Petition for a Writ of Certiorari — Alexander v. Alton Ochsner Medical Foundation

__guRREME COURT. ye CLE

In the

Supreme Court of the United States

ma 73-523

ALTON OCHSNER MEDICAL FOUNDATION, OCHSNER

CLINIC, Dk. KENNETH MEYER, Dr. Hurst B.

HATCH, JR. AND DR. JOSEPH K. BRADFORD,

Respondents.

PETITION FOR CERTIORARI TO THE SUPREME

COURT OF LOUISIANA IN No. 53,656 OF

THE DOCKET OF SAID COURT,

ENTITLED AS ABOVE

GEORGE M. LEPPERT,

408 Security Homestead Bldg.,

New Orleans, La.

Attorney for Petitioner.

«accent atime

INDEX :

PAGE

OPINIONS BELOW 1

JURISDICTION

QUESTIONS PRESENTED 2

CONSTITUTIONAL AND STATUTORY PRO-

VISIONS INVOLVED 3

STATEMENT OF THE: FACTS ........................-.-- 4°

REASONS FOR GRANTING THE WRIT ............ 10

ic sicemriincinnibion 14

APPENDIX A—Memorandum decision by Lou-

NN I niecseeneceeceennonceencoenennvne 15

APPENDIX B—Opinion by Louisiana Court of

SA EA Oe eo 16

Authorities

STATUTES:

Seventh Amendment, U.S. Constitution .......... 3

Fifth Amendment, U.S. Constitution ............ 3

Article 2164 Louisiana Code Civil Procedure .. 3

Cases

Denver Rockets v. All Pro Management Inc. 325

REE SNE See oe Oe 11

Marsha B. Healy et al v. Hon Edwin Edwards, Gov.

et al, Fifth Cir. No. Civil Action 73-688 ............ 12

Ross v. Bernhard, 90 S. Ct. 733, 396 U.S. 531, 24

L. Ed 2d 729 (1970) ......... isis emecsenavumeais 10

Webster v. Offshore Food Service, 434 F. 2d 1191,

cert. den. 92 S.Ct. 44, 404 U.S. 823 -....0....... 11

In the :

Supreme Court of the United States

No.

OCTOBER TERM, 1973

WARNER MAX ALEXANDER,

Petitioner, |

V.

ALTON OCHSNER MEDICAL FOUNDATION, OCHSNER

CLINIC, DR. KENNETH MEYER, Dr. Hurst B.

HATCH, JR. AND Dr. JOSEPH K. BRADFORD,

Respondents.

PETITION FOR CERTIORARI TO THE SUPREME

COURT OF LOUISIANA IN No. 53,656 OF

THE DOCKET OF SAID COURT,

ENTITLED AS ABOVE

Petitioner, Warner Max Alexander, prays that a

writ of certiorari issue vo the Supreme Court of Lou-

isiana to review the judgment, opinion and decree

of that Court rendered on June 29, 1973 in the above

entitled cause.

OPINIONS BELOW

The opinion of the Supreme Court of Louisiana,

a memorandum decision, was reported in 279 So.2d

695. Said decision was in connection with denial of

certiorari to the Louisiana Court of Appeals for the

Lh

Py

Ves

;

:

|

I

2

Fourth Circuit, in proceedings entitled as above and

reported in 276 So.2d 794. The memorandum decision

by the Supreme Court in denying writs of certiorari

is set forth in Appendix A, while the opinion of the

Court of Appeal is set forth in Appendix B.

JURISDICTION

The order or judgment of the Louisiana Supreme

Court was entered on June 29, 1973. (See Appendix

A) This petition for certiorari was filed within 90

days from said date. Jurisdiction of this Court is

invoked under 28 U.S.C. Sec. 1257 (3)

QUESTIONS PRESENTED

1. WHETHER OR NOT, IN A SUIT FOR DAM-

AGES FOR BREACH OF IMPLIED WARRANTY

AND MEDICAL MALPRACTICE, THE INSTRUC-

TION BY THE JUDGE THAT THE JURY MUST

RELY SOLELY UPON THE TESTIMONY OF

MEDICAL EXPERTS IS A VIOLATION OF

PLAINTIFF’S SEVENTH AMENDMENT RIGHT

TO TRIAL BY JURY.

