Ard v. East Jefferson General Hosp.

636 So. 2d 1042, 1994 La. App. LEXIS 1222, 1994 WL 125305
CourtLouisiana Court of Appeal
DecidedApril 14, 1994
Docket93-CA-969
StatusPublished
Cited by2 cases

This text of 636 So. 2d 1042 (Ard v. East Jefferson General Hosp.) 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
Ard v. East Jefferson General Hosp., 636 So. 2d 1042, 1994 La. App. LEXIS 1222, 1994 WL 125305 (La. Ct. App. 1994).

Opinion

636 So.2d 1042 (1994)

Lorena ARD, et al.
v.
EAST JEFFERSON GENERAL HOSPITAL.

No. 93-CA-969.

Court of Appeal of Louisiana, Fifth Circuit.

April 14, 1994.

*1043 James E. Hritz, Metairie, for defendant/appellee.

Darleen M. Jacobs, New Orleans, for plaintiffs/appellants.

Before KLIEBERT, GRISBAUM, and WICKER, JJ.

WICKER, Judge.

This appeal arises from a wrongful death and survival action filed on behalf of Lorena Ard and Sheila Ard[1], plaintiffs/appellants, and against East Jefferson General Hospital, defendant/cross-appellant, alleging negligence for the death of Devon Ard. The trial judge granted judgment in favor of the plaintiff, Lorena Ard in the amount of $50,000.00 in general damages and $6,290.55 in special damages. He awarded Sheila Bond $10,000.00 in general damages. All parties have appealed.

On May 3, 1984 Devon Ard was admitted to East Jefferson. His admitting diagnosis was a past history of myocardial infarction, stroke and unstable angina. He was 64 years old at the time. Devon Ard subsequently underwent a five-vessel coronary bypass surgery on May 8, 1984. He remained in intensive care until May 13, 1984 due to respiratory problems. On May 15, 1984 he had respiratory failure and was transferred to the critical care unit. A bronchoscopy was performed to determine the cause of the respiratory problems. He was transferred from the critical care unit on May 20, 1984. Lorena Ard, Devon Ard's wife, testified the nursing staff did not respond timely to her calls for assistance from 5:30 p.m. to 6:45 p.m. At approximately 6:45 p.m. he stopped breathing and a code was called. He never regained consciousness and died two days later, May 22, 1984, from respiratory failure and cardiac arrest.

*1044 On appeal East Jefferson asserts manifest error and the failure to establish causation.

CREDIBILITY:

East Jefferson contends that Lorena Ard's testimony is so contradicted by all other testimony as well as the contemporaneous documentation that her credibility was destroyed.

The Louisiana Supreme Court has held in Rosell v. Esco, 549 So.2d 840, 844-45 (La. 1989):

When findings are based on determinations regarding the credibility of witnesses, the manifest error—clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact finder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. [citations omitted].

East Jefferson argues Lorena Ard's testimony that she called for assistance and no one came is contradicted by objective documentation and all other testimony. We find no manifest error in the trial judge's making a credibility determination and evidently concluding Lorena Ard tried and did not get assistance for one hour and fifteen minutes while her husband was in distress. Our review of the record indicates the following:

Lorena Ard, who at the time of trial was 70 years old, testified as follows. She stated that on the afternoon of May 20, 1984 she was with her husband. He began feeling nauseous and experiencing shortness of breath. She rang the bell several times and got no response. Finally someone did respond sometime in the evening and brought him a tablet. His nausea worsened. He also vomited once or twice and was in "terrible pain." She described him as "reeling from one side of the bed to the other." She was trying to hold him so he would not fall off the bed.

She testified she continued to ring for a nurse when she noticed he was having difficulty breathing. She called ten or twelve times and was told a nurse was not there. She estimated she rang the bell for an hour and fifteen minutes to an hour and a half. She told the nurse as she rang he was nauseous and vomiting and she could not hold him down. She also noted he was pale. The last time she called she noticed his eyes were rolled back. She reported he was dying and needed a nurse. Someone finally did respond and called a code.

Appellant correctly notes some minor inconsistencies in Lorena Ard's testimony with the medical record. Both the medical record and the testimony by Dr. Brach, a pulmonologist, indicate respiratory therapy was successfully given to Devon Ard at 4:30 p.m. on May 20, 1984 although disputed by Lorena Ard. Both the medical record and the testimony of the attending nurse, Sally Florscheim, indicate a suppository was given to Devon Ard by virtue of a telephone order from Dr. Preis, a treating cardiologist, at 5:30 p.m. on May 20, 1984 although disputed by Lorena Ard.

However, the medical records do provide contemporaneous documentation that on May 20, 1984 between the time of 5:30 p.m. and 6:45 p.m., approximately one hour and fifteen minutes, there is no notation any nurse or doctor checked on him. Therefore, Lorena Ard's testimony regarding this time period is consistent with the medical records.

LIABILITY:

East Jefferson Hospital was sued on the basis of the negligence of its nurses. Registered or licensed practical nurses as well as the hospital are health care providers. La.R.S. 40:1299.41(A)(1).

The Louisiana Supreme Court held in Smith v. State Through Dept. DHHR, 523 So.2d 815 (La.1988) at 819:

*1045 In a medical malpractice action against a hospital, the plaintiff must prove, as in any negligence action, that the defendant owed the plaintiff a duty to protect against the risk involved, that the defendant breached that duty, and that the plaintiff suffered an injury, and that the defendant's actions were a substantial cause in fact of the injury.

There is ample evidence in the record to support the trial judge's evidently concluding the nursing staff at East Jefferson breached the standard of nursing care in the community.

Celia Krebs, an expert in general nursing, testified she reviewed the medical records and various documents. She determined there were six breaches of the standard of care. She particularly stated that after May 15, 1984 it was obvious to the nurses from the doctors' progress notes that Devon Ard had a floppy epiglottis and trouble swallowing. Mentioned in the progress notes were references to his past stroke and pseudobulbar palsy which was related to the stroke; the possibility of decreased respiratory drive; limited neck movement; recent problems with extubation, and difficulty with glottic function. These indicate he was a high risk for aspiration. This problem was never addressed in the nurse's care plan or in the nurses' notes. It would be something which would be absolutely addressed. She also indicated the progress notes by the doctor on the 17th indicated a secretion problem. At this point, she stated, the problem became an actual one instead of a potential one.

On May 20, 1984 Devon Ard's assigned nurse was Sally Florscheim. Krebs stated Florscheim did not do a full assessment of his respiratory and lung status.

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Related

Jones v. Shepard
760 So. 2d 554 (Louisiana Court of Appeal, 2000)
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728 So. 2d 1027 (Louisiana Court of Appeal, 1999)

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Bluebook (online)
636 So. 2d 1042, 1994 La. App. LEXIS 1222, 1994 WL 125305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ard-v-east-jefferson-general-hosp-lactapp-1994.