Dorothy PENNINGTON v. OCHSNER CLINIC FOUNDATION, Fadi Hawawini, D.O., Brent Thibodeaux, Andrew Todd, M.D., Jim Aubry Jones, M.D. and Gretchen Ulfers, M.D.

NO. 2017-CA-0647

Court of Appeal of Louisiana, Fourth Circuit.

APRIL 25, 2018 Rehearing Denied May 8, 2018

Kevin C. O'Bryon, O'BRYON & SCHNABEL, PLC, 1010 Common Street, Suite 1950, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT

Harvey J. Godofsky, GODOFSKY & SCHROEDER, One Galleria Boulevard, Suite 700, Metairie, LA 70001, Don S. McKinney, ADAMS AND REESE LLP, 701 Poydras Street, Suite 4500, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Tiffany G. Chase )

Judge Daniel L. Dysart *60In this medical malpractice action, plaintiff-appellant, Dorothy Pennington, appeals a judgment granting motions for directed verdicts in favor of defendants, Dr. Andrew Todd ("Dr. Todd"), Ochsner Clinic Foundation ("Ochsner"), Fadi Hawawini, D.O. ("Dr. Hawawini"), Brent Thibodeaux, Jim Aubry Jones, M.D. ("Dr. Jones"), and Gretchen Ulfers, M.D. ("Dr. Ulfers") (collectively, "defendants"), and dismissing all claims with prejudice.

After viewing the facts in the light most favorable to the plaintiff, as is required for a directed verdict, we do not find that the evidence points so strongly and overwhelmingly in favor of the defendants, with the exception of Dr. Hawawini, or that reasonable minds could not arrive at a contrary verdict. Thus, we find that the trial court erred in granting directed verdict as to the defendants, with the exception of Dr. Hawawini, for whom plaintiff failed to establish both the standard of care and a breach thereof.

Accordingly, and for the reasons set forth herein, we affirm the trial court's judgment in part, reverse it in part and remand for further proceedings.

**FACTS AND PROCEDURAL BACKGROUND**

According to the Petition for Damages,1 on February 17, 2011, Richard Smallwood fell at his home and sustained "bilateral patella tendon ruptures," for which he was admitted to the Ochsner-Baptist facility. After undergoing surgery by Dr. Todd to repair the ruptures, Mr. Smallwood "experienced a slightly complicated post-operative course" and was discharged on February 23, 2017 to the Ochsner Skilled Nursing Unit in Jefferson Parish. On February 26, 2017, Mr. Smallwood died at the skilled nursing unit, and an autopsy revealed that he had suffered a pulmonary embolism, secondary to deep vein thrombosis [DVT], which, according to the Petition, was "secondary to [his] bilateral knee surgery."

The Petition alleges that Mr. Smallwood had been in "generally good health" prior to his injury, but while a patient at Ochsner-Baptist, "he was not administered appropriate prophylactic anti-coagulant medication, in violation of the standard of care." More specifically, it alleges:

> At Ochsner-Baptist, Jim Aubry Jones, M.D. and Gretchen Ulfers, M.D. were consulted for post-surgical medical management purposes, but failed to recognize the lack of, or direct initiation of, appropriate prophylactic anti-coagulant medication. Dr.Todd failed to order appropriate prophylactic anti-coagulant medication at Ochsner-Baptist and in connection with the patient's transfer to and admission at the Ochsner Skilled Nursing Unit facility.

Named as defendants are Drs. Todd, Jones and Ulfers, as well as Dr. Hawawini, D.O., the director of Ochsner's skilled nursing unit, and nurse Thibodeaux, to whom Mr. Smallwood is alleged to have made complaints which were neglected. The Petition further alleges that, at the skilled nursing unit, Mr. "Smallwood was not assessed by Dr. Hawawini or any other physician."