2. WHETHER OR NOT THE LOUISIANA

SYSTEM OF JURY TRIAL IN CIVIL CASES IN

WHICH THE APPELLATE COURT CAN RE-

EXAMINE FACT ISSUES RESOLVED BY THE

JURY, IS A DENIAL OF THE RIGHTS TO A JURY

TRIAL UNDER THE SEVENTH AMENDMENT

OF THE FEDRAL CONSTITUTION.

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Seventh Amendment to the Constitution :

AMENDMENT [VIL]

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the right

of trial by jury, shall be preserved, and no fact

tried by a jury, shall be otherwise reexamined in

any Court of the United States, than according

to the rules of the common law.

The Fifth Amendment to the Constitution:

AMENDMENT [V.]

No person shall be held to answer for a capi-

tal, or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any crimi-

nal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be

taken for public use, without just compensation.

Article 2164 of the Louisiana Code of Civil Pro-

cedure:

Art. 2164. Scope of appeal and action to be

taken; costs

The appellate court shall render any judg-

ment which is just, legal, and proper upon the

4

record on appeal. The court may award damages

for frivolous appeal; and may tax the costs of

the lower or appellate court, or any part thereof,

against any party to the suit, as in its judgment

may be considered equitable.

STATEMENT OF FACTS

As will be noted below, it is our contention that

the jury instruction given by the trial Judge here

amounted to a denial of trial by jury as well as denial

of due process of law. In order to appreciate the full

thrust of a certain phase of those instructions, it is

necessary to delve rather deeply into the medical prob-

lem involved. We therefore quote from the Court of

Appeal opinion the medical history of the case: (as set

forth in that opinion at page 766, Col. 1 of 276 So. 2d) :

On April 20, 1967, plaintiff was admitted

to the defendant hospital by defendant, Dr. Hatch,

who had found that the plaintiff was suffering

from a spontaneous pneumothorax, a condition in

which air has escaped from the lung into the

space between the lung and the chest wall as a

result of the rupture of a blister on the surface

of the lung. This condition had first manifested

itself on April 13, 1967, when plaintiff com-

plained to Dr. Hatch that two days prior thereto

he had an onset of stabbing pain in the mid sternal

region, aggravated by breathing and by changing

his position from lying prone. The doctor, on the

basis of X-ray studies, diagnosed a 10% pneu-

mothorax and prescribed bed rest and medication.

Plaintiff was told to return in a week or sooner

if his condition worsened. When he returned on

5

April 20, 1967, and X-ray studies revealed that

the condition had worsened Dr. Hatch consulted

with defendant, Dr. Kenneth Meyer, of the Sur-

gery Department of Ochsner, whereupon the two

physicians concurred that it was necessary to con-

duct a surgical procedure known as a thoracot-

omy. }

This procedure performed by Dr. Meyer con-

sists of the insertion of a catheter through the

wall of the chest and into the space between the

lung and the interior chest wall so that air can

be aspirated from that pleural space. As the air is

removed the lung re-expands and becomes sealed

with the result that the leakage of air from the

lung is gradually eliminated. The insertion of the

tube is accomplished by means of a local anes-

thesia being administered, followed by an incision

in the chest, the slant of which controls the direc-

tion to be followed by the catheter. A steel trocar

or needle tube containing the catheter itself is then

used to penetrate the chest muscle and chest

wall. When the desired position is reached the

trocar is removed leaving the catheter in place

with the outside end of the catheter then con-

nected to a suction apparatus.

This procedure was carried out at 4:30 PM

on April 20, 1967. The nursing notes show that

on April 21 at 12:45 PM plaintiff was complain-

ing of severe pain above the site of the insertion

in the chest and “cannot move legs, arms or head

without pain.” Dr. Meyer testified that when this

report came to his attention he examined the

plaintiff, finding that he was able to turn and

move with ease as he was requested to do in

order for him to carry out his examination. A

chest X-ray was taken and thereafter the posi-

tion of the catheter was changed. The doctor ex-

plained that by this time most of the air in the

pleural space had been removed but there was still

fluid on the periphery of the space. The tube had

to be repositioned in order to place one of the

holes in the tube in the particular space where

the fluid was located. He explained that in addi-

tion to the hole on the end of the catheter addi-

tional holes were placed in the catheter so as to

make the removal of the air more effective. Plain-

tiff was seen by Dr. Hatch daily while in the

hospital until May 1. By April 30 he felt that

there was no more leakage from the lung so that

the catheter could be removed, but on consultation

with Dr. Meyer it was decided to leave the catheter

in place for a short while longer. On May 1 Dr.

