The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
24-5 consolidated with 24-6
BRYANT GEORGE, M.D. & DURA MATER, INC.
VERSUS
CHRISTUS HEALTH SOUTHWESTERN LOUISIANA
D/B/A CHRISTUS ST. PATRICK HOSPITAL
RK KEK
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2010-6004 c/w NO. 2011-2211
HONORABLE KENDRICK J. GUIDRY, DISTRICT JUDGE
ReEKKEEEEKE
VAN H. KYZAR
JUDGE
KAEKKKEKKEEE
Court composed of Van H. Kyzar, Candyce G. Perret, and Wilbur L. Stiles, Judges.
REVERSED AND RENDERED.
Timothy O’Dowd
Samuel R. Ducote
O’Dowd Law Firm, LLC
924 Hodges Street
Lake Charles, LA 70601
(337) 310-2304
COUNSEL FOR PLAINTIFFS/APPELLANTS/APPELLEES:
Bryant George, M.D.
Dura Mater, Inc.
Marshall J. Simien, Jr.
Simien Law Firm
2131-A Fitzenreiter Road
Lake Charles, LA 70601
(337) 497-0022
COUNSEL FOR DEFENDANT/APPELLANT/APPELLEE:
Christus Health Southwestern Louisiana
d/b/a Christus St. Patrick Hospital
Richard T. Simmons, Jr.
Hailey McNamara
3445 N. Causeway Boulevard, Suite 800
Metairie, LA 70002
(504) 836-6500
COUNSEL FOR DEFENDANTS/APPELLEES:
Kathleen L. DeBruh! & Associates, L.L.C.
Kathleen L. DeBruhl
Gilbert F. Ganucheau, Jr.
KYZAR, Judge.
In these consolidated appeals, both parties appeal from the jury verdict finding
both the plaintiffs, Dr. Bryant George and Dura Mater, Inc.’ (referred to collectively
as “Dr. George”), and the defendant, Christus Health Southwestern Louisiana d/b/a
Christus St. Patrick Hospital (Christus), at fault in this breach of contract suit. The
parties further appeal from the trial court judgment denying Christus’s motion for
judgment notwithstanding the verdict (JNOV) and its partial grant of Dr. George’s
JNOV motion, by which it amended the jury verdict to find that Christus’s breach of
contract was a proximate cause of Dr. George’s damages and increased its
percentage of fault from 8% to 35%. For the reasons set forth, we reverse the
judgment of the trial court granting the JNOV in favor of Dr. George and denying
Christus’s motion for JNOV. We further render judgment in favor of Christus,
granting its motion for JNOV and dismissing Dr. George’s claims against it, with
prejudice.
FACTS AND PROCEDURAL HISTORY
In January 2009, Dr. George and Christus entered into a standard agreement
used by Christus when recruiting physicians for its facility in Lake Charles.”
According to Section 2.2 of the agreement, Dr. George was required to engage in
the full-time practice of neurosurgery in the community serviced by Christus as well
as to obtain medical staff membership, admission credentials, and privileges at
Christus. He was further required to “continuously maintain” his credentials and
privileges throughout the one-year term, with the failure to do so resulting in a breach
Dura Mater, Inc. is Dr. George’s professional corporation.
7A synopsis of the relevant facts is taken from the voluminous record of the testimony and
evidence introduced in this case. The facts pertaining to the contract between the parties was taken
from the testimony of Anne Billeaudeaux, Christus’s Director of Business Development and
Recruiting.
of the agreement. Should Dr. George breach the agreement, Christus, in addition to
stopping his guaranteed payments, could recover those amounts as well as the
amounts paid to him as a sign-on bonus and moving expenses. Dr. George was
further required to comply with all of the Medical Staff Bylaws and Rules and
Regulations. As Christus was a faith-based hospital, Dr. George was required to
conduct his practice pursuant to the health care standards set forth by the Roman
Catholic Church as well as other standards, including those established by the Joint
Commission by which Christus was accredited.”
Dr. George’s payment package totaled $1,289,656.00, of which $104,971.33
was the monthly amount guaranteed by Christus, less any amount collected by him
each month. The guaranteed annual amount consisted of $956,000.00 in income and
$303,656.00 in first year start-up expenses. Dr. George also received a $20,000.00
sign-up bonus and up to $10,000.00 in relocation expenses. Pursuant to the
agreement, the guaranteed amounts would be forgiven provided Dr. George
continued to satisfy all of the physician responsibilities listed in Article 2 of the
agreement and had not defaulted on the loan. However, the guaranteed amounts
would have to be repaid if Dr. George left both Christus and the community it served.
The agreement further provided Christus the right of immediate termination should
Dr. George’s actions endanger patient health or safety or if his membership or
privileges were terminated or suspended.
This protracted litigation, which began in 2010, results from two consolidated
lawsuits filed by Dr. George, wherein he sought damages based on breach of contract,
detrimental reliance, and legal malpractice. Along with Christus, Dr. George also
“The Joint Commission is the nation’s oldest and largest standards-setting and accrediting
body in health care.” Facts About the Joint Commission, https://www.jointcommission.org/who-
we-are/facts-about-the-joint-commission/history-of-the-joint-commission/ (last visited July 3,
2024).
named as defendants his former counsel, Kathleen L. DeBruhl & Associates, L.L.C.,
Kathleen L. DeBruhl, and Gilbert F. Ganucheau, Jr. (referred to collectively as “the
DeBruhl defendants”).
This litigation stems from actions taken by Christus beginning on September
9, 2009, whereby it summarily suspended Dr. George’s privileges after allegations
of impairment were made against him by operating room (OR) staff after he
appeared to fall asleep and experienced difficulty suturing during two procedures
and then could not be located prior to a third procedure. An ad hoc subcommittee
(AHS), composed of Dr. Richard Gilmore, the Medical Staff President, and four
other physicians, was appointed to investigate the incident,. During the September
14, 2009 hearing, Dr. George denied that he was impaired due to drugs, rather
claiming that he was fatigued on September 9, from a combination of traveling,
manual labor, and paperwork. He blamed his depth perception problems on his new
bifocals and the OR’s inability to contact him due to poor cell phone reception. He
further did not recall being asked by Bernard Leger, Christus’s Administrator, and
Dr. David Engleking, Vice-President of Medical Affairs, to submit to a drug test on
September 9. During the September 16 AHS meeting, Dr. George admitted that he
was impaired during his September 9 procedures due to sleep deprivation. He agreed
to request a medical! leave of absence (LOA) and to undergo an evaluation through
the Physician’s Health Foundation of Louisiana (PHFL).”
At the same time as the AHS investigation, a wrong-level surgery performed
by Dr. George on July 21, 2009, was being reviewed by Christus’s Peer Review
* et is the primary role of the Physicians’ Health Foundation of Louisiana (PHFL)
Physicians Health Program (PHP) to offer assistance to physicians who may be suffering from
difficulties such as substance use issues, depression, anxiety, etc., in addition to a host of physical
ailments and maladaptive behavioral patterns.” https://www.lsbme.la.gov/licensure/php (last
visited July 3, 2024),
Committee (PRC). Present at the meeting were eight physicians, including Dr. Erich
Wolf, a neurosurgeon, who opined that a wrong-level surgery should not happen. He
explained that Dr. George was scheduled to perform a fusion at the C6-7 disc level.
However, after the procedure was completed, an x-ray revealed that the C5-6 level
had been fused instead of the C6-7 level, after which Dr. George fused the correct
level, with the result that the patient had a two-level fusion. It was Dr. Wolf's
opinion, based on the MRI, that he would not have fused either level. Thereafter, the
PRC concluded that “[t]here is no documentation of the level in the [History &
Physical]; the H&P was not completed by a privileged NP; the wrong level was
operated on; the surgeon was not careful in choosing the site intraoperatively and
ignored warnings of staff in the O.R.; and the consent was poorly filled out.” As a
result of this finding, the PRC ordered Dr. John Raggio, a board-certified
neurosurgeon, to perform a retrospective review (FPPE) > of Dr. George’s
procedures.”
Dr. George’s FPPE was considered by the PRC on October 20, 2009, while
he was on LOA for evaluation by the PHFL. It was noted during the meeting that “a
pattern of poor pre- and post-op documentation[}” had developed after he completed
his seven concurrently proctored procedures, as his medical records contained no
indications for surgery and incompiete consent forms. It was the recommendation of
the PRC, based on the findings of the FPPE, that Dr. George’s privileges not be
reinstated upon his request.
Focused Professional Practice Evaluation.
° Dr. Raggio, who had retired from Christus at the end of 2007, was hired by Christus to
perform prospective, concurrent, and retrospective monitoring of Dr. George in order to determine
his current competency to perform neurosurgery as Christus was unable to verify this due to the
closure of his former hospitals following Hurricane Katrina,
4
Following Dr. George’s February 25, 2010 request for reinstatement, a
special-called meeting of the hospital’s Credentials Committee (CC) was held on
March 9, 2010, attended by various physicians as well as Dr. Carole Altier, Chief of
Surgery, Dr. Noble, Mr. Leger, Dr. Engleking, and Linda Van Winkle, the Medical
Staff Services Manager. After reviewing excerpts from the PRC’s September 15 and
October 20 meetings, as well as additional information related to the wrong-level
surgery, the results of Dr. George’s FPPE, and the PRC’s recommendation not to
reinstate, Dr. Altier was not in favor of reinstating Dr. George’s privileges. The CC
then recommended “that Dr. George’s request for reinstatement not be approved,
based upon the information presented at today’s meeting, the recommendations of
the Peer Review Committee and the Chief of Surgery, and in the interest of patient
safety.”
At a special-called March 16, 2010 meeting of the Medical Executive
Committee (MEC), it was recommended, after reviewing the recommendations of
the PRC, Dr. Altier, and the CC, that Dr. George be notified of and offered the
opportunity to respond to peer review issues raised by his FPPE. A March 17, 2010
letter from the MEC to Dr. George informed him of its concerns:
The Executive Committee is also considering the recommendations of
the Peer Review Committee, Chief of Surgery Section, and the
Credentials Committee regarding your reinstatement. Additionally the
Executive Committee reviewed the information from the Peer Review
Committee regarding the Focused Professional Practice Evaluation
(“FPPE”) which was completed in October 2009.
