by his professional peers
under similar circumstances. Gordon, supra; Powell, supra. The law does
not require absolute precision from a physician. Id. The mere fact that an
10
injury occurred does not raise a presumption that the physician was
negligent. Powell, supra; Hays v. Christus Schumpert N. Louisiana, 46,408
(La. App. 2 Cir. 9/21/11), 72 So. 3d 955.
Appellate review of a trial court’s findings in a medical malpractice
action is limited to manifest error. Johnson v. Morehouse Gen. Hosp.,
10-0387 (La. 5/10/11), 63 So. 3d 87; Lewis on Behalf of Lewis v.
Cornerstone Hosp. of Bossier City, LLC, 53,056 (La. App. 2 Cir. 9/25/19),
280 So. 3d 1262. A court of appeal may not set aside a trial court’s finding
of fact in the absence of manifest error or unless it is clearly wrong. Powell,
supra; Moore v. Smith, 48,954 (La. App. 2 Cir. 5/21/14), 141 So. 3d
323, citing Crockham v. Thompson, 47,505 (La. App. 2 Cir. 11/14/12), 107
So. 3d 719.
Expert witnesses who are members of the medical profession are
needed to establish the applicable standard of care, whether the standard of
care was breached by the defendant doctor’s conduct, and whether that
breach resulted in injury to the plaintiff. Powell, supra; Richardson v.
Cotter, 51,637 (La. App. 2 Cir. 9/27/17), 245 So. 3d 136; Jones v.
Hernandez, 38,818 (La. App. 2 Cir. 8/18/04), 880 So. 2d 245, writ denied,
04-2319 (La. 11/19/04), 888 So. 2d 203. Where there are conflicting expert
opinions concerning the defendant’s compliance with the standard of care,
the reviewing court will give great deference to the conclusions of the trier
of fact. Powell, supra; Van Buren v. Minor, 51,960 (La. App. 2 Cir.
4/11/18), 247 So. 3d 1040, writ denied, 18-0768 (La. 9/21/18), 252 So. 3d
911. The effect and weight to be given to expert testimony is within the
broad discretion of the trial court. Powell, supra; Jones, supra.
11
Expert witnesses often disagree on the applicable standard, and when
two permissible views are presented to the judge or jury, the fact finder’s
choice between them cannot be manifestly erroneous or clearly
wrong. Montz v. Williams, 16-145 (La. 4/8/16), 188 So. 3d 1050; Rosell v.
ESCO, 549 So. 2d 840 (La. 1989). Likewise, where the fact finder’s
determination is based on its decision to credit the testimony of one of two
or more witnesses, its finding can virtually never be manifestly erroneous.
Montz, supra; Bellard v. American Cent. Ins. Co., 07-1335 (La. 4/18/08),
980 So. 2d 654.
Credibility determinations, including the evaluation of expert
testimony, together with the ultimate issue of whether a plaintiff has
satisfied his burden of proof are factual issues to be resolved by the trier of
fact and will not be disturbed on appeal in the absence of manifest error.
Roberts v. Cox, 28,094 (La. App. 2 Cir. 2/28/96), 669 So. 2d 633; Lowrey v.
Borders, 43,675 (La. App. 2 Cir. 12/10/08), 1 So. 3d 635.
In the instant case, to establish the standard of care applicable to
orthopedic surgeons who provide post-operative care, and to prove Dr.
Ballard’s treatment fell below the standard of care expected of a physician in
his medical specialty, plaintiffs presented the expert testimony of Drs.
Milstead, Abou-Faycal, Houtz, and Ritter. Dr. Milstead testified Mr. Frye
presented to him on January 6, 2015, exhibiting severe pain, redness, and
swelling in his hand and wrist, and subsequent x-rays indicated the presence
of a bone infection. Dr. Milstead also testified the infection had “chewed
up” and “crushed” the bones in Mr. Frye’s hand. Further, Dr. Milstead
stated:
12
[O]steomyelitis can develop within six weeks, but to get to this
kind of bone destruction *** to get eroded through cartilage,
jump the joint in the next bone, jump the joint, get in the next
bone, you’re talking about at least two months for infection to
get to this degree or severity.
Dr. Houtz, an orthopedist who served on the MRP, testified Dr.
Ballard breached the applicable standard of care by failing to order x-rays
when he removed Mr. Frye’s external fixator device. He opined the x-rays
could have shown the presence of an infection.
Dr. Ritter, an orthopedist who subspecializes in hand and wrist
surgery, also served on the MRP. She testified the use of an external fixator
increases the risk of an infection, and Dr. Ballard should have known Mr.
Frye’s symptoms indicated an active infection, even after treatment with the
first round of antibiotics. Dr. Ritter stated Dr. Ballard should have ordered
x-rays to adequately manage the circumstances. She further testified there
was ample evidence to establish a “high level of suspicion” to alert Dr.
Ballard of the presence of a persistent infection. According to Dr. Ritter, Dr.
