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Terrebonne v. Floyd5/23/2000
the community without regard to income or insurance protection and hospital bylaws establishing duties for on-call physicians), expert testimony is also unnecessary to establish a malpractice claim.
We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794's requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician's conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care and there is objective evidence, including the testimony of the defendant/physician, which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant's fault and the injury alleged. Id. at 1233-34. (Emphasis ours.)
The Depo-Provera labeling expressly provides "it is important that the first injection be given only during the first 5 days after the onset of a normal menstrual period." (Emphasis added.) Dr. Floyd argues this language is beyond the understanding of a layperson. We disagree. The manufacturer's instructions regarding the administration of Depo-Provera are clear and require little knowledge of technical terminology. As Plaintiffs note in their brief, although questions regarding the appropriateness or correct dosage of Depo-Provera to treat symptoms could very well involve complex medical issues, the timing of the administration to pre-menopausal females presents a simple straight forward inquiry. The manufacturer's label instructs that the medication should not be prescribed "to a woman of child-bearing potential after the fifth day of her menstrual cycle." Dr. Floyd does not contend that the administration of Depo-Provera to a pregnant woman is medically advisable contrary to the manufacturer's label; or, in this instance, Mrs. Terrebonne's health risks were so great and life threatening that using the drug was the only reasonable alternative.
Dr. Floyd candidly admits in brief on September 1st and 2nd , when he ordered the urine pregnancy tests to determine whether Rachel was pregnant, he knew " he pregnancy was not sufficiently advanced to produce a positive pregnancy test at that time." Whether Dr. Floyd violated the standard of care by relying on the results of a test he admittedly knew may have been false and then administering Depo-Provera contrary to the manufacturer's label are issues well within a lay jury's grasp.
Plaintiffs also cited a number of cases from other jurisdictions in support of their position. In Mulder v. Parke Davis & Co., 288 Minn. 332, 339-340, 181 N.W.2d 882, 887 (1970) the Minnesota Supreme Court stated " here a drug manufacturer recommends to the medical profession (1) the conditions under which its drug should be prescribed; (2) the disorders it is designed to relieve; (3) the precautionary measures which should be observed; and (4) warns of the dangers which are inherent in its use, a doctor's deviation from such recommendations is prima facie evidence of negligence if there is competent medical testimony that his patient's injury or death resulted from the doctor's failure to adhere to the recommendations." The Mississippi Supreme Court in Thompson v. Carter, 518 So.2d 609 (Miss. 1987) held that information contained in package inserts and the Physician's Desk Reference constituted prima facie proof of the proper use of a drug and a deviat
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