A jury trial commenced on April 3, 2017. At the conclusion of the plaintiff's *61case in chief, the defendants moved for directed verdicts on the ground that the plaintiff failed to meet her burden of proof of medical malpractice. The motions for directed verdicts were verbally granted by the trial court, which found as follows:

> ... based on the testimony that's been adduced as to Dr. Todd that there was a failure to establish the standard of care or a breach thereof. The Court is hereby granting a directed verdict as to Dr. Todd....

> * * * *

> It's [this] Court's finding that there has been a failure to establish the standard of care as to Dr. Jones, Dr. Ulfers, Dr. Hawawini. And certainly we had no testimony as to the standard of care of a nurse practitioner or how that was breached. The Court has to grant the motion for a directed verdict as to each defendant.

The trial court further explained its finding by stating:

> ... the problem is you can't just do a broad brush against everybody unless you can show that that person breached the standard of care. You can't just say well, everybody messed up. No. You have to show that that person breached the standard of care if you're going to hold them liable.

A written judgment was rendered, memorializing the trial court's verbal judgment on April 11, 2017. The plaintiff timely filed this appeal.

Dr. Todd answered the appeal, seeking relief only in the event that this Court reverses the trial court's judgment. In that event, Dr. Todd seeks a finding from this Court that the plaintiff failed to properly qualify her expert physician who, thus, lacked the specific capacity to render opinions in this case. An answer to the appeal was also filed by Ochsner, Dr. Hawawini, Mr. Thibodeaux, Dr. Jones, and Dr. Ulfers, who seek similar relief as that sought by Dr. Todd; namely, a finding that the trial court erred in accepting, as expert testimony, the opinions of a general surgeon in this matter. They contend that the plaintiff's expert was not qualified to offer opinions as to specialists in hospital medicine or as to treatment received in a rehabilitation hospital.

***Motions for Directed Verdict, Generally***

La. C.C.P. art. 1810 authorizes a motion for directed verdict and requires that such a motion be made at the close of the evidence offered by the opposing party. *See**Price v. Law Firm of Alex O. Lewis, III & Assocs.* , 04-0806, p. 2 (La. App. 4 Cir. 3/2/05), 898 So.2d 608, 610 ; *Jenkins v. State ex rel. Dep't of Transp. & Dev.* , 06-1804, p. 5 (La. App. 1 Cir. 8/19/08), 993 So.2d 749, 756. While this Court, in *Duvio v. Specialty Pools Co., LLC* , 15-0423, p. 28 (La. App. 4 Cir. 6/16/16), 216 So.3d 999, 1019, reiterated the established general rule that "a trial court "has much discretion in determining whether or not to grant a motion for directed verdict," we recognize that "[a] directed verdict is appropriate *only* when the evidence overwhelmingly points to one conclusion." *Roberson v. Aug.* , 01-1055, p. 4 (La. App. 4 Cir. 5/29/02), 820 So.2d 620, 624 (emphasis added). On appeal, "the standard of review for legal sufficiency of the evidence challenges (a question of law), such as those presented by motions for directed verdicts, is *de novo* ." *Provosty* , 12-1015, p. 31, 119 So.3d at 32. *See also* , *Hall v. Folger Coffee Co* ., 03-1734, p. 10 (La. 4/14/04), 874 So.2d 90, 99 (while "the manifest error standard of review applies to all factual findings, including sufficiency of the evidence challenges, ... *legal* sufficiency of the evidence challenges, such as those presented by ... motions for directed verdict ... are subject to the *de novo**62standard of review that is used for all legal issues.")(emphasis in the original).

