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Tarbutton v. St. Paul Fire & Marine Insurance Co.12/5/2001
r. McHugh was not required to exercise the highest degree of care possible in Ms. Tarbutton's case. His duty was only to exercise that degree of care and skill ordinarily used by his peers under similar circumstances. Dr. McHugh's judgment in this case must be evaluated in terms of reasonableness and circumstances existing in September of 1997 and not in terms of the result, or in light of subsequent medical development or hindsight. Dr. McHugh's treatment in this case must be evaluated in terms of the facts about the plaintiff known to him at the time it was rendered and not upon the recommendations and guidelines of a task force. . . .
Assuming that colonoscopy and flexible sigmoidoscopy with barium enema were mutually acceptable procedures and sanctioned by qualified physicians of opposing views and that Dr. McHugh acted with reasonable care and diligence, then he cannot be said to have deviated from the standard of care. A physician faced with more than one acceptable procedure is not negligent for failing to choose a course of conduct that, at a later time, may be shown to be a wiser course. See Caldwell v. Parker, 340 So.2d 695 (La. App. 4th Cir. 1976), writ denied, 342 So.2d 1120 (La. 1977).
The plaintiff's evidence in this case does not rise to the level of proof by a preponderance of the evidence. The court is of the opinion that the testimony of Dr. Hargrave is not as sound as the testimony of Dr. Jordan. The court was more impressed with Dr. Jordan's knowledge of the subject at issue. His opinions had more weight and foundation than did those expressed by Dr. Hargrave. There were instances in his deposition where he became dogmatic when expressing an opinion. Dr. Jordan's opinions sounded more reasonable and logical.
For the reasons stated hereinabove, the court finds that the plaintiff, Willie Edna Tarbutton, has not proven by a preponderance of the evidence that the defendant, Dr. J.B. Duke McHugh, was negligent or violated the required standard of care in his treatment of the plaintiff on September 8, 1977.
In this case, as noted by the trial court, Miss Tarbutton presented expert testimony which conflicted with that of defendants' expert. The issue of whether a breach of the standard of care occurred is a factual question over which the trial court has great discretion and the resolution of which turns in large part upon the evaluation of the credibility of the testimony of the witnesses. Considering the above conflicting testimony, we cannot say that the trial court committed manifest error in finding that Dr. McHugh did not deviate from the applicable standard of care and was therefore not negligent in his treatment of Miss Tarbutton. In light of the evidence regarding the effectiveness of colonoscopy and the small number of risks associated with the procedure, we cannot fault Dr. McHugh's approach. It is more circumspect to check for and remove benign polyps than to wait ten years after a negative test when, according to plaintiff's expert, a benign polyp could develop into cancer within seven years.
Conclusion
For the reasons set forth above, the judgment of the trial court is affirmed. Costs are assessed to plaintiff-appellant, Willie Edna Tarbutton.
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