Bordelon v. Henderson

Bert Bordelon and his spouse and children (plaintiffs) brought a medical-malpractice action against Dr. William Henderson (defendant) based on Dr. Henderson’s alleged failure to diagnose Bordelon with cancer. Bordelon died while the action was pending. In a deposition taken before Bordelon’s death, Bordelon testified that Dr. Henderson failed to perform X-rays that should have been performed as part of a proper cancer diagnosis. However, Dr. Henderson planned to testify that he advised Bordelon to undergo the X-rays, but that Bordelon refused. Bordelon’s survivors filed a motion in limine to exclude Dr. Henderson’s testimony about Bordelon refusing the X-rays, arguing that the testimony was hearsay. The survivors also asserted that Bordelon’s medical records did not contain any notes about his refusal of the X-rays and that Bordelon was not cross-examined during his deposition about his alleged refusal to undergo the X-rays. The trial court granted the survivors’ motion after finding that Dr. Henderson’s testimony was inadmissible hearsay and was unfairly prejudicial. The appellate court reversed, holding that the testimony was admissible nonhearsay. The Louisiana Supreme Court originally reversed the appellate court’s decision and reinstated the trial court’s ruling. However, the court subsequently granted Dr. Henderson’s petition for rehearing and reconsidered the evidentiary issue.