Our jurisprudence as to the propriety of granting a motion for directed verdict is well-settled. As we explained in *Wendel v. Travelers Ins. Co.* , 14-0002, pp. 3-4 (La. App. 4 Cir. 10/8/14), 151 So.3d 828, 832-3, *writ denied* , 14-2346 (La. 2/6/15), 158 So.3d 818, quoting *Simon v. American Crescent Elevator Co* ., 99-2058, p. 14 (La. App. 4 Cir. 4/26/00), 767 So.2d 64, 73-4, when a trial court considers "the evidence in the light most favorable to the party opposed to the motion, [and] finds that it points so strongly and overwhelmingly in favor of the moving party that reasonable minds could not arrive at a contrary verdict on that issue," the directed verdict should be granted. *See also* , *Provosty v. ARC Const., LLC* , 12-1015, p. 31 (La. App. 4 Cir. 3/20/13), 119 So.3d 23, 44 ("[t]he question to be asked by the court is not whether mover proved its case by a preponderance of the evidence, but rather, upon reviewing the evidence submitted, the court could conclude that reasonable persons could not have reached a verdict in favor of the mover's opponent.").

Conversely, "[i]f there is substantial evidence opposed to the motion, *i.e.* , evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the case submitted to the jury." *Everhardt v. Louisiana Dep't of Transp. & Dev.* , 07-0981, p. 13 (La. App. 4 Cir. 2/20/08), 978 So.2d 1036, 1047.

The *Everhardt* Court explained the role of an appellate court in reviewing an appeal of a directed verdict:

> The standard of review on appeal of a directed verdict is whether reasonable persons could not reach a contrary verdict under the evidence. The question to be asked by the appellate court is not whether a plaintiff proved his case by a preponderance of the evidence, but rather, whether upon reviewing the evidence submitted, the court could conclude that reasonable persons could not have reached a verdict in favor of the plaintiff. The appellate court must also determine if the record supports the granting of a directed verdict, based not on a credibility determination (a factual issue), but on a sufficiency-of-evidence determination (a question of law). A directed verdict must be sustained on appeal where the reviewing court would find a jury verdict in favor of the party opposing the motion to be manifestly erroneous had the trial judge allowed the case to go to the jury. The court of appeal considers the evidence under the substantive law applicable to the nonmoving party's claim.

*Id.* , 07-0981, pp. 13-14, 978 So.2d at 1047 (citations omitted).

We have conducted a *de novo* review of the record before us and find that it does not support the trial court's grant of the motions for directed verdicts, with the exception of the directed verdict in favor of Dr. Hawawini. Our conclusion is based not on a credibility determination, which would present factual issues, but on a sufficiency of evidence determination, a question of law.

1

The Petition was filed by Dorothy Pennington, Mr. Smallwood's sister and surviving heir.

**DISCUSSION**

***Standard of care and breaches thereof***

The Louisiana Medical Malpractice Act defines "malpractice," in pertinent part, as:

> ... any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient ....

*63La. R.S. 40:1231.1 A(13). The burden of proof in a medical malpractice case rests with a claimant who must prove by a preponderance of the evidence the three elements set forth in La. R.S. 9:2794 A:

> First, the plaintiff must establish "[t]he degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances." La. R.S. 9:2794 A(1). Notably, "where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty." *Id.* Second, the plaintiff must establish that "the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill." La. R.S. 9:2794 A(2). Lastly, the plaintiff must prove that "as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred." La. R.S. 9:2794 A(3).

*Minor v. Bryan* , 16-0323, pp. 8-9 (La. App. 4 Cir. 12/15/16), 206 So.3d 1070, 1076, *writ denied* , 17-0336 (La. 4/7/17), 218 So.3d 115. We summarized this burden of proof as follows: "A medical malpractice plaintiff, therefore, '*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.' " *Id.* , 16-0323, p. 9, 206 So.3d at 1076, quoting *Pfiffner v. Correa* , 94-0924, p. 8 (La. 10/17/94), 643 So.2d 1228, 1233 (emphasis in the original). *See also* , *Samaha v. Rau* , 07-1726, pp. 5-6 (La. 2/26/08), 977 So.2d 880, 884.