Ballard breached the standard of care by failing to order x-rays and the
appropriate lab tests to determine the effectiveness of the antibiotics. She
also opined Dr. Ballard should have performed an incision and drainage of
the pin sites and obtained a bone biopsy.
Dr. Abou-Faycal, the infectious disease specialist who provided
inpatient treatment for Mr. Frye’s infection, testified. He stated the insertion
of an external fixator carries a “higher degree of infection than other
procedures,” and the surgeon generally monitors the patient for signs of an
infection. Dr. Abou-Faycal also testified Dr. Milstead consulted him
because he suspected Mr. Frye had a bone infection. He further testified
symptoms, such as severe swelling, pain, and inability to use the hand,
13
should have raised the suspicion of infection in a patient who has had an
external fixator. Additionally, Dr. Abou-Faycal stated a hand which feels
warm to touch, with increased pain with any palpitation over the radiocarpal
joint, supports a differential diagnosis of an infection. Nevertheless, Dr.
Abou-Faycal testified Mr. Frye’s MRI, x-rays, and blood tests were “not
very obvious for infection.” He explained the test results could have
indicated inflammation. Dr. Abou-Faycal stated after a six-week course of
IV antibiotics, Mr. Frye was “cured of the infection,” and he no longer
experienced pain.
Dr. Ballard presented the testimony of Drs. Robert Morris and Major
Blair. Dr. Morris, a radiologist with a subspecialty in musculoskeletal
radiology, testified he had reviewed the radiological tests, reports, as well
and the MRP opinion and the depositions of Drs. Milstead and Abou-Faycal.
Dr. Morris testified the x-rays obtained when Mr. Frye initially injured his
hand showed a severe fracture of the wrist, and the x-rays after the surgery
revealed the external fixator with the pins in place. Dr. Morris also testified
after reviewing the initial x-ray films, the radiologist noted Mr. Frye’s bones
were “osteopenic,” which means there was a deficiency in the minerals of
the bones due, in part, to immobilization of the bone from nonuse. He also
stated the x-ray taken on October 7, 2014, the day the infection was initially
diagnosed, was normal. With regard to the x-rays obtained at Dr. Milstead’s
office on January 6, 2015, Dr. Morris testified the tests revealed the fracture
was healing, and the distal radius and carpal bones were more osteopenic.
Dr. Morris stated he was unable to ascertain whether the changes in the
bones of Mr. Frye’s hand and wrist resulted from disuse or infection. He
testified as follows:
14
[T]his is kind of a standard appearance for somebody who’s
had a pretty bad fracture after a long period of immobilization
to have a lot of osteopenia like this. And so, no, there’s nothing
to indicate infection or any – anything like that.
Dr. Morris also testified the “three-phase” bone scan showed
increased blood flow to the hand, which indicated the fracture was healing.
He stated the changes shown on the bone scan could have been attributed to
trauma, infection, osteoarthritis, inflammatory arthritis, or tumors.
Dr. Blair, a board-certified orthopedic surgeon, testified he reviewed
Mr. Frye’s hospital records, Dr. Ballard’s office records, Dr. Milstead’s
records, Dr. Abou-Faycal’s records, the records from Promise Hospital, the
MRP opinion, and the depositions of Drs. Ballard and Morris. Dr. Blair
testified Dr. Ballard performed the appropriate procedure, in the appropriate
manner, to treat Mr. Frye’s injury. He also stated Dr. Ballard prescribed the
proper antibiotics when he detected Mr. Frye was exhibiting signs of an
infection. With regard to Mr. Frye’s condition and treatment through
December 2014, Dr. Blair stated:
The last time he saw Dr. Ballard was late in November, [on] about
November 24th. Mr. Frye was doing well for a while and then after
he had been referred to physical therapy, he was continuing to
improve and then he started getting worse and he continued seeing –
seeing the therapist.
He last – he saw Dr. Ballard – I believe was the 10th of
November and he got a return appointment for a couple of
weeks scheduled. Dr. Ballard saw him at physical therapy[.]
And from then, Dr. Ballard told him to come back and see him.
He started getting worse, and I believe the therapist reported
that he was worse on the *** 18th of December. And at that
point, the therapist said, you need to get back to see Dr. Ballard,
and Mr. Frye never did return to see Dr. Ballard.
Further, Dr. Blair testified Dr. Ballard’s records indicated Mr. Frye
“appeared to be getting better,” and after completing the antibiotics, “his
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wounds finally stopped draining.” Dr. Blair disagreed with the opinion of
the MRP, stating he “came to a complete[ly] different conclusion.” Dr. Blair
opined the x-rays obtained by Dr. Milstead did not clearly indicate Mr. Frye
had osteomyelitis. He stated the changes on the x-rays could “happen from
a lot of different things,” such as reflex sympathetic dystrophy, complex
regional pain syndrome, or neuropathic arthropathy. Dr. Blair further
testified as follows:
When Dr. Milstead did subsequent indium scans, white blood
cell scans, the white blood cell scan really was pretty bland and
very – barely mildly positive, which was not something that
you would see in an osteomyelitis or some suspected septic
arthritis. That area of the bone would be standing out like a
beacon in the dark.
