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GERALD POST VERSUS STATE OF LOUISIANA, THROUGH DEPARTMENT OF HEALTH AND HOSPITALS, AND LOUISIANA HEALTH CARE AUTHORITY THROUGH CHARITY HOSPITAL, MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS

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NO. 2005-CA-0256 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2000-19742, DIVISION "G-11" Honorable Robin M. Giarrusso, Judge ****** Judge Roland L. Belsome ****** (Court composed of Judge Terri F. Love, Judge Leon A. Cannizzaro Jr., Judge Roland L. Belsome) Harry T. Widmann Scott T. Winstead HARRY T. WIDMANN & ASSOCIATES 3850 North Causeway Boulevard Two Lakeway Center, Suite 590 Metairie, LA 70002 COUNSEL FOR PLAINTIFF/APPELLANT Charles C. Foti, Attorney General Richard B. Ehret, Special Assistant Attorney General BORDENAVE BOYKIN & EHRET 400 Poydras Street, Suite 2450 New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED Appellant Gerald Post appeals the district court's judgment finding that the state did not negligently perform Mr. Post's laparoscopic inguinal hernia repair. STATEMENT OF THE CASE Gerald Post ("Mr. Post") was a 52-year old male who underwent laparoscopic left inguinal hernia repair with placement of Marlex mesh at the Medical Center of Louisiana at New Orleans on February 13, 1997. During the course of the operative procedure a piece of Marlex mesh, approximately 4 by 2 cm. in length was placed and the laparoscopic reticulating stapler was used to secure the mesh in place medially at the pubis and Cooper's ligament working laterally. The mesh was draped over an area sometimes referred to as "the triangle of doom," which is traversed by the iliac artery, iliac vein and vas deferens. Subsequent to the surgery Mr. Post developed thrombus, or DVT (deep venous thrombosis), in his left lower extremity. After treatment with blood thinners, the resident physician who performed the laparoscopic procedure, Dr. Tim Erhlich, suggested that the Marlex mesh may be

impinging the iliac vein and that the mesh should be removed. Consequently, two weeks after the laparoscopic procedure, Dr. James Redmann performed an open hernia repair and removed the mesh. Mr. Post was continued on blood thinning medication which improved the blood flow in his left leg, though he still suffered from a thrombotic condition at the time of his discharge. Mr. Post convened a medical review panel against the State of Louisiana through the Department of Health and Hospital, Medical Center of Louisiana at New Orleans. In his complaint, Mr. Post argued that the laparoscopic hernia repair must have breached the standard of care since he developed DVT after the surgery. The panel found no breach of the standard of care and Mr. Post subsequently sued. The trial court dismissed plaintiff's case with prejudice. In its reasons for judgment, the trial court noted that the plaintiff did not meet his burden of proof. Specifically, the court rejected the testimony of plaintiff's expert, Dr. Balliro, because, it was obvious that Dr. Balliro had never even performed one of these procedures. The (trial) court accepts the testimony of the three surgeons who performed laparoscopic hernia repair. They testified that if the mesh caused compression of the iliac vein, the thrombus would have occurred at the compression site. Essentially, witnesses from each side argued different explanations for the injury (Appellant's witness testified that the ill-placed mesh caused the

injury; Appellee's witnesses testified that the mesh was not ill-placed, and that the injury was a normal by-product of the surgery), and the trial court found the defendant's argument more credible. Plaintiff now appeals this ruling. Mr. Post asserts three assignments of error. First, the trial court committed manifest error when it concluded that the mesh had not caused the thrombus. Second, the court below erred as a matter of law by not applying an adverse inference based upon the unexplained failure of the defense to call Dr. Ehrlich, the surgeon who implanted the mesh. Finally, the trial court erred in basing its opinion on the mistaken assumption that Mr. Post's expert had not performed laparoscopic inguinal hernia repairs.

