Dutton v. O'Connell

901 So. 2d 602, 4 La.App. 5 Cir. 1287, 2005 La. App. LEXIS 1074, 2005 WL 954987
CourtLouisiana Court of Appeal
DecidedApril 26, 2005
DocketNo. 04-CA-1287
StatusPublished
Cited by5 cases

This text of 901 So. 2d 602 (Dutton v. O'Connell) 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
Dutton v. O'Connell, 901 So. 2d 602, 4 La.App. 5 Cir. 1287, 2005 La. App. LEXIS 1074, 2005 WL 954987 (La. Ct. App. 2005).

Opinion

| .CLARENCE E. McMANUS, Judge.

Plaintiffs, David and Rick Morales, appeal the jury verdict in favor of defendants, Dr. Ruary O’Connell and Columbia Jefferson d/b/a Elmwood Medical Center and Skilled Nursing Facility. For the reasons which follow, we affirm the jury’s verdict.

STATEMENT OF THE CASE

On July 8, 1996, Sarah Dutton, a' sixty-nine year old obese woman, underwent gastric bypass surgery at Elmwood Medical Center. The surgery was performed by Dr. Ruary O’Connell, a bariatric surgeon. Dutton continued to improve post-operatively and, on July 11, 1996, Dr. O’Connell transferred her to the Skilled [604]*604Nursing Facility at the Elmwood Medical Center. Dr. O’Connell prepared a transfer form and orders. Dutton was transferred at 2:30 p.m. on July 11, 1996. According to Dr. O’Connell’s orders, Dutton’s vital signs were to be taken every four hours. Dutton’s chart indicated that the first vital signs were taken at 2:30 p.m. on July 11, 1996 by Gilda Bourgeois, R.N. Bourgeois testified that at the time of admittance, she heard “crackles” in Dutton’s lungs using a stethoscope. Dutton’s abdomen was hard and distended and her bowel sounds were sluggish. Bourgeois did not call Dr. O’Connell at that time. Her vital signs were taken again at 4:30 p.m. and midnight. After the 4:30 p.m. exam, Bourgeois {-¡did contact Dr. O’Connell and he ordered a Fleet enema, which was administered at 7:00.

Bourgeois testified that Dutton’s vitals were taken the next morning, July 12, 1996, at 8:00 a.m. At that time, she noted that Dutton’s breathing was rapid and shallow with “crackles”, indicating the presence of fluid in her lungs. Bourgeois again noted that her abdomen was firm and distended and her bowel sounds were sluggish. Bourgeois did not call Dr. O’Connell at that time. At 10:00 a.m., Dutton’s vitals were unchanged.

At 12:00 p.m., Bourgeois found Dutton to be hyperventilating with complaints of nervousness. She calmed Dutton down and called Dr. O’Connell and left a message. Dr. O’Connell spoke to Bourgeois at 1:15 and he ordered Xanax and a complete blood count. Bourgeois administered the Xanax at 1:15 and noted that at 1:40 p.m. Dutton had calmed down. By 2:00 p.m., Dutton was resting quietly with her eyes closed.

At 3:00 p.m., Bourgeois went into Dut-ton’s room to hang IV fluids. At that time she noted Dutton appeared to not be breathing. Bourgeois shook her shoulder and called her name. Bourgeois noted cyanosis around the mouth and noted that she was cool to the touch. Bourgeois called a code and resuseitative efforts were instituted, but were unsuccessful. Dr. O’Connell was paged and he stopped the code and pronounced Dutton dead after he arrived.

