Drago v. Retirement Center

632 So. 2d 781, 1993 La. App. LEXIS 4016, 1993 WL 601230
Louisiana Court of Appeal·Decided December 29, 1993·No. No. 93 CA 0037·Published

Opinions

FOGG, Judge.

In this appeal from a judgment for the defendant in a wrongful death action, the plaintiffs, the decedent’s wife and children, contend that the jury erred in finding that, although the defendant nursing home was negligent, this negligence did not deprive the nursing home resident of a chance of survival. We affirm.

On February 28, 1987, Salvador Drago1 died at the age of 57 while a resident at The Retirement Center. Mr. Drago’s wife, Tena, and his four children, Debora Ann Drago Harper, Daryl Peter Drago, Donna Kay Teekel, and Danette Lynn Drago, filed a wrongful death action against BGK Management, Inc., a Louisiana corporation owning and operating The Retirement Center.2

Following a trial, the jury answered special interrogatories finding that The Retirement Center was negligent in the care of Mr. Drago, but that the negligence of The Retirement Center did not deprive him of a chance of survival. The judge rendered judgment in conformity with the jury verdict, dismissing the suit. The plaintiffs filed a motion for judgment notwithstanding the verdict, and, in the alternative, a new trial, which the trial judge denied. The plaintiffs appeal, contending that the jury erred in failing to find that the negligence of the retirement center deprived Mr. Drago of a chance of survival and in failing to award damages.

When reviewing factual findings on appeal, 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. Under a two-part test for the reversal of a jury’s determinations, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and the appellate court must further determine that the record establishes that the finding is clearly wrong. The reviewing court must always keep in mind that if the jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where two permissible views of [783]*783the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993).

For the plaintiffs to prevail in this action, it was not necessary to prove that the patient would have survived if proper treatment had been given, but only that there would have been a chance of survival; it is only necessary to show a reasonable probability that the proper treatment would have been life saving in these circumstances. The plaintiff must prove by a preponderance of the evidence that a chance of survival existed and that it was lost as a result of the defendant’s negligence. Smith v. State of Louisiana through the Department of Health and Hitman Resources Administration, 523 So.2d 815 (La.1988); Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986).

On October 31, 1986, in a hospital, Mr. Drago suffered a brain hemorrhage following treatment with Streptokinase, a clot-busting drug administered to treat a heart attack. He was rendered semicomatose and remained in the hospital; on February 27, 1987, he was discharged to The Retirement Center.

On admission to The Retirement Center, Mr. Drago was still semi-comatose and quadriplegic. He had a permanent tracheosto-my tube and could not speak. He ate through a tube because he could not swallow and wore a fecal bag as he had no bowel or bladder control; he was breathing on his own. According to the discharge summary of his treating physician, Dr. Edmond Vinci, a physician practicing internal medicine, Mr. Drago could open his eyes and appeared to be aware of certain things around him, but he was unable to move or respond. Although Dr. Vinci considered Mr. Drago’s survival and progress remarkable, he still described his prognosis as poor. Dr. Vinci testified that Mr. Drago’s prognosis was poor, not simply neurologically, but also because in his state several complications could arise.

Additionally, prior to 1987, Mr. Drago had various medical problems. He had suffered a stroke in 1981, but had recovered to the point where he only occasionally used a walking cane. He also had a history of high blood pressure, diverticulosis, hiatal hernia, obesity, diabetes, and cancer of the colon. While in the hospital, he had pneumonia once, several episodes of sepsis, and stomach ulcers. On admission to The Retirement Center, Mr. Drago had arteriosclerotic heart disease as well as an infection around his tracheostomy tube, an ear infection, a mouth ulcer, a bed sore, and colitis.

From the time Mr. Drago was admitted to The Retirement Center until his death about thirty-six hours later, The Retirement Center failed to administer the quality of care a patient such as Mr. Drago required. Prior to selecting The Retirement Center for Mr. Drago, his family had thoroughly looked into skilled nursing care facilities and chose The Retirement Center because its administrator assured them that Mr. Drago’s needs would be met. Yet The Retirement Center failed to have special foods, medications, a feeding pump, and mattress immediately available as promised. When the medications finally arrived for Mr. Drago, they were in the wrong form. Additionally, the family experienced much trouble in obtaining assistance from the nurses and staff. Carl Harper, Mr. Dra-go’s son-in-law and Debora Drago Harper’s husband, had to once suction Mr. Drago’s tracheostomy tube by himself, since he could not obtain the services of a nurse to do it. The suctioning which was performed by the nurses was not in a sterile form.

While asserting that The Retirement Center was negligent in these ways, the plaintiffs contend that The Retirement Center’s failure to properly monitor Mr. Drago’s vital signs and report them to his physician caused him to lose his chance of survival. Due to the brain hemorrhage, Mr. Drago had no central temperature control; while in the hospital, he often experienced temperatures ranging from 101° to 103° in the absence of any documented infection. Consequently, Dr. Vinci had standing orders that he was not to be called by The Retirement Center unless Mr. Drago’s temperature was 104° or greater.

[784]*784Mr. Drago’s temperature did not reach 104° on the day he was admitted to The Retirement Center, but on the following day at 8:35 a.m., the nurses’ notes show that his temperature was 104.4° and his blood pressure was 110/80. The nursing chart shows that Nurse Angela Jenkins called Dr. Frank Alvarez, Dr. Vinci’s partner who was on call, who ordered Tylenol to be given for the temperature and that he be notified if the temperature is “not down.” Additionally, the nursing home’s policy requires that vital signs be taken at least every four hours when a patient is sick.

Mrs. Debora Drago Harper testified that the temperature taken by family members at 10:21 a.m. was 105.8°. At 11:30 a.m., the family again took the temperature and blood pressure, which were 106.1° and 88/60.

The nurses’ notes do not show that Mr. Drago’s temperature was taken again until 3:30 p.m., when it was taken at the family’s request3; Mr. Drago’s temperature was 105.8° and his blood pressure was 80/56. According to the notes, Nurse Louise Vaughn called Dr.

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Drago v. Retirement Center, 632 So. 2d 781, 1993 La. App. LEXIS 4016, 1993 WL 601230 (La. Ct. App. 1993).

632 So. 2d 781 (Drago v. Retirement Center) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Smith v. State Through Dept. HHR
523 So. 2d 815 (Supreme Court of Louisiana, 1988)
Hastings v. Baton Rouge General Hospital
498 So. 2d 713 (Supreme Court of Louisiana, 1986)