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ARNOLD RICHARD                                                                    *   NO. 2012-CA-0513
VERSUS                                                                            *   COURT OF APPEAL
PARISH ANESTHESIA                                                                 *   FOURTH CIRCUIT
ASSOCIATES, LTD. AND DR.
JAYACHANDRA INDURU                                                                *   STATE OF LOUISIANA
*
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2008-05151, DIVISION ―N-8‖
Honorable Ethel Simms Julien, Judge
Charles R. Jones
Chief Judge
(Court composed of Chief Judge Charles R. Jones, Judge Dennis R. Bagneris, Sr.,
and Judge Daniel L. Dysart)
DYSART, J., CONCURS IN THE RESULT
Timothy R. Richardson
USRY WEEKS & MATTHEWS, APLC
1615 Poydras Street
Suite 1250
New Orleans, LA 70112
-AND-
Leonard L. Levenson
Christian W. Helmke
Colleen Boyle Gannon
427 Gravier Street
New Orleans, LA 70130-7410
COUNSEL FOR PLAINTIFF/APPELLEE
C. William Bradley, Jr.
Michael C. Mims
BRADLEY MURCHISON KELLY & SHEA LLC
1100 Poydras Street, Suite 2700
New Orleans, LA 70163-2700
COUNSEL FOR DEFENDANT/APPELLANT
DECEMBER 14, 2012
AFFIRMED




The Appellants, Parish Anesthesia Associates, Ltd., and Dr. Jayachandra
Induru,  seek  review  of  the  judgment  of  the  district  court  holding  that  the
Appellants were liable to the Appellee, Arnold Richard, for medical malpractice.
Finding that the district court did not err, we affirm the judgment of the district
court.
Mr. Richard is a chronic pain patient who was implanted with a Codman
3000 infusion pump  (―Codman pump‖), which is an intrathecal pump used to
deliver a dosage of pain medications directly to the spinal fluid.   Mr. Richard
received a medication solution comprised of morphine, baclofen, and clonidine in
monthly pump refills, which were routinely injected into a reserve chamber of the
Codman pump and gradually released into his spinal canal over the course of a
month.
In February 2006, Mr. Richard presented to East Jefferson General Hospital
(―EJGH‖) for his monthly Codman pump refill.    Dr.    Jayachandra Induru, an
employee of Parish Anesthesia Associates, Ltd., was the attending anesthesiologist
who performed the refill procedure for Mr. Richard.   No one witnessed the refill
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procedure performed by Dr. Induru. Within minutes of receiving his pump refill,
Mr.  Richard  lost  consciousness  and  became  unresponsive.    Mr.  Richard  was
returned to the procedure room where Dr. Induru aspirated approximately 18.5 ml
of fluid from Mr. Richard's pump.   Thereafter, Mr. Richard was rushed to the
emergency room of EJGH, and later remained in the intensive care unit until he
was discharged from the hospital on February 8, 2006. It is uncontested that Mr.
Richard suffered from an overdose as a result of the refill procedure.
A  week  after  his  discharge,  Mr.  Richard  was  treated  at  St.  Tammany
Hospital for dehydration, as well as other complications. Subsequently, in June
2006, Mr. Richard again sought treatment at St. Tammany Hospital after having a
seizure at home.
Mr. Richard filed suit against the Appellants in May 2008, alleging that Dr.
Induru caused the overdose by negligently refilling the Codman pump, he breached
the acceptable standard of care owed to Mr. Richard, and caused the overdose.   He
further alleged that Dr. Induru’s employer, Parish Anesthesia Associates, Ltd., was
jointly, severally, solidarily, and vicariously liable for the actions of Dr. Induru.
Trial was held in October 2011, and the district court later rendered judgment in
favor of Mr. Richard against the Appellants in the amount of $350,000 in damages
resulting  from  the  negligent  administration  of  a  morphine/baclofen/clonidine
solution in addition to $98,826.75 for medical expenses.
The district court explained that ―for the following reasons this court finds
that physician error was the cause of the overdose‖ of Mr. Richard:
By defendant's (Dr. Induru’s) testimony, the refill
kit  contained  one  needle  called  a  non-coring  needle
which, when inserted into the implanted pump, would
contact a plate at the bottom of the apparatus, thereby
allowing  for the solution to  flow into the underlying
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reservoir. Use of this non-coring needle prevents any
fluid from entering into the bolus path— that is, the path
that leads directly into the spinal canal.
According to defendant, the refill kit excludes a
needle  known  as  a  bolus  needle.  Rather,  defendant
asserts  that  the  needle  must  be  specially  ordered.
Contrastingly, Dr. Paul Hubbell, III, testified that this
needle is included in the kit. Either way, this instrument
is  used  only  when  the  physician  seeks  to  inject
medication directly into the spinal canal.
