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Jackson v. State6/29/2005
t witnesses who are members of the medical profession are necessary to determine whether the defendant possessed the requisite degree of skill or knowledge or failed to exercise reasonable care and diligence. Demopulos v. Jackson, 33,560 (La. App. 2d Cir. 6/21/2000), 765 So. 2d 480; Pugh v. Beach, 31,361 (La. App. 2d Cir. 12/11/98), 722 So. 2d 442. When there are conflicting expert opinions concerning the defendant's compliance with the standard of care, the reviewing court will give great deference to the conclusions of the trier of fact. Pinnick v. Louisiana State University Medical Center, 30,263 (La. App. 2d Cir. 2/25/98), 707 So. 2d 1050.
Ms. Jackson argues that the trial court erred in finding that she sustained no damages and in failing to address whether the standard of care was breached by removal of her uterus and ovaries. She suggests that the trial court's failure to assess whether she lost a chance of conception was an error of law requiring de novo review of the record. We disagree. The trial court clearly considered whether Ms. Jackson lost the chance of conception when it determined from the evidence that Ms. Jackson was never going to conceive naturally and that she would have "probably never" carried a child to full term if IVF were done. We do not find that use of the phrase "probably never" in the reasons for judgment indicates that the trial court applied the wrong legal standard in finding that Ms. Jackson sustained no damages or requires this court to conduct a de novo review. Our review of this matter is guided by the manifest error standard as explained in Stobart v. State, through DOTD, 617 So. 2d 880 (La. 1993). Moreover, appeals are taken from the judgments, not reasons for judgments. Greater New Orleans Expressway Com'n v. Olivier, 2002-2795 (La. 11/18/03), 860 So. 2d 22; Hickman v. Bates, 39,178 (La. App. 2d Cir. 12/15/04), 889 So. 2d 1249.
This matter presents two allegations of malpractice - the failure of the physicians at Conway to follow the treatment plan calling for Lupron injections prior to surgery and the removal of Ms. Jackson's uterus and ovaries absent medical necessity and contrary to her desire for fertility. These issues require expert testimony to determine negligence.
The only treating physician who testified was Dr. John Ziegler, who was on staff at Conway as a teacher in 1994, and assisted in Ms. Jackson's surgery. However, Dr. Ziegler did not have any personal recall of treating Ms. Jackson. Regarding the decision to proceed to surgery without first treating Ms. Jackson with Lupron to attempt to shrink the fibroids, Dr. Ziegler testified that there is a difference of opinion as to its use prior to surgery. He explained that Lupron does not clear the fibroids or make the surgery go any better, that it does not work in every instance, and that the effects are variable when it does work. Also, he believed that Lupron had not been FDA approved for pretreatment of fibroids in 1994. Dr. Ziegler did not recall any discussion regarding a change in Ms. Jackson's treatment plan. But noting the difficulties she had getting to her appointments in Shreveport, he believed that she needed a practical plan of care to fit her situation.
Dr. Ziegler explained that the intended surgery was to remove the fibroids and to open the fallopian tubes. They did not intend to perform a TAH/BSO. However, once the 700 gram fibroid was removed, there was not anything left from which to reconstruct a viable uterus. Dr. Ziegler testified that if the uterus had remained it "very likely" would have resulted in future problems. He also explained that both the ovaries and fallopian tubes were no longer normal as they had become encased by adhesions and scar
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