During your leave of absence, some serious concerns about your
standard of care were raised as a result of the cases reviewed as part of
your FPPE plan. The FPPE is a focused review of physician activity at
the hospital; all members of the staff are subject to this process. The
results of the FPPE are attached for your review. Some of the specific
concerns are:
= Questionable indications for surgery, due to poor
documentation and lack of supportive data (e.g.,
radiographic findings, neurologic exam findings) in
the chart to justify procedure
® Deficiencies in operative consent forms
* Inadequate H&Ps prior to surgery
* Overall poor documentation in the medical record,
not improving over time
= Questionable surgical technique and skill
= Wrong level surgery
= Unacceptable behavior during scheduled cases the
moming of September 9, 2009
Due to the circumstances and timing surrounding your LOA the MEC
has not had an opportunity to discuss the results of the FPPE with you.
Therefore we would like to invite you to attend the next MEC meeting
on April 6, [2010] at 12:30 p.m. in the Administrative Conference
room. Please be prepared to discuss in detail the cases listed on the
attachment, Please contact Carrie Vincent in Medical Records for
access to the charts.
Your attendance at this meeting and your input regarding these results
is critical in order for the Executive Committee to evaluate your request
for return from LOA. If you have any questions please contact Dr. Dave
Engleking.
According to the minutes of the April 6 meeting, Dr. George commented on
each case listed in the FPPE and said “that he ‘could provide all the indications for
the procedures’ [,]” and although he had folders with him, he did not submit them to
the MEC. In response to a question, Dr. George stated that the OR was unable to
contact him on September 9, because his phone failed to ring. Regarding the wrong-
level surgery, he claimed that although the patient was informed about the two-level
fusion prior to surgery, her consent form was not amended.
Following Dr. George’s departure, the MEC agreed “that Dr. George has an
issue with insufficient documentation in his medical records.” It further noted
several concerns related to the wrong-level surgery: (1) Dr. George ignored
suggestions made by OR staff during the procedure; (2) the peer reviewer stated that
he would not have done the procedure based on the patient’s radiological findings;
(3) it is inappropriate to determine intraoperatively that a patient requires a two-level
fusion when the need for such was not discussed with or consented to by the patient;
and (4) nothing in the chart indicated that Dr. George discussed a two-level fusion
with the patient prior to surgery. It was further noted by two members that although
Dr. George claimed that his patients had all experienced excellent outcomes post-
surgery, they were aware that two of his patients were not doing well. At the close
of the hearing, the MEC recommended that Dr. George’s request for reinstatement
be denied for the reasons outlined in its March 17 letter. It further noted that based
eee
on its adverse recommendation, Dr. George was entitled “‘to procedural rights
established by the Medical Staff Bylaws and Fair Play Plan.’” He was notified that
same day that his request was denied.
Despite his entitlement to a review of this decision, Dr. George, upon the
advice of the DeBruhl defendants, waived his right to the hearing based on alleged
“assurances” from Christus as to the information it would report to the National
Practitioner Data Bank (NPDB).’ On May 20, 2009, Christus reported to the NPDB
that it had revoked Dr. George’s privileges based on substandard or inadequate care.
Its justification for this action was “[rJevocation of privileges due to unsafe practice
and substandard care.” As a result of Christus’s use of the term “unsafe practice,”
Dr. George claimed that he was unable to obtain privileges at other hospitals.
Dr. George filed his original breach of contract suit against Christus on
December 3, 2010.° He filed his second suit against Christus and the DeBruhl
” The NPDB is a web-based repository of reports containing information on medical
malpractice payments and certain adverse actions related to health care practitioners, providers,
and suppliers . . . which prevents practitioners from moving state to state without disclosure or
discovery of previous damaging performance. https://www.npdb.hrsa.gov/topNavigation/aboutUs
Jsp (last visited July 7, 2024).
§ Docket number 2010-6004.
defendants on May 13, 2011, seeking damages based on breach of contract,
detrimental reliance, and legal malpractice.” The suits were consolidated on January
12, 2012.
Pursuant to his third-amended and supplemental petition, Dr. George alleged
numerous breaches of contract on the part of Christus: (1) it staffed his medical
office with employees “who lacked the proper qualifications, experience, work ethic
and acumen for the task contemplated[;]” (2) it failed to provide him “access to
suitable operating facilities, proper equipment and competent staff];]” (3) it only
allowed him to use one medical device vendor; (4) it failed to conduct a good faith
investigation into the events of September 9; (5) the PRC voted to deny his request
for reinstatement while he was on LOA and without obtaining his input; and (6) it
wrongfully refused his request for reinstatement.
As to Christus’s wrongful refusal to reinstate his privileges, Dr. George
specifically alleged that the recommendations of the PRC, CC, and MEC were based
upon information that was flawed as it was not compiled by privileged
neurosurgeons. He further alleged that these committees failed to notify him as
contractually required before considering peer review issues related to his practice.
He further claimed that the MEC had already decided to deny his request before the
April 6 meeting and that it failed to notify him that he would be required to rebut the
FPPE during that meeting. Additionally, Dr. George alleged that Christus acted with
malice towards him as it did not act in the reasonable belief that its actions were
taken in furtherance of quality health care. He based this on the fact that Dr. Raggio,
who did not possess neurosurgery privileges at Christus, was unqualified to perform
° Docket number 2011-2211,
his FPPE since his monitoring plan stated that his retrospective case review would
be performed by a neurosurgeon with privileges at Christus.
Dr. George also alleged that Christus was liable to him under the theory of
detrimental reliance because it agreed to use “substandard or inadequate care” when
reporting to the NPDB in exchange for his waiver of his right to an evidentiary
hearing but instead used “unsafe practices” in reporting to the NPDB. °
In answer, Christus pled numerous affirmative defenses, including breach of
contract and/or fault; immunity from liability pursuant to the Health Care Quality
Improvement Act of 1986, 42 U.S.C. § 11011, et seq.; and immunity and protection
from discovery for peer review actions pursuant to La.R.S. 13:3715.3. As plaintiff
in reconvention, Christus sought damages for breach of contract and unjust
enrichment.
Following a lengthy and contentious procedural history, especially with
regard to discovery issues, this matter finally proceeded to a jury trial on August 15,
2022. At the close of the ten-day trial, the jury rendered the following verdict:
l. Did St. Patrick Hospital act without malice and in the reasonable belief that
denial of reinstatement of privileges was warranted by the facts known to
it?
Yes No ¥
If your answer to Question No. 1 is “YES”, then please proceed to Question No. 6.
If your answer to Question No. 1 is “NO”, then please proceed to Question No. 2.
2. Did the Plaintiffs prove by a preponderance of the evidence that St.
Patrick Hospital:
a. did not act in the reasonable belief that the
denial of Dr. Bryant George’s request for Yes No_¥
reinstatement of privileges was done in the
furtherance of quality health care?
b. did not make a reasonable effort to obtain the
facts related to its decision to deny Dr. Bryant
' Tn addition to seeking damages based on unfair trade practices, Dr. George also sought
declaratory judgments on whether he was liable to Christus for amounts paid to him under the
agreement and whether the agreement should be rendered void as being a restraint against business.
However, as these issues were not considered by the jury, they are not pertinent to these appeals.
9
George’s request for reinstatement of | Yes_“ No
privileges?
¢. denied Dr. Bryant George’s request for
reinstatement of privileges without providing Yes_“ No __
him adequate notice and hearing procedures as
were fair to him under the circumstances?
d. did not act in the reasonable belief that the
SN
denial of Dr. Bryant George’s request for Yes. No_¥
reinstatement of privileges was warranted by
the facts?
If your answer is “NO” to all of the Question Nos. 2a, 2b, 2c and 2d, then please
proceed to Question No. 6. If your answer is “YES” to any of the Question Nos. 2a,
2b, 2c or 2d, then please proceed to Question No. 3.
3.
Did the Plaintiffs prove by a preponderance of the evidence that St. Patrick
Hospital failed to comply with the contractual agreement between Plaintiffs
and St. Patrick Hospital?
Yes_v No__
If your answer to Question No. 3 is “NO”, then please proceed to Question No. 6.
If your answer to Question No. 3 is “YES”, then please proceed to Question No. 4.
4.
Did the Plaintiffs prove by a preponderance of the evidence that St. Patrick
Hospital’s failure to substantially comply with the contractual agreement
was the proximate cause of any damages to Plaintiffs?
Yes. No_“
Please proceed to Question No. 5.
5. Did the Plaintiffs prove by a preponderance of the evidence that St. Patrick
Hospital
a. made a representation by conduct or word
what would be reported to the National Yes No v
Practitioner Database (NPDB)?
b. that plaintiff relied upon the representation
mentioned in “a”? Yes _ vv No
c. that plaintiff changed his position to his
detriment because of the reliance Yes Yo No__
mentioned in “b’”?
6. Did the Plaintiffs prove by a preponderance of the evidence that Kathleen
L. Debruhl [sic] & Associates, L.L.C., Kathleen L. Debruhl [sic] and/or
Gilbert T. Ganucheau committed acts or omissions that fell below the
standard of care for an attorney?
Yess No_¥
If your answer to Question No. 6 is “YES”, then proceed to Question No. 7. If your
answer is “NO” do not assign any percentage of fault to Kathleen L. Debruhl [sic]
& Associates, LLC, Kathleen L. Debruhl [sic] and/or Gilbert T. Ganucheau.
10
7. Did the Plaintiffs prove by a preponderance of the evidence that the acts or
omissions of Kathleen L. Debruhl [sic] & Associates, LLC [sic], Kathleen
L. Debruhl [sic] and/or Gilbert T. Ganucheau were the proximate cause of
any damages to Plaintiffs?
Yes___—s- No
If your answer is “YES” proceed to Question No. 8. If your answer is “NO” do not
assign any percentage of fault to Kathleen L. Debruhl [sic] & Associates, LLC [sic],
Kathleen L. Debruhl [sic] and/or Gilbert T. Ganucheau.
8. What, if any, percentage of fault for their damages did Plaintiffs prove by a
preponderance of the evidence should be allocated to the parties listed
below?
Please note that you should only assign a percentage of fault to Plaintiff
if you find that he contributed to his own injuries or is otherwise at
fault.
Bryant George, MD 92%
St. Patrick Hospital 8%
(If you have answered “NO” to Question 1, 2 a-d, 3, 4, and 5 a-c, do not
assign a percentage of fault to St. Patrick Hospital.
