John Kirby, Individually and on behalf of his minor child, Johnathan Kirby, Michelle C. Norton, William Andrew Cuny and Angela Renee Cuny VS The State of Louisiana through the Louisiana State University Board of Supervisors, The Louisiana State University Health Sciences Center, Earl K. Long Medical Center

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2014 CA 0017 JOHN KIRBY INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, JONATHAN KIRBY, MICHELLE C. NORTON, WILLIAM ANDREW CUNY AND ANGELA RENEE CUNY VERSUS • THE STATE OF LOUISIANA THROUGH THE LOUISIANA STATE UNIVERSITY BOARD OF SUPERVISORS, THE LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER, EARL K. LONG MEDICAL CENTER ~ .(J. /-\ ~~ Judgment rendered 1111 ~J NOV 0 7 20'14 ****** Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana Trial Court No. C606526 Honorable William A. Morvant, Judge ColllCllk!S i)Y* *J:._Jt;e:r v .tJ/s:seAJTS n:::s:s;~~ ~e~~ /fvp CHARLES R. MOORE COREY J. HEBERT BATON ROUGE, LA ATTORNEYS FOR PLAIN11FFS-APPELLEES JOHN KIRBY, ET AL. JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL KATHERINE WHEELER ASSISTANT ATTORNEY GENERAL BATON ROUGE, LA ATTORNEYS FOR DEFENDANT-APPELLANT THE STATE OF LOUISIANA ON BEHALF OF EARL K. LONG MEDICAL CENTER ****** BEFORE: KUHN, PETTIGREW, AND WELCH, JJ. PETTIGREW, J. In this medical malpractice action, the defendant, the State of Louisiana through the Louisiana State University Board of Supervisors, The Louisiana State University Health Sciences Center, Earl K. Long Medical Center (hereinafter. collectively referred to as "defendant" or "EKL'') appeals a judgment rendered against it based on a jury verdict finding that the internal medicine physicians and staff, as well as the general hospital administrative staff at Earl K. Long Medical Center, breached the established applicable standard of care, and that those breaches caused damages and the ultimate death of fifty-one-year-old Amy Kirby. After a thorough review of the record, we find no merit to the defendant's assignments of error, and affirm the judgment. Likewise, we find no merit in the plaintiffs' answer to the appeal, seeking damages for a frivolous appeal, and decline to render an award. SUMMARY OF BACKGROUND FACTS AND PROCEDURAL HISTORY On December 19, 1993, Ms. Kirby married the plaintiff, John Kirby, and together they had a child, plaintiff Jonathan Kirby. Ms. Kirby also had three children from a prior marriage, plaintiffs Michelle C. Norton, William Andrew Cuny, and Angela Renee Cuny. In 1994, Ms. Kirby graduated as a registered nurse from Our Lady of the Lake School of Nursing. She worked at the OLOL Medical Center in the Neurology Department, and then later worked as a home health nurse. She was forced to retire due to a back injury sustained in a 1999 automobile accident, for which she took opioid medications. Although Mr. Kirby was employed at Superior Ford, the family had personal financial difficulties and had lost its medical insurance coverage. Ms. Kirby died at EKL on August 7, . 2008, two days after being admitted for continued complaints of severe and worsening abdominal pain and constipation, for which she had previously made several recent trips to the emergency room (ER) at EKL. The medical occurrences that led up to Ms. Kirby's death were a perforated colon at the 2 cecum that allowed liquid stool into her abdominal cavity, after which she became septic, and developed DIC 1 and metabolic acidosis. The record reveals that throughout the two days leading up to her death, Ms. Kirby screamed in agony that she was rupturing from the inside, felt that she was dying, and pleaded with the EKL staff to do surgery; or somethingr to relieve her of the unrelenting and unbearable pressure and pain in her abdomen. Instead, the EKL staff continued the same treatment it had administered from the inception of her complaints - administering increasingly strong laxatives, enemas, and pain medication. And indeed, as she predicted, Ms. Kirby's colon ruptured and as a result she ultimately died. The record also reveals that there were other tests available that were not performed, specifically, a CT of the .. abdomen, a colonoscopy, and/or a hypaque/gastrografin enema, through which the EKL physicians would have been able to diagnose Ms. Kirby's malfunctioning bowel, and decompress her expanding colon before it ruptured. Further, the record evidences that the interns and residents attending to Ms. Kirby, including their supervisors, failed to timely or adequately address Ms. Kirby's agonizing screams due to her symptoms or modify the treatment she was being given despite that the treatment showed no signs of improving her symptoms or her condition. EKL appeals the judgment adopting the jury verdict, which was consistent with a prior medical review panel opinion, concluding that the administrative staff and internal medicine physicians at EKL breached the standard of care owed to Ms. Kirby and that 2 those breaches caused her injuries and death. The jury awarded damages in excess of $1,750,000.00, which were reduced to the medical m~lpractice cap of $500,000.00. The defendant did not assign error to the damage award; it is not at issue in this appeal. 1 DIC, disseminated intravascular coagulation, is a hemorrhagic disorder that occurs following the uncontrolled activation of clotting factors and fibrinolytic enzymes throughout small blood vessels, resulting in tissue necrosis and bleeding. 2 The jury declined to find that the ER physicians and staff or the surgical physicians and staff at EKL breached the standard of care owed to Ms. Kirby. These findings have not been appealed. 