Hatch’s responsibility for the plaintiff was as-

sumed by defendant, Dr. Bradford, to whom it

was apparent by May 2 that plaintiff’s lung had

re-expanded completely, so that it was time for

the catheter to be removed from his chest, and this

was confirmed by X-ray examination.

Inasmuch as we are seeking a writ of certiorari on

a matter of national interest, we shall not pursue the

Louisiana Court of Appeals as it meanders down the

labyrynthine ways of confusion, half truth and down-

right mistatement of facts, except insofar as may be

necessary to mount our main attack, i.e. upon:

; (a) The denial of petitioner’s right to trial by

: jury as guaranteed by the Seventh Amend-

ment to the Constitution of the United States;

4

(b) The unique Louisiana jury system whereby,

as a cold reality, the jury does not have the

traditional role of judges of the facts, but

are merely permitted to “play” with the facts

as a child would with a toy, ever subject to

having its toys taken away by the appellate

court.

The focal point of our attack in the trial Court, the

Court of Appeal and in the State Supreme Court, was

the failure of the battery of treating doctors at Ochsner

Clinic to take proper lateral X-rays in positioning the

catheter. As stated in our application for rehearing in

the Court of Appeal:

“Dr. William Leon, a witness called by the

Plaintiff, examining the X-rays showing the tube

inserted in Mr. Alexander’s chest on April 20, and

maintained there until May 3, 1967, in his testi-

mony (Tr. 64-66) stated that (Tr. 66),

“Unless we had a view which had shown the

chest in a lateral position, we can’t tell where

this is. It may be in the front or back. There

is no way to tell.

Dr. Leon was testifying in answer to a question,

about why the tube was inserted in the position shown

in the X-ray he was examining, instead of in a higher

position as it had at first been inserted, according to

testimony given.

The record in the Alexander case presently dis-

cusssed before this court, reveals no such lateral X-ray

had been taken, nor had any other techniques in aid

of following, locating and positioning the tube inserted

8

through the trocar in the procedure of reducing the

spontaneous pneumo-thorax.

Dr. Bradford, discussing the insertion of the cath-

eter in the procedure such as was performed (Tr.

204-5) testified that the tube is inserted “blindly.”

The Plaintiff-Appellant contends in this case that

if the additional techniques had been appplied while

the procedure was performed, the defendants would

have been able to watch just where the tube was going

and thereby exercise more effective control of it in its

placement to carry out the procedure of reducing the

pneumo-thorax.”

The Court of Appeal indulged in some semantic

ballet dancing reminiscent of Nijinsky, suggesting that

plaintiff was suing on a theory of an implied contract

whereby it was claimed that the doctors employed had

GUARANTEED SUCCESS. These diversions, how-

ever, are beside the main issue here and we shall not

pursue them because they will not stand inspection..

Such clumsy maneuvers are not calculated to deceive

a reasonably bright mongoloid idiot. But the following

double entrechat by the Court of Appeal must fall flat

on its face when the Court declares: (at page 798 of

276 So.2d, col. 2)

Plaintiff attempts to contradict this testi-

mony by suggesting that X-ray photographs taken

by Drs. Hatch and Meyer were inadequate in that

they did not reveal the depth into the chest cavity

which the catheter reached. He speculates that this

caused his suffering. Dr. Leon thoroughly dis-

credited this theory as a cause for plaintiff’s prob-

9

lem. Plaintiff’s argument that additional X-ray

photographs should have been taken and that addi-

tional procedures, such as fluoroscoping and other

tests, should have been implemented is not sup-

ported by any testimony, medical or lay. The real

nub of the plaintiff’s position seems to be that he

was in pain at the beginning and continued to be

in pain at the time of the trial; therefore, a breach

of contract was committed by defendants who had

undertaken to treat him, but the law does not exact .

upon the physician a guarantee to cure anyone: ©

From the passage above quoted from our petition

for rehearing in the Court of Appeal it is clear that the

Court is dead wrong in saying that Dr. Leon did not

support our theory.

