LINDSEY LAMBERT MALBROUGH VERSUS ALYCIA RODGERS, M.D., ET AL.

Lake Charles, LA - Malpractice lawyer represented Plaintiff with seeking wrongful death and survival damages.

I.

ISSUES

Defendants raise the following issues for this court's review:

1. The District Court erred in its award of damages:

a. when it awarded damages for both a "lost chance

of survival claim” and for a "survival action

claim,” despite these two theories of recovery

compensating for the same injury; and

b. when in the absence of evidence suggesting that

any chance of survival was lost, it relieved

Plaintiff of her burden of showing the value of

that lost chance and assigned an entirely

arbitrary value to an unqualified percent chance

of survival.

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2. The District Court erred in its factual conclusions

resulting in a finding of liability on the part of

appellant Dr. Alycia Rogers:

a. when it disregarded the opinion of every

testifying physician, including Anthony Pitre's

treating pediatric oncologist and Plaintiff's own

retrained expert in that field, that Anthony did

not suffer any reduced chance of survival

between August 10 and August 15, 2010; and

b. when it instead substituted lay opinion,

unsupported by any evidence presented at trial,

that passage of five days caused some

unquantified lost chance of survival, relieving

Plaintiff of her burden to demonstrate that lost

chance by competent evidence.

The PCF raises three alternative issues:

1. the district court manifestly erred in finding that

Plaintiff carried her burden to prove that Defendants

proximately caused the decedent to lose a chance of

survival.

2. alternatively, the district court abused its discretion

and manifestly erred in awarding a speculative and

unproven amount of damages for the lost-chanceof-survival claim.

3. further in the alternative, the district court legally

erred in awarding survival-action damages and for

funeral and burial expenses in addition to the

specific sum awarded for the lost-chance-ofsurvival claim.

II.

FACTS AND PROCEDURAL HISTORY

This medical malpractice action arises out of the treatment provided by

Dr. Albert Richert, Jr. and Dr. Rodgers to Plaintiff's six-year-old son, Anthony. Dr.

Rodgers was Anthony's primary pediatrician, and she treated him at the Center from

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May 2009 until August 2010 for attention deficit hyperactivity disorder (ADHD)

and asthma.

On July 13, 2010, Anthony saw Dr. Richert, a colleague of Dr. Rodgers,

at the Center for chest pain and difficulty breathing. Dr. Richert noted that

Anthony's chest pain had begun the week before and was located in the anterior midchest. It was further noted that these symptoms occurred at night, that the episodes

occurred daily, and that the symptoms were described as moderate in severity and

worsening. Dr. Richert prescribed asthma medicine and ibuprofen for pain. No

additional testing was performed to determine the cause of Anthony's chest pain.

Anthony returned to the Center on August 10, 2010. He was seen by

Dr. Rodgers who noted that, in the four weeks prior, Anthony's shortness of breath

occurred once or twice a week and that his rescue medication was used three or more

times a day. Dr. Rodgers also noted that Anthony's chest pains were due to "growing

pains” and that Anthony had had fever, but did not include any duration of the fever.

Dr. Rodgers wrote prescriptions for asthma medicine, but there is no record of her

ordering any additional tests to determine the cause of Anthony's symptoms.

On August 15, 2010, Anthony was brought to Lake Charles Memorial

Hospital Emergency Room with complaints of fever and chest pain, which were

reported to have started a month prior. Upon being informed of Anthony's

symptoms, the ER physician ordered a chest x-ray, which revealed an increased

pleural density in Anthony's chest. This finding prompted the ordering of a CT scan,

which revealed that the mass located on Anthony's third rib was presumptively

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Ewing sarcoma,1

a form of bone cancer. Anthony was then transferred to Ochsner

Medical Center in New Orleans, Louisiana, where he was admitted on August 16,

2010.

The diagnosis of Ewing sarcoma was confirmed on August 18, 2010.