Kathleen L. Dubruhl [sic] & Associates, LLC [sic], 0%
Kathleen L. Dubruhl [sic] and/or Gilbert T. Ganucheau
(If you have answered “NO” to Questions 6 or 7, do not assign a percentage
of fault to Kathleen L. Dubruhl [sic] & Associates, LLC [sic], Kathleen L.
Dubruhl [sic] and/or Gilbert T. Ganucheau).
(The percentages must add up to 100%.)
Please proceed to Question 9.
9. What amount of money, if any for the following categories of damages did
Plaintiffs prove by a preponderance of the evidence was proximately caused
by the Defendant(s)?
Loss of Past Income: $1,000,000.00
Loss of Future Earning Capacity: $ 0.00
General Damages: $ 0.00
10. Did Kathleen Debruhl [sic} and [sic] Associates [sic] prove by a
preponderance of the evidence that the Debruhl [sic] defendants actually
performed legal services for Dr. George?
Yes _v¥ No__
HH. If you answered “YES” to Question 10, what amount of money, if any,
compensates Kathleen Debruhl [sic] and [sic] Associates [sic] for such
services[?]
$23,942.50
A final judgment in accordance with the jury verdict was rendered by the trial
court on September 30, 2022, finding Christus liable to Dr. George for damages in
the amount of $80,000.00, and dismissing Dr. George’s claims against the DeBruhl
1]
defendants with prejudice. Thereafter, Dr. George moved for a JNOV, or
alternatively, a new trial, seeking to have the jury’s verdict amended to find that
Christus’s breach of contract was a proximate cause of his damages and that the
damages awarded to him should be increased from $80,000.00 to $1,000,000.00.
Alternatively, he argued that the trial court should grant a new trial on the damage
and detrimental reliance issues. Christus also moved for a JNOV, arguing that based
on the jury’s finding that its actions were not a proximate cause of Dr. George’s
damages, the jury’s verdict should be amended to find it liable for none of Dr.
George’s damages. It further moved for a new trial on the issue of court costs.
Following a hearing, the trial court granted in part and denied in part Dr.
George’s motion for JNOV. It amended the jury verdict to find that Dr. George
proved by a preponderance of the evidence that Christus’s breach of the agreement
was a proximate cause of his damages. It further amended the jury verdict to reduce
Dr. George’s percentage of fault from 92% to 65% and to raise Christus’s percentage
of fault from 8% to 35%. Based on this finding, the trial court denied Christus’s
motion for JNOV. The trial court further denied Christus’s motion for new trial on
the issue of costs, holding that each party would be responsible for their own costs.
A final judgment was rendered by the trial court on March 17, 2023. It is from this
judgment that both parties appeal.
On appeal, Christus raises the following four assignments of error:
l. The Jury erred in failing to find that CHRISTUS acted without
malice and in the reasonable belief that the denial of
reinstatement of privileges was warranted by the facts known to
it, thereby requiring the case be dismissed.
2. The Trial Court erred when it entered Judgment on a jury special
verdict awarding Dr. George damages where there was no legal
basis to do so when the Jury determined: a) CHRISTUS was not
the proximate cause of resulting damages, an essential element
of proof required for a breach of contract claim; and b) there was
no representation made by CHRISTUS in which Dr. George
12
relied to his detriment, an essential element of proof required for
a detrimental reliance claim.
3. The Trial Court erred when it denied CHRISTUS’s Motion for
JNOV, which sought dismissal of Dr. George’s claims, when
CHRISTUS submitted evidence of facts and inferences that
pointed so strongly and overwhelmingly in its favor that
reasonable persons could not have arrived at a contrary verdict
of dismissal.
4. The Trial Court erred when it granted Dr. George’s Motion for
JNOV, changed the jury’s verdict in order to create a legal basis
for it to award Dr. George $1 million in damages, and allocated
35% fault to CHRISTUS, despite CHRISTUS having submitted
evidence of such quality and weight that reasonable and fair-
minded persons in the exercise of impartial judgment would have
concluded that Dr. George’s own lack of professional
competency, his behavior/conduct, his failure to be truthful with
his medical licensing board, and his having caused his own
damages when he consented to a 3-year prohibition from being
able to perform neurosurgery, separate and apart from
CHRISTUS having denied his request for reinstatement.
Dr. George also asserts the following assignments of error on appeal:
1. The Trial Court erred by instructing the jury to determine Dr.
George’s percentage of fault and submitting an interrogatory
thereon because La. Civ. Code art. 2323 does not apply to
contract claims.
2. The Trial Court erred by instructing the jury to determine Dr.
George’s percentage of fault and submitting an interrogatory
thereon, because under Louisiana contract law, a breaching
obligor cannot get a fault reduction under La. Civ. Code art. 2003
unless it proves and the trier of fact finds the obligee breached
the contract and that breach directly and proximately caused the
obligor’s breach.
3. The Trial Court erred by failing to award the total damages
determined by the jury without reduction pursuant to La. Civ.
Code. art. 2323 or La. Civ. Code. art. 2003.
OPINION
We first address Christus’s second, third, and fourth assignments of error
dealing with the jury’s finding of a lack of causation between the actions of Christus
and any damages suffered by Dr. George, as well as the granting of the JNOV in
13
favor of Dr. George, overturning the jury’s finding on that issue and assigning 35%
of the fault to Christus.
Louisiana Code of Civil Procedure Article 1811(F) provides trial courts with
the authority to grant a motion for JNOV “on the issue of liability or on the issue of
damages or on both issues.” In Davis v. Wal-Mart Stores, Inc., 00-445 pp. 4-5 (La.
11/28/00), 774 So.2d 84, 89, the Louisiana Supreme Court set forth the standard to
be used in determining whether a JNOV has been properly granted:
A JNOV is warranted when the facts and inferences point
so strongly and overwhelmingly in favor of one party that
the court believes that reasonable jurors 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 men could not reach
different conclusions, not merely when there is a
preponderance of evidence for the mover. If there is
evidence opposed to the motion which is of such quality
and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different
conclusions, the motion should be denied. In making this
determination, the 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. Smith v. Davill Petroleum Company, Inc. d/b/a/
Piggly Wiggly, 97-1596 (La.App. 1 Cir. 12/9/98), 744
So.2d 23. See also Powell v. RTA, 96-0715 (La.6/18/97),
695 So.2d 1326; Anderson v. New Orleans Public Service,
583 So.2d 829 (La.1991); State of Louisiana, DOTD v.
Scramuzza, 95-786 (La.App. 5 Cir. 4/3/96), 673 So.2d
1249; Seagers v. Pailet, 95-52 (La.App. 5 Cir. 5/10/95),
656 So.2d 700; Engolia v. Allain, 625 So.2d 723, 728
(La.App. 1 Cir.1993); Adams v. Security Ins. Co. Of
Hartford, 543 So.2d 480, 486 (La.1989).
The standard of review for a JNOV on appeal is a two part
inquiry. In reviewing a JNOV, the appellate court must first determine
if the trial court erred in granting the JNOV. This is done by using the
aforementioned criteria just as the trial judge does in deciding whether
or not to grant the motion. After determining that the trial court
correctly applied its standard of review as to the jury verdict, the
appellate court reviews the JNOV using the manifest error standard of
review. Anderson v. New Orleans Public Service, Inc., at p. 832.
14
The first question presented to this court is whether the evidence before the
Jury as to the issue of causation for Dr. George’s alleged damages was so strongly
and overwhelmingly in his favor that reasonable jurors could not arrive at a contrary
verdict. Put another way, the trial court should only have granted the JNOV if the
evidence of causation for any damages suffered was so strongly in favor of Dr.
George that reasonable men could not reach a different conclusion, not simply that
he proved his case as to causation by a preponderance of the evidence.
“[A] contract is a conventional obligation, hence, it therefore follows that ‘an
obligor is liable for the damages caused by his failure to perform a conventional
obligation. A failure to perform results from nonperformance, defective performance,
or delay in performance.’” Citi Mortg., Inc. v. Chase, 11-661, p. 5 (La.App. 4 Cir.
12/14/11), 81 So.3d 255, 258 (quoting La.Civ.Code art. 1994), writ denied, 12-137
(La. 3/23/12), 85 So.3d 93.
In any damage claim, even one based on breach of contract, the plaintiff bears
the burden of proving liability, causation, and damage. Failure to prove any of these
elements is fatal to their claim for damages:
The essential elements of a breach of contract are threefold.
Sanga v. Perdomo, 14-609 (La.App. 5 Cir. 12/30/14); 167 So.3d 818,
822, writ denied, 15-222 (La. 6/19/15); 172 So.3d 650, citing Favrot v.
Favrot, 10-986 (La. App. 4 Cir. 2/9/11); 68 So.3d 1099, 1108-09. First,
a plaintiff in a breach of contract claim must prove the obligor
undertook an obligation to perform. /d. Next, the plaintiff must prove
that the obligor failed to perform the obligation, resulting in a breach.
Id. Finally, the failure to perform must result in damages to the obligee.
Id. As the aggrieved party, the plaintiff bears the burden of proving
these elements by a preponderance of the evidence. See, Hayes Fund
jor the First United Methodist Church of Welsh, LLC v. Kerr-McGee
Rocky Mt, LLC, 14-2592 (La. 12/8/15); 193 So.3d 1110, 1115.
Whether a defendant’s actions caused the plaintiff's damages is a
question of fact, which should not be reversed on appeal absent
manifest error. Jd.
Bruneau v. Crescent City Cleaning Servs. Corp., 16-17, p. 5 (La.App. 5 Cir.
12/14/16), 209 So.3d 286, 290.
15
In determining whether Christus was the cause of any damage suffered by Dr.
George, the jury and the trial court had an abundance of evidence to consider.
Particularly relevant to this issue is the testimony of several key witnesses pertaining
to the three areas of concern for Christus that resulted in the denial of Dr. George’s
request for reinstatement. These three areas of concern centered on the following
reports and events:
1. September 9, 2009 surgeries where it was alleged that Dr. George
was unsteady, and potentially impaired, resulting in the
cancellation of the third scheduled procedure after Dr. George
could not be located.
2. On July 21, 2009, Dr. George performed an anterior cervical
discectomy with fusion (ACDF) on a patient at C5-6 and C6-7
when the surgical plan was only for a C6-7 level ACDF.
3. Issues with poor charting and documentation including a lack of
indications for surgery and incomplete informed consent forms.