Defendant also testified as follows: On the day of
the refill, defendant opened the kit, sterilized and draped
the area. He then began the procedure, inserting the non-
coring  needle and  removing  approximately  1.5  ml  of
residual fluid still in the pump. At that time, the pump
was working properly. He then injected 18 ml of solution
into the reservoir. After plaintiff lost consciousness and
was taken to the emergency room, defendant aspirated 18
ml  of  the  solution  from  the  pump;  apparently,  he
removed all that he injected. The extracted fluid was then
discarded without any testing to determine the nature of
its   composition,   whether   the   extract   was   solely
comprised of the morphine/baclofen/clonidine solution or
a combination of this cocktail and spinal fluid. At no
point  after  the  plaintiff  lost  consciousness  did  the
defendant chart in the plaintiff's medical records that he
experienced a pump malfunction.
The defendant's account fails to satisfy this Court.
Defendant    proposes                                                                that   he    aspirated   the
morphine/baclofen/clonidine  solution  in  its  entirety.
However,  this  theory  falls  short  of  satisfactorily
explaining how the defendant was able to aspirate 18 ml
of  the  morphine/baclofen/clonidine  solution  from  the
pump  and  the  plaintiff  overdose  on  the  same  only
moments  after  receiving  his  injection.  Further,  no
evidence  produced  at  trial  indicated  that  the  pump
malfunctioned. Indeed, Dr. Hubbell testified that had the
refill been properly performed plaintiff would not have
overdosed. Thus, for these reasons, this court therefore
finds that physician error caused plaintiff's overdose.
Subsequently, the parties filed a joint motion for new trial seeking to amend
the judgment to limit the liability of the Appellants to the amount of $100,000 by
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virtue  of  their  Patients  Compensation  Fund  qualification.    The  district  court
granted  the  motion  and  rendered  an  amended  judgment  in  December                  2011,
wherein the court ordered:
1.  that the Appellants pay  $100,000 in damages to
Mr.  Richard  for  negligent  administration  of  a
morphine/baclofen/clonidine solution;
2.  awarded Mr. Richard  $250,000 plus  $98,826.75
from the Louisiana Patient’s Compensation Fund   for
medical expenses;
3.  that  the  Appellants  and  the  Louisiana  Patient’s
Compensation Fund pay Mr. Richard judicial interest
as statutorily provided; and
4.  that applicable court costs shall be awarded under
La. C.C.P. art 1920 at the time of the hearing upon an
appropriate rule to show cause.
This timely appeal followed, and the Appellants raise four (4) assignments of
error:
1.                                                                                        The  district  court  committed  legal  error
when  it  placed  the  burden  of  proof  on  the
Appellants;
2.                                                                                        The district court committed legal error by
finding negligence on the part of the Appellants
based  on  circumstantial  evidence  alone  even
though Mr. Richard’s injury was of a kind which
can  occur  in  the  absence  of  negligence  in
contradiction to the Supreme Court’s holding in
Cangolosi  v.  Our  Lady  of  the  Lake  Regional
Medical Center, 564 So.2d 654 (La. 1989);
3.                                                                                        The  district  court  erred  in  finding  that
physical error was the most likely cause of Mr.
Richard’s  injuries,  as  illustrated  by  numerous
statements in the Reasons for Judgment which are
in direct contradiction to the record; and
4.                                                                                        The district court clearly erred in finding
that Mr. Richard satisfied his burden of proving
that the overdose was the cause of any alleged
deterioration in his quality of life.
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The manifest error rule applies in appeals of medical malpractice actions.
Stamps v. Dunham, 07-0095, p. 4 (La. App. 4 Cir. 9/19/07), 968 So.2d 739, 743.
―Malpractice claims are subject to the general rules of proof applicable to any
negligence action: the plaintiff must prove a standard of care, a breach of that
standard,  causation,  and  damages.‖  Id.                                               Furthermore,   ―[w]hether  alleged
malpractice constitutes negligence is a question for the jury.‖ Braud v. Woodland
Vill. L.L.C., 10-0137, p. 7 (La. App. 4 Cir. 12/8/10), 54 So.3d 745, 750 [Citations
omitted]. The Louisiana Supreme Court has provided a two-prong test for the
reversal of a fact-finder's determinations: 1) the appellate court must find from the
record that a reasonable factual basis does not exist for the finding of the trial
court, and 2) the appellate court must further determine that the record establishes
that the finding is manifestly erroneous. Id., p.  7,  54 So.3d at  750-51  (citing
Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882
(La. 1993), and Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987)).
In their first assignment of error, the Appellants argue that the district court
committed reversible error because it found negligence on the part of Dr. Induru as
a result of his inability to prove an alternative cause of Mr. Richard’s injuries. The
Appellants argue that, the district court misapplied the burden of proof by placing
the burden on Dr. Induru, and, thus, the district court committed reversible error.