A CT scan performed on August 19, 2010, confirmed Anthony's sarcoma was stage

IV.

Anthony's physicians commenced chemotherapy on August 25, 2010.

Though his primary tumor initially responded to treatment by decreasing in size,

imaging in February and March 2011 showed metastatic lesions in the pelvis,

vertebra, and skull. Tragically, Anthony passed away on March 21, 2011.

Plaintiff filed a complaint with the PCF, which convened a Medical

Review Panel to review Anthony's care by Dr. Rodgers and the Center. On January

28, 2015, the panel unanimously opined that neither defendant "failed to meet the

applicable standard of care as charged in the complaint.” Thereafter, Plaintiff filed

suit on April 1, 2015.

Prior to trial, the trial court dismissed, with prejudice, all of Plaintiff's

claims arising out of care rendered to Anthony prior to July 13, 2010, leaving at issue

only Anthony's visit to Dr. Richert on July 13, 2010, and his visit to Dr. Rodgers on

August 10, 2010.

In its oral reasons for ruling, the trial court opined that Dr. Richert had

not breached the standard of care owed to Anthony on July 13, 2010, and that the

1Although this sarcoma is referred to interchangeably through out the record as "Ewings”

or "Ewing's,” we defer to the spelling contained in Dorland's Illustrated Medical Dictionary 663

(31st ed. 2007).

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Center faced no liability through him.2

The court did find liability on the part of Dr.

Rodgers, stemming from Anthony's visit on August 10, 2010, and through her,

vicarious liability of the Center as the latter's employee. As for damages, the trial

court awarded Plaintiff $200,000.00 for loss chance of survival, reasoning:

What is the chance of survival for a 6-year-old child

valued at. I know that there was extensive testimony by

physicians for the defense that indicate that the chance of

survival was no different on August 15th as it was on

August 10th. I refuse to believe that that is the case. No

doctor has said it hit a brick wall on any particular date.

They all want to say that, yes, early detection always helps,

but not in this case. I just refuse to believe that. An

aggressive condition that this young man had at the time,

five days could have been - - could have been the

difference between life and death.

For loss of enjoyment of life, the trial court awarded $50,000.00, stating:

Loss of enjoyment of life, five days in a young

man's life. Of course, I have to be practical here. If, in

fact, Dr. Rodgers had ordered the X ray - - no one argues

that the tumor would not have been discovered. It might

have meant just five more days of treatment. . . .

It might have been just ten more days of misery for

this young man. Maybe somebody should be rewarded for

that because he didn't suffer. He got to live like a normal

kid for five more days; but then maybe his life would have

been extended a little bit, too.

The trial court also awarded $8,569.00 in funeral expenses and signed

his final judgment on June 15, 2018.

2Dr. Richert, who like Dr. Rodgers was at all pertinent times an employee of the Center,

was not personally named at the Medical Review Panel and so was not a party defendant in this

suit.

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III.

STANDARD OF REVIEW

An appellate court reviews a trial court's factual findings under the

manifest error standard. Andrews v. Williams, 281 So.2d 120 (La.1973). In

accordance with this standard:

[A] court of appeal may not set aside a trial court's or a

jury's finding of fact in the absence of "manifest error” or

unless it is "clearly wrong,” and where there is conflict in

the testimony, reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon

review, even though the appellate court may feel that its

own evaluations and inferences are as reasonable. The

appellate review of fact is not completed by reading only

so much of the record as will reveal a reasonable factual

basis for the finding in the trial court, but if the trial court

or jury findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not

reverse even though convinced that had it been sitting as

the trier of fact, it would have weighed the evidence

differently. Where there are two permissible views of the

evidence, the factfinder's choice between them cannot be

manifestly erroneous or clearly wrong. In applying the

manifestly erroneous—clearly wrong standard to the

findings below, appellate courts must constantly have in

mind that their initial review function is not to decide

factual issues de novo.