During his testimony, Dr. George admitted that he breached the standard of
care when he erroneously fused the patient’s C5-6 level in addition to the intended
C6-7 level during the wrong-level surgery and that it was reasonable for Dr. Raggio
to refer this matter to the PRC. Through his testimony, he admitted that he attempted
to cover up his mistake when his post-op report, dictated fifty-five days after the
surgery, mentioned for the first time a pre-op diagnosis relating to the C5-6 level and
that the patient consented to the two-level fusion prior to surgery. In his testimony,
Dr. George admitted that the first time he discussed this level with the patient was
following the surgery. Although he claimed that he “truthfully and honestly” dictated
the post-op report to the best of his knowledge, he admitted that he did not inform
her that he had actually fused the C5-6 level in error.
As to the events of September 9, Dr. George denied that he was impaired as a
result of drugs or alcohol. He claimed that he was impaired due to fatigue because
he had exchanged phone calls with his sister the previous night relative to their
16
mother’s health and from his use of Benadry] that morning to counteract allergies he
suffered while cutting grass the weekend prior to September 9.'' He further admitted
that he nodded off and bumped into a Mayo stand while off the sterile field during
the second procedure, which resulted in a noise that startled some of the OR staff.
However, he denied that he was at risk of falling when this occurred. Dr. George
also admitted that he moved the wire from the proper disc level while withdrawing
the needle from the patient. However, he stated that this was a common occurrence
during this type of procedure and was easily remedied by the Medtronic reps.
While Dr. George denied that he experienced difficulty while suturing, he
admitted that he had trouble threading a needle, which he blamed on his new
eyeglass prescription, received on May 13, 2009. He stated that on the day of the
procedure, he decided to wear his new glasses instead of an eye shield and his “depth
perception was off because they were new eyeglasses and I hadn’t grown
accustomed to how you might adjust your vision to see through those glasses.”
Dr. George testified that he was in the surgeon’s dining room waiting for OR
to notify him when the third procedure was cancelled at 11:15 a.m. He said he was
competent to perform the procedure at that time, and he blamed the cancellation on
the OR’s failure to notify him. He said that he never received a call on his phone or
over the intercom and that no runner was sent to locate him. When he did not hear
anything, he went to his car to smoke a cigarette, after which he fell asleep. He
further blamed his failure to receive any calls on AT&T transmission problems in
the hospital and garage. Dr. George testified that upon returning to the OR, he was
met by Mr. Leger and Dr. Engleking, taken to administration, informed of the
impairment accusations, and asked to submit to a drug test. He said that he “was
' September 9, 2009, fell on a Tuesday.
17
taken aback by the allegations of [my] being impaired and felt like I was being
singled out and mischaracterized and misjudged; so that’s why I declined them the
drug test.” At that point, his privileges were suspended.
As to the AHS investigation of the September 9 incident, Dr. George admitted
that he was impaired due to lack of sleep. While he agrees that Christus has a duty
to investigate any concerns raised by OR staff pertaining to patient safety, he
disagreed with the accusations and felt that the AHS failed to consider his input.
Based on the advice of the DeBruhl! defendants, he decided that it would be easier to
request a LOA and undergo an evaluation for substance abuse through the PHFL
than it would be to fight the accusations.
Although Dr. George adamantly denied that he used cocaine prior to his LOA,
he admitted that he used it once after his October 9, 2009 release by Addiction
Recovery Resources of New Orleans, following a five-day evaluation. He stated:
Well, there was some concern, especially with my mother,
regarding a family member. She asked me to go and check on him, and
I did. 1 explained to him what was going on with me, after discussing
what was going on with him; then I explained to him what was going
on with me with the stress that I was under, all of the allegations of
everything else, and all of this running around between Lake Charles,
Natchitoches, and New Orleans. He suggested that you may want to try
some of this, and so I did.
It was an experimental type of thing. There [sic] was something
that was done in poor judgment and in poor consideration of the overall
events. [ admit to that. That was a very dumb thing, but I was in
somewhat of a despondent state and probably somewhat vulnerable to
suggestion that you may want to try this.
Again, I beat myself up about it. It was an awful mistake to make,
and that’s the end of the story.
Dr. George also denied that he tried to avoid providing hair or nail samples
after he was informed by the PHFL that such a test was required before it would
release him to return to the practice of medicine. He said that he knew then that he
would test positive for cocaine as this was only weeks after the event recounted
18
above. However, Dr. George denied that he cut, shaved, or dyed his hair to evade
testing as his hair looks bad when shaved, and he was using dye to cover his gray
hair long before these tests were required. He further denied cutting his fingernails
and toenails to avoid testing. He claimed that his fingernails are kept short to avoid
having dirt under them when scrubbing for surgery. He further explained that he
refused to provide a toenail sample because his toenails are ingrown, and they would
hurt if cut with clippers.
Dr. George also admitted that while he was receiving treatment from Bradford
Health after testing positive for cocaine, he initially told a healthcare provider that
he tested positive after sleeping in a house where crack cocaine was being smoked.
However, he acknowledged that this was untrue and that he eventually admitted that
he actually smoked crack cocaine on that occasion. It was his opinion that he did not
require treatment for substance abuse since he only used cocaine on one occasion.
While Dr. George admitted that he also used cocaine once while he was in college,
he denied that he told Dr. John Boutté, a psychiatrist who had evaluated him, that he
used it once in 2007, or Mr. Ganucheau that he had used cocaine on September 9.
Dr. George testified that he was not aware on April 6, 2010, that
recommendations to deny his request for reinstatement had already been made by
the PRC on October 20, by the Chief of Surgery, Dr. Altier, and the CC on March 9,
and by the MEC on March 16. He further stated that the March 17 letter was the first
notice he had regarding his documentation deficiencies. Although his contract
required that he undergo a retrospective review of all of his procedures by Dr.
Raggio, he said that he was not aware that his FPPE had already been performed or
that Dr. Raggio lacked privileges at Christus at that time.
As the April 6 meeting was an MEC rather than a PRC meeting, Dr. George
felt that he only had to present documentation sufficient to establish the proper
19
indications for each patient’s surgery. Thus, he handed out a summary of each
patient’s history, physical examination, and x-ray findings and had his office records
with him. He admitted that he discussed none of Dr. Raggio’s findings from the
FPPE as he did not believe it appropriate to do so since there was no neurosurgeon
present at the meeting.
Dr. George recalled no specific questions being asked during the meeting or
Dr. Van Hoose’s request that he specifically address the FPPE findings. However,
he stated that his medical records were available to Dr. Van Hoose if he had any
specific questions. When asked if he admitted that he breached the standard of care
during the wrong-level surgery, Dr. George stated:
J was never asked or given the opportunity to do that at the [MEC
meeting], which was the only meeting that I attended, which had the
wrong-level surgery to be addressed. I presented it as a two-level
surgery, because it was not in a Peer Review format. If it were,
presented in a Peer Review format, then yes. I would’ve been open and
frank about the discussion.
Dr. George stated that after his request for reinstatement was denied, he
decided to waive his right to an evidentiary hearing based on an agreement he
claimed was reached with Christus regarding the language it would report to the
NPDB. However, he stated that Christus’s use of the term “unsafe practices” killed
his chances of obtaining neurosurgery privileges at any other hospital and that he
has not practiced neurosurgery since September 2009. Dr. George admitted that he
tested positive for cocaine again following Christus’s denial of his request and that
he was notified by the Louisiana State Board of Medical Examiners (LSBME) on
August 31, 2010, that he was being investigated as a result of his failure to note his
September 9 suspension by Christus on his medical license renewal application.
Although Dr. George acknowledged the importance of record keeping and
that, ultimately, it was his responsibility to see that Christus received the proper
20
documentation ahead of a patient’s surgery, he blamed others for his deficiencies in
this area. He claimed that his nurse was responsible for submitting the proper
documentation to Christus prior to scheduled surgeries, and he only learned that she
was failing to do so when he received the March 17 letter regarding the April 6
meeting. Dr. George further blamed Christus for failing to notify him that his
medical records were deficient as required by the Medical Staff Rules and
Regulations, and its OR staff for failing to inform him that his patients’ charts lacked
the proper documentation before allowing his procedures to go forward. He did
admit, however, that his privileges had previously been suspended for deficient
medical records prior to Hurricane Katrina.
As to his delays in submitting post-op reports, Dr. George admitted that he
dictated seven post-op reports on September 14, following the first AHS meeting.
While he agreed that a post-op report should be dictated as soon as possible
following a surgery, he claimed that his delay was occasioned by his unfamiliarity
with Christus’s dictation system. This, he stated, was why he provided handwritten
post-op notes immediately after each surgery. However, he agreed “that there was a
trend in terms of deficiencies” in his record keeping.
Mr. Leger, Christus’s Administrator, testified that he was responsible for the
day-to-day operations of Christus, a Joint Commission certified hospital. He
described the two main goals of the Joint Commission as ensuring “overall quality
care that’s patient focused and safe care with the best possible outcomes.” He
explained that the administrative side works collaboratively with the medical staff
in providing patient care and that the medical staff is self-governed through
committees made up of physicians. The medical staff is headed by an elected
president, who liaisons with administration, and any actions taken by the medical
staff's committees are ultimately decided by Christus’s governing board.
21
Mr. Leger testified that the only patient safety concern he was aware of prior
to September 9 was Dr. George’s wrong-level surgery. He was not aware of any
other issue that made him think that Dr. George would be a problematic physician.
He testified that Christus’s Risk Management Director and its Vice-President of
Operations were notified by the Director of Surgical Services on July 21, 2009, that
Dr. George had performed a wrong-level surgery. He stated that Dr. Raggio, who
reviewed the surgery, stated in his August 18, 2009 report that there was very poor
documentation, inadequate H&P, and no post-op report in the patient’s chart. Dr.
Raggio further recommended that Dr. George attend the next PRC meeting and that
a 100% review of his procedures be performed. Mr. Leger stated that he found it
significant that there was no post-op report in the chart as the Medical Staff Rules
and Regulations require a post-op report to be dictated within twenty-four hours of
a surgery. He explained that a post-op report summarizes what the surgeon did
during a surgery and that the best practice is to complete it right after surgery while
the procedure is still fresh in the surgeon’s mind.
Mr. Leger stated that his sole focus on September 9, was patient safety, and
based on the two OR staff member statements, sufficient concern was raised
regarding patient safety to warrant the suspension of Dr. George’s privileges. The
statements reported that Dr. George appeared to be impaired in the OR, that he was
very clumsy, had trouble suturing, appeared to doze off, and appeared about to
stumble backwards during the second procedure. Regarding his perception of Dr.