As a general rule, expert testimony is required "to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony." *Schultz v. Guoth* , 10-0343, p. 7 (La. 1/19/11), 57 So.3d 1002, 1007 ; *See also* , *Samaha* , 07-1726, pp. 5-6, 977 So.2d at 884, citing *Pfiffner v. Correa* , 1994-0924, 1994-0963, 1994-0992 (La.10/17/94), 643 So.2d 1228.2 In most cases, though, "because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794's requirements without medical experts ...." *Battaglia v. Chalmette Med. Ctr., Inc* ., 12-0339, p. 4 (La. App. 4 Cir. 10/17/12), 126 So.3d 524, 526, quoting *Pfiffner* , 94-0924, p. 9, 643 So.2d at 1234.

In this matter, the plaintiff contends that the expert retained on her behalf, Dr. Leo Frangipane, Jr., a board certified general *64surgeon,3 established the standard of care applicable to all of the defendants in this case and a breach by the defendants of that standard of care. The defendants, however, maintain that, as a general surgeon, Dr. Frangipane is not qualified to render an opinion as to the standards of care of any the defendants, insofar as he has never trained for or practiced in any of their respective fields. Over the objection of the defendants, the trial court accepted Dr. Frangipane as an expert in the field of general surgery and medicine. As noted, in their answers to the appeal, the defendants contend that the trial court erred in accepting Dr. Frangipane as an expert and allowing him to testify as to the standard of care of their specialties (Dr. Todd, as an orthopedic surgeon; Drs. Hawawini, Ulfers and Jones, as specialists in hospital medicine; Mr. Thibodeaux, as a nurse practitioner; and both Dr. Hawawini and Mr. Thibodeaux, in their capacity as health care providers in a rehabilitation hospital).

The Louisiana Supreme Court has indicated that, in a medical malpractice action, a "district court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert." *Johnson v. Morehouse Gen. Hosp.* , 10-0387, p. 17 (La. 5/10/11), 63 So.3d 87, 99. We have thoroughly reviewed the record before us, and although Dr. Frangipane, as a general surgeon, clearly does not practice in the precise medical fields of the various defendants, he nevertheless was qualified to testify in this case. We thus find no error in the trial court's discretion in qualifying Dr. Frangipane as an expert in this matter and allowing him to testify about the standard of care and breaches thereof. However, we find that the trial court erred in granting directed verdicts in favor of the defendants (with the exception of Dr. Hawawini). As is our task and responsibility on appeal, we have reviewed the evidence submitted, and in particular, the testimony of Dr. Frangipane, and we do not find "that reasonable persons could not have reached a verdict in favor of the plaintiff."

It is well-settled that "[w]here the alleged acts of negligence raise issues peculiar to the particular specialty involved, then only physicians in that specialty may offer evidence of the applicable standard of care." *Broussard v. Andersson* , 05-0006, pp. 6-7 (La. App. 4 Cir. 11/30/05), 921 So.2d 128, 132, citing *McDaniel v. Reed* , 00-2529, p. 3 (La. App. 4 Cir. 10/3/01), 798 So.2d 1121, 1123. Furthermore, this Court has indicated that:

> ... [I]t is a specialist's knowledge of the requisite subject matter, rather than the specialty within which the specialist practices, which determines whether a specialist may testify as to the degree of care which should be exercised. A particular specialist's knowledge of the subject matter on which he is to offer testimony is determined on a case by case basis.

*Howard v. Vincent* , 11-0912, p. 6 (La. App. 4 Cir. 3/28/12), 88 So.3d 1219, 1222. *See also**McDaniel* , 00-2529, p. 3, 798 So.2d at 1123. Moreover, "where medical disciplines overlap, it is appropriate to allow a specialist in one field to give expert testimony as to the standard of care applicable to areas of the practice of medicine common to both disciplines." *Pertuit v. Jefferson Par. Hosp. Serv. Dist. No. 2* , 14-752 (La. App. 5 Cir. 5/14/15), 170 So.3d 1106, 1110, *writ denied* , 15-1176 (La. 9/18/15), 178 So.3d 152.

