Anthony v. Hospital Service Dist. No. 1

477 So. 2d 1180
CourtLouisiana Court of Appeal
DecidedOctober 8, 1985
DocketCA 84 0864
StatusPublished
Cited by47 cases

This text of 477 So. 2d 1180 (Anthony v. Hospital Service Dist. No. 1) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anthony v. Hospital Service Dist. No. 1, 477 So. 2d 1180 (La. Ct. App. 1985).

Opinion

477 So.2d 1180 (1985)

Nelson Wayne ANTHONY, et al.
v.
HOSPITAL SERVICE DISTRICT NO. 1, d/b/a Seventh Ward General Hospital.

No. CA 84 0864.

Court of Appeal of Louisiana, First Circuit.

October 8, 1985.
Rehearing Denied November 8, 1985.
Writ Denied January 13, 1986.

*1182 John W. deGravelles, Due, Dodson, deGravelles, Robinson & Caskey, Baton Rouge, for plaintiffs-appellees Nelson Wayne Anthony & Shirley Verneuil Anthony.

H. Martin Hunley, Jr. and C. William Bradley, Lemle, Kelleher, Kohlmeyer & Matthews, and William Carruth & S. Alfred Adams, New Orleans, for defendant-first appellants Seventh Ward General Hosp. & Dr. Luis Balart.

William R. Carruth, Jr. & S. Alfred Adams, Carruth & Cooper, Baton Rouge, for Sherman A. Bernard, in his capacity as Com'r of Ins., and Louisiana Patient's Compensation Fund, intervenors-second appellants.

Before CARTER, SAVOIE and ALFORD, JJ.

ALFORD, Judge.

This is an appeal from a judgment awarding each of the plaintiffs, Nelson Wayne Anthony and Shirley Verneuil Anthony, $185,000 plus legal interest and costs for their medical malpractice claim against the defendants, Dr. Luis Balart and Hospital Service District No. 1 d/b/a Seventh Ward General Hospital, as his employer.

Plaintiffs filed a malpractice claim against the emergency room physician, the hospital, Nurse Lucille McCarter and Dr. Leo Westmoreland, a pediatrician, alleging that the negligence of these parties caused the death of their three-year-old son, Eric. Eric died of meningococcemia approximately one hour after he was admitted to the defendant hospital's emergency room on *1183 the morning of June 10, 1980. Dr. Balart, the emergency room physician, failed to examine or treat Eric after being notified by the admitting nurse, Lucille McCarter, of the child's condition. A medical review panel found that Dr. Balart's actions failed to comply with the appropriate standard of care and contributed to Eric's death. The panel exonerated Nurse McCarter and Dr. Westmoreland. Plaintiffs then pursued the instant suit against Dr. Balart, Nurse McCarter, and the hospital.

After hearing all the evidence, the trial judge found that the parents were not contributorily negligent, that the defendants had conceded Dr. Balart's negligence and that Dr. Balart's negligence was a proximate cause of the minor's death. The plaintiffs were awarded $10,000 each for the child's pain and suffering and $175,000 each for wrongful death. There was no judgment rendered in regard to the alleged negligence of Nurse McCarter. We affirm in part, amend in part and remand to the lower court for action on the question of the nurse's separate negligence and the hospital's liability therefor.[1]

Mrs. Anthony and her mother took Eric to the emergency room of the hospital prior to 4:50 a.m. on June 10, 1980. Eric had started running a fever on the afternoon of June 9, 1980, and his mother treated him with Tylenol in accordance with the standing instructions of his pediatrician. Late in the evening he drank some milk and vomited shortly thereafter. This did not alarm Mrs. Anthony since Eric had always vomited whenever he ran a slight fever and drank milk.

That same evening, Mrs. Anthony was informed that a cousin had been hospitalized that day with meningitis. Earlier in the day, she had been notified that the cousin had a rare blood disease. Eric and his cousin had been together for a short period of time on Friday, June 6, 1980. Both Mr. and Mrs. Anthony testified they were unaware that meningitis was highly contagious.

Mrs. Anthony put Eric to bed and stayed with him until after midnight. At that time he was sleeping normally. Shortly before 3:00 a.m., she noticed that he had dark spots that looked like broken blood vessels under one of his eyes and by his mouth, and that he had fever. She called the defendant hospital at about 3:15 a.m. and told the person who answered about Eric's condition and that he had a cousin hospitalized with meningitis. She was told to come to the hospital and that there would be a doctor waiting. At this time, Eric was talking and was rational.

When they arrived at the hospital, sometime before 4:50 a.m., Eric's condition was the same, except he complained of being cold. Nurse Lucille McCarter, the emergency room's licensed practical nurse, placed Eric in a treatment room and had an aide take down basic information. Mrs. Anthony again explained about Eric's condition and about his hospitalized cousin. She told the nurse that Dr. Rolling was treating the cousin, and asked to see a doctor. At that time Eric was awake and breathing normally, but he was crying and in pain.

Nurse McCarter noted that black spots were present on the child. Since she felt the child was seriously ill, she immediately called her supervisor to come down and called Dr. Balart, who was sleeping upstairs. She explained the physical condition of the child to him. Dr. Balart told her to call Dr. Rolling, which she did. She was referred to Dr. Rolling's partner, Dr. Westmoreland. She called him and reiterated the child's symptoms. Dr. Westmoreland ordered some laboratory tests and a throat culture and told her he was coming to the hospital immediately. Following notification of the doctors, Nurse McCarter returned to the treatment room. Eric was awake and talking at that time. At about 5:20 a.m., Nurse Mitchell, who was Nurse McCarter's supervisor, started Eric on oxygen because of the child's gray skin color. He actively fought the oxygen mask, just *1184 as he did the taking of his temperature and the blood samples.

Dr. Balart had not come down to the room at this time, and the nurses left temporarily to attend to other emergency room patients. During their absence, Eric's condition worsened rapidly, and he started breathing erratically even with the oxygen. At approximately 5:30 a.m., Eric stopped breathing. Eric's grandmother sought help from a former employee of the hospital who was visiting in the emergency room. She began mouth-to-mouth resuscitation and called in a "code blue" which indicates a patient has gone into cardiac or respiratory arrest. Shortly thereafter, Dr. Balart appeared and undertook additional emergency procedures to try to revive Eric, including intubating him and attempting to start an IV. A few minutes later, Dr. Westmoreland arrived and joined in the effort to save Eric. At 6:00 a.m., the doctors and nurses abandoned their efforts and Eric was pronounced dead.

LIABILITY

Dr. Balart contends that the trial court erred in improperly applying LSA-R.S. 9:2794(A)(3). He does not contest the finding of negligence on his part. Instead, he contends that the plaintiff must prove that his act of negligence caused the child to die when the child would not have died otherwise; and that the testimony of plaintiffs' experts failed to meet the burden. Section (A)(3) provides that once negligence has been found on the part of the physician, "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."

Louisiana jurisprudence does not require the plaintiff to prove absolutely that the child would have survived had it not been for Dr. Balart's negligence. Past cases have looked to the medical testimony of experts to determine whether it is more probable than not that the person would have survived had proper diagnosis and/or treatment been rendered. Thibodeaux v. State, Louisiana Health and Human Resources Administration,

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