George after meeting with him on September 9, Mr. Leger denied that he smelled of
alcohol, was incoherent, or that he stumbled. He said that based on the concerns
raised, he, Dr. Engleking, and Dr. Gilmore decided to suspend Dr. George’s
privileges. He stated that although a suspension can last longer, one that lasts in
excess of thirty days is reportable to the NPDB.
22
Mr. Leger testified that following Dr. George’s suspension, the AHS was
appointed by the Medical Staff to investigate and make a recommendation to the
MEC. He stated that Dr. Gilmore informed the AHS that although Dr. George’s
wrong-level surgery and inappropriate behavior were also being referred to it, he
wanted the AHS to focus on the impairment issue and the other two issues to be
referred to the PRC.
Mr. Leger reported that Dr. George disagreed with his suspension during the
first AHS meeting. He said that he was concerned when Dr. George did not recall
that he and Dr. Engleking had asked him to submit to a drug test on September 9.
He stated, “It was important for us. It’s a typical process to where if we have
concerns about potential impairment by a physician and if that physician is willing
to work with us then a Jot of times they will voluntarily submit to a drug test.” It was
his recollection that Dr. George said that there was no need for him to submit to a
test.
Although he was not present at the September 16 AHS meeting, Mr. Leger
acknowledged that Dr. George admitted to being impaired on September 9, due to
sleep deprivation. He stated that Christus expects its physicians to be at their best
when providing care, and a physician who is impaired should not be in the OR, no
matter the cause of their impairment. He said that after being encouraged, Dr. George
agreed to request a medical LOA and to be evaluated by the PHFL. He testified that
while Dr. George was on LOA, he tested positive for cocaine despite evasive
measures to avoid submitting a hair or nail sample by dyeing and cutting his hair
and by cutting his nails short. He said that after Dr. George’s positive cocaine test,
he was required to undergo inpatient treatment for substance abuse.
Mr. Leger stated that Dr. George’s substance abuse was considered by both
the CC and the MEC regarding his request for reinstatement, both of which
23
recommended that his request be denied. He stated that Christus’s major concern is
always patient safety, and absent Dr. George’s suspension on September 9, he would
have continued to practice despite the other concerns raised. He further stated that
Dr. George’s attempts to avoiding testing and denial of any wrongdoing were
familiar patterns that indicated he had a problem but was in denial therefrom. Mr.
Leger testified that this raised concerns regarding his character and truthfulness, both
of which were considered by the CC and the MEC when considering his request. It
was his opinion that these committees acted prudently in denying Dr. George’s
request for reinstatement.
Dr. Raggio testified that he performed the FPPE on Dr. George’s medical
records to determine whether he met Christus’s standards and was currently
competent to perform neurosurgery. Prior to his 2007 retirement, he had privileges
at Christus, Lake Charles Memorial, West Cal-Cam Hospital, Moss Regional, and
Women and Children’s Hospital. He stated that he was board certified in
neurosurgery while he was monitoring Dr. George, and he was not involved in
Christus’s recruitment or hiring of Dr. George or any of the events which led to his
September 9 suspension. He said that he did not participate in the AHS’s
investigation of Dr. George, and all of his opinions contained in the FPPE were fair
and unbiased.
In clarifying the reason for reviewing Dr. George’s medical charts, Dr. Raggio
stated that it was his job to make sure the charts reflected that the certain standards
required of a surgery by Christus had been met. He stated that the charts must reflect
“what does the patient have, why is he there, what are we going to do, and that guides
the surgeon and everybody involved as to what is going to happen to the patient.”
“[M]y job was to determine whether the documentation in the chart demonstrated
that aspect of competency.”
24
While reviewing Dr. George’s charts, Dr. Raggio was concerned that rather
than seeing improvement, he was seeing the same mistakes over and over again in
his record keeping:
There were chart deficiencies, just very — I’m trying to find a nice
word for it. Careless and incomplete documentation, just everything
conceming the patient. You know, the x-ray findings were not there
sometimes. The physical exam was cursory. You know, it was just
poorly documented charts. All the things that you need, the history, the
physical, the radiographic findings, indications for surgery, either they
were all not there in some cases or there were one or more deficiencies
in cases over and over again in the entire list of cases that I reviewed.
Dr. Raggio testified that he was also asked to review the chart from the wrong-
level surgery. He stated that his review revealed very poor documentation,
inadequate pre-op history and physical and diagnostic study documentation, and no
post-op report. He stated that the post-op report for the surgery was dictated by Dr.
George on September 14. He stated that based on the chart, “it looks like the wrong
level got operated on and then subsequently the correct level was operated on and so
the patient had two levels of their cervical spine fused instead of the preplanned one
level.”
Dr. Wolf, a board-certified neurosurgeon, testified that he observed Dr.
George during his first three cranial procedures at Christus in accordance with Dr.
George’s monitoring plan. He noted only a minor charting/documentation issue in
the first procedure on April 25, 2009, a craniotomy for an intracerebral hemorrhage.
He provided input to Dr. George on how to rectify the documentation issue. He
stated that he noticed no quality-of-care concerns in Dr. George’s performance
during the procedure.
Dr. Wolf testified that the next procedure was performed on May 1, 2009, a
craniotomy for the removal of a meningioma tumor. He had quality of care concerns,
and the peer review form states, “Elective case done with Plavix held only five or so
25
days. This is at physician [sic] discretion, but full platelet recovery takes longer.” Dr.
Wolf explained that an elective surgery typically is not performed on a patient with
a low platelet count, and if a patient is on Plavix, as a surgeon cannot rely on the
patient’s CBC” to determine whether their blood will properly clot if they have been
on Plavix. Thus, Dr. Wolf stated that it is best to hold the patient’s Plavix for seven
to ten days to ensure that their platelets have adequately recovered from being on
Plavix. He said that in this instance, the patient appeared to clot adequately and
suffered no complications from the surgery.
Dr. Wolf testified that he noted no quality-of-care issues during the third
surgery on May 27, 2009, a stereotactic brain biopsy. He did not recall providing Dr.
George any further advice regarding paperwork and, other than the Plavix issue, he
recalled no further discussion concerning quality of care issues.
Dr. Wolf testified that he also participated in the September 15 PRC review
of Dr. George’s wrong-level surgery, during which he stated that based on the MRI
results, he would not have performed surgery on the patient. Additionally, Dr. Wolf
stated, patient safety requires a patient, after being informed of the material risks
associated with a surgery, to consent to that surgery identified by their consent form.
He said that for spine surgeries, the consent form should indicate the exact level of
the spine at which surgery is intended.
As to Christus’s Medical Staff Bylaws and Rules and Regulations, Dr. Wolf
agreed that the medical staff should provide quality medical and surgical care to
patients; that all staff members should have excellent moral and ethical character;
that surgeons should work collaboratively with all OR staff members; that medical
staff should maintain timely and accurate medical records; that hospital privileges
@ Complete blood count.
26
are privileges rather than rights; and that the granting of privileges should be based
on an applicant’s demonstrated current competence, judgment, and health status. He
further agreed that because documentation is a significant component of quality
health care, it is one of the factors evaluated during a proctorship.
Dr. Wolf stated that it would have been important to him had Dr. George
exhibited signs of impairment while being proctored. When asked if he, personally,
had ever been impaired such that his ability to perform a surgery was impaired, he
answered, “Absolutely not.” He opined that “[i]t is never appropriate to enter the
operating room, much less the hospital, if you’re an impaired physician.” He further
stated that he has never been involved in a surgery where a surgeon nodded off while
not actively involved in the surgery taking place.
Dr. Altier, an anesthesiologist, testified that she held privileges at Christus and
all other Lake Charles/Sulphur hospitals between 2004—2016, after which she retired.
Dr. Altier opined that Dr. George’s loss of privileges was due to performance issues
rather than documentation issues. She stated that the first issue listed in the March
17 letter to Dr. George, “[q]Juestionable indications for surgery, due to poor
documentation and lack of supportive data (e.g., radiographic findings, neurologic
exam findings) in the chart to justify procedure[,]” was a major issue. She explained,
“The problem is the indication for surgery. It’s not the poor documentation. Dr.
George did not explain why he wanted to do a procedure or not.”
Dr. Altier agreed with Dr. Wolf's comments regarding the May 1, 2009
elective procedure performed by Dr. George wherein the patient’s Plavix was held
for only five or so days. She stated that it is standard in non-emergency surgeries to
hold a patient’s Plavix for longer than five days, and she agreed that the patient’s
Plavix should have been held in this instance for at least ten days as the procedure
27
involved was elective. She explained that a patient’s safety could be endangered if
their Plavix is not stopped properly.
Dr. Altier stated that the CC’s recommendation to deny Dr. George’s request
for reinstatement was based on peer-review issues rather than his impairment issues.
While noting the importance of an opinion based on all of the available facts, she
testified that some issues were indefensible, such as documentation, consent, or
performance, such as the improper holding of Plavix for an elective procedure. Dr.
Altier further indicated that Dr. Wolf had opined that the wrong-level surgery
performed by Dr. George was not indicated and that there were problems with his
technique. When asked how a peer-reviewer could judge Dr. George’s surgical skills
if they were not present during the procedure, she stated that the information was
obtained from Dr. George’s charts.
Dr. Mark Kessner, a surgeon, testified and was accepted as an expert in
hospital administration, medical staff affairs, and particularly the work of Christus’s
committees and staff during its investigation of and its action plan for Dr. George.
Dr. Kessner expounded on Christus’s duty to report patient care and safety issues to
the NPDB, stating “facilities are extremely bound to the idea that once they’ve
identified a problem, they need to report it to the [NPDB], otherwise they
compromise their accreditation by the Joint Commission.”
Dr. Kessner opined that Christus acted appropriately in reporting Dr. George
based on the information it had as its decision was made by the medical staff based
on quality health care standards. He stated that the AHS and PRC investigations
were two reasonable decisions by Christus’s Medical Staff for dealing with the
concerns raised by Dr. George’s conduct:
That was a decision by the infrastructure of the medical staff; and what
they are trying to create is a quality of care that they agree with. That
each physician that’s on their medical staff is a reflection of themselves.
28
So if you have a concern about a physician and the way in which they’re
practicing, you want to address that with them and then hopefully they
will improve over time or you as an organization reject that provider
because they’re not practicing to a standard that you feel is appropriate.
