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Dumont v. Maaliki9/22/2000
This action arises out of a wrongful death/medical malpractice claim brought by the husband and children of Mrs. Dyann Dumont against the Cardiovascular Institute of the South (CIS) and its employee, Dr. Salem Maaliki. After the trial court rendered judgment in favor of the plaintiffs, the Louisiana Patients' Compensation Fund intervened in the suit and appears as an appellant. The defendants, Dr. Salem Maaliki, CIS, and the intervenor, Louisiana Patients' Compensation Fund, appealed the trial court's judgment.
There are three issues before the court for determination. We are asked to determine whether the trial court's decision that Dr. Maaliki was negligent in his treatment of Mrs. Dumont was manifestly erroneous and/or clearly wrong. The second issue is whether the trial court erred in finding that Mrs. Dumont's death was caused by Dr. Maaliki's fault. The third issue for determination is whether the trial court erred in not allowing Dr. Fitzpatrick to testify regarding the cause of Mrs. Dumont's death. Finding no error in the trial court's judgment, we affirm.
FACTS
This claim arises out of Mrs. Dumont's visit to CIS on November 15, 1995, three days before her death on November 18, 1995. Prior to her visit, Mrs. Dumont had been experiencing shortness of breath. Because she was unable to get an appointment with her treating physician until November 20th, she went to CIS for treatment. Mrs. Dumont was dropped off at the door and entered the clinic without assistance. She was first assessed by a CIS nurse, who found a normal blood pressure, stable pulse and a weight of 255 pounds. Her chief complaint was shortness of breath (dyspnea) on exertion. Dr. Maaliki reviewed the chart and discovered that Mrs. Dumont was a prior patient at CIS. She had past complaints of chest pains, shortness of breath on exertion, sweating, palpitations and weakness. She was also an insulin-dependent diabetic. Dr. Maaliki's history taken from Mrs. Dumont revealed that she had shortness of breath on exertion, a dry cough and headaches. She also informed Dr. Maaliki that she had been in the emergency room for hip trouble several weeks earlier. In his examination of Mrs. Dumont, Dr. Maaliki noted that her vital signs were stable and she did not exhibit any swelling in her arms or legs. Mrs. Dumont's lungs were clear and her heart sounds were normal. She had no signs of shortness of breath at rest. Dr. Maaliki observed that she was obese, but otherwise normal. Dr. Maaliki diagnosed Mrs. Dumont with bronchitis, prescribed an antibiotic and scheduled a follow-up visit for November 21st. Mrs. Dumont left the clinic unassisted. In the days following her visit to CIS, Mrs. Dumont's condition worsened until her death on November 18, 1995. At no time prior to her death did she seek further treatment.
DISCUSSION
The burden of proof for a Louisiana medical malpractice action is stated in La. R.S. 9:2794. It provides that in a malpractice action based on the negligence of a physician, the plaintiff shall have the burden of proving: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty; (2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and dilige
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