The burden of proof of causation rests with the plaintiff.  Parker v. State Farm Fire
& Casualty Co., 348 So.2d 91, 95 (La. App. 4 Cir. 1977).    The Appellants further
argue that Mr. Richard bore the burden of proving that Dr. Induru committed some
5




act of malpractice and that pursuant to La. R.S. 9:2794(C)1, Mr. Richard cannot
rely on his injury, the overdose, as proof itself that malpractice occurred.
The Appellants argue that the more likely explanation for Mr. Richard’s
overdose was that his Codman pump malfunctioned. They further argue that it was
not their burden to establish that the Codman pump malfunctioned because Mr.
Richard, as the plaintiff, carried the burden of proof of proving that Dr. Induru’s
alleged negligence was the most probable cause of the malpractice and no other
factor can be reasonably ascribed as the cause under Parker.
The Appellants further argue that the district  court erroneously did not
consider whether Mr. Richard presented any evidence of Dr. Induru committing an
act of negligence.
Mr. Richard argues that the district court applied the correct burden of proof,
which he met at trial.    Mr. Richard further argues that he is not required to negate
the possibility of the malfunction of the Codman pump because statutorily a
plaintiff need only prove that the medical provider breached the standard of care.
La. R.S. 9:2794(a). He argues that all of the medical experts that testified agreed
that he suffered an overdose, which evidences a breach of the standard of care. As
a result of the overdose, Mr. Richard argues that he suffered respiratory failure;
1  La.  R.S.                                                                                     9:2794(C),  entitled  Physicians,  dentists,  optometrists,  and  chiropractic
physicians; malpractice; burden of proof; jury charge; physician witness expert qualification,
provides:
In medical malpractice actions the jury shall be instructed that the
plaintiff has the burden of proving, by a preponderance of the
evidence, the negligence of the physician, dentist, optometrist, or
chiropractic physician. The jury shall be further instructed that
injury  alone  does  not  raise  a  presumption  of  the  physician's,
dentist's, optometrist's, or chiropractic physician's negligence. The
provisions of this Section shall not apply to situations where the
doctrine of res ipsa loquitur is found by the court to be applicable.
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convulsions; malignant hypothermia; hallucinations; drug withdrawal; acidosis;
adverse effect of opiates; hypertension; hypotension; seizures; loss of brain cells;
and now suffers with early dementia.
Mr.  Richard  further  argues  that  because  Dr.  Induru  contends  that  the
Codman  pump  at  issue  was  defective,  Dr.  Induru  must  establish  by  a
preponderance of the evidence that the Codman pump malfunctioned when Dr.
Induru  refilled  the  Codman  pump.  Dr.  Induru  could  not  meet  this  burden.
Moreover, the record indicates that the Codman pump was not defective because a
dye test conducted on the Codman pump at issue a month before the overdose
revealed that the Codman pump was working properly.
Our Court has held that medical malpractice claims are subject to the general
rules of proof applicable to any negligence action; the plaintiff must prove a
standard of care, a breach of that standard, causation, and damages. Stamps v.
Dunham,                                                                                   07-0095,  p.                                                            4   (La.App.   4  Cir.   9/19/07),   968  So.2d   739,   743.
Additionally, the Louisiana Supreme Court in Pfiffner v. Correa, 94-0992 (La.
10/17/94),                                                                                643  So.2d  1228,  1232-33,  summarized  the  statutory  burden  upon
plaintiffs in medical malpractice cases:
.  the plaintiff must  establish  the standard of care
applicable to the charged physician, a violation by the
physician  of  that  standard  of  care,  and  a  causal
connection between the physician's alleged negligence
and the plaintiff's injuries resulting therefrom.
―Our review of Louisiana jurisprudence indicates that both the Louisiana
Supreme  Court  and  every  circuit  appellate  court  in  this  state  has  implicitly
recognized third-party fault as an affirmative defense.‖ Bienvenu v. Allstate Ins.
Co., 01-2248, p. 5 (La. App. 4 Cir. 5/8/02), 819 So.2d 1077, 1080; La. C.C.P. art.
1005.   The party pleading an affirmative defense has the burden of proving it by a
7




preponderance of the evidence. Allvend, Inc. v. Payphone Commissions Co., Inc.,
00-0661, p. 6 (La. App. 4 Cir. 5/23/01), 804 So.2d 27, 30.
In this instant matter, the record does not indicate that the district court
incorrectly applied the burden of proof.   The district court was presented with
conflicting  testimony  as  to  whether  Mr.  Richard’s  overdose  was  caused  by
physician error or a malfunction of the Codman pump.   Mr. Richard carried his
requisite burden of proof and established through the testimony of doctors Edson
Parker, Paul Hubbell, and Chad Domangue, that Dr. Induru incorrectly performed
the pump refill and that this was a deviation of the standard of care owed.2
Dr. Domangue testified that he treated Mr. Richard in February 2009, for
memory loss and personality changes. Dr. Domangue further testified that he
conducted a mini-mental status exam of Mr. Richard, who scored a 28/30.   Dr.