Margaret O’Donnell, Christus’s corporate counsel, explained that a hospital
is required to provide peer review to be certified by the Joint Commission. She
described the NPDB as a clearinghouse for the collection and dissemination of
adverse information pertaining to physicians and other healthcare providers. She
further testified that Congress further provides hospitals and physicians that
participate in peer-review activities with immunity from civil fines and prosecution
provided they follow the guidelines and rules and regulations set forth in 42 U.S.C.
§ 11112. A hospital’s violation of the standards or its failure to accurately report
information to the NPDB can result in a maximum of three years loss of immunity.
Ms. O’Donnell stated that Dr. Gilmore and Dr. Engleking both used the terms
“dangerous” and “unsafe” in relation to Dr. George’s actions following the
September 9 incident, and she recalled numerous conversations pertaining to “the
unsafe practice of Dr. George’s clinical competency and professional conduct[]”
during the May 5, 2010 MEC meeting. These MEC discussions pertained to the
totality of Dr. George’s tenure at Christus, including his FPPE, his character issues,
and his credibility. Ms. O’Donnell said that the MEC had determined that “there was
no path that we discussed or could come up with to ensure patient safety because I
remember specifically we weren’t going to wait for another incident to occur and
then say, okay stop.”
Ms. O’Donnell testified that the committee that triggered an adverse action
that was reportable to the NPDB was the MEC as the other committees only provided
recommendations to the MEC. Thus, the MEC’s decision not to reinstate Dr. George
triggered an adverse action, which Christus had to report to the NPDB unless Dr.
29
George requested an evidentiary hearing within thirty days of its decision. He did
not do so. She stated that Christus reported its action to the NPDB on May 20, 2010,
the day after its governing board affirmed the MEC’s recommendation not to
reinstate.
Ms. O’Donnell stated that although she had many conversations with Mr.
Ganucheau regarding the information Christus would report in the first 2 sections of
its adverse action report to the NPDB, there was no agreement as to the language
Christus would report in the third or free-text section of the report. She explained
that Christus inserted code “1610 Revocation of Clinical Privileges” in the first
section of the report to indicate that Dr. George’s privileges were being terminated.
It then inserted code “F6 Substandard or Inadequate Care” in the second section and
inserted “[r]evocation of privileges due to unsafe practice and substandard care[]” in
the free text section because the section containing the F6 code was entitled, “Unsafe
Practice or Substandard Care[.]” Ms. O’Donnell explained that this “was the bare
minimum the hospital would report based on accurately reflecting the serious
concems the medical staff had about Dr. George’s practice[]” during his five months
at Christus. She testified that because Christus was required to report its actions
completely and accurately, the language it would insert in the free-text section was
non-negotiable.
Ms. O’Donnell testified that following Christus’s NPDB report, the LSBME
investigated Dr. George after he failed to report his September 9 suspension on his
November 2009 medical-license-renewal application and failed to fully disclose the
circumstances of his May 2010 revocation of privileges in his November 2010
application. As a result of this investigation, Dr. George entered into a July 18, 2011
consent order with the LSBME, whereby, in addition to other conditions, his medical
license was placed on probation for three years, and he was restricted from practicing
30
neurosurgery for two years. She agreed that although Dr. George had a right to an
evidentiary hearing before the LSBME, he waived that right just as he waived his
right to an evidentiary hearing following the MEC’s April 6 decision to deny his
request for reinstatement.
Ms. DeBruhl, an attorney with Kathleen L. DeBruhl & Associates, L.L.C.
testified that the DeBruhl defendants began representing Dr. George in September
2009. She stated that the story related by Dr. George following the September 9
incident was “all over the place[:]”
It was a combination of that he — the September 9th events were that he
directly told us that he had taken some form of medicine. My
recollection was that he claimed that he had been clearing pecan trees
or something and so it caused him to have to take medicine the next day
and I thought it was an antihistamine or something like that that caused
him to be sleepy. The day of the three surgeries, in the September 9th
surgery, I can’t remember which order, I do remember that the last
patient he was asleep in his case, but I remember that the first surgery
was the fact that he did not insert the device or something correctly and
that the device rep had to actually — there was something wrong with
the way he had done that. The second surgery was he had backed up
against a wall while they were completing a surgery and literally fell
asleep against the wall and he knocked some carts or something like
that. He told us he had fallen asleep, and the third surgery, my
recollection was that he had indicated to the staff to let him know when
the patient was identified and that he had gone off to get a rest and his
phone did not work. He had gone off and fallen asleep in his car, but
his phone didn’t work. So, the patient had been identified and then
obviously, you know, delivered anesthesia and then he was not able to
be found and his phone didn’t work in the parking garage or something
like that.
Ms. DeBruhl stated that they subsequently learned that Dr. George had also
performed a surgery inappropriately, that the breach of his agreement with Christus
could potentially allow it to recoup all of the amounts paid to him, and that “[t]he
loss of his potential privileges would’ ve affected his license[.]”
Ms. DeBruhl stated that she emailed Christus seeking to have Dr. George’s
summary suspension vacated so it would not be reported to the NPDB at the end of
the thirty-day deadline. However, this, she said, did not relieve Dr. George of the
31
responsibility of reporting his suspension to the LSBME as the question on the
medical-license renewal application asks whether the applicant has “ever been
suspended, not the fact that a suspension was terminated” or resolved. She stated
that the question is to determine whether a suspension has ever occurred. She
subsequently learned that Dr. George had also failed to accurately fill out his 2010
application.
Ms. DeBruhl testified that they communicated multiple times and ways with
Dr. George regarding the possible information Christus could report to the NPDB.
She stated that there were also discussions with Dr. George pertaining to “the use of
the F6 substandard care and the fact that it was going to state his not getting his
reinstatement and that we could not have any — we didn’t have an agreement with
respect to the free-text.” It was her opinion that Christus’s report to the NPDB
complied with their negotiations since it contained the “F6” code. However, she
admitted on cross examination that she said in her deposition that the report did not
contain the agreed upon language.
Ms. DeBruhl testified that Dr. George’s summary suspension was very serious,
and their most important goal was to protect his medical privileges by requesting a
leave of absence, which Christus granted. She stated that they were aware that Dr.
George tested positive for cocaine while being evaluated through the PHFL. She said
that after Dr. George entered treatment, they heard nothing from him until his request
for reinstatement was denied following the April 6 MEC meeting. At that point, Dr.
George was facing another thirty-day deadline in which to decide if he wanted an
evidentiary hearing to review the MEC’s decision. She said they were shocked when
they received a copy of the April 6 letter and Dr. George’s FPPE, as these revealed
additional clinical issues on his part.
32
Ms. DeBruhl testified that during an April 16 meeting with Dr. George, he
revealed the difficulties he was having with Christus, including that he had a difficult
staff, did not feel he was being treated fairly, and a chaotic office staff. They
discussed alternatives and the idea of a hearing to contest the denial of his request
for reinstatement, what it would take to have a hearing, and the legal costs of such,
which she estimated at $100,000.00.
As Ms. DeBruhl doubted that Dr. George would be successful with an
evidentiary hearing, she recommended, instead, that they “try to mitigate what was
potentially reported to the data bank to give him the best show [sic] that we thought
we could give him in order to move on with his life.” Ms. DeBruhl testified that they
notified Christus on May 12, 2010, that Dr. George was waiving the evidentiary
hearing. She said that they eventuaily notified Dr. George that they were no longer
representing him after the PHFL reported that he had tested positive for cocaine in
July 2010.
Mr. Ganucheau, an attorney with Kathleen L. DeBruhl & Associates, L.L.C.,
testified that Dr. George was kept abreast of his negotiations with Christus regarding
the information it would report to the NPDB. He testified he discussed with “the
hospital and Ms. O’Donnell about the words that were going to be used, what the
basis of the action was, which they did actually use the F6 number[,]” and although
“[w]e did not expect to see the word ‘Unsafe practices,’ and that was added to the
form; but that was added in the free text box, which we were well aware could have
contained anything. And I explained that to Dr. George.” He went on to testify in
more detail:
I told Dr. George that the hospital could not enter into a contract
or written agreement on this. I explained that very well to him multiple
times, both on the phone and in person.
33
Dr. George is a very brilliant man. I expected that he understood
and he asserted that he did understand that we couldn’t enter into a
contract, but we would do our best with Ms. O’Donnell to get a report
that had as little information as possible that could be later used, and
the opportunity for us to present a statement that asserted all the reasons
why he disagreed with the actions of the hospital.
The following colloquy then took place:
Q. Tell the jury the repercussions. If the hospital used words other
than “Substandard” or “Inadequate” care, what did you tell Dr.
George would be the consequence of that?
A. — There’s no additional consequence to that if the actual reason Dr.
George had difficulties getting new privileges at other facilities
was not because of the Data Bank report.
Mr. Ganucheau confirmed that Dr. George tested positive for cocaine use and
that he had changed his story as to what occurred when he “fell asleep” during the
September 9 incident. He acknowledged that as time unfolded, the scope of Dr.
George’s issues became much wider and more difficult, expanding from his
impairment issue to some thirty other issues or “cases” related to his actions at
Christus. He testified regarding the problems Dr. George would possibly have
experienced had he gone forward with an evidentiary hearing:
[A]ll of the information that we’ve [sic] trying to keep kind of down
low and quiet, all would come out. He’d have to explain September 9th.
He’s likely to have to testify with regards to the drug use. He’s going
to have to -- he also has a situation where they could possibly bring up
his application to the hospital, that it was false because he failed to list
that he had been on disability.
Mr. Ganucheau stated that he and Dr. George discussed the issue of his FPPE
being performed by Dr. Raggio, who although not currently on staff, had previously
been on staff at Christus. He stated, however, that this was not a significant issue
that was favorable to Dr. George as it would only have resulted in a delay if Christus
“thought it was sufficient to cause an issue with their fair hearing, they would have
just had it fixed. They would have had somebody else go through them all and they
would have found the exact same things.”
34
Dr. Noble, an orthopedic surgeon, testified that regarding the PRC’s
September 15 review of the wrong level surgery, the lack of documentation in the
patient’s chart led to confusion amongst the OR staff as to the procedure Dr. George
intended. The consent form was blank when the patient entered the hospital, the
H&P did not indicate the level to be fused, and the OR staff thought the fusion was
being performed at C5-6. However, Dr. George did clarify prior to surgery that the
procedure was planned for C6-7. Dr. Noble stated that although the patient consented
to a single-level fusion at C6-7, Dr. George first fused and plated the C5-6 level and
then decided to also fuse and plate the C6-7 level. This required Dr. George to
remove the plate at C5-6 as it is difficult to place plates adjacent to each other.