It is indeed true that a distinguished battery of

medical experts, ranging from a neurosurgeon to an

internist and some psychiatrists rallied round the

Ochsner Clinic defense with an enthusiasm reminiscent

of Davey Crockett at the Alamo. In this case, however,

Davey Crockett and his mates won, thanks to the fire-

power of the “charge” which the trial Judge gave the

jury. Thus, the trial Judge told the jury:

“I charge you that in matters such as this,

you must be guided by the views and opinions of

experts as members of the medical profession as

to whether or not the defendants, Alton Ochsner

Medical Foundation or Ochsner Clinic, Dr. Ken-

neth Meyer, Dr. Hurst B. Hatch, Jr. and Dr.

Joseph K. Bradford did all that they were required

to do, * * * ete.”

“I further charge you that whether or not

10

the defendants treated Mr. Alexander within the

standard of care of the New Orleans community

is a matter that must be proven by expert medical

testimony. If all experts testify that they did

follow the standards of care in the New Orleans

community, then you must render a verdict for

the defendants, Alton Ochsner Medical Founda-

tion, Ochsner Clinic, Dr. Kenneth Meyer, Dr.

Hurst Hatch and Dr. Joseph Bradford.”

By the foregoing emphasized language the trial

Judge clearly told the jury that, in judging the faci

issue of proper medical care, they could not decide this

fact for themselves, despite the existence of substantial

evidence which caused the common sense issue of prop-

er care. He flatly told them that they must be bound

by the conclusions of the experts. It is our contention

that the above, along with the peculiar control over

jury trials in Louisiana exercised by appellate courts,

is a denial of Seventh Amendment rights to trial by

jury, as well as a violation of other constitutional

guarantees, such as due process and equal protection

of the laws.

REASONS FOR GRANTING THE WRIT

There is a growing body of law relative to impair-

ment by the States of the right to trial by jury. In

Ross v. Bernhard, 90 S.Ct. 733, 396 U.S. 531, 24 L. Ed

2d 729 (1970) this Court held that where equitable

and legal claims are joined in the same action a jury

trial could not be denied on the legal claims.

The following recent cases, involving summary

judgment, held that the granting of same did not

11

amount to a denial of the constitutional guarantee of

a jury trial:

Webster v. Offshore Food Service, 434 F2d

1191, cert. denied 92 S.Ct. 44, 404 U.S. 823;

Denver Rockets v. All Pro Management, Inc.

325 F.S. 1049.

Of course, the posture of the parties when a case

is dismissed via summary judgment is radically differ-

ent than here, for, when the Court grants a summary

judgment the basis for same is laid out in the record

for all the world to see and the appellate court can

rule, on the face of the papers, whether or not the

summary judgment was properly granted.

But when, as here, the trial Judge by means of a

mandatory instruction covertly takes from the jury

their traditional role as the finder of facts, the whole

package “goes upstairs” disguised as a jury verdict

case despite the fact that the jury had nothing to do

with the fact finding but meekly submitted to the clob-

bering by the trial Judge when he told them they had

to decide the fault issue on the testimony of medical

expert testimony alone. By a process of reductio ab-

surdum, therefore, if what was done here could be car-

ried to its logical extension a hospital patient could have

his throat slit by a surgeon in an argument over dalli-

ance with the doctor’s wife, a battery of medical ex-

perts could swear in unison that slitting of the throat

was standard procedure for lowering blood pressure,

and the patient’s heirs would not get a dime in damages

because the trial court would have told the jury that,

12

in matters of due care etc. in medical matters, they

must take the word of the experts.

The situation is made even worse in Louisiana

in that here the appellate court, either the Supreme

Court or the intermediate appellate court, has a full

review of the facts. Thus, even if it were obvious to

all common sense minds that there had been some dirty

work at the cross roads in the trial court, the appellate

court, whether Supreme or intermediate, could brush

the entire mess under the rug by simply finding, as a

matter of fact that what was done at the hospital was

good medical practice anyway.

