Morris v. Corales (669 So. 2d 1316) 1966

Plaintiff, Dorothy Morris, appeals a trial court judgment which dismissed her claims of malpractice against Drs. Gregory Ferriss and Richard Corales. The issue for our resolution is to determine whether that judgment is clearly wrong or manifestly erroneous.

After review of the entire record, and applying the principles of appellate review, we affirm the judgment. Arguably, the evidence could have resulted in an equally reasonable contrary conclusion. However, we cannot say that the one reached by the trial judge is so wrong as to warrant a reversal.

After suffering the majority of her life from seizures and having no success with anti-convulsant medications, plaintiff, in March of 1986 sought treatment from Dr. Gulick, a neurologist. Dr. Gulick treated plaintiff for approximately one year and basically concluded that she suffered partial complex seizures that could not be controlled by medication. Dr. Gulick referred her to Dr. Ferriss, also a neurologist, for further treatment.

On May 7, 1987, Dr. Ferriss admitted plaintiff to Tulane Medical Center for evaluation in the epilepsy clinic and monitoring unit. The purpose of that treatment program was to observe and video record her seizures, and monitor EEG responses during seizure. Plaintiff was monitored for ten days during which she suffered at least five seizures or episodes of seizure-like behavior. The monitoring results are discussed in detail later in this opinion. An integral part of plaintiff's case, however, revolves around Dr. Ferriss' admit diagnosis, which was complex partial seizures secondary to brain damage in the neonatal or early childhood period. He also noted considerable psychological overlay and the possibility that many of the patient's episodes were psychogenic seizures rather than true organic seizures. Dr. Ferriss consulted with Dr. Phillip Griffin, a psychologist at Tulane. Dr. Griffin scored the results of an MMPI test that had been administered to plaintiff as part of her psychological workup. However Dr. Griffin's report never reached Dr. Ferriss prior to surgery.

Plaintiff, on May 18, 1987, was transferred to Southern Baptist Hospital for further evaluation and possible surgery by Dr. Corales, a neurosurgeon. At Southern Baptist, an MRI test confirmed that plaintiff had a lesion on the left temporal lobe of her brain which, according to the testimony, was consistent with the previous evaulations of epileptic (organic) seizures. It was also confirmed that the left side of plaintiff's brain was the dominant side, the same side to be operated on. Dr. Corales, relying on Dr. Ferriss' evaluations and diagnosis, as well as the MRI results, confirmed that plaintiff was a good candidate for surgery. On May 21, 1987, Dr. Corales removed the lesion.

When plaintiff recovered from surgery, she could not move her right side nor could she speak. After many months of rehabilitation, she has regained some of her speaking ability, however her right hand and arm are useless.

It is undisputed that plaintiff's condition is one of the risks associated with the surgical procedure she underwent. It is also undisputed that Dr. Corales informed plaintiff of those possible consequences prior to surgery. In addition, plaintiff does not complain that Dr. Corales committed malpractice while performing the surgery. Instead, plaintiff's complaint is that Dr. Ferriss did not heed his own admit diagonisis for psychologial testing to determine whether plaintiff suffered psychogenic seizures, nor did he consult with Dr. Griffin on the results of his MMPI tests prior to performing surgery, which plaintiff contends had numerous "red flags" suggesting further psychological testing. Plaintiff further argues that both Drs. Ferriss and Corales should have informed her prior to surgery that there was a possibility that she was suffering from psychogenic seizures, and that an alternative to surgery would have been to treat the psychogenic seizures first, and then see if the medication would control the organic (epileptic) seizures. Because the surgery is a last resort and is irreversible, plaintiff argues she should have been informed of the possibility of an alternative.

Dr. Corales argues that he relied on Dr. Ferriss' workup and evaluations, as well as the MRI, which were all consistent with the diagonis of epileptic seizures caused by the lesion on the brain. He asserts that he breached no standard of care, and that all of the experts agree his reliance on Dr. Ferriss' evaluations was consistent with the medical practice in the community. In particular, he asserts that in cases of this type, where the diagnosis is intractable seizures, the workup and evaluation is the responsibility of the neurologist, not the neurosurgeon.

Dr. Ferriss argues that the evidence is undisputed that plaintiff suffered epileptic seizures and that her history, evaluations, and MRI results all indicated that surgery was necessary. He further asserts that the evidence is inconclusive of psychogenic seizures, and offers the testimony of various experts to support his assertion that performing surgery to remove the lesion was a correct procedure even assuming plaintiff also suffered psychogenic seizures. His response to plaintiff's argument is that psychological treatment would not be responsive if the cause of the epileptic seizures (i.e. the brain lesion) was not removed first.

Following trial, the trial judge found that plaintiff failed to carry her burden of proving that Drs. Ferriss and Corales either lacked the degree of knowledge or skill required or that they failed to use reasonable care and diligence along with their best judgment in the application of that skill. The trial judge also found that Drs. Ferriss and Corales fully informed plaintiff of all of the risks of the treatment and surgery and obtained her informed consent….

In the second assignment of error, plaintiff argues that the trial court erred in finding that Drs. Ferriss and Corales obtained the informed consent of plaintiff for this surgery. Specifically plaintiff argues that she should have been informed prior to surgery of the possibility of psychological treatment as an alternative to surgery.

Under the Louisiana informed consent doctrine, physicians are required to provide their patients with sufficient information to permit the patient to make an informed and intelligent decision on whether to submit to the proposed course of treatment. This information should include, if possible, the nature of the pertinent ailment or condition, the general nature of the proposed treatment or procedure, the prospects of success, the risks of failing to undergo any treatment or procedure at all, and the risks of any alternate methods of treatment. A physician must also inform a patient of any alternatives that exist to a surgical procedure. LSA-R.S. 40:1299.40; Hondroulis v. Schuhmacher (1988).

Initially we observe that there is substantial evidence which shows that plaintiff was fully informed of all possible risks and complications of the surgery and that she understood and was mentally capable of making this decision. Despite plaintiff's assertion that the results of the MMPI suggested otherwise, the evidence simply does not support any inability of plaintiff to fully comprehend the explanations given to her.

We further conclude that the trial judge was not clearly wrong in rejecting plaintiff's assertion that she should have been advised of the alternative treatment of psychotherapy. In order to prove that psychological or psychiatric treatment was a reasonable alternative to surgery, the plaintiff had to prove that this alternative was an accepted medical treatment for her condition, which was organically based. See Steele v. St. Paul Fire and Marine Insurance Company, (1979). A physician has no duty to disclose alternative treatments or procedures which are not accepted as feasible.

First, the evidence is undisputed that plaintiff had a lesion on the brain and suffered epileptic (organic) seizures. Psychological or psychiatric treatment is not a recognized, feasible treatment for that condition. Second, there was no finding by the trial court that plaintiff actually suffers psychogenic seizures and the evidence is inconclusive as to whether she suffered from those type seizures. Thus, there was no need to offer an alternative treatment given those circumstances. Third, even assuming as a fact that plaintiff did suffer psychogenic seizures, there is substantial evidence which suggests that the organic problem (brain lesion) had to be treated first, otherwise psychological treatment may be ineffective. Finally, and most important, the expert opinions varied on whether plaintiff should have been advised prior to surgery of the alternative psychological treatment. Under these circumstances, we simply cannot say the trial judge was clearly wrong in his conclusion. For the foregoing reasons, the trial court judgment is affirmed.