When 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 documents or objective evidence so

contradict the witness's story, or the story itself is so

internally inconsistent or implausible on its face, that a

reasonable fact finder would not credit the witness's story,

the court of appeal may well find manifest error or clear

wrongness even in a finding purportedly based upon a

credibility determination. But where such factors are not

present, and 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.

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Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations and footnotes omitted).

"In the assessment of damages in cases of offenses, . . . much discretion

must be left to the judge or jury.” La.Civ.Code art. 2324.1. "As a determination of

fact, a judge's or jury's assessment of quantum, or the appropriate amount of

damages, is one entitled to great deference on review.” Menard v. Lafayette Ins.

Co., 09-1869, p. 14 (La. 3/16/10), 31 So.3d 996, 1007. "Because the discretion

vested in the trier of fact is so great, and even vast, an appellate court should rarely

disturb an award on review.” Guillory v. Lee, 09-75, p. 14 (La. 6/26/09), 16 So.3d

1104, 1117.

IV.

LAW AND DISCUSSION

As the parties do not dispute or challenge the trial court's finding that

Dr. Rodgers breached the applicable standard of care, the primary issues before this

court are (1) whether a lost chance of survival was proven and/or quantified; and (2)

whether the trial court's award for loss of enjoyment of life damages was duplicative.

We will address each issue in turn.

Loss Chance of Survival

As is well established, medical malpractice plaintiffs to succeed in their

actions must, by a preponderance of the evidence, prove: (1) the applicable standard

of care; (2) the physician's breach of that standard; and (3) a causal link between the

resulting injury and the breach. La.R.S. 9:2794(A). A loss chance of survival action

allows a medical malpractice plaintiff to recover for the reduction of the patient's

chance of survival when the physician's malpractice may not have been the only

cause of the patient's death, but it increased the risk. Hastings v. Baton Rouge Gen.

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Hosp., 498 So.2d 713 (La.1986). "Under this theory of recovery, a plaintiff may

carry his burden of proof by showing that the defendant's negligence was a

substantial factor in depriving the patient of some chance of life, recovery, or, as in

this case, a better outcome.” Burchfield v. Wright, 17-1488, p. 11 (La. 6/27/18), 275

So.3d 855, 863.

Our supreme court in the seminal case of Smith v. State of Louisiana,

Department of Health and Hospitals, 95-38, p. 6 (La. 6/25/96), 676 So.2d 543, 546-

47 (footnotes omitted), recognized that the loss of any chance of survival is

compensable and discussed the proof necessary to establish same:

plaintiffs were not required to prove a "reasonable” or

"substantial” chance of survival. The issues in loss of a

chance of survival cases are whether the tort victim lost

any chance of survival because of the defendant's

negligence and the value of that loss. The question of

degree may be pertinent to the issue of whether the

defendant's negligence caused or contributed to the loss,

but such a tort-caused loss in any degree is compensable

in damages.

. . . .

Thus, in a medical malpractice case seeking

damages for the loss of a less-than-even chance of survival

because of negligent treatment of a pre-existing condition,

the plaintiff must prove by a preponderance of the

evidence that the tort victim had a chance of survival at the

time of the professional negligence and that the

tortfeasor's action or inaction deprived the victim of all or

part of that chance, and must further prove the value of the

lost chance, which is the only item of damages at issue in

such a case.

In reviewing the trial court's finding as to Anthony's lost chance of

survival, we must first determine whether there is any factual basis, based on the

record as a whole, for this factual conclusion.

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Defendants argue that there was no evidence of a lost chance of survival

and that the trial court erroneously rejected the testimony of all the witnesses and

substituted its own opinion. Specifically, they argue that there was no lost chance

proven between August 10, 2010 and August 15, 2010, and no evidence of what that

lost chance of survival would be.

