Lena Hebert, Spouse of Morgan Cephas Hebert, Sr. (Deceased), Diane H. Melvin and Morgan Hebert, Jr. VS Plaquemine Caring, L.L.C.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 2243 LENA HEBERT SPOUSE OF MORGAN CEPHAS HEBERT SR DECEASED DIANE H MELVIN AND MORGAN HEBERT JR VERSUS PLAQUEMINE CARING L C Judgment Rendered JUN 1 6 2010 APPEALED FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF IBERVILLE A STATE OF LOUISIANA DOCKET NUMBER 58 DIVISION B 454 THE HONORABLE J ROBIN FREE JUDGE Daniel E Broussard Jr Attorney for PlaintiffsAppellants Alexandria Louisiana Lena Hebert Diane H Melvin and Morgan Hebert Jr Deborah A Van Meter Lorraine P McInnis Attorneys for Defendants Appellees Plaquemine Caring L C Margaret Diamond New Orleans Louisiana BEFORE PETTIGREW GAIDRY McDONALD McCLENDON AND WELCH JJ VmCC16n4 McDONALD J This is an appeal of a judgment granting an involuntary dismissal of plaintiffs claims of lost chance of survival against defendant After a thorough review we reverse and remand FACTS AND PROCEDURAL HISTORY In July of 2001 Morgan Hebert suffered a fractured hip as a result of a fall in his home He was admitted to American Legion Hospital in Crowley Prior to surgery to correct the fracture Mr Hebert suffered cardiopulmonary arrest and was subsequently placed on a ventilator to provide respiratory support He was transferred to the intensive care unit of Our Lady of Lourdes Hospital in Lafayette for observation and treatment where he remained until October 8 2001 Upon leaving Our Lady of Lourdes Mr Hebert was discharged to Plaquemine Caring L Plaquemine a longterm care skilled nursing facility C in Plaquemine At the time of admission Mr Hebert was diagnosed with ventilator dependent status chronic obstructive pulmonary disease respiratory insufficiency hypertension diabetes and sensation neuromuscular disease He required a PEG tube feeding tube for nourishment As a result of his ventilator dependent status Mr Hebert was to be monitored regularly to insure that the ventilator was functioning properly On October 19 2001 Mr Hebert was found by members of his family to be nonresponsive and cold to the touch The family notified Plaquemine staff at s once and Mr Hebert was pronounced dead as a result of respiratory failure cerebrovascular accident and cervical neuropathy Plaintiffs Lena Hebert as surviving spouse and Diane H Melvin and Morgan Hebert Jr as children of Mr Hebert filed their petition against Plaquemine on January 21 2003 alleging that the fault and negligence of s Plaquemine personnel proximally and solely caused the loss of Mr Hebert s 2 chance of survival prior to his death Lena Hebert died before the matter went to trial The bench trial began on May 2 2007 On May 3 2007 the trial judge considered and granted Plaquemine oral motion for involuntary dismissal s finding that plaintiffs had not established that a breach of the standard of care was a cause of Mr Hebert death The judgment was signed on June 7 2007 From s this judgment plaintiffs filed a motion and order for devolutive appeal on July 25 2007 On January 10 2008 this Court issued a show cause order upon a finding that the trial court signed judgment of June 7 2007 was deficient due to lack of s decretal language as required by La C articles 1911 1917 and 1918 P Subsequently this court issued an interim order remanding the appellate record to the trial court to be supplemented with a judgment with appropriate language On April 25 2008 this matter was stayed as a result of Bankruptcy proceedings filed by Plaquemine in the United States Bankruptcy Court Middle District of Louisiana Chapter 11 Case number 08 10511 Plaintiffs filed for relief from the automatic stay to continue to prosecute their claims This relief was granted by order of the Bankruptcy Court on June 12 2009 ASSIGNMENTS OF ERROR Plaintiffs make the following assignments of error 1 the trial court committed manifest error in granting Plaquemine motion for s involuntary dismissal 2 the trial court erred in finding that plaintiffs did not show any right to relief as required by La C article 1672 and 3 the trial court erred as a matter P of law in using a medical certainty evidentiary standard in weighing plaintiffs evidence 3 In cases of lost chance of survival the manifest error standard of