*65Our jurisprudence further indicates that "[g]enerally, the fact that a medical doctor is not a specialist in a particular field applies only to the effect on the weight to be given such testimony, not to its admissibility." *Hubbard v. State* , 02-1654, pp. 14-15 (La. App. 4 Cir. 8/13/03), 852 So.2d 1097, 1104-05, quoting *Hunter v. Bossier Medical Center* , 31,026, p. 14 (La. App. 2 Cir. 9/25/98), 718 So.2d 636, 644. *See also* , *McDaniel* , 00-2529, pp. 5-6, 798 So.2d at 1124 ; *Marshall v. Boydston* , 09-1137, p. 5 (La. App. 3 Cir. 3/17/10), 33 So.3d 438, 443.

Case law clearly allows for physicians to testify in fields other than their own, when there is sufficient knowledge of the requisite subject matter. In *Soteropulos v. Schmidt* , 556 So.2d 276 (La. App. 4 Cir.1990), for example, the plaintiff underwent a below-knee amputation, performed by two cardiovascular and vascular surgeons. An orthopedic surgeon was permitted to give expert opinion regarding the standard of care of the vascular surgeon. Indeed, the orthopedic surgeon testified:

> ... "the standard should be the same. At time of closure, there should be no hot spots and if this requires rasping and bevelling, that is what should be done." This applies to cardiovascular, orthopedic and general surgeons, i.e. "any surgeon that takes this as the obligation to complete an amputation to heal."

*Id.* , 556 So.2d at 279.

Similarly, in *Smith v. Juneau* , 95-0724 (La. App. 4 Cir. 4/9/97), 692 So.2d 1365, 1371, the plaintiff was severely injured in a single car accident. After several surgeries, a ten day stay in intensive care and transfer to another hospital, it was discovered that the plaintiff had a significant bedsore, for which he underwent numerous surgeries and was left disfigured. In his suit against his treating physicians, and in response to a writ application, the Louisiana Supreme Court indicated that a physician who practiced in the area of physical medicine and rehabilitation was to be allowed to testify in a trial. *Smith v. Juneau* , 94-2440 (La. 9/29/94), 642 So.2d 860. At trial, he testified as to the standard of care of the orthopedic surgeon and indicated that he "did not use reasonable diligence in caring for plaintiff's skin while plaintiff was hospitalized ...." and further testified that the orthopedic surgeon "should have ordered plaintiff's skin checked daily and if plaintiff was lying in bed, he should have issued orders to turn the patient every two hours from the time he came out of surgery ... until his discharge." *Smith* , 692 So.2d at 1371. Importantly, the Court found:

> Considering that the record adequately supports a finding that the issue of skin care is not peculiar to any one specialty, any qualified physician could testify concerning the standard of care to be exercised by an orthopedic surgeon caring for a patient. Further, Dr. McCready did not testify concerning the standard of care in an area peculiar to the specialty of orthopedic surgeons, but only the standard of care as to skin care. Consequently, the trial court did not err in allowing Dr. McCready's testimony on this issue.

*Smith* , 95-0724, pp. 15-16, 692 So.2d at 1373. *See also* , *Slavich v. Knox* , 99-1540 (La. App. 4 Cir. 12/15/99), 750 So.2d 301, 304 (no error found in allowing a general surgeon to testify as to the standard of care of an internist, citing *Pfiffner v. Correa* , 643 So.2d 1228 (La.1994), for the principle that "there is no requirement that a physician have the same specialty as defendant physician in cases where the medical and fact issues are such that a jury can perceive negligence in the physician's conduct.");

*66*Kieffer v. Plunkett-Kuspa* , 13-499, p. 7 (La. App. 5 Cir. 3/26/14), 138 So.3d 682, 685 (no error found in allowing a board certified neurologist to testify as to the standard of care of a primary care physician, testifying: "I don't think the standard of care for primary care physicians are any different than anybody else when faced with an illness of this type with the potential implications .... [T]he internist should have taken further action such as a lumbar puncture or admit her to the hospital for evaluation.").

