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Terrebonne v. Floyd5/23/2000
y judgment proceeding. Scott v. McDaniel, 96-1509 (La.App. 1 Cir. 5/9/97); 694 So.2d 1189, writ denied, 97-1551 (La. 9/26/97); 701 So.2d 991. The burden is still on the mover to show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.
The controlling issue in this case is whether Dr. Floyd breached the standard of care owed to Rachel Terrebonne and her unborn child. The only admissible evidence which may be used to establish the standard of care owed by Dr. Floyd and its breach, defendants argued and the trial judge agreed, is expert testimony. Plaintiffs contend expert testimony is not the only evidence which they may use to establish this fact because the manufacturer's labeling and instructions which accompanied Depo-Provera and Xanax delineates the standard of care owed by Dr. Floyd.
A plaintiff in a medical malpractice case has the burden of proving the applicable standard of care, its breach, and causation. Pfiffner v. Correa, 94-924, 94-963, 94-992 (La. 10/17/94); 643 So.2d 1228. The Louisiana Supreme Court in Pfiffner discussed the necessity of expert testimony in establishing the standard of care:
Although LSA-R.S. 9:2794(B) grants any party to the suit the right to subpoena any physician without his consent for a deposition or testimony at trial to establish this standard of care, see La.Rev.Stat.Ann. ยง 9:2794(B) (West 1991), the statute is silent as to whether such experts are necessary in order for the plaintiff to meet his burden of proof. A majority of Louisiana court of appeal cases have held that such expert testimony is necessary. (Footnote omitted) In other court of appeal decisions, however, the courts have stated that the standard of care for any particular community or locale, or specialty, is merely "best determined from the testimony of other experts in the field," not absolutely required. See Broadway v. St. Paul Ins. Co., 582 So.2d 1368, 1373 (La.Ct.App. 2d Cir.1991) (emphasis added). Although such testimony is persuasive, it is not always controlling. See, e.g., Cherry v. Herques, 623 So.2d 131 (La.Ct.App. 1st Cir.1993); Linares v. Louisiana DOTD, 582 So.2d 879, 878 (La.Ct.App. 4th Cir.1991); Harmon v. Levenson, 534 So.2d 486, 488 (La.Ct.App. 5th Cir.1988); Coleman v. Touro Infirmary of New Orleans, 506 So.2d 571, 574 (La.Ct.App. 4th Cir.), writ denied, 507 So.2d 1247, 1248 (La.1987); Wiley v. Karam, 421 So.2d 294, 297 (La.Ct.App. 1st Cir.1982).
The jurisprudence has also recognized that there are situations in which expert testimony is not necessary. Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body, from which a lay person can infer negligence. See Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La.1986). Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician's fault. See id. at 719-20. Likewise, where the defendant/physician testifies as to the standard of care and his breach thereof, see, e.g., Riser v. American Medical Int'l Inc., 620 So.2d 372, 377 (La.Ct.App. 5th Cir.1993), or the alleged negligence consists of violating a statute and/or the hospital's bylaws, see, e.g., Hastings, 498 So.2d at 722 (violation of LSA-R.S. 40:2113.4 which imposes duty on a hospital to make emergency services available to all persons in
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