Thus, we say, Louisianans are certainly in a pre-

carious position quo ad their supposed right to a real

trial by jury. Moreover, this technique of virtually

denying a trial by jury by means of a mandatory

charge as vicious as the one here, is a matter of na-

tional interest. In malpractice cases it is difficult

enough to secure the services of a medical expert to

testify to the faults of his professional brethren. If this

sort of heavy handed instruction as to how the jurors

must decide the key fact issues is allowed to stand then

it will not be long before we see a bumper crop of such

maneuvers pop up throughout the land.

The jury system of Louisiana is already under na-

tional attack. In an unreported Fifth Circuit case’ it

has been held that the Louisiana jury system is consti-

tutionally defective in that women are not selected for

1 Marsha B. Healy et al. v Hon. Edwin Edwards, Governor

et al., CA 73-688.

18

jury service unless they volunteer. The Attorney Gen-

eral of Louisiana has obtained from this Court a

stay order but it does seem that a writ issued now

would clean up the entire jury problem in lovely Lou-

isiana where Evangeline waited so long and so fruit-

lessly for her lover Gabriel, and where her modern day

citizens are still waiting patiently for a real jury trial.

For the foregoing reasons we respectfully submit

that a writ of certiorari should issue to the Supreme

Court of Louisiana, that the judgments below be re-

versed and that a new trial be ordered.

GEORGE M. LEPPERT,

408 Security Homestead Bldg.,

New Orleans, La.

Attorney for Petitioner.

14

CERTIFICATE

I, George M. Leppert, hereby certify that I am a

member in good standing of the bar of the Supreme

Court of the United States that all of the statements

of fact in the foregoing petition are true and correct

and that copies of same have been served upon all oppos-

ing parties and upon the Clerk of the Supreme Court

of Louisiana, properly addressed and postage prepaid

on Sept. 1973.

George. M Leppert

15

Appendix A

Supreme Court of Lonisiana

NEW ORLEANS, 70112

WARNER MAX ALEXANDER : June 29, 1973

V.

ALTON OCHSNER MEDICAL ; No. 53,656

FOUNDATION, ET AL

In re: Warner Max Alexander applying for certiorari

or writ of review to the Court of Appeal, Fourth

Circuit, Parish of Orleans

Writ denied. On the facts found by the Court of Appeal,

there is no error of law.

/s/ PFC

/s/ JWS

/s/ FWS

/s/ AT dr.

MARCUS, J., recussd.

A TRUE COPY

Clerk’s Office

Supreme Court of Louisiana

New Orleans, June 29, 1973

/s/ PHIL TRICE

Deputy Clerk

16

Appendix B

WARNER MAX ALEXANDER : No. 5363

Vv. : COURT OF APPEAL

ALTON OCHSNER MEDICAL : FOURTH CIRCUIT

FOUNDATION, ET AL =. gTATEOF LOUISIANA

APPEAL FROM THE CIVIL DISTRICT COURT FOR

THE PARISH OF ORLEANS, STATE OF

LOUISIANA, No. 507-100,

HONORABLE WALTER F. MARCUS, JR., JUDGE

PATRICK M. SCHOTT

(Court composed of Judges William V. Redmann,

James C. Gulotta and Patrick M. Schott)

A. S. CAIN, JR., CHARLES J. LANGE, and DEAN A.

ANDREWS, JR.

Attorneys for Plaintiff-Appellant

ADAMS AND REESE (Henry B. Alsobrook, Jr.)

Attorneys for Defendants-Appellees

April 3, 1973 AFFIRMED

The plaintiff appeals from a judgment dismissing

his suit against Alton Ochsner Medical Foundation,

Ochsner Clinic and three physicians associated with

those entities, Dr. Kenneth Meyer, Dr. Hurst B. Hatch,

Jr. and Dr. Joseph K. Bradford. The case was tried

to a jury resulting in a unanimous verdict for the

defendants.

17

In his petition, plaintiff alleged alternatively that

the defendants, including the three physicians named,

as well as other physicians associated with them, in

the period between April 20, 1967, and May 5, 1967,

violated an agreement made with him in that the treat-

ment afforded him was not performed in accordance

with the standard of professional skills and care pre-

vailing in the community and were negligent in that they

failed to exercise ordinary care and skill required of

them. In this Court, plaintiff contends that the defend-

ants failed to use various processes and facilities to

minimize his pain during the course of their treatment,

thereby failing to render to him treatment which the

community has a right to expect and thereby violating

an implied warranty existing between plaintiff as a

patient and defendants.