3 SPECIFIC FACTUAL BACKGROUND Approximately three weeks prior to her death, Ms. Kirby was hospitalized at Lane Memorial Hospital (Lane), from July 15, 2008 to July 17r 2008, for tests and evaluation of complaints of abdominal pain and weight loss. An abdorpina! CT scan performed at Lane revealed a pancreatic mass and a nearby lymph pode was indicative of metastasizing pancreatic cancer. She was released from Lare on July 17r with the continued prescribed use of oxycodone for pain and with instructions to report for follow-up treatment at EKL's Hematology/Oncology Clinic. Ms. Kirby reported to the EKL clinic on the dat~ of her appointment, July 24, 2008, but was told she did not have one scheduled. Ho~ever, on that date, she did see a nurse practitioner who ordered some lab work and also .scheduled appointments for Ms. Kirby to return to biopsy, confirm, and stage her pancreatic cancer. However, prior to those appointments, on July 30, 2008, Ms. Kirby went to the EKL ER complaining of pain to her back, stomach, and ribs. An abdominal examination at this time revealed diffuse abdominal pain, with bowel sounds present. She reported that her last bowel movement had been the day before, Her prior lab tests indicative of cancer were confirmed; her previously scheduled appointments were confirmed and moved up to August 6, 2008; and she was discharged that same day with additional pain medication. The next day, July 31, 2008, Ms. Kirby reported to the ER at Lane with the same complaints of continuing abdominal pain, now radiating to her back. An abdominal x-ray was performed that revealed scattered gas within her small and large intestines, but no evidence of acute intra-abdominal problems: She was administered additional narcotic medication and discharged that same day. The following day, August 1, 2008, Ms. Kirby ~a's still in severe abdominal distress and EMS was called to her home. The EMS reports reflect that she complained of pain in the left upper quadrant of her abdomen, radiating into her mid-back. She was transported to EKL where she complained of increasing and worsening abdominal pain She was admitted to the hospital for despite taking morphine and oxycodone. observation and pain medication regulation. She was started on a fentanyl patch for the 4 "•1' breakthrough pain, which Ms. Kirby reported heiped control her pain much better than anything had before. X-rays of her abdomen. were performed that revealed "a moderate 1 ,St}e vvas diagnosed with refractory \q oqwe~ regimen of laxat!ves and stool degree of retained stool throughout the c:qkin,' narcotic-induced constipation and wa:s placed. on p.m. softeners. She was discharged at approximare!y 3:00 on August 2, 2008, despite that she was unable to have a bow~i .moven;ent while.a.;t the hospital. However, at 10:49 p.m. that same day, EMS .was again. called to her home, and > • ' j the responders found Ms. Kirby in a fetal positionr compiaining of increasing pain for the She wa~ transported back to the EKL ER, and past six hours that was getting worse. records indicate she complained of ':periumbilic;a~" (around the belly button) abdominal pain and reported that she had not ~ad a bowel movement in three days. She was examined again, and her abdomen was noted to be firmf, distended, and tender to palpation. An x-ray revealed trat she had. a Jar:g,e ·arrount of retained stool in her ascending colon (indicating that the stool was not .moving as it should through the colon), but no free air, or evidence of a small bowel obstn.,fction. After having a "small" bowel movement while in the ER, she was discharged early in the morning on August 3, 2008, with instructions to take a stool softener and a stronger laxative and to report to the Oncology Department within twenty-four hours for pain management and constipation side effects. However, at approximately 7:30 p.m. the next day, August 4ff 2008, Ms. Kirby again returned to the EKL ER with the same, continued, but worsening abdominal pain complaints and stating that she had not had a bowel movement in six days. She was triaged, x-rayed, and admitted to the hospital • ' - at' approximately 10:30 p.m., with a t diagnosis of constipation secondary to 'pain niedications. 3 A physical examination revealed her abdomen was distended and tender to palpation, with diffuse abdominal pain. She was given fluids, multiple doses of laxatives, stool softeners, and enemas (soap 3 The x-ray taken that night was lost, and therefore, unavailable as evidence at the time of trial. 5 suds and mineral oil), none of which produced a su~.cessfu! bowel ~ovement. She was . ' . ' also given continued and increased morphine for her pain, ~md vahum to calm her down. In the early morning hours of August 5,, 2008, after experiencing continued and increased pain with the additional ~axative/enem13 effortsr Ms.. Kirby refused another enema, stating she could not endure trif~ pain .. At thi:; time, the nurse summoned the DL Davey Pr().ut, a first-year intern,, and his medical team to Ms. Kirby's room. supervising second-year resident, Dr. O\~a.r)a LamendoJa; came to Ms. Kirby's bedside. They ordered a portable x-ray that re.vealed a rnoder~te amo.unt of stool. in Ms. Kirby's ~ colon, but no apparent obstn~ction. • ' . •. ' ' • t • . Ms, Kirby bt!gan vomiting yellow liquid and stating .: ' . . - ' i that she felt that "she was exploding in?i.d~,.·~ Ms,, Kirby was .9iven ativan for agitation, • ' J ' •• ••• •• ' and additional doses of oral laxatives· (magnesium citrate), Sh_e res~ed for a short period of time; however, at approximately Z:OO· .a,m;, she, again, was in extreme distress, crawling on the floor and screaming that she w9s ~'rupturing" inside and was "dying." She began vomiting again, this time, a pink Jiquid, and ' . a, physician was paged due to the attending nurse's concern that the vomit may .be ,blood. A second-year resident, Dr. Anne Price, came to Ms. Kirby's bedside and. exarnined her C}bdomen, noting that it was "soft, but tender," She also noted that Ms. Kkby's, .