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Brown v. Stickley9/29/2004
AFFIRMED.
In this case, the plaintiff, Susan Brown individually and on behalf of her minor son, Arkel Brown, appeals the jury's judgment in favor of the defendant, Dr. R. Foster Stickley, finding that he did not commit medical malpractice. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Brown filed suit against Dr. Stickley in March 1997, claiming that her son was born with severe deficits and defects due to Dr. Stickley's negligence. Brown alleged that Dr. Stickley ordered x-rays, dye tests, and fluoroscopy without first ascertaining whether she was pregnant, and as a direct result of said tests, her son was born with severe defects.
A jury trial was held and the jury rendered a verdict dismissing all claims against Dr. Stickley. Thereafter, Brown filed a motion for JNOV, which was denied. In denying the JNOV, the trial court stated that the issue at trial was only whether Dr. Stickley should have administered a pregnancy test before giving her the tests. The trial court further stated that the jury concluded that Dr. Stickley was justified in believing Brown was not pregnant. Brown now appeals.
ISSUES
Brown assigns as error:
1. The jury's findings were not only manifestly erroneous, but amounted to jury nullification because the jury ignored certain testimony, including Dr. Stickley's own testimony that he committed malpractice.
2. The trial court erred in denying her JNOV.
3. The jury committed manifest error in disregarding overwhelming evidence of deviations from the standard of care by Dr. Stickley.
LAW
A court of appeal may not set aside a jury's finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).
The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.
Id. at 844.
Though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. " here two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Stobart v. State Through DOTD, 617 So.2d 880, 883 (La.1993). "The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Id. at 882.
In a medical malpractice action, the plaintiff's burden is set forth in La.R.S. 9:2794(A), which states that the plaintiff must prove:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians . . . licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians . . . within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to
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