STANDARD OF REVIEW A party seeking reversal of a fact finder's determinations in a medical malpractice action faces a heavy burden. At trial, the plaintiff must prove the standard of care, the violation or breach of the standard of care, and the causal connection between the alleged negligence and injuries. Carey v. Rao, 2001-1235, p. 10 (La.App. 4 Cir. 9/11/02); 828 So.2d 53, 60. It is understood that in a medical malpractice action, great deference is accorded to the finder of fact when medical experts express differing views,

judgments and opinions as to whether the standard of care was met. See Carey v. Rao, at pp. 10-11; at 60-61. "Reversal of the fact finder's determinations requires the appellate court to conclude that no reasonable factual basis exists for the fact finder's findings and to determine that the record establishes that such findings are clearly wrong or manifestly erroneous." Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993). Thus, a factfinder's findings of facts should not be disturbed absent manifest error or unless they are clearly wrong. See Martinez v. Schumpert Medical Center, 27,000 (La.App. 2 Cir. 5/10/95); 655 So.2d 649. With this burden in mind, we turn to the appellant's assignments of error.

First Assignment of Error Plaintiff-appellant alleges that the trial court committed manifest error when it concluded that the mesh had not caused the thrombus. We disagree. Both sides produced evidence addressing the standard of care, breach, and causation, and the trial court found that the plaintiff did not meet his burden. As we stated in Williamson v. Haynes Best Western of Alexandria, [w]hen findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder 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... [Where] a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Williamson, 95-1725 (La.App. 4 Cir. 1/29/97); 688 So.2d 1201, 1205 (emphasis added and internal citations omitted); See Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). This court addressed the deference given by an appellate court to a trial court's determinations in Schiro v. State ex rel. Dept. of Transp. and Development, 1999-2754 (La.App. 4 Cir. 3/21/01); 808 So.2d 500, 508. The weight to be given to the testimony of experts is largely dependent upon their qualifications and the facts upon which their opinions are based. Quinones v. United States Fidelity and Guaranty Company, 93-1648 (La.1/14/94), 630 So.2d 1303, 1308. The sincerity and honesty of the opinions expressed are matters which the trial court is in a particularly advantageous position to determine. Id. Where the testimony of expert witnesses differ, the trier of fact has the responsibility to determine which evidence is the most credible. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1111 (La.1990). Credibility determinations are subject to the strictest deference, and the manifest error standard demands great deference to the trier of fact's findings. Theriot v. Lasseigne, 932661 (La.7/5/94), 640 So.2d 1305, 1313. Schiro at 508. To meet his burden of proof, the plaintiff presented Dr. James Balliro. Dr. Balliro was tendered as an expert in the field of general surgery with laparoscopic and vascular surgery specialties. The tender was accepted, but the record reflected that the plaintiff's expert had never performed one of these surgeries, and, as the defense points out, the issue in this case is

whether there was a breach of the standard of care in the performance of the laparoscopic inguinal hernia repair. The defense presented three doctors as witnesses: Glen Steeb, Ed Staudinger, and James Redmann. Collectively, the three surgeons perform many laparoscopic inguinal hernia repairs annually. Despite limited personal experience with this procedure, Dr. Balliro testified: The prosthetic mesh that was placed to occlude his hernia defect compressed the external iliac vein, which is a large vein that drains the blood out of your leg. As a result of the compression, the vein clotted off and Mr. Post suffered irreversible injury to the venus drainage from his leg. This testimony was based on three "facts." First, the thrombus occurred in the same venal system that the mesh allegedly constricted. Second, the CT scan demonstrated "inflammatory" changes around the vein. Finally, Dr. Redmann, who performed the second surgery, made the diagnosis before surgery and then had to remove the mesh to relieve the compression of the vein. These three factors led Dr. Balliro to conclude that the ill-placed mesh caused the DVT, but all these were also addressed and refuted by defendant's witnesses. Significance of the Mesh and Thrombus being in the Same Venal System The defense witnesses testified that surgically speaking, the distance between the alleged compression of the iliac vein and the location of the

thrombus in the femoral vein was very large, and the fact that these two events (the mesh compressing the iliac vein and the development of the DVT in the femoral vein) occurred in the same venal system was inconclusive. Dr. Staudinger offered the following testimony about the location of the thrombus: Had there been a compression, obstruction of the iliac vein, I would think that is where the thrombus would have started. Usually thrombus will develop at the point of obstruction and not downstream...So, if there had been an obstruction, a compression, blockage external blockage of the external iliac or the iliac vein, the thrombus should have been seen at that point and propagated the other way, whereas in this case, the thrombus was seen in the common femoral and the superficial femoral veins, which is a significant difference

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