~bd.omen appeared distended, somewhat hard, with no bowel sounds. Dr. Price ordered the placement of an NG tube, and aiso called for a surgical consult (Ms. Kirby's daughter, Michelle Norton, whose complete testimony is discussed in more detail below, testified that by this time her mother was pale, her breathing was rapid 'and st1ailow 1 ·and. her mental state had changed out bf lutidify·and riot'~bie dramatically; she was going in and' .. ,' ' . ·~ .. . . • . ' . ' I ' . ' ' I conversation.) At approximately 7:4'5 a~m,, at ·the to carry on a meaningful . ' " insf~t~:nce :of Ms. ·Norton, Dr. Price summoned a surgical consult. Fifth-year resident surgeonF Dr:. Mark Dominguez, evaluated Ms. Kirby, together with Dr. Lamendola. Dr. Dominguez ·noted that Ms. Kirby had a diagnosis of a pancreatic head mass, but that she had been readmitted to the hospital with abdominal pain. He also noted that she stated she had not had a bowel movement in seven days, and that this was "secondary to opiate use,N He observed that Ms. Kirby was "uncomfortable" and that she stated sr1e wanted them to "get out the stool." opr:rate, instead ordt;ring continuing serial Notwithstanding, Dr. Dominguez declined to abdomen exams and enemas for bowel rnovement Medical records also indicate that .gt 8::90 :~:rn.: Ms. Kirby was seen by first-year ICU resident Dr. Jason Toups 1 who, without performing a physical examination, ordered yet more laxatives and mineral oil, together with a bolus of saline, in continued attempts to force Ms. Kirby to have a bowel movem~nt. . According to the testimony of Ms. Kirby's ~aughter, Ms. Norton, who was with her mother from the time she was brought to the emergency room at EKL on August 4, 2008, the entire time they were waiting in the emergency room, .her mother complained of severe pain in her abdomen, which Ms. Norton testified was firm, distended, and bloated. She stated that she still had not had a bowel movement. and felt that she needed to have one. Ms. Norton testified that her moth~r toiq th~t to everyone she came into contact with in the emergency room. In fact, . Ms. .. , l Norton ·divulged that her mother, as a registered nurse, had a patient years before.t_hat had died from a perforated bowel; and . ' her mother told her as well as EKL staff members, "[s]he was scared to death to perforate." Also, according to Ms. Norton, her mother continued to get up and get on the toilet and "strain and strain" in attempts to relieve her symptoms and have a bowel movement. Ms. Norton testified that despite her mother's symptoms getting worse, instead of better, the staff continued to give her mother more morphine for her pain( and. more laxatives, which only caused Ms. Kirby to suffer eve~ more. pa!H ancf 'still' failed to produce a bowel movement. Ms. Norton stated. that her ...~other~s was administering the enema, 'her stop. ,J~in was so great that whiie the nurse ~oth:ei"' (~~s ~~re~~ni~~ Ms. Kirby noted to the nurse that she· feit .. . in that 'the agony and asking her to enema was only "pushing . everything that was in her in further," Eventually;· Ms, Kirby got off of her hospital bed, and writhing in pain, rocked back and forth on her hands and knees on the hospital room floor, screaming "that she felt like she was rupturfng inside and she wanted someone to help her." 7. i. ~ ' '':. Ms. Norton also observed that her tnotper's b~liy was increasing in size and that in one day's time, she went from having d "baby bump''. to "looking like she was eight months pregnant." Also, accordinq to Ms, Nrnton, her mother was straining so badly in attempts to have a bowel movement in .her bEK].f tier bladder and rectum prolapsed and were actually coming through her vagina. Ms .. Norton proclaimed the doctor had to push the organs back into her mother's body. At this point, Ms. Norton stated that she started demanding a surgical consultation, as she was convinced her mother needed surgery to relieve her bowel. When the surgeqn, Dr . Domingu~z, arrived, Ms. Kirby was again, crawling on the hospital room floor, screarni~g amt mo~ning in pain. Ms. Norton admitted that she was very frustrated and dernande.d ~h~t the surgeon cut her mother open and "get the shit out of her." Despite her demands, she, stated that Dr. Dominguez merely ' . . . ' tapped her mother. on her belly, walked off. to' .~he si9e, .whispering something to ' Dr. Lamendola, and then both doctors left the. morn, no more than "five to eight minutes" after entering the room. According to Ms. Norton, shortiy there~fter, her mother was started on an "antipsychotic" medication, and Ms. Norton felt they were just trying to shut her mother up, so her agitation and screams of pain would not bother them or the other patients. Ms. Norton testified that her mother calmed down a bit with the anti-anxiety medications, and Ms. Kirby's husband, John Kirby, as well as Ms. Norton's aunt came to visit. During this visit, the EKL internal medicine staff attending physician assigned to Ms. Kirby, Dr. Angela Johnsonr came to tne mom, As· Dr. Johnson was explaining the treatment plan (consisting of more. laxati,ves ~rid enemas), Ms. Norton noticed her mother had slumped over and had sto~ped . bre~thihg:, ··sh'~ testfrled that she alerted as to her mother's condition, at which Dr. Johnson time, a code w~s 'called. ·A crash cart and the Rapid Response Team arrived; and shef ML Kirby, and her aunt were escorted out of the room. Her mother was intubated and transported to U1e ICU. Dr. Dominguez saw Ms. Kirby in the ICU, at which time, she was rushed to surgery for an emergency exploratory laparotomy. .8 :'· " ' Ms. Norton next saw her mother in the ICU,, foiiowing the emergency surgery. She was told by Dr. Dominguez and "another .docto(' .that her motherrs bowels had been paralyzed, or had become "dead tissue!''