review applies Under this standard a factual finding cannot be set aside unless the appellate court finds the decision to be manifestly erroneous or clearly wrong Stobart v State through Dept ofTransportation and Development 617 So 880 2d 882 La 1993 In order to reverse the determination of the factfinder the appellate court must review the record in its entirety and 1 find that a reasonable factual basis for the finding does not exist and 2 further find that the record establishes that the factfinder is clearly in error The issue to be decided in the review is not whether the trier of fact was right or wrong but whether the conclusion was reasonable given the entirety of the evidence presented Id LAW AND ANALYSIS Plaintiffs frame their allegations against Plaquemine in terms of a lost chance of Mr Hebert survival In a lost chance of survival case the plaintiff does s not have to prove that the patient would have lived had proper treatment been given Benefield v Sibley 43 p 13 La App 2d Cir 7 988 So 279 317 08 9 2d p 289 writs denied 08 2162 082210 08 2247 La 11 996 So 1107 08 21 2d 1108 citing Smith v State through Department ofHealth and Human Resources Administration 523 So 815 La 1988 However the plaintiff does have the 2d burden of establishing by a preponderance of the evidence that the defendant s conduct denied the patient a chance of survival that he or she had before the s defendant conduct Id To do this the plaintiff must demonstrate that a chance of survival existed in the first place if the patient had no chance of survival there is nothing lost by the defendant sconduct even if a breach occurs See Alphonse v Acadian Ambulance Services Inc 02 077376 p 10 La App 1st Cir 3 03 28 844 So 294 300 writ denied 03 1086 La 6847 So 1240 Once the 2d 03 20 2d chance of survival is established the plaintiff must then demonstrate that the established chance was lost due to the defendant snegligence Benefield 43 at 317 4 p 13 988 So at 289 The defendant 2d sconduct need not be the only causative factor of the patient death but the factors must have increased the risk of harm s Hastings v Baton Rouge General Hospital 498 So 713 720 La 1986 There 2d is a right to recover for lost chance of survival even in cases when the chance is a less than even chance due to a preexisting condition Smith v State through Department of Health and Hospitals 95 0038 p 6 La 6 676 So 543 96 25 2d 547 The determinations of chance of survival and loss of that chance are given to the finder of fact in these cases See Martin v East Jefferson General Hospital 582 So 1272 1278 La 1991 The supreme court has repeatedly explained that 2d to establish causation in a situation where the patient dies the plaintiff need only prove that the defendant malpractice resulted in the patient loss of a chance of s s survival and that the plaintiff need not shoulder the unreasonable burden of proving that the patient would have survived if properly treated Martin at 1278 Where this conclusion is based on evaluations of witness credibility the standard of review demands that great deference must be given to the factfinder s determinations Benefield 43 at p 6 988 So at 286 317 2d Plaintiffs offered the testimony of Dr Louis Roddy Dr Roddy who was tendered as an expert witness by plaintiffs and qualified as an expert in pulmonary medicine and ventilator patient care testified that Mr Hebert vital signs as taken s by Plaquemine staff indicated that he was in distress in the hours leading up to s his death Dr Roddy expert opinion was that Plaquemine had breached the s standard of care The recordkeeping ofthe nursing and therapy staff at Plaquemine was a significant factor in Dr Roddy assessment He cited numerous examples s of inconsistencies in Mr Hebert chart inconsistencies that were corroborated by s members of the nursing staff in their sworn testimony In Benefield 43 at pp 317 5 712 988 So at 28689 a similar lack of proper recordkeeping was deemed to 2d be a breach of the standard of care Dr Roddy also testified that the recordkeeping failures were a significant cause of loss of Mr Hebert chance of survival In his opinion the sudden s changes in spontaneous respiratory rates reflected in Mr Hebert chart would s have raised alarms in a vigilant staff that the patient was in respiratory