Domangue testified that the two point loss was related to short-term memory loss
by Mr. Richard. Dr. Domangue further testified that memory loss is essentially
irreversible, and that Mr. Richard more probably than not is at risk for early onset
dementia.
Dr. Domangue further testified that any of the medications that were injected
into the Codman pump could have caused Mr. Richard's blood pressure to drop. He
testified that he believed that the entire 18 ml was injected into Mr. Richard's
cerebral spinal fluid and the medicine was a bolus. He further testified that the first
time that Mr. Richard treated at St. Tammany Hospital was a week after the
overdose, and Mr. Richard  presented  for treatment  with the following health
2 Dr. Parker’s primary practice is pain medicine.  Dr. Hubbell is board-certified in anesthesiology,
interventional pain management and pain medicine.  Dr. Domangue was Mr. Richard’s treating
neurologist.
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conditions: difficulty speaking, facial droop, and a clot in a major vein of his brain,
venous thrombosis. Dr. Domangue further testified that with regard to the second
visit of Mr. Richard to St. Tammy Hospital, in June  2006, Mr. Richard was
admitted for episodes of altered consciousness, fluttering movements, and potential
seizures.  Dr. Domangue opined that the visit was also related to the February 2006
overdose.
Dr. Domangue further testified that when Mr. Richard was released from
EJGH following the overdose he was not released in a normal state, because his
―venous thrombosis was a direct correlation to his dehydration.‖   Mr. Richard was
unable to eat, was running a fever of 103, and never returned to baseline. Thus, Dr.
Domangue testified that Mr. Richard's admission to St. Tammany Hospital a week
after the overdose was related to dehydration and the refill procedure.
Dr. Edson Parker testified by video deposition on behalf of Mr. Richard. Dr.
Parker testified that the 18 ml solution injected by Dr. Induru into the intrathecal
space  of  Mr.  Richard  caused  the  life-threatening  signs  and  symptoms  he
experienced almost immediately after the injection. Dr. Parker testified that Mr.
Richard experienced these signs and symptoms immediately due to a baclofen
overdose in the intrathecal space. Dr. Parker further testified that the incorrectly
placed injection by Dr. Induru is below the standard of acceptable medical care.
However,  as  stated  above,  the  Appellants  had  to  establish  by  a
preponderance of the evidence that there was third party fault or a Codman pump
malfunction.    We note that Dr. Induru’s own expert, Dr. Joseph Turnipseed,
testified that he (Dr. Turnipseed) stood by the results of the medical review panel,
of which Dr. Turnipseed was a member, finding that the overdose of Mr. Richard
could have been caused by physician error. Furthermore, expert testimony revealed
9




that Mr. Richard suffered from an overdose of medication which was a direct result
of the refill procedure.
Lastly, the record reveals that a month prior to the overdose of Mr. Richard,
his Codman pump was dye-tested to reveal whether it was malfunctioning and the
Codman pump showed no sign of malfunctioning.   Thus, the district court had
more than one basis in the record for excluding a malfunction of the Codman pump
as the cause of Mr. Richard’s overdose. We find that this assignment of error is
without merit.
In their second assignment of error, the Appellants argue, in the alternative
to their first assignment of error, that the district court erred when it inferred
negligence on the part of Dr. Induru. As previously mentioned, the Appellants
argue  that  Mr.  Richard  presented  no  direct  evidence  of  Dr.  Induru’s  act  of
negligence. Thus, they argue that the district court inferred negligence on the part
of  Dr.  Induru  based  solely  on  circumstantial  evidence,  although  the  injuries
sustained by Mr. Richard could have occurred in the absence of negligence if the
Codman pump had malfunctioned.   No witnesses were called to testify that they
observed Dr. Induru commit malpractice.
The Appellants argue that the Louisiana Supreme Court has held that when a
plaintiff attempts to prove malpractice solely with circumstantial evidence, such
evidence must establish that:
more probably than not,  [1] the injury was of a kind
which  ordinarily  does  not  occur  in  the  absence  of
negligence, [2] that the conduct of the plaintiff or of a
third person was sufficiently eliminated by the evidence
as a more probable cause of the injury, and [3] that the
indicated  negligence  was  within  the  scope  of  the
defendant’s duty to the plaintiff.
10




Cangelosi, 564 So.2d at 665.   The Appellants argue that different doctors noted in
Mr. Richard’s medical charts the possibility that the Codman pump malfunctioned.
They further argue that Mr. Richard did not introduce the Codman pump into
evidence; thus, the possibility of a malfunction of the Codman pump could not be
ruled out as the true cause of Mr. Richard’s overdose.