The PCF similarly argues that no evidence was presented that showed

the failure to diagnose the inoperable cancer on August 10, 2010, and the ensuing

five-day delay to August 15, 2010, lessened the chance of survival. Rather, the PCF

asserts that the evidence demonstrated that the cancer had already metastasized to

stage IV on August 10 and remained so on August 15, at which point the tumor was

too large to be removed. Therefore, a speedier diagnosis would not have made a

difference, and it follows that when a decedent's condition is inoperable on the date

of negligence, causation for any lost chance of survival cannot be established.

Plaintiff argues, however, that Dr. Michael Weiner, an expert in

pediatric hematology-oncology, testified that a delay in diagnosis removed the high

likelihood of Anthony's successful treatment. The failure to properly diagnose

significantly reduced the chance of survival from July 13, 2010 to August 15, 2010,

from 70-80% to 20-30%. Moreover, he testified that it was logical to assume that

the rapid change that can occur in tumor growth in one-month time would certainly

have impacted the outcome in Anthony's survival rate.

After reviewing the entirety of the record evidence in accordance with

the guidance provided in Smith, we find a reasonable factual basis does exist for the

trial court's finding that Dr. Rodgers's malpractice deprived Anthony of a chance of

survival.

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Our review of the evidence reveals that the consensus of the expert

testimony establishes that Ewing sarcoma is a fast-growing, aggressive bone cancer

that is not common. According to Anthony's treating pediatric hematologistoncologist, Dr. Rajasekharan Warrier, Ewing sarcoma is even less common in an

African-American child Anthony's age with an axial (anterior mid-chest)

presentation.

Although all the experts did concede that earlier diagnosis is preferable

for overall outcome, the experts, as well as the peer review literature, had

contradictory opinions as to whether earlier diagnosis statistically made a difference

as to survival in this particular type of cancer. Dr. Weiner opined that it did, while

Dr. Renee Gardner, Defendants' expert in pediatric hematology-oncology, opined

that it did not. The key factors for treatment as well as prognosis were the primary

site of the cancer, whether the cancer was contained or localized to that site, and

whether the cancer had spread or metastasized.

Localized tumors in resectable sites, such as in lower extremities that

could be amputated or bones that could be easily removed, had the highest survival

rate of 70 to 80%, as per Dr. Weiner, or 65 to 75%, per Dr. Gardner. The survival

rate dropped to 20 to 30% with metastasis. Dr. Warrier testified that the treatment

protocol was standardized with resection, i.e., complete removal, if at all possible.

Chemotherapy is utilized in an effort to shrink the tumor to allow for resection.

Chemo and radiation therapy are employed, with the overall goal to kill the cancer

cells and prevent further growth and metastases.

What is clear from the expert testimony and evidence is that the size,

location, and stage of Anthony's cancer would be the determining factors as to his

chance of survival. The problem herein is that, as Dr. Weiner, Dr. Gardner, and Dr.

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Warrier all opined, without x-rays or scans there is no way anyone could even say

what stage or size his tumor was either at the July 13, 2010 visit or the August 10,

2010 visit. Most of the experts agreed that the tumor was probably localized at the

time of the July 13 visit but had most likely metastasized by the August 10 visit

given the metastasis evident in the August 15 scans.

Nevertheless, the evidence does reasonably support a finding that the

tumor was fast-growing and aggressive, more probably than not advancing from an

early localized stage (I or II) to a metastasized stage (IV) within mere weeks or days,

such that every week could very well reduce the chance of survival. And though the

tumor was not resectable on August 15, Dr. Weiner opined that the tumor would

have been easily resectable with the removal of Anthony's third, right rib bone in an

earlier, localized stage. Moreover, Dr. Gardner testified that the mass would

probably have been present on August 10, but when asked by Plaintiff's counsel

whether she thought the tumor could have grown to the size documented in the

August 15 scan in just five days, she replied, "And to be honest with you, yes, I have

seen tumors that grow that big that quickly.”

Further, the objective medical records, as well as Dr. Rodgers's

testimony, reveal that Dr. Rodgers's examination of Anthony's chest on August 10

was normal, documenting no respiratory distress or abnormal breathing sounds.