In addition, plaintiff complains that the trial

judge’s instructions to the jury were defective as a

matter of law, because of, 1) the judge’s failure to

give certain special charges submitted by plaintiff’s

counsel and, 2) the inclusion of one particular para-

graph in the general charge.

Plaintiff’s counsel did not object to the general

charge in the trial court so that he is precluded from

that assignment of error in this Court under the pro-

visions of LSA-C.C.P. Art. 1793. As to the trial

judge’s failure to give the special charges submitted

by plaintiff, about which timely objection was made,

a review of the general charge satisfies us that the

jury was correctly and adequately instructed on the

law in the context that the trial judge has the respon-

18

sibility to avoid confusing the jury and the right to

use whatever semantics may be appropriate and neces-

sary for this purpose. Lauro v Travelers Insurance

Company, 261 So.2d 261, 4th Cir. 1972.

On April 20, 1967, plaintiff was admitted to the

defendant hospital by defendant, Dr. Hatch, who had

found that the plaintiff was suffering from a spon-

taneous pneumothorax, a condition in which air has

escaped from the lung into the space between the lung

and the chest wall as a result of the rupture of a

blister on the surface of the lung. This condition had

first manifested itself on April 13, 1967, when plain-

tiff complained to Dr. Hatch that two days prior

thereto he had an onset of stabbing pain in the mid

sternal region, aggravated by breathing and by chang-

ing his position from lying prone. The doctor, on the

basis of X-ray studies, diagnosed a 10% pneumothorax

and prescribed bed rest and medication. Plaintiff was

told to return in a week or sooner if his condition

worsened. When he returned on April 20, 1967, and

X-ray studies revealed that the condition had worsened

Dr. Hatch consulted with defendant, Dr. Kenneth

Meyer, of the Surgery Department of Ochsner, where-

upon the two physicians concurred that it was neces-

sary to conduct a surgical procedure known as thor-

acotomy.

This procedure performed by Dr. Meyer consists

of the insertion of a catheter through the wall of the

chest and into the space between the lung and the in-

terior chest wall so that air can be aspirated from

SERGE ASTLNNIYI IAS PO NHC MN TY AERC ERT 9 NINH WF TT

hae hciaiinaiaatid “ To atee caldiieaiadiies

19

that pleural space. As the air is removed the lung re-

expands and becomes sealed with the result that the

leakage of air from the lung is gradually eliminated.

The insertion of the tube is accomplished by means of

a local anesthesia being administered, followed by an

incision in the chest, the slant of which controls the di-

rection to be followed by the catheter. A steel trocar

or needle tube containing the catheter itself is then

used to penetrate the chest muscle and chest wall. When

the desired position is reached the trocar is removed

leaving the catheter in place with the outside end of

the catheter then connected to a suction apparatus.

This procedure was carried out at 4:30 PM on

April 20, 1967. The nursing notes show that on April

21 at 12:45 PM plaintiif was complaining of severe

pain above the site of the insertion in the chest and

“cannot move legs, arms or head without pain.” Dr.

Meyer testified that when this report came to his atten-

tion he examined the plaintiff, finding that he was able

to turn and move with ease as he was requested to do in

order for him to carry out his examination. A chest

X-ray was taken and thereafter the position of the

catheter was changed. The doctor explained that by this

time most of the air in the pleural space had been re-

moved but there was still fluid on the periphery of the

space. The tube had to be repositioned in order to place

one of the holes in the tube in the particular space

where the fluid was located. He explained that in addi-

tion to the hole on the end of the catheter additional

holes were placed in the catheter so as to make the

RAGE INE OFT TNE Pt ee et:

Sie SEAS IT A

PERE

i

:

j

20

removal of the air more effective. Plaintiff was seen

by Dr. Hatch daily while in the hospital until May 1.

By April 30 he felt that there was no more leakage from

the lung so that the catheter could be removed, but on

consultation with Dr. Meyer it was decided to leave

the catheter in place for a short while longer. On May

1 Dr. Hatch’s responsibility for the plaintiff was as-

sumed by defendant, Dr. Bradford, to whom it was

apparent by May 2 that plaintiff's lung had re-

expanded completely, so that it was time for the

catheter to be removed from his chest, and this was

confirmed by X-ray examination. The catheter was re-

moved on May 4 and plaintiff was discharged from the

hospital on May 5 with no problems of mobility. Dr.