distress Due to the recordkeeping problems however a distinct pattern was never established that would have indicated a problem The plaintiff also called Dr Luke Lee a physician who treated Mr Hebert at Plaquemine to question him as a fact witness Dr Lee a specialist in occupational medicine was then questioned by defense counsel on direct examination During the course of this questioning Dr Lee was asked his opinion of a conclusion of the sexpert Dr Roddy Plaintiff plaintiff scounsel objected because Dr Lee had not been qualified as an expert but had only been called and questioned as a fact witness The court directed defense counsel to qualify him and allowed plaintiff s attorney to cross examine him on the predicate However Dr Lee was not tendered or accepted by the court as an expert witness Upon direct examination by defense counsel Dr Lee stated that Mr s Hebert death was a sudden death ruling out any causation of his death related to the actions of Plaquemine staff regarding his ventilator Dr Lee discussed Mr s s Hebert frail health upon admission to Plaquemine in great detail concluding that even if Plaquemine staff was negligent in monitoring Mr Hebert vital signs s s this negligence was not the cause of his death Dr Lee opined that patients with Mr Hebert range of symptoms commonly experience sudden death episodes s Considering the medical testimony presented in combination with other evidence presented at trial the trial judge granted Plaquemine soral motion for involuntary dismissal An involuntary dismissal in a bench trial can be likened to a T directed verdict in a jury trial A directed verdict is permissible in a jury trial for a medical malpractice or lost chance of survival when the plaintiff offers no evidence to support its claims and when the facts presented so strongly support the s defendant position that no reasonable person could reach a contrary verdict Cangelosi v Our Lady of the Lake Regional Medical Center 564 So 654 661 2d La 1989 Clearly that is not the case here Further the strength of the defendant sposition must be evaluated under the appropriate standard for determining medical malpractice and lost chance of survival The trial judge in his reasons for granting the involuntary dismissal motion determined that plaintiffs had not proven that Plaquemine sactions led to Mr Hebert death to a medical degree of certainty Plaintiffs raise this s statement as one of their assignments of error claiming that use of this standard constitutes legal error We agree finding that it is legal error to use the medical degree of certainty standard to rule on causation in a lost chance of survival case s Louisiana jurisprudence has held that the plaintiff must only prove causation in a lost chance of survival case by a preponderance of the evidence Martin 582 So at 1278 Though the factfinder does have a wide amount of 2d latitude in evaluating the credibility of the witnesses offered in determining causation that credibility must be evaluated according to the proper standard In the matter before us the decision made by the trial court was based on an improper standard Due to the trial judge legally erroneous use of the improper standard in s reaching his decision we find that the involuntary dismissal of plaintiffs claims was legally erroneous as well CONCLUSION For the foregoing reasons the trial court judgment granting involuntary dismissal of plaintiffs claims is reversed We remand to the trial court for further 7 proceedings in accordance with this ruling Costs of this appeal are assessed against the defendant Plaquemine Caring LLC REVERSED AND REMANDED STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 2243 LENA HEBERT SPOUSE OF MORGAN CEPHAS HEBERT SR DECEASED DIANE H MELVIN AND MORGAN HEBERT JR VERSUS PLAQUEMINE CARING L C McCLENDON J concurs and assigns reasons I respectfully concur Although plaintiffs presented scant evidence to establish by a preponderance of the evidence that defendant sconduct caused Mr Hebert to suffer a lost chance of survival given Dr Roddy testimony that if someone had s paid attention to Mr Hebert respiratory rate of 24 at 5 a we might have s 00 m prevented this patient death I must concur with the result reached by the s majority
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