· that ''·she had. nipture~j" and a significant portion of her colon (35 cm) had been St111:~ yJou~d be on :3 colostomy bag for the rest of rernoveo. her life. According to Ms. Norton, she wa;; told h~~' m,oth.er's prognosis was "grim," and '' ' ' J • ' the medical plan was .to keep heri,n a mea1c1:1liy 1!.nduce.d soma (on a ventilator) so that 'l ·-. . she wouldn't be in so much pain, ' • ; :·' However, a short time later, the ~t(lff qpproa,ch~d .her and.Mr. Kirby and told them . . . .. . ' that Ms. Kirby's condition had worsened .and ~h~ wai:.; ~'bleeding from every organ." They ... . were asked if they wanted her to continue on .th~ yentiiator. When the family declined, Ms. Kirby was disconnected from all life support mea·sures; the family went to see her, and she died shortly thereafter, at 4:27 a.m. oriAl)gust 7, 2008. ASSIGNMENTS Of ERROR EKL appeals the jury's verdict as to ~he rynd~ngs that bot.h the administrative staff and the internal medical physicians C]t the hospital .breached the. standard of care owed to Ms. Kirby. EKL argues that these findings are not re~sonably supported by the factual and medical expert opinion testimonip! evidencf,? in th~ -. ; r~cord, EKL also assigns error to certain statements made by the trlai judge during . voir dire regarding the merits of plaintiffs' case, asserting the verdict may have been "incurably tainted" by the commentsr which were prejudicial to ·the defendant, and warranted a mistrial. For the following reasons, we find these assignments of error lack merit. '. ,i. ·i BREACH OF THE STANDARD OF CARE Standard of Review Appellate review of a trial court's findings in a medical malpractice action is limited, Johnson v. Morehouse General Hospital, 10-0387 (La. 5/10/11), 63 So.3d 87, 96, It is well settled that a court of appeal may not set aside a jury's finding of fact in the absence of manifest error or unless it is clearly wrong, and reasonable inferences of fact should not be disturbed upon review r ·even though the appellate court may feel its own Rosell v. ESCO, 549 So.2d 840, 844 (La. evaluations and inferences are reasonable. 9. • r 1989). In reviewing a fact finder'$ factual . two-step process based on the record as co_n~iuslpn:sff an. appellate court must satisfy a . a. wholE;.: : t.here. must be . no reasonable factual ' : ·~.' basis for the trial court's concius~on, and th~~ finding rn.qst beclt:arly wrong., Kaiser v. Hardin, 06-2092 (La, 4/11/07), 95.3 So2ti 802,r 8HJ. Discussion am:l ".\nalysjs Accordingly, we must determine W~E!~l)er .~b~ . r~cord before us provides a reasonable factual basis for the jury's factu13i findi11g that EKL's administrative staff and ' the internal medicine physic;iqns and .staff breached th,e standard of care owed to I ' : ''.' Ms. Kirby. We have thoroughly reviewed th~ r~cqrdF ~Dd as discussed below, find thcit it contains an adequate and reasonabl.e '' I·, , •' ' basis for ·. ~h~_jur(s ·. '.''' , factual conclusions and its verdict and that those findings qre npt c:le~riy wrong, .. ·. · . ', ' ' '. Pursuant to La. R.S. 9:2794~ a medical malpractice claimant must establish by a preponderance of the evidence: (1) the det~ndar:1t's stanp?rd of care; (2) the defendant's breach of that standard of care; and (3) .a 93usal ~?n.nettion between the breach and the claimant's injuries. Pflffner v. Correa, 94-924 (La, 10/17/94), 643 So.2d 1228, 1233, Breach of Standard of Care by Hos;pital.Admini~trative Staff A hospital is bound to exercise the requisite an1ount of care toward a patient that the particular patient's condition may. require, It is. the hospital's duty to protect the patient from dangers that may result from the patient's physicai and mental incapacity ... as well as from external circumstances pecu~~ar!y.with~n the hospital's controL Further, a hospital has a duty to provide and ma~ntain adequate faciilties and supplies and a competent staff so as to provide Dept. of Health and Human competetit c:~i·e fo 'i& 'pat\'ents: . Armand v. State, Resootce~,.. 9Tl958 '(L:{App:. i'tir.. 2/23/99), '729 So.2d 1085, 1088, writ denied, 99-0842 (La. '-511,~199); -]4t'. s6;2d 6'61; Supervisors of Louisiana State Universifyf sibley v. ·Board of 4go<sb.2d· 307, ·311 (La, App,· 1 Cir.), writ denied, 496 So.2d 325 (La. 1986). The record established that EKL is a state-operated teaching hospitalf structured similarly to other state-operated teaching hospitals in the countr{. The EKL staff consisted of internal medicine "teams" that included interns, residents, and a staff 10 . . . ' • I "attending" physician, which were assigned responsibilities for the treatment of patients at different times. Relevant to Ms. Kirby's care, there was Medical Team D, which included Dr. Johnson, as the attending staff physic~an,: Dr. Ann Long, a resident; and Dr. Miranda Mitchell, a first-year intern. Also tre$;jtinq Ms K~rby ::v9s Medical Tearn C, which included Dr. Lamendola 1 a second-year resident; and [k" . Prout, a first-year intern. According to EKL, Medical Team C also had an att~ndi.ng s~aff. phy~!c.ian; however, nothing in the record, the testimony nor medical records. eylden_ce,' .establi$hed the identity or the ' 'i.... . . involvement of any such attending physlcli:m in relation to the care given to Ms. Kirby while at EKL. The record also reveals that during