Bailey v. STATE, THROUGH DHHR

695 So. 2d 557, 1997 WL 269536
CourtLouisiana Court of Appeal
DecidedMay 21, 1997
Docket96-CA-2797
StatusPublished
Cited by7 cases

This text of 695 So. 2d 557 (Bailey v. STATE, THROUGH DHHR) 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
Bailey v. STATE, THROUGH DHHR, 695 So. 2d 557, 1997 WL 269536 (La. Ct. App. 1997).

Opinion

695 So.2d 557 (1997)

Delores BAILEY, Wife of John Warren Bailey, Individually, as Personal Representative of Decedent, John Warren Bailey, and as Natural Tutrix of Their Minor Son, John Warren Bailey, Jr., and Curtis M. Bailey and Michael L. Bailey
v.
STATE of Louisiana, Through The DEPARTMENT OF HEALTH AND HUMAN RESOURCES, et al.

No. 96-CA-2797.

Court of Appeal of Louisiana, Fourth Circuit.

May 21, 1997.

*558 Joseph B. Landry, Guste, Barnett & Shushan, New Orleans, for Plaintiffs/Appellants.

Richard Ieyoub, Attorney General, Miles Trapolin, Trapolin Law Firm, New Orleans, for Defendants/Appellees.

Before SCHOTT, C.J., and CIACCIO and PLOTKIN, JJ.

PLOTKIN, Judge.

Plaintiffs Dorothy Bailey and her children (hereinafter referred to collectively as "the Baileys"), survivors of decedent John Warren Bailey, appeal a trial court judgment dismissing their cause of action for medical malpractice against defendant State of Louisiana. Finding that the trial court's decision was not manifestly erroneous, we affirm.

I. Facts

Although the named defendant in the instant case is the State of Louisiana, all of the Baileys' allegations concern acts of medical malpractice committed by Charity Hospital/Medical Center of Louisiana at New Orleans (hereinafter referred to as "Charity") or St. Bernard Mental Health Clinic (hereinafter referred to as "SBMHC"). In order to hold the State liable for the Baileys' injuries, we must find that one or more state agencies or employees of state agencies committed specific acts of medical malpractice which resulted in the Baileys' injuries. Accordingly, this opinion addresses the allegations against Charity and SBMHC, as well as the allegations against treating physician Dr. Murray Diamond, separately.

Specifically, the Baileys claim that Charity Hospital and SBMHC are liable for damages they incurred as a result of the death of decedent Mr. Bailey. Mr. Bailey, who had been diagnosed as having a bipolar maniac/ depressive psychiatric condition, died on January 26, 1982, as a result of fatal burns. Mr. Bailey suffered those burns when 50 cents worth of gasoline he had purchased at the Billups Station in Chalmette, La., where the Baileys live, ignited. The record indicates that Mr. Bailey had been carrying the gasoline in a plastic container and was perhaps trying to build a fire, when he became engulfed in flames on the levee behind the station. Mr. Bailey's death certificate indicates that the cause of death was "third degree burns of 90% of the body surface"; the death was classified as an accident.[1] The Baileys allege, however, that Mr. Bailey's death was directly caused by the failures of Charity, SBMHC, and Dr. Diamond to properly treat his mental illness, especially as it regards regulation of his lithium medication; lithium was the drug used to treat Mr. Bailey's mental illness.[2]

*559 Mr. Bailey had suffered from progressive mental illness since 1975 and was treated on numerous occasions at both Charity and SBMHC; he had also been hospitalized at Southeast Louisiana Hospital (hereinafter referred to as "Southeast"). Initially, Mr. Bailey's disease had been diagnosed as schizophrenia, and he was being treated with drugs other than lithium. However, the diagnosis was changed at some time prior to his death. When Mr. Bailey was released from his last hospitalization at Southeast on April 30,1981, he was taking lithium. In fact, the level of lithium in his blood on the day of his release was 0.81, well within the "therapeutic range" of 0.6 to 1.2 recommended by the 1981 and 1982 Physician's Desk Reference (PDR). However, Mr. Bailey's release papers noted that Mr. Bailey's prognosis was only "fair" because "patient tends to get off medication and discontinues followup visits at the mental health center." At the time of his release, Mr. Bailey was given a prescription for lithium and referred to SBMHC, where he had been treated by Dr. Murray Diamond[3] intermittently since the inception of his mental illness.

Because SBMHC had no laboratory facilities for testing lithium blood levels, Mr. Bailey's blood tests were done at Charity. When the lab work was completed, Charity mailed the results of the blood test to SBMHC. The record shows that monthly appointments with Dr. Diamond were scheduled for Mr. Bailey from the time of his release from Southeast until the time of his death. However, Mr. Bailey was a "noshow" for several of those appointments. When Mr. Bailey failed to show, SBMHC mailed him a notice of his next appointment. Mr. Bailey attended group therapy sessions during that period.

Mr. Bailey's blood lithium levels were tested three times between April 30, 1981 and January 26, 1982. Those blood tests showed that Mr. Bailey's lithium level was not being maintained at the therapeutic level and that in fact it was progressively falling. Specifically, his lithium level tested at 0.47 on September 15,1981; at 0.33 on December 30, 1981; and at 0.18 on January 18, 1982, just eight days prior to his death. Mr. Bailey had a scheduled appointment to see Dr. Diamond the day after his death, January 27, 1982.

In filing suit against the State of Louisiana, the Baileys claimed that both Charity and SBMHC were negligent in treating Mr. Bailey in the following ways: (1) failing to monitor his lithium levels more regularly, (2) failing to maintain his lithium levels in a therapeutic range, (3) failing to notify the family when his lithium levels were below the therapeutic range, and (4) failing to have Mr. Bailey committed to a hospital.

II. Applicable law

In order to recover damages in a medical malpractice case, the plaintiff must establish the following elements through expert medical testimony: (1) the standard of care applicable to the defendant health-care provider; (2) breach of the standard of care by the defendant health-care provider; (3) cause-in-fact between the breach and the damages suffered; and (4) actual damages. LSAR.S. 40:1299.39 Resolution of these inquiries constitute factual conclusions, which may not be reversed on appeal absent manifest error. Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1276 (La.1991). Thus, this court may reverse the trial court's factual findings only if it makes the following findings: (1) the record reflects no reasonable factual basis for the trial court's finding, and (2) the record establishes that the finding is clearly wrong. Baumeister v. Plunkett, 95-2270, p. 7 (La.5/21/96), 673 So.2d 994, 998.

III. Charity Hospital

In dismissing the Baileys' suit against Charity, the trial court found that the Baileys failed to carry their burden of proving the first element of a cause of action in medical malpractice—the standard of care applicable *560 to a hospital performing blood work. The trial court also found that the Baileys failed to prove any duty on Charity's part to notify Mr. Bailey's family of the results of his blood tests. Moreover, our reading of the record indicates that the Baileys failed to prove that Charity had any duty to perform any of the other tasks they claim Charity failed to do, i.e., test his lithium levels more regularly, maintain his lithium levels in a therapeutic range, or have Mr. Bailey committed to a hospital.

We agree with the trial court's finding on these issues. The Baileys did not call any witnesses, fact or expert, to establish the standard of care for hospitals performing lab work. Because the plaintiff failed to establish the standard of care applicable to Charity Hospital, whose only relationship to Mr.

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Bluebook (online)
695 So. 2d 557, 1997 WL 269536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-state-through-dhhr-lactapp-1997.