According to the testimony of Plaintiff and Anthony's grandmother, Laura Lambert,

Anthony's condition changed on August 15. Plaintiff explained that Anthony's pain

"got worse and he couldn't take it anymore.” They both recalled that his crying on

August 15 was "a different cry. It [was] a hurt cry.” It was their testimony that his

"hold[ing] of his chest the whole night and the crying getting worse” prompted them

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to bring Anthony to the ER. And when Anthony was examined in the ER, his chest

was tender to the touch as documented in the medical records.

From the evidence of record, we also know that a tumor like Anthony's,

although fast-growing, does take time to metastasize. Dr. Gardner agreed that, in

order to spread, cancer cells have to be able to break away from the original tumor

and move into the bloodstream, lymphatic system, or other surrounding tissue.

In light of this record evidence, we find it is reasonable to conclude that

the tumor, though more likely than not present on July 13 and August 10, was more

probably than not still growing beyond the latter date. We further find that a

factfinder could reasonably conclude that the subsequent growth, reasonably

evidenced in Anthony's physical presentation on August 15 as opposed to his

presentation on August 10 as documented in the objective medical records, did

reduce his chance of survival. Accordingly, we cannot say the trial court manifestly

erred in finding that Anthony lost a chance of survival between the August 10

malpractice and the August 15 preliminary diagnosis.

As to the valuation of that lost chance of survival, the supreme court in

Burchfield, 275 So.3d at 863-64 (first, third, and fourth alterations in original),

recently explained:

Regarding the calculation of damages and the

nature of such damages in a loss of chance of survival case,

this court in Smith specifically instructed "the factfinder—

judge or jury—to focus on the chance of survival lost on

account of malpractice as a distinct compensable injury

and to value the lost chance as a lump sum award based on

all the evidence in the record, as is done for any other item

of general damages.” Smith, p. 7, 676 So.2d at 547. The

Smith court held that "full recovery is not available for

deprivation of a chance of survival of less than fifty

percent.” Id. The Smith court explained that "[t]o allow

full recovery would ignore the claimants' inability to

prove by a preponderance of the evidence that the

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malpractice victim would have survived but for the

malpractice, which is a requirement for full recovery.” Id.,

7–8, 676 So.2d at 547. The loss of a less-than-even chance

of survival is "a distinct injury compensable as general

damages” that cannot be calculated with mathematical

certainty; thus, the factfinder must make a "subjective

determination of the value of that loss, fixing the amount

of money that would adequately compensate the claimants

for that particular cognizable loss.” Id., p. 9, 676 So.2d at

548. The jury must consider "the same evidence

considered by a jury in a survival and wrongful death

action, and the loss-of-chance jury then reaches its general

damages award for that loss on that evidence as well as

other relevant evidence in the record.” Id., p. 11, 676

So.2d at 549. The jury may consider "all the evidence,

including expert medical testimony regarding the

percentage chances of survival, to value directly the lost

chance.” Id.

We, like the Smith court before us, "[r]ecogniz[e] the unfairness to tort

victims who had a chance of [survival] and lost it because of [medical] malpractice,”

in that the factfinder "must engage in a pretend exercise of measuring damages based

on events that never in reality occurred or can occur.” Smith, 676 So.2d at 548, n.

9. Nevertheless, in accordance with the directive in Smith, we have reviewed the

percentages testified to by the medical experts regarding the survival rates for

children with Ewing sarcoma, particularly from the early, localized stages (I or II)

of 70-80% to the metastasized stage (IV) of 20-30%. Without scans documenting

the exact growth within the relevant five-day period, a factfinder could, based upon

the objective medical records and Anthony's subsequent presentation, reasonably

find that the cancer advanced in stages within that limited time period, limiting his

chance of survival anywhere from 70 to 20%.