h.er most critical time of need, Medical Team C was in charge of Ms. Kirby from the eve11ihg_ hours o(August 4, 2008 through 7:00 a.m. on August 5; at which time, Medical. Team D ·was supposed to take over her care. However, inexplicably, during Ms. Kirby's time of·ne.ed, in the early morning hours of August 5, 2008, until shortly before her bowel ru_ptur~d around 9:20 a;m., no one from Medical Team D attended to Ms. Kirby, Indeed, itappears that during this time, she was seen instead by Dr. Toups, an ICU intern, presumably filling in for the absent Medical Team D staff. The record also reveals that. M~. Kirby_ was not examined by any staff physician at EKL between the period of time that she was examined in the ER on the night of August 4, 2008, and shortly before her bowel ruptured the following morning, around 9:20 a.m., despite the abundant documentation of her rapidly worsening condition Alsor as noted earlier, an x-ray taken during and the screams of agony and pain. ' , • : •· ~ r- • ' · ,• . I · :' ·.. : :. ', ' '. { '• 1 • • : ... ; • • ' ~ • ' • Ms. Kirby's most critical· state was ine)<"phtably rr1lssing and could not be· presented as evidence. .. On August 5, 2008, when . ·~. ,_ :· ~···· . :' ~' . ' . Ms. Kirby slumped over in her bed and appeared to have quit breathing, a code (Rapid Response Tearh) was called and a crash cart was brought ,. . . into her room, The evidence revealed thatthe EKG machine on that crash cart was not functioning properly, and the cart did not have the right size endotracheal tube, By the time Ms. Kirby was intubated and taken to ICU, she was in "critical" condition. After the surgery, her family. was told that she had not been having bowel movements and she .. · -~ : ,. , .... : .,. , •,: ruptured, because a large part of her colon ·(35 cm.) .was paralyzed as a result of necrosis ... Had Ms. Kirby survived, she (had become dead tissue), which part had to be removed would have been on a colostomy bag for th€; .rest .of rer ~ife., . . - . Finally! the medical review panel. fi~v1W!9S , were also entered into evidence. . . ' ' Although not conclusive, it is statutorily admiss~_blse. as evidence to support or oppose any medical malpractice suit. La. R.S. 40:1299,39c!(H) .. A~ _the trier of fact, the jury 1s free to accept or reject any portion or all of the opioion. McGlothlin v. Christus St. Patrick . . Hospital, 2010-2775 (La. 7/1/11)1 65 So)d 1218, 1227, The panel opined that the defendant failed to meet the applicable _sta.11dard _of care and that the complained of conduct was a factor in the resultant damagf;is. The panel's findings submitted to the jury ' • •• 4 included the following: The patient had evidence. of chronic constipation as seen on x-rays at ALKMC and the medical record, CT scan would have made no difference with this. patient The patient $houlrj not have continued to be prescribed oral laxatives which probably contributed to her colon perforation. ·-:, GI consultation for possible colonoscopy, retention enemas, and/or hypaque enema performed timely m1ght_h(Jve avoided the perforation (Emphasis added.) Even without the other supporting evidence discussed above, the unanimous medical review panel opinion wquid have been a reasonable basis to support the jury's verdict that the hospital administrative staff at EKL breached the standard of care owed to Ms. Kirby and that breach caused the resultant damages leading to her tragic death. However, this record also supplies a reasonable foundation for the jury's findings because there was evidence that EKL was not competently staffed (no identifiable attending staff physicia~, ~nd .insuffider~t supervision of interns and residents), nor properly supplied !n its treatment of~'Ms.' violation of EKL's own bylaws, Kirb~.- :·Both of these deficiencies were also in which.wer~ ~l~o)ihtrdd~'c:ecf into.evidence. Breach of Standard of Care by Internal Medicine Physicians and Staff Our review of the record also reveafs ~~; abundance of ·evidence providing a reasonable factual basis for the jury's verdict and establishes that the jury's findings were not clearly wrong.. The medical review panel opinion discussed above insofar as it supports the jury's finding of a breach of the standard of care by the hospital "12 ';~'. ., .. .. ,",• ' ··,:' administrative staff, also supports the jury's. .fi1.iqing th.~tJhe internal medicine physicians ' ' • ;' ; • ·, ' , - • ' '. •. 1 •. ' and staff breached the standard of care owed to. 1v1s, Kirby, and th~t breach caused her In add~tion Jo '~he medical revijew panel opinion, the damages and, ultimately, death. . . record contains the following evidence aiso .rendering the jury's verdict sufficiently supported and not clearly wrong, Plaintiffs presented two medical exper.ts, . r?f· Michciel Apsteln, a gastroenterologist, .. . ,,\. ' "'• and Dr. Daniel Feingold, a colorecta~ surgeon,, vyhQ, bo~h opined that Ms, Kirby died ·. . ,· . '' . ' I . ' . because the internal medicine doc.tor? at EKL_adrniniste:red.,repeated doses of strong oral .. .·., . . . ' laxatives and enemas, which acted. like · pressurizing agents, since her bowel was apparently malfunctioning. The expert$ i;lisq .a9reec;!, that the internal doctors at EKL . ' .. " . '-. . . ' ' . breached the standard of care in that they contlnu~d· . to ,"administer the same treatment . . ' ... , : ' ' . ' ' ,} !'