Meyer and Dr. Bradford both testified that the proce-

dure followed, and the treatment administered, was in

accordance with standard medical practice in the City

of New Orleans. Dr. Bradford further testified that

Drs. Hatch and Meyer both have the necessary training

and skill to have treated plaintiff.

In his petition, plaintiff alleged that it was during

this period of hospitalization that the defendants failed

him in some contractual obligation and were negligent

in their treatment of him. He contends that he suffered

severe pain and discomfort during this period; that

somehow the defendants were derelict in their duty to

alleviate his suffering; that this suffering continued

after his discharge from the hospital and eventually

caused him to lose his employment and to continue to

suffer all the way up until the time of the trial.

Plaintiff did not testify at the trial except to

21

identify his doctor and hospital bills, and the only evi-

dence of his suffering is contained in the testimony of

the doctors as they recited from their records the com-

plaints made to them by plaintiff.

i The jury heard the testimony of ten different phy-

sicians who testified at the trial of the case. Dr. Hatch

who had been treating plaintiff since April, 1962, for

various illnesses including tuberculosis, continued to

treat the plaintiff after the thoracotomy until March

of 1969. Because of continued complaints throughout

this period he prescribed medication, had him examined

by and consulted with other physicians, including Dr.

Merrill Hines, and became convinced that plaintiff's

pains were psychogenic and suggested that he see a

psychiatrist for treatment. This view was shared by

Dr. Meyer on the basis of plaintiff’s behavior in the

hospital.

Dr. Hines had treated plaintiff over a period of

10 or 15 years as his family physician and also felt that

plaintiff had emotional problems and recommended

psychiatric treatment.

Plaintiff was examined by Dr. Charles L. Brown,

Jr., on May 19, 1969, and upon initial examination of

plaintiff followed by complete tests in the Baptist

Hospital in July, 1969, and consultation with a neurol-

ogist, an orthopedic surgeon and a lung specialist,

could find no explanation for the complaints and con-

cluded that plaintiff’s problems were emotional re-

quiring psychiatric treatment. Dr. Brown reviewed the

records of the Ochsner Clinic and the work done by Drs.

a

Hatch, Bradford and Meyer, and concluded that noth-

ing they had done indicated any deviation from the

proper medical care.

Plaintiff was treated by Dr. William Leon from

December 2, 1969, until February 26, 1971. Plaintiff

was given tests at Touro Infirmary, Dr. Leon con-

sulted with an internist, Dr. Joseph Schenthal, and a

neurosurgeon, Dr. Raeburn Llewellyn, but could find

no objective findings to explain plaintiff's subjective

complaints of chest pains, which plaintiff told him had

been occurring for two and a half years since his pneu-

mothorax. Dr. Leon, too, felt that plaintiff should get

psychiatric care, and he testified that based upon the

history that plaintiff had given to him, as well as the

review he made of the medical records, he could find

no dereliction of duty or breach of the standard of care

or of medical practice on behalf of defendants.

Dr. Schenthal who examined plaintiff on January

5, 1970, and in October, 1971, testified that he could

find no physical reason to account for the pain about

which plaintiff complained. In his opinion the pain was

involved with emotional components requiring the at-

tention of a psychiatrist. In his opinion, Drs. Hatch and

Bradford were “topnotch” in their fields, as well as

Dr. Brown and others at the Ochsner Clinic who had

examined plaintiff.

Dr. Llewellyn, who examined plaintiff on January

6, 1970, testified that the exposing of the nerves in the

chest wall by the procedures followed during the

thoracotomy were not the basis of plaintiff’s com-

ert AO ae Mit ts

23

plaints. He could not find what was causing plaintiff’s

pain.

Plaintiff did see Dr. Millard Jensen, a psy-

chiatrist, on March 23 and April 4, 1971, who testified

that plaintiff was suffering from a great deal of anx-

iety, he was under stress, and he had paranoid ten-

dencies. He felt that the pain he described was psycho-

genic in origin, especially since the other physicians

could not find any physical reason for the pain. He |

recommended further psychiatric help but plaintiff

stated that he didn’t need any help in that area, and his

attitude was that he knew what his problem was and

that surgical correction was the only answer for the

problem.