The losses, especially of love, affection, and companionship, incurred

as a result of that lost chance of survival are more than reasonably evident in the

testimony, particularly the testimony of Plaintiff and her mother. Anthony's pain

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and suffering along with the change in his overall quality and enjoyment of life are

likewise documented through their testimony to which the medical records lend even

further support. Given that Plaintiff requested a total award of $1,508,569.00 in

compensation for these losses, we cannot say the trial court abused its vast discretion

in awarding a total of $258,569.00, which is less than 20% of the sum requested.

Duplication of Damages

As to the duplicative nature of the loss of enjoyment of life award, we

again look to the record. Although parties appeal judgments and not reasons for

judgment, the trial judge's oral ruling herein provides insight to this court as to his

factual findings regarding his quantum awards. In that ruling, the trial court

responded in the affirmative when asked whether the loss chance of survival

damages "replace[d] the wrongful death claim” and the damages awardable in

conjunction therewith, i.e., the damages sustained by Anthony's mother as a result

of the malpractice. See La.Civ.Code art. 2315.2. Loss of enjoyment of life, the trial

court further explained, was awarded as survival damages, i.e., the damages for

injuries to Anthony resulting from the malpractice. See La.Civ.Code art. 2315.1.

Although Defendants argue that the lost chance of survival award and

loss of enjoyment of life award compensate for the same injury, their argument

disregards the fact that both Plaintiff and Anthony suffered injuries and losses arising

from the malpractice and are separate tort victims, to whom compensatory damages

are due under La.Civ.Code art. 2315. It follows, therefore, that the $50,000.00

awarded for loss of enjoyment of life was intended to compensate Anthony for his

loss of enjoyment of life, whereas the $200,000.00 award was intended to

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compensate Anthony's mother for the damages she sustained, which would include

the loss of love, affection, and companionship.3

The PCF also challenges the trial court's award of funeral expenses.

Recently, however, our supreme court in Burchfield, 275 So.2d at 868, again

reaffirmed that a factfinder "could consider all factors of damages in fashioning a

lump sum award for lost chance,” including general as well as special damages, like

funeral expenses. Under the Smith methodology, all the various items or elements

of compensatory damages—loss of enjoyment of life; loss of love, affection, and

companionship; and incurred expenses—can and even should be taken into

consideration in the formulation of a single lump sum award. All the individual

elements of damages suffered by the various tort victims arising from the

malpractice are, therefore, to be considered and apportioned for, but then lumped

together to form a single lump sum award.

Based upon the present record, we cannot say that the awards for loss

of enjoyment of life and funeral expenses are duplicative in that all of the trial court's

awards compensate for separate and independent damages, which are more than

reasonably supported by the record. However, we do find that the trial court erred

in failing to compile all these separate items of damages into a single lump sum

award as per Smith and its progeny. Therefore, we must amend the trial court's

judgment to consolidate its awards into a single lump sum of 258,569.00.4

3Notably, under the holding in McGee v. A C And S, Inc., 05-1036 (La. 7/10/06), 933 So.2d

770, Plaintiff could only assert Anthony's loss of enjoyment of life under the survival action as he

was the primary tort victim. Loss of enjoyment of life "is not recoverable by the primary tort

victim's family members who are eligible to recover for loss of consortium, service and society

under La. C.C. art. 2315(B).” Id. at 779.

4

In Bianchi v. Kufoy, 10-607 (La.App. 3 Cir. 12/8/10), 53 So.3d 530, this court awarded

special damages of $100,000.00 in past and future medical care and related expenses and awarded

$300,000.00 in general damages to the primary tort victim and loss of consortium damages to his

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Having found no manifest error or abuse of discretion, we affirm the

judgment of the trial court as amended.

For the foregoing reasons, the judgment of the trial court is affirmed as

amended to reflect a single lump sum award of $258,569.00.

Costs of this appeal are assessed to Defendants/Appellants, Dr. Alycia

Rodgers, Sulphur Pediatric Clinic, Inc. d/b/a The Pediatric Center of Southwest

Louisiana, and Louisiana Medical Mutual Insurance Company.