.'ls:,~ir~y's...conc;lition of· plan despite an increase and worsening They both testified that the doctors' failures to in response thereto, stop dofng vyhat they had been doing over and over for days, with no progress or lessening of ,symptoms, was below the standard of care. Instead, the standard of care required the .doctors to discontinue oral laxatives and . . . enemas (instead of increasing the use thereof) and acquire a CT scan, which would have been useful in ruling out a mechanical obstrrn.tk:m, wt1ich, in turn 1 would have led to a course of treatment such as a colonoscopy to relieve tt1e pressure in her colon" They also opined that a gastroenterologist and/or surgeon should have been consulted much earlier than when Dr. Dominguez was called in, may have To the extent that the EKL doctors . . . ' ... ' . attributed her symptoms to the ~ pancreatic mass, both experts also opined this was a' breach in the standard of care. ,- . According to both experts, the smali ·pancreatk mass abdominal pain, which was diffuse and. not iocailied to the area where the mass was . located. . ~ .: dicf not explain Ms. Kirby's ' Additionally, both experts also agreed that at some point dunng which Ms. Kirby's symptoms were worsening, instead of improvingp with the treatment ,13: . . 4 modalities employed, she should have a.lso b~~n made . NP0 (nothing by mouth), to prevent the increasing pressure in her colon;', . Dr. Feingold opined that, in . Jq~. breache~ add~t~o.n ., . . of the standard of care during .:• August 4 and Sf the EKL doctors _ brearhE~d , .tti.G· ' ;;t2.mdard of care owed to Ms- Kirby during .: '. ,_ '.t , ' , ; ·I . 1 -'- , • her prior admission on August 1 and ~·~: A~cqrding to. Dr. Feingo!d 1 the treatment •-.· .. •} consisting of oral laxatives should haye been stopp~q during that admission, and . ': '. ~~ ' . ' Ms. Kirby should not have been releas~d _from the hospital without having had a bowel movement, and without the doctors p~rfor~ning_ oth~r. te?ts to narrow down_ and properly diagnose her rapidly worsening abdominal, pafn, .· H~ aisq stated that the quality of the EKL x-rays was poor and did not adequately. ,rul~ out an_ obstruction, which would have indicated that additional testing would be. net~ssary ~o condition. While Dr. Apstein did not necessarily 1 • • agr~e . properly diagnose Ms. Kirby's with Dr.. Feingold1.s opinion that the ' standard of care haq been breached dUfir19 !~s. Ki~by's first admission to EKL, both doctors agreed the standard of care. WG!s·, bre~~.hed,'dur:ing. her. second. a.dmission. suggests that because both experts . testimony was in error. d~d EKL n.ot..agree.,J:hien tl)e jury'"s verdict relying on their : . ' . However, there is no legal basis for EKL',s argument that the plaintiffs' experts must agree on aH points of their assessment in order for the jury's reliance on their testimony to be reasonable, Actually, when the expert witnesses present differing testimony, it is the furn:.t~on and responsibility of the trier of fact to determme which evidence to believer and that . ' ' , , finding can virtually never be manifestly erroneous: Washington v. Waring, 2013-0078 (La. App. 1 Cir. 2/18/14), 142 So.3d So.3d 646. 4o, :46f '~dt~deni~d, 2014-0SlS (La·. 4/25/14), 138 This well ~stablished · law, applied, ·equa'i\y to EKL's arguments that their •' experts' testimony and opinions contradicted or differed from those of the plaintiffs. Thus, as long as the record contains ample·' evidence to: rea~onably support the jury's verdict, the jury's choice on wtlom or ~'llhich evidence: to believe ls not manifest error, NPO, derived from the Latin phrase ml per os,. ~s a commonly used medicai abbreviation for withholding oral food and fluids from a patient for various reasons . 4 . 14 .· .: . .' ,·, "',, . re~ord Therefore, although we have reviewed the entire .and recognize it contains differing opinions by some of the defepdant·s expertsr it is not our function as the reviewing court to re-weigh that evideqce, . Be9~u5e we find the jury's verdict was sufficiently and reasonably supported by the evidence m the record, we need not discuss the contrary evidence presented by EKL's expe1tt:. We do note, however, thc;it our review. reveals that even some of the evidence relied on by EKL established that Ms. Kirby's condition on August 4 should have required a I • I•' • ': ' • • quick surgical consult (which in this case was .notdone until the following day and after it " was too late). For example, EKL's expert~ _Dr, Michael Payue, testified that most physicians facing Ms. Kirby's situation would havi;: at lea~t ordered a CT scan, and that Ms. Kirby should have been NPO (le., discohtihuarJCe ofthe oral·laxatives) at that point in time. Also, Dr. Joseph Kerry Howell, another of EKL's experts, testified that a patient who continues to complain of pain after having· an ene.m~ should not be given repeat enemas. He also testified that by the early morning of Au9ust 5, given Ms. Kirby's level of pain and agony, she should not have been given anything else by mouth, nor would he have given her magnesium citrate. Finally, even Dr. Howell. agreed that had she been taken to surgery when Dr. Dominguez first examined her, Ms_, Kir~y's life could have been saved. For all the foregoing reasons, we find no merit in EKL's dssignments of error. The record amply and reasonably supports the jury's findings that the administrative staff and the internal medicine physicians and staff breached the standard of care owed to Ms. Kirby and that these breaches caused her injuries and ultimate death. . . . . ·. . .· ; ... '. ;~,~ ';_ ·:··~ :.. ' >.·" ·~,;. ~·: , . i. ·~··. ·.