Dr. Noble opined that this was a clear indication that the surgery was
performed at the wrong level since a plate is not inserted until the fusion is
completed. He further opined that Dr. George’s error was “a very big deal[]” as the
PRC does not want physicians in its community performing unnecessary surgeries.
However, he admitted that he has encountered conditions during surgery that were
not included in his pre-op diagnosis, and which required correction. He further
agreed that while Dr. George “screwed up[]” during the surgery, wrong-level
surgeries do occur in neurosurgery.
Dr. Noble noted that based on the information considered, the PRC concluded
that the patient’s H&P failed to document the level to be fused and was not
completed by a privileged nurse practitioner, that Dr. George fused the wrong level,
that he ignored OR staff's warnings regarding the correct level, that he was not
careful in choosing the site to be fused during the surgery, and that the consent form
was poorly filled out. As a result of these findings, the PRC ordered Dr. Raggio to
perform a retrospective review of all of Dr. George’s surgeries, which was presented
to the PRC on October 20.
35
Regarding the October 20 PRC meeting, Dr. Noble found it very alarming that
Dr. George received “so many unsatisfactory remarks from Dr. Raggio given that he
was so early in his tenure at” Christus, most of which dealt with documentation. He
stated that since Dr. George had been at Christus such a short time, all of the issues
raised, including his FPPE, would be considered upon his request for reinstatement.
Dr. Noble testified that based on the findings of the FPPE, the PRC voted
unanimously not to reinstate Dr. George’s privileges due to a “reoccurring pattern
of concern and poor documentation.”
Dr. Noble stated that during the March 16 meeting, the MEC’s main concern
was patient safety and that it ultimately decided to notify Dr. George that his request
was not being granted at that time based on the PRC’s recommendation and due to
serious concerns raised by his FPPE. He asserted that the March 17 letter clearly
notified Dr. George about the concerns being considered by the MEC and that it was
crucial that he attend the April 6 meeting to discuss in detail the cases listed in his
FPPE. He explained that depending on the reasoning provided by Dr. George, Dr.
Raggio’s findings could have been reversed and the matter reconsidered by Dr.
Raggio, the PRC, and the CC.
Dr. Noble testified that during the April 6 meeting, Dr. George broadly
claimed that all of his patients were doing fine and that his patient care had involved
nothing improper. He stated that although Dr. George provided some
documentation, it was not very detailed, and he did not offer the MEC his medical
records even though he had them at the meeting. It was his opinion that Dr. George
was in denial regarding any possible issues involving his patient care. He testified
that the MEC also had concern about whether Dr. George was trustworthy or was
taking the process seriously as he never acknowledged his error in fusing the C5-6
level during the wrong-level surgery. He further testified that he had no concerns
36
about Dr. Raggio’s qualifications to perform Dr. George’s FPPE or whether his
review was in accordance with Christus’s standard of care.
Regarding Dr. George’s claims as to why OR could not locate him on
September 9, Dr. Noble testified that the maximum turn-over time between surgeries
is approximately one hour, so it was unprecedented that Dr. George was unavailable
for three hours. He added that Dr. George’s failure to show up was “a serious breach
in medical care.”
In addition to debunking Dr. George’s claim that he had decided
preoperatively to perform a two-level fusion on the patient during the wrong-level
surgery, Dr. Noble further opined that the patient experienced an adverse outcome
as she has a greater chance of experiencing a transitional syndrome from the
increased stress placed on her spine above and below the two fused levels.
Dr. Noble testified that the MEC’s recommendation to deny Dr. George’s
request for reinstatement was based on “‘a questionable indication for surgery, poor
documentation, deficiencies in consent forms, inadequate histories and physicals,
poor documentation [in] medical records, specifically not improving over time.’” He
stated that at its May 5 meeting, the MEC consulted with Ms. O’Donnell about the
language Christus would use to report its actions to the NPDB. As to its use of
“unsafe practices,” Dr. Noble asserted that the MEC “had deemed that [Dr.
George’s] unsafe practice was the reason we were denying privileges.” As to
whether Christus could have taken any other action other than revocation regarding
Dr. George, he stated that there was none. He explained:
If you want my personal opinion, there was an alarming pattern
of behavior here; and we went through the process [in] the way that the
process is supposed to be done. He had an opportunity to come to us to
vouch for his care, and he chose not to do that; so I’m not exactly sure
what else we should have done.
37
Dr. Van Hoose, a pathologist, testified that during the October 20 meeting,
the PRC voted to deny Dr. George’s request for reinstatement based on the findings
of his FPPE. He did not feel that the PRC required any further investigation or
needed to hear from Dr. George since all of the issues raised by the FPPE, the wrong-
level surgery, and his impairment would ultimately be decided by the MEC. He
testified that during the April 6 meeting, Dr. George was given the opportunity to
explain or rebut the information already known by the MEC regarding his wrong-
level surgery, his poor documentation, and the impairment issue. According to Dr.
Van Hoose, Dr. George provided the MEC “a generalization of there’s no problem
here.” Despite Dr. George’s assertion that he could provide indications for each of
his surgeries, Dr. Van Hoose stated that the failure to include such information in
the charts “basically proves the issue of poor documentation.”
Based on Dr. George’s failure to fully respond to issues, it was Dr. Van
Hoose’s opinion that the MEC had nothing to counter that which it already had. He
explained:
We had all this information already, as I mentioned, about the wrong-
site surgery, the poor documentation, the FPPE issues, and the
impairment; so we had all of that from the various sources that that had
been gathered, and what we were lacking was his explanation on that,
but we never got that.
So it’s not our responsibility to get that from him. That’s his
responsibility to give that to the Committee to make that determination.
So without that, then we’re only left with all the other information that
we had.
According to Dr. Van Hoose, the MEC voted unanimously to deny Dr.
George’s request for reinstatement. He opined that it believed that the denial was
warranted by the facts, and he denied that any member of the MEC bore ill will
towards Dr. George or acted towards him with malice. Rather, he stated, there was
“concern over all the issues that had been raised, because there were so many of
38
them.” Dr. Van Hoose testified that the MEC had no concerns about Dr. Raggio
performing Dr. George’s FPPE as he had been known as an excellent surgeon for
years. It was further his opinion that the MEC’s recommendation to deny Dr.
George’s request was the right recommendation.
Ms. Van Winkle, the Medical Staff Services Manager, testified that Christus
offered Dr. George provisional privileges on January 9, 2009, provided he agreed to
be monitored prospectively, concurrently, and retrospectively. The prospective and
concurrent monitoring was to be performed by Dr. Raggio, a retired staff member,
with Dr. Wolf or Dr. Rubino, neurosurgeons, scrubbing in on cranial cases. The
retrospective case review was to be performed by a staff member with neurosurgery
privileges.
Although Ms. Van Winkle had heard no complaints about Dr. George’s
competency prior to September 9, she knew that there had been a discussion with
him regarding his interactions with OR staff and that he had been counseled that it
would take time for him to get to know the staff. She was also aware that Dr. George
complained during that discussion about the quality of the equipment available in
the OR suite he was using.
Regarding the events of September 9, and thereafter, it was Ms. Van Winkle’s
opinion that Christus acted appropriately in its suspension and ultimate denial of Dr.
George’s privileges. She stated that the scrub tech appropriately reported Dr. George
to Christus’s leadership on September 9, after he was unable to suture the patient
during the second procedure. She stated that the concerns regarding patient safety
raised by the two OR staff members triggered the corrective action taken by Mr.
Leger in summarily suspending Dr. George’s privileges.
Regarding the impairment issue, Ms. Van Winkle testified that Christus
utilized a policy it had in place for identifying and managing an impaired physician,
39
which included the confidential referral for evaluation and/or treatment and
“continued monitoring following adequate stabilizing treatment.” She said that the
AHS was quickly formed to investigate Dr. George’s suspension since a suspension
of greater than thirty days would require Christus to notify the NPDB. Ms. Van
Winkle stated that Dr. George was notified about and was present at both AHS
meetings, and he agreed with the AHS’s recommendation that he undergo an
evaluation through the PHFL, after which he requested and was granted a medical
LOA.
Ms. Van Winkle further testified that the investigations into Dr. George’s
quality of care issues also complied with Christus’s policy of conducting “effective
peer review (focused review)” “in an effort to provide continuous assessment and
improvement of patient care.” She claimed that Dr. George was treated no differently
from other physicians at Christus as all physicians are required to submit to quality
and peer reviews to ensure the quality of their care. She acknowledged that he was
not present at the September 15 PRC meeting or that he was at the October 20 PRC
meeting as he was on LOA. She stated that she was not aware of any policy requiring
notice to be sent to physicians on LOA.
Ms. Van Winkle was aware that Dr. George tried to evade the hair/nail test
required by the PHFL and that he had tested positive for cocaine and was
subsequently treated for substance abuse. She said that his February 2010 request
for reinstatement triggered the CC and the MEC meetings to consider his request.
She stated that the CC, which met on March 9, recommended that his privileges not
be reinstated based on the Chief of Surgery’s and the PRC’s recommendations and
on the findings of the FPPE.
Although Dr. George stated that he disagreed with the findings of the FPPE,
Ms. Van Winkle testified that he failed to present any documentation to refute those
40
findings during the April 6 MEC meeting. Thus, the MEC recommended that his
request be denied based on the recommendations of the Chief of Surgery, the PRC,
the CC, and his FPPE. She stated that after the Board affirmed the MEC’s
recommendation to deny Dr. George’s request, she, with the advice of Ms.
O’Donnell, reported Christus’s actions to the NPDB. She said that she was later
requested to provide Dr. George’s records to the LSBME.
Ms. Van Winkle denied that any of Christus’s committees wanted Dr. George
to fail. She claimed that they had a vested interest in his success based on the
shortage of neurosurgeons in Lake Charles, and as reflected by Dr. Wolf and Dr.
Raggio’s agreement to proctor him. She further stated that Dr. George never
expressed any reservations about being proctored by Dr. Raggio despite his claim in
his June 29, 2010 rebuttal to the NPDB that Dr. Raggio lacked the requisite
credentials to proctor him.