Mr. Richard argues that it is undisputed that he was overdosed by Dr. Induru
during the Codman pump refill procedure.    He argues that an overdose of a patient
with deadly narcotics is an obvious breach of the standard of care. Additionally, an
overdose  is  not  supposed  to  occur  during  this  procedure,  according  to  the
testimony of Dr. Domangue, the treating neurologist of Mr. Richard. He further
argues that the fact that he collapsed shortly after the procedure demonstrates that
his near fatal condition was a direct result of the refill and is a prima facie showing
of negligence. As Mr. Richard argued in the first assignment of error, Dr. Induru
has not established that the Codman pump was defective. He further argues that if
the Codman pump was defective, Dr. Induru failed to notify the United States Food
and Drug Administration, or anyone else of the defect.
We find that the Appellants are correct in their argument that the Supreme
Court has held that a plaintiff relying on circumstantial evidence alone must meet
the three-prong test established by the Supreme Court in Cangelosi.   We further
note that the Supreme Court further reasoned that  plaintiffs do  not                     ―have to
conclusively exclude all other possible explanations for his injuries, because the
standard is not proof beyond a reasonable doubt.‖   Cangelosi, 564 So.2d at 664
(citations omitted).
In the instant matter, there is no direct proof of negligence on the part of Dr.
Induru. With regard to meeting his burden of proof under Cangelosi, Mr. Richard
11




established  through  the  testimony  of  his  experts  and  treating  physician,  Dr.
Domangue, that his overdose was caused by the error of Dr. Induru and was
unrelated to a pump malfunction.   Mr. Richard further proved that his Codman
pump had recently passed a dye test prior to the Codman pump being refilled by
Dr. Induru, as previously mentioned; thus, the district court had a sufficient basis
in the record for eliminating the conduct of a third person as having been a factor
in the overdose of Mr. Richard.    Regardless, Mr. Richard is not required to
―conclusively  exclude‖  the  possibility  of  a  pump  malfunction  as  a  possible
explanation for his injuries, under Cangelosi.   Furthermore, while some doctors
may have charted a Codman pump malfunction possibly occurred, none of those
doctors had firsthand knowledge of the procedure as there were no witnesses to the
refill; thus, the district court had a basis to disregard such notes.
Furthermore, Dr. Parker testified that considering the manner in which Dr.
Induru performed the refill procedure, Dr. Induru breached both the standard of
care of a board certified anesthesiologist, and the standard of care of a physician
who is board certified in pain medicine.
Based upon the record, we agree with Mr. Richard that the overdose itself
evidences a breach of the standard of care owed to Mr. Richard where no showing
of a pump malfunction has been made.   Therefore, the district court did not err in
determining that Mr. Richard carried his burden of proof under Cangelosi, and the
more probable than not standard.                                                         Based upon the record, Mr. Richard did
establish  by  circumstantial  evidence  that  his  overdose  was  caused  by  the
negligence of Dr. Induru.
The third assignment of error raised by the Appellants is that the district
court clearly erred in finding that physician error was the most likely cause of the
12




Mr. Richard’s injuries where the overwhelming weight of the evidence indicated
that the most likely cause of the plaintiff's overdose was a malfunction of the
Codman pump.    The Appellants’ two  (2) main arguments in support  of this
assignment of error are that: 1) the overwhelming weight of the evidence indicated
that a pump malfunction was the most likely cause of the Mr. Richard’s overdose,
and 2) many of the Court’s stated reasons for finding negligence on Dr. Induru’s
part are clearly wrong in light of the trial record.   However, we note that the crux
of the Appellants argument in this assignment of error is repetitive of the previous
assignments of error: that the Codman pump was defective.
In their first argument under this assignment of error, the Appellants assert
that the overwhelming weight of the evidence indicated that the Codman pump
malfunction was the most likely cause of Mr. Richard’s overdose.   They argue that
Mr. Richard did not prove that it was more likely than not that his injury resulted
from some sort of "operator error" by Dr. Induru. Despite offering several theories
to explain how Dr. Induru could have caused his overdose, the evidence indicated
that the most likely explanation was that Mr. Richard’s overdose was caused by a
malfunction of his Codman pump.
The Appellants  argue there were  four  (4) different  theories of liability
presented at trial:
1.                                                                                      The ―wrong needle‖ theory raised by Mr. Richard
is that Dr. Induru mistakenly used a Bolus needle to refill
the Codman pump instead of the refill needle included in
the  pre-packaged  Codman  refill  kit.  The  Appellants
argue, however, that a Bolus needle is not included in the
kit, and in order for Dr. Induru to obtain a Bolus needle,
he would have had to place a special order such a needle
from the EJGH central supply department, which he did
not do.
13




The Appellants further argue that Mr. Richard presented
no evidence that such oversights occurred, no evidence
that Dr. Induru ordered a Bolus needle, nor was there
proof that a Bolus needle was recovered from the hospital
in connection with this overdose.
Dr.  Turnipseed  testified  that  the  there  was  a  low
probability that Dr. Induru had mistakenly used a Bolus
needle instead of a refill needle. He further testified that
it was not likely for a physician with the qualifications
and experience of Dr. Induru to commit such an elaborate
string of errors. The Appellants argued that, according to
the testimony of Dr. Turnipseed, the only way that Dr.
