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Hanks v. Seale6/17/2005
record as to the nature, extent and amount of such expenses.
In discussing the preoperative standard of care and breach in that same document, the PCF stated:
Further, even if these tests are considered the standard, there is not a shred of evidence that failure to perform these tests caused damage to the plaintiffs; to the contrary, all of the testimony, except that of Dr. Silverman who could only say he was unsure on the matter, established that none of the conditions sought to be detected by these tests existed in this case. In other words, even had the tests been done, they would not have uncovered anything that would have changed the surgical decision or which led to the post surgical complications experienced by Mr. Hanks. Therefore, the PCF submits it was unreasonable on this record for the jury to find liability based on any preoperative actions by the defendants, and so manifest error occurred in the trial court.
In the section of the appellate brief entitled "Standard of care and breach as pertains to the surgery of April 13, 1998," the PCF further argued that:
Moreover, plaintiffs put on no evidence to establish a causal link between the alleged surgical deficiencies and Mr. Hanks' subsequent complications. To the contrary, the post-operative medical records demonstrate that the surgery was properly performed, as Mr. Hanks, according to the medical records was experiencing fleeting abdominal distension, was able to tolerate food and liquids following the surgery, passed urine and had bowel movements, and a gastrografin test two (2) days after surgery showed the ability of matter to pass through the esophagus into the stomach with some reflux-i.e., the ability of air to pass out through the esophagus.
Finally, in its concluding paragraph, the PCF again urged:
Even assuming these standards were proved, plaintiffs failed to establish a breach of these standards by Drs. Seale and Ledet or a causal link of any such breach to the complications suffered by Mr. Hanks. Consequently, the jury's verdict of liability in this case is unreasonable on this record, constitutes manifest error, and mandates that the Judgment in this matter be reversed.
In its writ application to this Court, the PCF assigned the same errors as in its appellate brief,and one more not relevant to this dissent. In its "Summary of the Argument," the PCF argued to this Court as follows:
In the case sub judice, considering the assignment of errors to liability raised by the Fund, the jury committed manifest error in finding that the plaintiffs established the applicable standards of care with regard to the pre-operative, operative and post-operative treatment rendered to Mr. Hanks. The testimony of plaintiffs' expert, Dr. Lewis F. Silverman, is not credible and is contrary to that of four other medical experts who testified in this case, as detailed in brief, and the facts established by te medical records. First, there is no consensus on whether manometry or EGD studies were required and even if these tests are considered the standard, there is not a shred of evidence that the failure to perform these tests caused damage to the plaintiff. Secondly, the plaintiffs failed to establish the applicable standard of care as it pertains to the surgery of April 13, 1998 and put on no evidence to establish a causal link between the alleged surgical deficiencies and Mr. Hanks' subsequent complications.
The PCF went on to discuss causation in the same manner as it did in the court of appeal brief. The PCF's brief to this Court discussed causation numerous times as follows:
Nevertheless, at the trial against the PCF, the pla
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