· TRIAL JUDGE'S COMMENT DURING VO'IR DIRE. stari(fard otli;,;i~w ·, _· A trial court is afforded.vast discretion in\iet~;~rhinh1g wh~th.er to grant a mistriaL Boutte v. Kelly, 02-2451 (La, App. 4 Cir:·9/17;'03), 863 So.2d 530, 549. An appellate court may not disturb a trial court's· denial of a· motion fbr mistrial ab~ent a showing of an abuse of that discretion. Chalmette Retail Center, L.L.C. v. Lafayette Ins. Co., 507, 2009-0217 (La. App. 4 Cir. 10/16/09) 21 So.3d 485. ,-,, 1· DiscussiQn/ ~nalysis The judge, in the presence of the jury: s~1all not comment upon the facts of the case, either by commenting upon or . recapltuiat~ng the evidence, repeating the testimony of any w1tnessr or givmg an op~rn~,,;.n ;;s to whdt has been proved; not proved, or refuted. La. C.C.P. art 1791. Thls.art!cle ls micendea to circumscribe any indication by the trial judge in the presence of the Jury. of..!3,ny. opinion on th~ factual merits of a party's claim. However, even if the trial j\,J~ge violates the prohibition against commentary on the evidence that does· not automatically require reversal (or mistrial). That drastic result is only mandated when .~ revlevy of the record as a whole reveals .. . that the improper comments made by the trlaljudge were prejudicial to the extent that the complaining party was deprived ·of a ·tair.~r!9L Int~is case, EKL asserts that the trial judge, during voir dire, made comments H1 violation. of L~: C.C.P. art. 1791 and that the jury's verdict may have been incurably tainted by t.hose statements. EKL further claims .. that it was prejudiced by the comments ,and the trial J~dge's admonition was insufficient to cure the damage. During voir dire, the prospective .Jurors were asked if they had any strong feelings one way or the other about lawsuits .and litigation. One of the prospective jurors responded that in her opinion.,.there w~re' too many layvsuits. The trial judge responded as follows: And having that feeling ,. .. ,. a lot of people have expressed that opinion, and I will tell you that as a trial judge, we see - we get a lot of cases filed every year. Some have more merit than others, but gen~raliy, ~he ones that sort ()f ferried out through the don't have as much merit pre-trial process. And those, more. times than not, usually · · "· · · don't get to trial. are . . . ' ·. ·. "~ Not a problem at a·u to feer that way, but what I have to ask you and what the parties .want to know is can you say I'm going to set that feeling aside; ·rm going to listen to the evidence and testimony in th1s .case and based on what I · hear[,] decide it on its merits? The prospective juror responded in the affirmative, and the trial judge continued: Because I can virtually assure you this case wouldnt be before you If it was a frivolous case. I mean this is a matter with a genuine dispute that has to be tried. So this 16 will not fali - the ca.s~? befme. the, Court,. .and I can tell you with no hesitationf would never fall" lnto the category of a frivolous litigation, and I'm speaking fr:om 17 years of sitting up here and looking at cases. Y()u know, thafs the purpose of the trial. di~~putes t~~t qm't be resolved. And as a result, rather than 11a\;f~ them ~~o fight it out in the streets, they bring the dispute Jn a peaceful manner into We have certain court{ present the case to a jury' of their peers to try and decide and resolve. thc:it dispute fo( the parties. And that's what's being asked of member[s] of the jury today, to sit, listen, to consider,. to. weigh " ail of the evidence and testimony presented, and tti try and arrive at a decision to resolve this dispute. Can you do that? ' : • ' • J •' ' • ~ : • • • • , • ' •• • The prospective juror aga.ln respon,9,ed .m thE:. affirrnative, and th.e voir dire : •• • i continued with the second and third panels .of,prospective jur9rs, The ju.ry was selected J - • ' ' • - ' • the, .foUoV\'ing and sworn, and court recessed until 9;0p ?.r11, dciy. However, when the .. ,.,., trial commenced the next . day, prior _to . .op~nlng.. statt;ments,~ .counsei for. EKL made an ,, . " , I. ' ' • ,. oral motion_ for a mistrial, asserting that the triaijud_ge's statements made the prior day, ' . to the effect that once a case reaches the. stage of. a tnal, it ls not a frivolous lawsuit, and that there was a genuine dispute in the case, "might have gone a little too far into a comment on the evidence." EKL also characterized the trial judge's statements as "a . ' comment on what you knew already about tht; case that they don't know" and as having had a "chilling effect on the second vo1r cjire." The trial judge denied EKL's motlon on the merits, stating there was "at1soiutely no basis in law or fact" for a mistriaVne1111 tr~al.. The trial judge characterized his statements as "genera! statements regarding voiu.mes of litigation, the numbers that come to trial, and the fact that often times 'th~se types of frivolous cases are weeded ., . ,. ~.. ' ., out before they get to triaL" He spedtkaiiy'°deni~ci"that such was a comment on any evidence (where none had yet been presentedi, nor' did it repeat or comment' on the testimony of any witness. Thus, the triai judge found he had not violated la. CCP" art. 1791. However, the trial judge also noted that counsel for EKL waited until after the entire jury had been chosen, empanelled, and sworn, and until the next day of triai, just prior to opening statements to raise their objection, The trial judge also admonished . ; ; : counsel for EKL, stating, "I don't appreciate your waiting to see if you get a favorable ' ._' jury and then if you don't want them,. we'):'e going to tllE~ , . - . ' _..we're going to start all over." ' The trial judge further maintained Umt f:Kl shquid tla\ie object:~d when ttle..comment . - '.' arose and when they had an "opporturntv· wt1en the jury was out nf tt1e roorn and you were reviewing your challenge.sheets,, to. ffli;'ik~~ triat_a Firnely chaiienge." We first note that the statements .rnade by the trial judge during voir dire of prospective jurors could not have qeen corornen~s about, the