Blackshear v. Golden Age Nursing Center, LLC

158 So. 3d 179, 14 La.App. 3 Cir. 723, 2015 La. App. LEXIS 170, 2015 WL 444589
CourtLouisiana Court of Appeal
DecidedFebruary 4, 2015
DocketNo. 14-723
StatusPublished
Cited by2 cases

This text of 158 So. 3d 179 (Blackshear v. Golden Age Nursing Center, LLC) 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
Blackshear v. Golden Age Nursing Center, LLC, 158 So. 3d 179, 14 La.App. 3 Cir. 723, 2015 La. App. LEXIS 170, 2015 WL 444589 (La. Ct. App. 2015).

Opinion

CONERY, Judge.

| ¶ This medical malpractice action was filed by Rodney Blackshear, individually and on behalf of his deceased mother, Ms. Edith Blackshear. Ms. Blackshear died seven days after having her PEG tube replaced by defendant, Doctor Eulogio Tan. After a trial on the merits, the jury found that Doctor Tan had breached the standard of care in his treatment of Ms. Blackshear, but that Doctor Tan had not caused harm to Ms. Blackshear. Plaintiff appeals the judgment of the trial court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Blackshear was an eighty-four year old nursing home resident who presented at Hardtner Medical Center around 10:00 p.m. on July 1, 2005. Ms. Blackshear had allegedly pulled out her percutaneous endoscopic gastrostomy (PEG) tube.1 Ms. Blackshear was seen by Doctor Eulogio Tan, an emergency medicine physician. After physical examination, Doctor Tan observed that Ms. Blackshear had normal vital signs, was not in any distress, had a soft and tender abdomen, and had normal heart rate and respirations. Without confirming how long the PEG tube had been in place, or exactly when Ms. Blackshear had allegedly pulled it out, Doctor Tan then replaced Ms. Blackshear’s PEG tube and allegedly verified its placement by auscultation2 and “some aspiration,”3 neither of which was documented in the medical records.

| ¾ After concluding that Ms. Blackshear had tolerated the replacement of the PEG tube well and that she was not in any distress, Doctor Tan discharged her. Ms. Blackshear returned to the nursing home around 1:30 a.m. on July 2, 2005. Feeding was resumed through the PEG tube shortly after Ms. Blackshear’s return to the nursing home, and a nurse noted that Ms. Blackshear was resting comfortably. At 9:00 a.m., Ms. Blackshear vomited, after which her health then steadily declined.

By 10:30 a.m., Ms. Blackshear was in enough pain to warrant pain medication. At 2:30 p.m., Ms. Blackshear was pale, having trouble breathing, had low oxygen saturation, and was found to be in respiratory distress. Ms. Blackshear was then brought back to Hardtner Medical Center at approximately 3:30 p.m. with a chief complaint of respiratory distress and a tender abdomen on palpation. When her condition did not improve, Ms. Blackshear was transferred to Rapides Regional Medical Center a little after 8:00 p.m. on July 2, [181]*1812005, where she was admitted by Doctor Jonathan Hunter, a family physician practicing at Rapides Regional Medical Center. An x-ray with Gastrografin dye taken at 9:24 p.m. showed that the PEG tube was in place, as the dye went into the stomach with no extravasation.4

When Ms. Blackshear’s symptoms did not improve, Doctor Hunter ordered a CT scan of Ms. Blackshear’s abdomen taken the next morning on July 3, 2005, at 10:30 a.m. The CT scan showed that the PEG tube was completely out of the stomach. Doctor John McGinity, a general surgeon at Rapides Regional Medical ^Center, was called in for a consult, and he immediately performed surgery on Ms. Blackshear, where he discovered a “large stomach laceration at the greater curvature of the old G-tube site.” Doctor McGinity repaired the stomach, removed infection from the peritoneal cavity, and surgically inserted a new PEG tube. Ms. Blackshear was then transferred to the ICU on July 3, 2005. Ms. Blackshear died in the ICU a few days later on July 8, 2005.

Rodney Blackshear, individually and on behalf of his deceased mother, Ms. Black-shear, filed a claim for medical practice and damages against Golden Age Nursing Center, L.L.C., LaSalle Hospital Service District # 1 d/b/a Hardtner Medical Center, and Eulogio L. Tan, M.D. In accordance with the Louisiana Medical Malpractice Act, a medical review panel (MRP) was empaneled, which consisted of three physicians practicing the medical specialty of emergency medicine. The MRP unanimously found that the evidence did not support a conclusion that defendants had breached the standard of care in treating Ms. Blackshear. Plaintiff’s claims against both Golden Age Nursing Center and Hardtner Medical Center were dismissed on motions for summary judgment. Hardtner Medical Center’s motion for summary judgment was granted on March 3, 2009, while Golden Age Nursing Center’s motion for summary judgment was granted on August 7, 2009. The summary judgment filed by Doctor Tan was denied, and Plaintiffs claims against Doctor Tan proceeded to a jury trial on March 3, 2014. The jury found on special interrogative that Doctor Tan had breached the standard of care, but that Doctor Tan had not caused harm to Ms. Blackshear, or her son, Rodney. A final judgment consistent with the jury’s verdict was signed on March 28, 2014. Rodney timely appeals the judgment of the trial court. We find that Rodney’s assignment of error lacks merit and affirm.

^ASSIGNMENT OF ERROR

Plaintiff/appellant asserts the following as an assignment of error on appeal:

The jury manifestly erred in finding that Dr. Tan did not cause Mrs. Blackshear any harm when he breached the standard of care by not placing the feeding tube into the stomach, and in light of the fact that there is no factual support for the assertion that Mrs. Blackshear pulled the tube out between 9 PM on July 2 and 11AM on July 3.

LAW AND ANALYSIS

Louisiana Revised Statutes 9:2794 states, in pertinent part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
[182]*182(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) 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.

In reviewing medical malpractice cases, our standard of review is well-established. Our court has stated:

“A fact finder’s determinations regarding whether a plaintiff proved the elements of the burden of proof of La. R.S. 9:2794 are findings of fact. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646.” Doyle v. Ramos, 13-1143, p. 5 (La.App. 3 Cir. 3/5/14), 134 So.3d 92, 96. As such, we review the jury’s findings of fact using the clearly wrong or manifest error standard of review. Id.

| ^ Jordan v. Rapides Reg’l Med. Ctr., 14-124, pp, 8-9 (La.App. 3 Cir.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pellerin v. Pellerin
249 So. 3d 77 (Louisiana Court of Appeal, 2018)
Carver v. Carver
243 So. 3d 1066 (Louisiana Court of Appeal, 2018)
Ricky A. Carver v. Pamela Ann Sumler Carver
Louisiana Court of Appeal, 2018

Cite This Page — Counsel Stack

Bluebook (online)
158 So. 3d 179, 14 La.App. 3 Cir. 723, 2015 La. App. LEXIS 170, 2015 WL 444589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackshear-v-golden-age-nursing-center-llc-lactapp-2015.