Induru was able to inject 18 ml of medication into the
Codman pump and later aspirate the same amount was
because he indeed used a refill needle. Aspiration with a
Bolus needle would have resulted in drawing 120-150 ml
of cerebrospinal fluid directly from the spinal column.
2.                                                             The  Missed  Pump  Theory  is  that  Dr.  Induru
injected  the  medication  with  the  correct  needle,  but
injected the medication into Mr. Richard’s skin instead of
into  the  Codman  pump.  Dr.  Turnipseed  testified  that
there was a low probability that Dr. Induru injected the
medication  into  Mr.  Richard’s  skin  or  subcutaneous
tissue.
3.                                                             The next theory that the Appellants argue Mr.
Richard raised is that Dr. Induru could have caused the
overdose by using the refill needle as a Bolus needle.
This would mean that Dr. Induru did not inject the refill
needle deep enough into the Codman pump resulting in
Dr. Induru filling the bolus port of the Codman pump
instead of the reservoir where the medication should have
been deposited.   Dr. Induru explained that the Codman
pump contains a safety valve, if properly functioning,
that prevents medicine from travelling through the bolus
port unless a Bolus needle is being used for the refill.
4.                                                             The  last  theory  introduced  at  trial  by  Dr.
Turnipseed, but not Mr. Richard, is that a patient can
suffer  an  overdose  of  medication  as  a  result  of  the
overuse of Codman pump by a physician. The overuse of
the Codman pump could cause the silicone septum of the
pain pump to deteriorate, which could result in some
medication back-flowing into the bolus port as the pump
is being refilled.   However, Dr. Turnipseed testified that
there  was  a  low  probability  that  this  was  how  Mr.
Richard’s  overdose  was  caused  because  Mr.  Richard
14




suffered the effects of the overdose too quickly after the
refill, which would not have occurred if the septum were
worn down.
The Appellants, thus, argue that the most plausible explanation of how Mr.
Richard’s overdose occurred is that the Codman pump malfunctioned. Dr. Induru
testified that he did not use a Bolus needle for the refill. He further testified that he
conducted a routine saline flush of the Codman pump of Mr. Richard just before he
refilled the Codman pump which entailed injecting 5 ml of saline and aspirating
the same amount. He testified that he would not have been able to aspirate the 5ml
of saline if he were using a Bolus needle.
Dr.  Induru  testified  that  in  addition  to  himself,  other  physicians,  as
mentioned above, noted their conclusion that Mr. Richard’s overdose was caused
by a malfunction of the Codman pump as a result of excluding all other possible
causes of the overdose, which Dr. Induru testified is a diagnosis of exclusion.   Dr.
Turnipseed agreed with Dr. Induru’s diagnosis of exclusion, and agreed that a
pump  malfunction  was  the  probable  cause  of  Mr.  Richard’s  injuries.  The
Appellants also argue that because Mr. Richard could not produce the Codman
pump that was implanted in him at the time of the overdose, the possibility of a
malfunction cannot be overlooked.
The Appellants second argument under this assignment of error is that the
district court's fact findings are erroneous because many of the court's stated
reasons for finding negligence on the part of Dr. Induru are clearly wrong in light
of the trial record. They argue that the district court ignored the fact that Mr.
Richard's medical records contain four separate documents wherein Dr. Induru
charted that a "malfunction" of the Codman pump occurred, and that four (4) other
physicians also noted this possibility: Dr. Donald S. Adams, Dr. Paul Hubbell, Dr.
15




Ulrich A. Starke, and Dr. Hamid Salam. The district court nevertheless held that
"[a]t no point after the plaintiff lost consciousness did the defendant chart in the
plaintiff's medical records that he experienced a pump malfunction." Thus, the
Appellants argue that there is no basis for the district court's statement that "[a]t no
point after the plaintiff lost consciousness did the defendant chart in the plaintiff's
medical records that he experienced a pump malfunction."
The Appellants argue that Dr. Induru's testimony lucidly explained how he
was able to aspirate 18 ml of the morphine/baclofen/clonidine solution from the
pump and Mr. Richard could still overdose so soon after receiving his injection."
Dr. Induru testified that it would take less than .5 ml of Mr. Richard's medication
to cause an overdose.   He further testified that even though he injected 18 ml of
medication, it was possible that there was actually more than 18 ml of fluid in the
Codman pump because it is difficult to aspirate all of the fluid contained in the
Codman pump. He testified that when he attempted to empty the Codman pump
before beginning  the  refill, it is possible that some old  medication or saline
remained in the Codman pump. Therefore, after Dr. Induru injected the 18 ml of
new medication, he testified that it is possible that there was actually more than 18
ml of fluid in the Codman pump.   Dr. Induru further testified that a Codman pump
malfunction must have caused a small amount of medication to enter Mr. Richard's
spinal column, but that there must have been at least 18 ml of fluid still left behind
in the Codman pump, representing the amount of fluid Dr. Induru was able to later
aspirate.