The other things that really mitigated against a gross ongoing
infection were the laboratory results at Promise Hospital. Mr.
Frye, on admission, had some laboratory values drawn. He had
a normal white count, which you would not expect to find in
osteomyelitis or definitely not expect to find that in a septic
arthritis. He had a normal C-reactive protein, which is basically
a meter of inflammation, and his C-reactive protein, if anything,
was low. The sed[imentation] rate was also very low and
unnecessarily low for someone who would have supposedly
some enormous infection.
***
Sedimentation rate is a method of testing inflammation. ***
And the sed rate in somebody with a great deal of inflammation
is much, much higher. Someone with an infection is much,
much higher than somebody who does not have a lot of
infection, inflammation, or systemic arthritis going on.
***
The MRI [is] used in evaluating injuries to determine the
amount of inflammation and – and fluid, basically the amount
of water or edema in the bones and joints.
If you’ve got septic joint, it’s quite dramatic how much fluid
you have because there’s a lot of pus laying around. In
osteomyelitis, that process is distinctly different and you have a
ton more edema in the bones involved. His MRI didn’t really
show a whole lot of edema in the carpal bones or in the distal
radius or certainly in the area of the pin tracts.
***
I think you can make a very mild case that there might have
been a little bit, but there were a lot of other things that should
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have been considered. And when you compare the bone scan,
the indium scan, the x-rays and the MRI, you really don’t have
the picture of an osteomyelitis. You really have a very good
picture. Given the bone scan, the x-rays and the lack of
inflammation on the laboratory studies, you have a good picture
of chronic regional pain syndrome.
***
I just read the opinion of the [MRP], and they really had two
things they were concerned about, one that Dr. Ballard didn’t
do x-rays when he took off the external fixator and later that he
did not find infection or treat infection. ***
So, yes, they were critical that he did not treat or manage an
infection in the wrist more aggressively, where I didn’t really
see that the wrist changes evidenced a septic arthritis or an
osteomyelitis of the carpal bones.
***
In the present case, the trial court was presented with competing
expert opinions. Plaintiffs’ witnesses testified Dr. Ballard breached the
appropriate standard of care by failing to detect and adequately treat Mr.
Frye’s infection, which caused the infection to spread to the bones of his
wrist. Conversely, defense experts testified Mr. Frye’s medical records
indicated he responded to the antibiotics prescribed by Dr. Ballard, and his
condition improved.
We have reviewed this record in its entirety. Most of the medical
experts, including the MRP, concluded Dr. Ballard breached the applicable
standard of care. The trial court was presented with conflicting testimony
regarding the appropriateness of Dr. Ballard’s treatment of Mr. Frye and
whether ordering additional x-rays would have conclusively ruled out the
presence of an infection. The trial court considered the medical evidence
and weighed the credibility of the witnesses. Based on this record, the trial
court could have reasonably found Dr. Ballard was not negligent in the
medical care provided to Mr. Frye following the surgical procedure.
Consequently, we cannot say the trial court was clearly wrong in its
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evaluation of the expert testimony or in concluding Dr. Ballard complied
with the applicable standard of care in providing medical treatment to Mr.
Frye.
In the alternative, plaintiffs contend the trial court failed to address
Dr. Ballard’s failure to treat Mr. Frye’s regional pain syndrome/reflex
sympathetic dystrophy (“RSD”). According to plaintiffs, Dr. Ballard
breached the applicable standard of care by failing to diagnose and treat Mr.
Frye for RSD.
The longstanding jurisprudential rule of law in Louisiana is litigants
must raise issues in the trial court, not the appellate courts. Appellate courts
generally will not consider issues raised for the first time on appeal. Mosing
v. Domas, 02-0012 (La. 10/15/02), 830 So. 2d 967; Segura v. Frank, 93-
1271 (La. 1/14/94), 630 So. 2d 714.
In the petition for damages, plaintiffs alleged Dr. Ballard “negligently
and carelessly failed to timely diagnose and treat a soft tissue infection that
was allowed to progress to full blown osteomyelitis[.]” Further, the issue
before the MRP and the trial court was whether Dr. Ballard breached the
applicable standard of care by failing to timely diagnose and treat the
infection. The issue of whether Dr. Ballard breached the standard of care by
failing to diagnose Mr. Frye with RSD was never presented to the MRP, not
raised in the lower court, and will not be considered on appeal.
CONCLUSION
For the reasons set forth herein, the ruling of the trial court is
affirmed. Costs of the appeal are assessed to plaintiffs, Thomas and Sharon
Frye.
AFFIRMED.
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THOMPSON, J., dissenting.
It is concerning the medical review panel found that the treatment
afforded Mr. Frye was a factor in the resulting damages and that it slowed
and complicated his recovery. The panel added there was ample evidence to
raise to a high level of suspicion that an infectious process was progressing.
It appears the post-operative care resulted in osteonecrosis in basically all
the bones in Mr. Frye’s hand, and that the infection progressed into
osteomyelitis. Accordingly, I respectfully dissent from the majority’s
opinion.
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