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Jackson v. State6/29/2005
udgment.
Ms. Jackson's expert was Dr. Marcia C. Bowling, a gynecologic surgeon whose deposition was admitted into evidence in lieu of testimony. Dr. Bowling criticized the failure of the physicians at Conway to follow the plan for Lupron treatment prior to surgery. She believed that Lupron would have been beneficial to the effort to preserve Ms. Jackson's fertility as it may have improved the likelihood of keeping her uterus intact. She explained that removal of a smaller fibroid lessens the risks of trauma to the uterus, bleeding, and having to perform a hysterectomy. It was Dr. Bowling's opinion that there is no need to remove the uterus of a fertility patient absent a nearly life-threatening situation. She criticized the failure of Conway's physicians to reconstruct a uterus from the uterine remnant left after removal of the fibroid. She believed there was a breach of the standard of care, because the operation was for infertility, and a hysterectomy was not what Ms. Jackson expected. It was Dr. Bowling's opinion that it would have been appropriate to "bend over backwards" to preserve the uterus and allow Ms. Jackson to make a decision regarding pregnancy in light of the risk of uterine rupture. Dr. Bowling also believed that removal of the ovaries was a breach of the standard of care. She concluded that the ovaries were normal and that leaving them intact would be important for hormone production in a woman 34 years of age.
The evidence also included the affidavit of Dr. Johnny Swiger, a third-year resident at the time of the surgery who operated on Ms. Jackson with Dr. Ziegler's assistance. According to the affidavit, Dr. Swiger had some recollection of Ms. Jackson's treatment. He also reviewed Conway's records. Dr. Swiger's affidavit recounts the surgery as described in the post-operative report. The affidavit states that the TAH/BSO was medically necessary and that all efforts were made to save the uterus and ovaries. It was his opinion that even if the uterus and ovaries had not been removed, Ms. Jackson still would not have been able to conceive.
Lastly, Donna Carpenter Long, a nurse involved in Ms. Jackson's treatment at LSUMC, testified. Ms. Long wrote the November 29, 1994, letter to Ms. Jackson advising her to return to Conway for treatment. Ms. Long did not recall Ms. Jackson. However, from her review of the letter and the records from LSUMC, she testified that there was nothing in the letter to indicate that she referred Ms. Jackson to Conway to continue Lupron therapy. She believed that Ms. Jackson may have complained of problems, so she urged her to get checked at Conway.
We can find no manifest error in the trial court's denial of Ms. Jacksons' medical malpractice claim. The experts gave differing opinions as to whether the standard of care for performing surgery to remove fibroids in a fertility patient was breached by the removal of the uterus and ovaries or by the failure to treat Ms. Jackson with Lupron prior to surgery. Where the experts' opinions are in conflict, we are obliged to give deference to the trier of fact's decision. Pinnick, supra. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra. As determined by the trial court, Ms. Jackson failed to establish that the standard of care required treatment with Lupron injections prior to surgery to remove fibroid tumors even in a patient seeking fertility. The record establishes that the decision of whether to use Lupron was a medical judgment call. So too was the decision whether to remove the uterus and ovaries during the surgery. The record provides ample support for finding that decisions made
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