Nevertheless, the district court wrote in its reasons for judgment that Dr.
Induru's testimony "falls short of satisfactorily explaining how the defendant was
16




able to aspirate 18 ml of the morphine/baclofen/clonidine solution from the pump
and the plaintiff overdose on the same only moments after receiving his injection."
The Appellants further argue that they offered a sealed Codman pump refill
kit into evidence to provide definitive proof that the kit excludes a Bolus needle;
however, the district court found that the Appellants failed to definitively establish
that the Codman refill kit does not contain a Bolus needle. The refill kit entered
into evidence was identical to the kit used on the date of Mr. Richard’s overdose
and, thus, it speaks for itself. The district court's finding that defendants failed to
definitively establish that the kit excludes a Bolus needle is clearly wrong.
The  Appellants,  as  stated  previously,  further  argue  that  Dr.  Hubbell
acknowledged that Mr. Richard's injuries could have been caused by a malfunction
of  the  Codman  pump.    However,  the  district  court  stated  in  its  reasons  for
judgment that "Dr. Hubbell testified that had the refill been properly performed
plaintiff would not have overdosed."   The Appellee’s argue that the district court's
statement implies that Dr. Hubbell ruled out the possibility that Mr. Richard's
Codman  pump  malfunctioned  when  Dr.  Hubbell  explicitly  acknowledged  the
possibility that the overdose could have occurred in the absence of physician error
in the event of a Codman pump malfunction. Ultimately, Dr. Hubbell testified that
he did not know the cause of Mr. Richard's overdose.
Thus,  the  Appellants  argue  that  based  upon  the  misstatements  of  fact
included in the reasons for judgment of the district court, we should find that these
errors constitute manifest error and warrant reversal.
Mr. Richard argues that there was sufficient evidence to show that physician
error was the cause of his overdose.   He argues that it is undisputed that the
overdose occurred as a result of Dr. Induru’s injection of 18 ml of medication into
17




his Codman pump.   Mr. Richard further argues that he presented testimony of two
physicians, Doctors Parker and Hubbell, that Dr. Induru incorrectly performed the
refill procedure.  Lastly, Mr. Richard argues that the Appellants failed to prove that
third party error occurred as was their burden.
We find that the district court, as previously noted, was presented with
conflicting testimony as to whether the Codman pump malfunctioned. A dye test
showed the Codman pump was working properly, and even Dr. Induru testified
that he performed a saline test on the Codman pump, which further indicated that
the pump was not defective.   Furthermore, the district court heard more testimony
from various physicians that more probably than not it was physician error that
caused the injuries of Mr. Richard. The district court further noted in its reasons for
judgment that it did not find the testimony of Dr. Induru credible.
Where the factual findings are based upon determinations regarding the
credibility of witnesses, the manifest error/clearly wrong standard demands great
deference to the trier of fact's findings. Pereira v. Louisiana Coca-Cola Bottling
Co., 620 So.2d 315, 318 (La. App. 4 Cir. 1993) writ denied, 629 So.2d 414 (La.
1993).   Only the trier of fact can be aware of the variations in demeanor and tone
of voice that bear so heavily on the listener's understanding and belief in what is
said. Id. Therefore, in the matter sub judice, the district court made a credibility
determination based on the testimony presented, and further had a basis in the
record to find that Mr. Richard’s overdose and resulting injuries were caused by
Dr. Induru.   In this matter even the medical review panel could not exclude the
possibility that physician error was the cause of Mr. Richard’s injuries. Thus, there
has been no showing of error on the part of the district court.
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The fourth assignment of error raised by the Appellants is that the district
court erred in its factual finding that Mr. Richard proved by a preponderance of the
evidence that his 2006 overdose caused the injuries that he seeks relief for in the
instant proceeding and awarding him $350,000 in damages.   The Appellants argue
that the factual finding of the district court is clearly wrong.     The Appellants
further argue that even if Dr. Induru did cause the overdose, Mr. Richard did not
prove  that  the  overdose  caused  permanent  physical  or  mental  damage  or
deterioration of his quality of life.
The Appellants argue that Mr. Richard relied on the testimony of
Dr. Domangue primarily to establish causation, but the testimony of this sole
witness was insufficient to satisfy Mr. Richard’s burden of proof.   The Appellants
argue that Dr. Domangue testified that he did not perform a complete mental status
exam of Mr. Richard, and he further testified that he was unable to quantify the
extent of Mr. Richard’s memory loss. The Appellants argue that Dr. Domangue
also testified that he wanted Mr. Richard to visit another doctor for a formal
memory  diagnosis,  but  Mr.  Richard  did  not  present  himself  for  further
neuropsychological testing.   Dr. Domangue further testified that as a result of
reviewing an MRI and EMG of Mr. Richard, Dr. Domangue noted that Mr.