Finally, Dr. George Welch, a specialist in internal

medicine, examined the plaintiff on August 6, 1971,

and expressed the opinion that the pain about which

plaintiff was complaining was not related to the treat-

ment he got at Ochsner Clinic and was psychogenic or

emotional in origin.

With respect to plaintiff’s position that the defen-

dants committed a breach of contract, we are guided

by the following principles enunciated in Phelps v

Donaldson, 243 La. 1118, 150 So.2d 35:

“We think the general rule universally obtaining

on the subject matter is that: ‘When a physician

undertakes the treatment of a case he does not

guarantee a cure, nor is any promise to effect a

cure or even a partial healing to be implied, nor

does the law raise from the fact of employment

24

an implied undertaking to cure, but only an under-

taking to use ordinary skill and care. For this

reason a physician cannot be held up to a standard

of civil responsibility similar to that of engineers,

mechanics, and shipbuilders. Of course a physi-

cian might contract specifically to cure and he

would be liable on his contract for failure, but,

in the absence of such a special and peculiar con-

tract, the fact that treatment has resulted un-

favorably does not even raise a presumption of

want of proper care, skill, or diligence. * * *’

21 R.C.L. Sec. 36, p. 391. Also, see 70 C.J.S. Physi-

cians and Surgeons § 57, pp. 981, 982 ‘A dentist,

like a physician or surgeon, is not an insurer or

guarantor of results, in the absence of express

agreement.’ 41 Am. Jur., Physicians and Sur-

geons, Sec. 104, p. 219.”

There is no evidence of any expressed contract to

cure. The testimony of defendant physicians standing

alone is sufficient in this case with respect to implied

warranty to show that they did use ordinary skill and

care and their testimony is corroborated by the testi-

mony of every other physician who reviewed their proce-

dures and approved of same. Plaintiff attempts to

contradict this testimony by suggesting that X-ray

photographs taken by Drs. Hatch and Meyer were

inadequate in that they did not reveal the depth into

the chest cavity which the catheter reached. He specu-

lates that this caused his suffering. But Dr. Leon

thoroughly discredited this theory as a cause for plain-

tiff’s problem. Plaintiff’s argument that additional

X-ray photographs should have been taken and that

additional procedures, such as fluoroscoping and other

Y ~"y PEE 26 8 On ORES REPEAT LE IC RMI OTE SOT

25

tests, should have been implemented is not supported

| by any testimony, medical or lay. The real nub of the

plaintiff’s position seems to be that he was in pain at

the beginning and continued to be in pain at the time

of the trial; therefore, a breach of contract was com-

mitted by defendants who had undertaken to treat

him, but the law does not exact upon the physician a

guarantee to cure anyone. Furthermore, the pain and

discomfort described in the nursing note of April 21

are fully explained by Dr. Meyer who testified that a

thoracotomy necessarily causes a patient to be un-

comfortable as long as the catheter remains inserted

and discomfort continues even after the patient is dis-

charged from the hospital because of the incision and

irritation to the lining of the lung and chest wall.

Finally, the testimony of almost every physician who

appeared at the trial, as well as numerous consultants

to whom reference was made by those physicians, com- ;

pels a conclusion that plaintiff’s pain was not the result

of defendants’ actions but was psychogenic or emo-

tional requiring psychiatric treatment for a cure.

As to the allegations of negligence on the part of

defendants, their conduct must be judged on the basis

of whether they exercised that degree of skill and care

which is usually possessed and exercised by practi-

tioners of the profession in the same community, it

being their duty to use reasonable care and diligence

along with their best judgment in the application of

their skill to the case before them. Uter v Bone and

Joint Clinic, 249 La. 851, 192 So.2d 100, and Meyer

v St. Paul Mercury Indemnity Company, 225 La. 618

cnrenacel ote noe waconenee ener ecg na Calon “RAEN NS PRN A RO

26

73 So.2d 781. When this test is applied to the conduct

of defendants, the evidence is overwhelming to the

effect that all of the physicians who are named de-

fendants, as well as those personnel of Ochsner Clinic

and the other entities who treated plaintiff, discharged

their duty to him.

B-4340, 9-73