In the instant matter, Dr. Frangipane testified that, as a general and vascular physician, his practice encompasses the diagnosis and treatment of DVT. He indicated that "[a]ny general surgeon that [sic] is very active will run across that from time to time." When questioned as to whether "the risk that DVT can result in a pulmonary embolism and a patient's death, is ... something that's recognized in the field of medicine," Dr. Frangipane testified that it is "[v]ery well recognized."

In Dr. Frangipane's opinion, Mr. Smallwood died as a result of medical malpractice; he stated that Mr. Smallwood was at an elevated risk of developing DVT and the defendants, collectively, failed to "accurately diagnose the ongoing [DVT]," failed to perform certain tests to determine whether Mr. Smallwood was experiencing DVT and thus, their actions "fell below the standard of care that should have been or that was in place."

Dr. Frangipane reviewed guidelines from various publications which set forth risk factors for DVT, but acknowledged that there is "not really" any guideline "that is specific to the particular surgical procedure that Mr. Smallwood underwent." He also acknowledged that prophylactic measures were taken for Mr. Smallwood's post-operative care, designed to reduce the risk of his developing DVT. Those include the use of a TED stocking after surgery, SCD's (sequential compression devices, which Dr. Frangipane testified are "a kind of stocking that gently milks the leg back in which the venous circulation returns guided by the SCD ... back to the heart"), and the use of aspirin. However, Dr. Frangipane opined that the defendants failed to take further appropriate measures to avoid DVT. According to Dr. Frangipane, these measures were not sufficient. To the contrary, Dr. Frangipane testified that Mr. Smallwood had an increasing risk of developing a post-surgical DVT, but he did not receive pharmacologic prophylaxis, such as blood thinners. According to Dr. Frangipane, "the risks of giving prophylaxis are far less than the risks of not giving prophylaxis."

Similar to the testimony of the physicians at issue in *Soteropulos* , *Smith* , and *Kieffer* , according to Dr. Frangipane, the standard of care with respect to the diagnosis and treatment of DVT is the same for all specialties; he testified as follows:

> Q. With respect to post-surgical treatment of a patient regarding DVT prophylaxis and detention, is there any difference in standard of care whether you're a surgeon or hospitalist or a medical director?

> A. The difference is the same for all of us. We look at DVT, or should anyway, the same way. We're all trying to create prevention.

According to Dr. Frangipane, the failure of the defendants, individually and collectively, to undertake the additional measure of administering pharmacologic prophylaxis to Mr. Smallwood equated to breaches of the standards of care for each of the defendants.

Dr. Frangipane's criticism of Dr. Hawawini, however, was imprecise and he did not indicate that Dr. Hawawini had any direct involvement in Mr. Smallwood's *67care, nor that, as a medical director, he should have been involved in the care of individual patients. To the contrary, Dr. Frangipane simply testified as follows:

> I *suspect* that even though I am not a medical director, one of the things that I have seen in patients in whom I have given the care over to a physician such as this while they're recovering from surgery, every one [sic] should know the treatment and the ability to care for patients at higher risk for DVT. (emphasis added).