Richard sustained significant brain injuries such as thrombosis and atrophy of the
brain, prior to the 2006 overdose.
Furthermore, the Appellants’ expert, Dr. Adams, a neurologist, testified that
by the time Mr. Richard was discharged from EJGH in February  2006, Mr.
Richard had fully recovered from the effects of the overdose.   Dr. Adams further
testified that in his opinion the overdose did not present a physical basis for
permanent brain damage given the types of drugs on which Mr. Richard had
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overdosed. Additionally, Dr. Adams testified that Mr. Richard’s medical history
was varied because Mr. Richard:   had suffered from brain injuries in a motorcycle
accident  in  the                                                                         1970s;  had  symptoms  from  Hepatitis  C;  had  a  history  of
intravenous drug abuse; and was prescribed various oral pain medications.
Dr. Adams further testified that in consideration of Mr. Richard’s condition
and medical history, Mr. Richard’s short-term memory loss is not surprising.   Dr.
Adams opined that because Dr. Domangue had prescribed Elavil to Mr. Richard as
a sleeping aid, it was possible that the side effects of Elavil were clouding the
cognitive function of Mr. Richard. He further testified that the Morphine and
Dilaudid that Mr. Richard was being treated with through the Codman pump also
could have affected his cognitive ability.
Dr. Adams further testified that the leg pain experienced by Mr. Richard is
also unrelated to the overdose, and further opined that the score of Mr. Richard on
a mini-mental status exam administered by Dr. Domangue, which was 28 out of
30, was ―very good‖ considering Mr. Richard’s age and medical history. He further
testified that the mental and physical deterioration are due to his age, medical
history, and the side effects of the medication he has been taking.
Mr. Richard argues that the district court did not err in awarding him
$350,000 in damages for the injuries he has sustained as a result of the Appellants’
malpractice.   As a result the overdose, he was in the ICU for eight (8) days during
which his blood pressure and pulse dropped significantly; and he suffered from
hallucinations,   seizures,   acute   respiratory   failure,   convulsions,   malignant
hypothermia, hallucinations, drug withdrawals, acidosis, adverse effect of opiates,
hypertension,  and  hypotension.    Thereafter,  he  was  hospitalized  twice  at  St.
20




Tammany Parish Hospital.   In total, the cost of Mr. Richard’s hospitalization from
EJGH and St. Tammany Parish Hospital was approximately $99,000.
The quantum assessment of a district court is entitled to great deference on
review because it is a determination of fact.   Talbert v. Evans, 11-1096, pp. 8-9
(La. App. 4 Cir. 3/7/12), 88 So.3d 673, 679, writ denied, 12-0774 (La. 5/18/12), 89
So.3d                                                                                      1197.   Furthermore,  where  the  factual  findings  are  based  upon
determinations regarding the credibility of witnesses, the manifest error/clearly
wrong standard demands great deference to the trier of fact's findings. Pereira v.
Louisiana Coca-Cola Bottling Co., 620 So.2d 315, 318 (La. App. 4 Cir. 1993) writ
denied, 629 So.2d 414 (La. 1993).   Only the trier of fact can be aware of the
variations in demeanor and tone of voice that bear so heavily on the listener's
understanding and belief in what is said. Id.   Furthermore, our Court has also held
that the testimony of a treating physician should be accorded more weight and
probative value than that of a physician who has only seen the injured party for
purposes  of  rendering  expert  testimony  concerning  the  party's  condition.  Id.
However, the treating physician's testimony is not irrebuttable, as the trier of fact is
required to weigh the testimony of all the medical witnesses. Miller v. Clout, 03-
0091, p. 6, n. 3 (La. 10/21/03), 857 So.2d 458, 462 (citing Freeman v. Rew, 557
So.2d 748, 751 (La. App. 2 Cir. 1990)).
Dr. Domangue, a physician who actually treated Mr. Richard, testified that
the rapid drop in Mr. Richard’s blood pressure caused the death of some of Mr.
Richard’s  brain  cells,  which  resulted  in  brain  damage  and  an  early-onset  of
dementia. He further testified that the subsequent hospitalizations of Mr. Richard at
St. Tammany Parish Hospital were connected to the overdose given their close
proximity in time.   Additionally, the testimony of Mr. Richard and his daughters
21




revealed that his quality of life has lessened since the malpractice. His daughters
both testified that Mr. Richard is no longer self-sufficient; ambulates with a cane;
is withdrawn and has become depressed and frustrated; no longer engages in
hobbies and activities that he once enjoyed; and his short and long term memory
has worsened.   We find that there has not been a showing of manifest error by the
district court.
DECREE
For the foregoing reasons, the judgment of the district court finding that
Parish Anesthesia Associates, Ltd., and Dr. Jayachandra Induru, are liable for
medical malpractice is affirmed.
AFFIRMED
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