Ms. Van Winkle testified that as a condition of being granted provisional
privileges, Dr. George was required to abide by Christus’s Medical Staff Bylaws and
Rules and Regulations, including procedures pertaining to consent forms, corrective
actions, H&P, post-op reports, peer review, and focused peer review. She stated that
concerns raised regarding patient safety can result in various levels of corrective
actions, whereas a summary suspension is utilized to prevent imminent danger from
occurring to any person.
Dr. John Clifford, a board-certified neurosurgeon, testified on behalf of Dr.
George. He was accepted as an expert in neurosurgery, credentialing oversight, and
peer-reviews. He discussed his opinions regarding charting and patient safety,
including the question of possible unwarranted surgery:
Q. Well, let’s talk about quality of care, though. If a physician, if
one neurosurgeon looked at another neurosurgeon’s records and
saw that, you know, a couple of times that physician didn’t think
4]
In his opinion, from reviewing the medical charts, Dr. Clifford saw no trends
or patterns with Dr. George’s quality of health care but did note the wrong level
surgery. He vehemently disagreed with Christus’s decision not to reinstate Dr.
George’s medical privileges, and he disagreed with Christus’s reporting of “unsafe
surgery was warranted, is that sufficient information to make a
judgment about the physician?
No.
Would you explain that to the jury?
Sure. This is part of the reason you do second opinions. You
know, if somebody says I think this patient needs surgery, you
know, and somebody else says, well, let’s ask somebody else
what their thoughts are, and another doctor will go by and see the
patient. Well, I’m not sure if there’s enough complaints here.
This patient’s finding on his examination and his findings on his
diagnostics don’t support this, I would not operate on him, I
would not operate on this patient or you get a second opinion
going the other way. I wouldn’t do surgery. I want a second
opinion to see if you need to be operated on, and you send him
to another physician and he will look. Yeah, I probably would
consider operating on that patient, you know, but that’s a
judgment factor. That’s something that you make at that time,
but it’s important to have that easy flow of information.
practices” on the part of Dr. George to NPDB.
On cross examination Dr. Clifford stated that he has no qualms about Dr.
Raggio’s qualifications and skills to evaluate Dr. George’s cases. He stated that he
was not questioning or “criticizing to the jury the makeup of the committees at
[Christus] that were looking into Dr. George’s issues[.]” He admitted that issues with
proper documentation by a physician can be a “potentially big deal[]” as far as
patient safety is concerned. The following discussion later took place regarding
documentation.
Q.
A.
Do you still feel as we talked about in your deposition that Dr.
George’s overall records were sorely lacking in documentation?
Yes.
42
Q. And that they don’t meet your standard of expectation for a
neurosurgeon?
A. That’s correct.
Q. And do you still feel that in reviewing the totality of the records
there were multiple episodes where he did not meet the standard
of care?
A. As you defined it, yes.
Dr. Clifford also admitted that the wrong level surgery performed by Dr.
George was “a significant event” and a “violation of the standard of care” with
significant potential safety risks to the patient. He admitted that having no informed
consent in the record is potentially a “big deal” and that the Joint Commission and
the hospital bylaws require it. As to the wrong level surgery, he agreed that there
were “no clinical findings to indicate the need to do both of these levels in the
spine[.]” He admitted that he had not “focused a lot on the drug aspect or the
substance abuse aspect of this case[.]”
Kayla Pleasant, the circulator nurse during the September 9 procedures,
testified that Dr. George was rough with his hands and had difficulty suturing during
the second procedure. However, she agreed that she stated in an affidavit that he
“was always rough with the procedure.” She further denied that Dr. George’s speech
was slurred and that he was off balance during the procedures. She did admit that
Dr. George leaned on the Mayo stand and closed his eyes while Medtronic reps were
checking the placement of the leads, after which he had “difficulty suturing down
the leads due to apparent dexterity issues in his hands.”
Nurse Pleasant testified that the first patient on September 9 was taken to the
OR at 7:45 a.m. The second patient was taken to the OR at 9:15 a.m. and the surgery
ended at 10:12 a.m., and Dr. George left the OR after the procedure was finished.
She stated that the third patient was started on anesthesia in the OR at 10:45 a.m. As
43
far as she knew, no one reported Dr. George to the charge nurse on September 9, or
tried to stop the third procedure from proceeding. She testified that as patient safety
is the preeminent concern, she would have notified the charge nurse had she had any
concerns about Dr. George. She stated that she had no objection to the third
procedure going forward, and if Dr. George had been located, it would have
proceeded. She further did not recall being asked her opinion regarding Dr. George’s
behavior on September 9. As to his difficulty in suturing, Nurse Pleasant agreed that
he was uncoordinated and that it was possible that this resulted from a difficulty with
depth perception.
Several witnesses were called essentially as character witnesses for Dr.
George. These included his former wife, former employees, and a colleague. All said
that they had not witnessed or experienced any indications that Dr. George had any
issue with drug or alcohol addiction or use. Dr. Timothy Best, a neurologist, testified
that he knew Dr. George prior to his move to Lake Charles, had trained with him for
several years at Tulane and had referred surgical patients to him following his
relocation to Lake Charles. He did not recall any issues regarding Dr. George’s
treatment of the patients referred to him, and he wrote a letter on behalf of Dr.
George dated September 10, stating that he had lunched with Dr. George the
previous day and had witnessed no signs of physical or mental impairment. He
further stated during the time that Dr. George had been on Christus’s staff, he had
dealt with him from time to time over patients and had never seen anything to suggest
that he had a drug or alcohol problem.
After considering the testimony and evidence, we find that there was not such
overwhelming evidence in favor of Dr. George that reasonable minds could have
reached a different conclusion as to the element of causation. Given the myriad of
issues as to Dr. George’s fault, any jury could have reasonably concluded, as this
44
one did, that Dr. George caused the suspension and ultimate denial of his medical
and surgical privileges. The same is true of the jury’s decision that Christus made no
representations concerning what it would or would not report to the NPDB. Christus
was under a legal duty to report Dr. George’s conduct to the NPDB, and it also had
an overriding moral and legal duty to protect its patients’ safety. In this instance, it
satisfied both duties. The fact that the LSBME placed Dr. George’s medical license
on probation for three years and restricted his ability to perform neurosurgery for
two years was not the fault of Christus.
It is obvious from the record and the verdict form that while the jury found
that Christus technically breached some of the obligations owed to Dr. George under
their contract, such as its possible notification failures and its use of a retired
physician to monitor and evaluate his procedures, these breaches did not cause his
failure to gain the reinstatement of his privileges. Any damages suffered by Dr.
George resulted from his own actions, by the very conduct that resulted in the loss
of his privileges in the first place. Throughout the entirety of the reinstatement
review process, Dr. George acted in a cavalier fashion by rationalizing his behavior,
attempting to blame others for his actions, resisting drug testing, and so on.
In Causey v. St. Francis Medical Center, 30,732, p. 5 (La.App. 2 Cir. 8/26/98),
719 S$o0.2d 1072, 1075, the second circuit noted the important role played by
physicians in society: “Physicians are professionals and occupy a special place in
our community. They are licensed by society to perform this special role. No one
else is permitted to use life-prolonging technology, which is considered by many as
‘fundamental’ health care.” This role highlights the necessity for the highest of
ethical and professional conduct by physicians towards their patients and the
healthcare institutions in which they practice. Here, the record shows that Dr. George
sidestepped his professional and ethical obligations both to his patients and to
45
Christus, who had permitted him to provisionally practice medicine within the walls
of its institution. Accordingly, it was not manifestly erroneous for the jury to find
that Christus, despite its technical breach of contract, was not the cause Dr. George’s
failure to be reinstated, and thus, was not the cause of any financial loss suffered by
him as a result of the loss of his privileges or the NPDB adverse action report. There
was an abundance of evidence to support that decision. Thus, the trial court
improperly substituted its own opinion for that of the jury in granting the JNOV on
the issue of causation, as reasonable minds could certainly differ over that outcome.
We further find that it was legal error for the jury to allocate a percentage of
fault and assess damages against Christus when there was no causative relation
between its conduct and Dr. George’s alleged damages. We can only speculate as to
why the jury proceeded as it did, but we do note the lack of instruction given in the
very confusing jury verdict form presented thereto. Given that it answered “No” as
to the issue of causation, it should have been instructed not to answer questions as
to the allocation of fault to Christus or the assessment of damages attributable to it.”
The trial court furthered this error when it increased Christus’s percentage of fault
from 8% to 35%, Our reversal of the JNOV and reinstatement of the jury verdict
finding no causation between Christus’s conduct and his claimed damages is fatal to
Dr. George’s claims. Accordingly, the judgment granting the JNOV as to causation
and the assignment of fault to Christus is reversed, and the jury’s finding of no
causation on the part of Christus is reinstated. We further reverse the judgment
denying Christus’s motion for JNOV and render judgment granting a JNOV in its
° We note that the jury also answered “No” to whether Dr. George proved that Christus
made any representations regarding what would be reported to the NPDB, but that despite this
answer, the jury was allowed to answer questions as to whether Dr. George relied on any such
assurances. These questions and responses were inappropriate when no assurance was found to
have been made.
46
favor, finding it not liable for Dr. George’s alleged damages, and dismissing his
claims against Christus, with prejudice.
Remaining Assignments of Error
Based on the foregoing, we find that all remaining issues are rendered moot.
This includes Christus’s claim that the jury erred in finding that it was not entitled
to the immunity provided by 42 U.S.C. § 11111 of the Health Care Quality
Improvement Act, as the finding of a lack of causation brings about the same result.
Further, while Dr. George claims that comparative fault should not have been
applied to reduce the amount of damages awarded for a contract claim, the finding
of no causation renders that assignment of error moot, as it also renders the
calculation of damages moot.
DECREE
The judgment of the trial court granting a judgment notwithstanding the
verdict in favor of Dr. Bryant George and Dura Mater, Inc. is reversed, and the jury
verdict finding that Dr. Bryant George and Dura Mater, Inc. failed to prove causation
for damages is reinstated. We further render judgment granting a judgment
notwithstanding the verdict in favor of Christus Southwestern Louisiana d/b/a
Christus St. Patrick Hospital, finding that it was not the proximate cause of the
damages suffered by Dr. Bryant George and Dura Mater, Inc. Accordingly, the
claims of Dr. Bryant George and Dura Mater, Inc against Christus Southwestern
Louisiana d/b/a Christus St. Patrick Hospital are dismissed, with prejudice. Dr.
Bryant George and Dura Mater, Inc. are ordered to pay all costs of this proceeding,
including the costs of this appeal.
REVERSED AND RENDERED.
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