An autopsy was performed by the coroner, Dr. Roy Hemelt, who died prior to trial. According to the autopsy report, there was no direct cause of death, but notes a probable fatal ventricular arrhythmia. Dr. O’Connell noted a lethal ventricular arrhythmia as the cause of death on the death certifícate. Dr. Gerald Liuzza, a pathologist, also testified that the likely cause of death was a fatal ventricular arrhythmia.

|4Putton’s husband, Granville Dutton, and her children, David and Rick Morales, filed a medical malpractice claim against Dr. O’Connel and Columbia Jefferson d/b/a Elmwood Medical Center and Skilled Nursing Facility. A medical review panel reviewed the matter and found that the evidence does not support the conclusion that defendants failed to meet the applicable standard of care. The panel found that there was no evidence that Dr. O’Con-nell failed to perform the gastric stapling procedure properly and there was no indication that there were necessary preoperative tests omitted. The panel found Dr. O’Connell’s post-operative care to be adequate and appropriate. Further, the panel found that Dutton was closely monitored at the skilled nursing unit and there was nothing to suggest that the sedation was inappropriate or excessive.

Granville Dutton died before trial was held. His counsel attempted to substitute his daughter as plaintiff, however, she failed to appear for trial or for her deposition. Therefore, his claim was ultimately dismissed.

[605]*605At the time of trial, plaintiffs argued that Dutton’s arrhythmia was caused by “gross fluid overload.” They further argued that Dr. O’Connell breached the standard of care by failing to appropriately manage Dutton’s fluid level and the nursing staff of Elmwood breached the standard of care by failing to adequately record Dutton’s intake and output, failing to advise Dr. O’Connell that Dutton was carrying excess fluid, and failing to take vital signs every four hours, as ordered.

Dr. Brobson Lutz testified at trial as the plaintiffs’ medical expert in internal medicine. He testified that he believed the cardiac arrhythmia was caused by gross fluid overload. Dr. Lutz further opined that Dutton’s fluid intake was grossly disproportionate to her urine output, triggering the arrhythmia. Dr. Lutz based this opinion on the coroner’s finding that Dut-ton’s lungs contained pulmonary congestion and his theory that pulmonary congestion equals pulmonary edema and | ,-jluid in the lungs which could have caused the arrhythmia. As to Dr. O’Connell’s alleged negligence, Dr. Lutz simply testified that he was not sure Dr. O’Connell had watched the fluids the way they should have been watched and Dutton would have been better managed in the hospital than in the skilled nursing facility.

At trial, Dr. Gerald Liuzza, a forensic pathologist, testified that the likely cause of death was cardiac arrhythmia and there was no evidence of excess fluid in Dutton’s body or her lungs. Dr. James McKinnie and Dr. Thomas Lavin, a general surgeon, also testified that Dutton died of a cardiac arrhythmia and, further, the taking of vital signs two hours before would not have predicted the arrhythmia. Dr. Lavin found that the nursing staff adequately monitored Dutton and the taking of her vital signs and the monitoring of intake and output was appropriate. Dr. Rene DeBoisblanc, a general surgeon, also agreed that the nursing staff adequately monitored Dutton.

A jury trial was held and the jury found in favor of defendants, Dr. O’Connell and Elmwood. Plaintiffs, David and Rick Morales, now appeal.

DISCUSSION

On appeal, plaintiffs allege one assignment of error: that the jury was clearly wrong in failing to find that an employee of Elmwood Medical Center and Columbia Jefferson/Elmwo’od Skilled Nursing Facility breached the applicable standard of care. In opposition, defendants argue that any fault on the part of the nursing staff in no way caused or contributed to Dutton’s death.

A court of appeal may not set aside the jury’s finding of fact in absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State through DOTD, 92-1328 (La.4/12/93), 617 So.2d 880, citing Rosell v. ESCO, 549 So.2d 840 (La.1989). The Louisiana Supreme Court has provided a two-part test for the reversal of a factfinder’s determinations: 1) The appellate court must find from the record | fithat a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart, citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The test provides that a reviewing court must do more than simply review the record for some evidence which supports or controverts the. trial court’s finding. Id.

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901 So. 2d 602, 4 La.App. 5 Cir. 1287, 2005 La. App. LEXIS 1074, 2005 WL 954987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dutton-v-oconnell-lactapp-2005.