Because the record is void of any evidence regarding the standard of care of a director of skilled nursing unit and void of any testimony regarding a breach on Dr. Hawawini's part, we find that the trial court correctly granted a directed verdict in favor of Dr. Hawawini and we affirm that portion of the judgment.4

Having determined that the trial court erred in granting, in part, directed verdicts in favor of the defendants based on the evidence submitted with respect to the first two elements of a medical malpractice claim,5 we now turn to the third element-a causal connection between the defendants' alleged negligence and Mr. Smallwood's "injuries resulting therefrom."6

***Causal connection***

This Court has consistently held that, in a medical malpractice case, a plaintiff must show that the injuries complained of were proximately caused by a breach of the standard of care (or, in other words, that a breach was the cause in fact of the injury alleged). *See**Gaffney v. Giles* , 14-0384, p. 19 (La. App. 4 Cir. 4/29/15), 165 So.3d 1100, 1111 ; *Tucker v. Sullivan* , 04-1715, p. 5 (La. App. 4 Cir. 7/27/05), 913 So.2d 857, 860 ; *Sandifer v. Wise* , 00-0293, p. 6 (La. App. 4 Cir. 2/7/01), 780 So.2d 1099, 1102 ("the plaintiff must ... demonstrate by a preponderance of the evidence a causal nexus between the defendant's fault and the injury alleged"). Moreover, as the Supreme Court explained in *Pfiffner* , 94-0924 643 So.2d at 1233 :

> In a medical malpractice action, the plaintiff must show that as a result of the defendant's negligence he suffered injuries that would not otherwise have occurred. Plaintiff need not show that defendant's conduct was the only cause of the harm nor must he negate all other possibilities. Rather, he must show by a preponderance of the evidence, or more probably than not, that he suffered the injury because of defendant's conduct.

In this matter, as we previously noted, Dr. Frangipane was critical of the defendants' treatment of Mr. Smallwood, and more particularly, with their alleged failure to provide what he believed were additional measures to prevent DVT. As to the issue of causation, Dr. Frangipane testified as follows:

> Q. Having gone through the details of the treatment that Mr. Smallwood went through both at Baptist and the SNF, skilled nursing facility, are you still of the opinion that he should have been administered a pharmacologic DVT prophylaxis?

> A. I still hold that opinion, sir; yes.

> *68Q. Are you of the opinion that it was a breach of the standard of care for the treating physicians not to have prescribed that?

> A. I agree with that.

> Q. And that that breach was responsible, in turn, for Mr. Smallwood's passing away from pulmonary embolism ?

> A. I continue to voice that opinion.

We believe that this exchange, at a minimum, meets the plaintiff's burden in establishing a causal connection between the defendants' alleged negligence and Mr. Smallwood's demise. That is, this testimony supports a reasonable conclusion that more probably than not, Mr. Smallwood "suffered the injury because of defendant[s'] conduct."7*Pfiffner* , 94-0924, p. 8, 643 So.2d at 1233.

**CONCLUSION**

Based on the foregoing, we find that the trial court correctly granted the motion for a directed verdict in favor of Dr. Hawawini. As to the remaining defendants, however, we find that the trial court improperly granted their motions for directed verdict. We, therefore, affirm the trial court's judgment as to Dr. Hawawini, reverse the trial court's judgment as to the remaining defendants and remand this matter for further proceedings.

**AFFIRMED IN PART, REVERSED IN PART AND REMANDED**

2

The Louisiana Supreme Court, in *Pfiffner* , explained this concept as follows:

> Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body, from which a lay person can infer negligence .... Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician's fault.

*Id.* , 94-0924, p. 9, 643 So.2d at 1233-34.

3

In his testimony, Dr. Frangipane testified that he is board certified in general surgery and also that he is "grandfathered in vascular surgery."

4

Because we have found that the trial court correctly granted a directed verdict in Dr. Hawawini's favor, our reference to "the defendants" for the remainder of this opinion is a reference to the remaining defendants, collectively.

5

Our finding is not to be construed as a determination of the plaintiffs' ultimate success following a complete trial of this matter. We only find that the evidence was sufficient to warrant a denial of the motions for directed verdict.

6

*Minor* , 16-0323, p. 9, 206 So.3d at 1076.

7

Again, we express no opinion as to whether, after a full trial on the merits, a jury would find in favor of the plaintiff. We simply find this testimony to be sufficient evidence to support the denial of the motions for directed verdict and the submission of the case to the jury.