facts or the evidence of .' . put bE:for? th10 cq,yrt or the Jury ... In. criminal cases, La, : . . ~ ' art:)79.1'- bec,ause at that point in the case, the case that are prohibited by La. C~,P~ no facts or evidence had beeri . ' . : '' ' '. ,! ' · : •• ; ' ; . ' •. C.Cr.P. art. 772 contains an almost id~ntic:al :P~'C'.hibitiop of comments by the trial judge .; . . . . ,.. ' on the facts or the evidence, and the jurispruc;lem:e c~nsisteptly reflects that comments by a trial judge during voir dire can 11ot. be . considered. violations of that prohibition . . ' CC!Urt. because no facts or evidence are yet befOreJhe . ' See State v. Gallow, 338 '. So.2d 920, 922 (La. 1976); State v. Pool. ~r, ~frl794 (La. App. 1 Cir. 5/9/97)r 696 So.2d 22, 37. .. . :1 Further, in the context m whic~ thfi: state~1Eiqts,'were made, we find they were a permissible explanatory attempt to rehabihtat~ a prospective juror who openly opined she felt there were too many lawsuits. Moreover, ~r. making the statementsr the trial judge also clearly explained the proper function and obligation that the jurors would have in listening to, considering;' and weighing a!!' ·of the ev~dence and testimony presented to reach a decision and re::;olve th~: d1~put~ pr.esented. The trial judge did ' ' ·. : . , " "· not, as suggested by EKL, make an affirmative statement about the merits of the case, rather, the statements were rilc;:1de • • to b~h~r~!!y ·~xpl9.in, that when a case reaches the . ' . ' .' i.~ ' ;. '· ; ! : . . ,t r trial stager there are genuine disputes..that ·.-~q~ire. :resolution by th.e jury. Thus, the • " ·, . ": i ' ' trial judge's explanation at this junction 1 togeth.er. ' . ·.I i With the jury instructions later given, were merely a valid and warranted explanat.i?rl.Jq I ' • ,< 'the_j~ry regarding its proper role in evaluating evidence and deciding the issues presented by the evidence. drastic measure, and it is well settled that a verdict wm Mistriai is a not be set aside because of improper remarks by the judge unless the reviewing court is thoroughly convinced that the jury was influenced by the remarks ;;md that they tontributed to the verdict. Id. We find the trial judge's explanation during vofr dire regarding the proper role of the jury together with the proper and adequat~. jury instru1::tions that were later given simply aided the d~d. not jury m fulfilling its role ancJ at all prejudice the defendant or contribute to the verdict. Finally, we agree with the trial judge that EKL had ample opportunity to object at the time the allegedly prejudicial statements wer~ made, but instead, waited until after two more jury panels were voir dked, the final JUry empanelled and sworn, and the following day of trial, prior .to opening statements, to raise its objection. This type of trial strategy/conduct is not to be en~ouraged. Qr .. ~olerated. See Johnson v. H. W. Parsons Motors, Inc., 231 So.2d 73r78~79 {~. App; 1 'Cir. 1970). ' . . For all these reasons, this assign~~nt Qf~error lacks. merit. ANSWER TO.Af>;PE~L ··. The plaintiffs answered the appeal;. and. in qne sentence, state that they are entitled to damages for frivolous appeal, in_cluding attorney fees and costs. They Louisiana Code of Civil present no further argument in furtt1erance 0,f this request. Procedure article 2164 provides that an appellate court may award damages, including attorney fees, for a frivolous appeal, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable. The courts have been reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. Guarantee Systems • ' ~ • • '. • ..... : .•. '. ·1 i • ·, ' ~ •- ' j ~ .• • ~ • • • ·: • ' • • • • • Const. & Restor~tion, 'Inc. v. · Anthony, 9?-1877; ,(la. App. t Cir.' 9/25/98)f 728 ·. . . ' :' ...... ·::· ·\ . . ·, .r'·. '. !'.!-' ·'l' . •. . • ..: .' ' . ·, So.2d 398, 405, writ denied, 98:..:2'701 (La.12/f8/98)', 734 5o~2d 636, assess damages for : .. ' . In· order to a frivolous app~a·1, it ·n,Ll~t a¢·pe~; th~t th~ ~ppeai was taken solely for the purpose of delay or that coun~e! do~s:ri~t ~incerely advocates. Id Furthermore, because appeals believe in the view of law he are favored in o'ur law, penalties for the filing of a frivolous appeal wiU not be imposed unless they are clearly due. Henkelmann v. Whiskey Island Preserve, LLC, 2013-0180 (La. App. 1 Cir. 5/15/14), 145 So.3d 465, 471. . 19 . ' . '• . J, We do not agree with EKL's arguments and find that its assignments of error lack merit. However, we cannot say this appeal was taken solely for the purpose of delay or that appealing counsel does not senously believe in the position he advocates. Therefore, we decline to award damages for fr!voious appeal. CONCLUSION For all the foregoing reasons, we affirm the Judgment of the trial judge, adopting the jury's verdict. Costs of this appeal, in the amount of $5,878.00 are assessed to the defendant, the State of Louisiana through the Louisiana State Board of Supervisors, The Louisiana State University Health Sciences Center1 Earl K. Long Medical Center. AFFIRMED. ,, • ! ,> . " . ·''·· .• 20 ' . ' JOHN KIRBY ET AL FIRST CIRCUIT VERSUS COURT OF APPEAL THE STATE OF LOUISIANA THROUGH THE LOUISIANA BOARD OF SUPERVISORS, THE LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER, EARL K. LONG MEDICAL CENTER ~. STATE OF LOUISIANA NO. 2014 CA 0017 J., dissenting in part. Although I full heartedly agree with the majority's disposition of the appeal, I disagree with the denial of an award of attorney fees to plaintiffs for their defense of this appeal since EKL offered no reasonable or legally viable basis for challenging the trial court's judgment that incorporated the jury's verdict.

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