Ewing v. Aubert

532 So. 2d 876, 1988 WL 108809
CourtLouisiana Court of Appeal
DecidedOctober 12, 1988
DocketCA 87 0942, CA 87 0943
StatusPublished
Cited by8 cases

This text of 532 So. 2d 876 (Ewing v. Aubert) 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
Ewing v. Aubert, 532 So. 2d 876, 1988 WL 108809 (La. Ct. App. 1988).

Opinion

532 So.2d 876 (1988)

Kenneth W. EWING, et al
v.
Clinton C. AUBERT, M.D., et al.

Nos. CA 87 0942, CA 87 0943.

Court of Appeal of Louisiana, First Circuit.

October 12, 1988.

*877 Alfred W. Speer, Baton Rouge, for plaintiff-appellant Kenneth Ewing, Laura Ann Ewing, Tamara Lyn Ewing and Troy E. Ewing.

William R. Carruth, Baton Rouge, for intervenor-appellee Com'r of Ins. of the State of La.

Donald S. Zuber, Baton Rouge, for defendant-appellee Woman's Hosp. Foundation.

Robert L. Kleinpeter, Baton Rouge, for defendant-appellee Clinton C. Aubert, M.D. St. Paul Fire and Marine Ins.

Before LOTTINGER, CARTER and FOIL, JJ.

FOIL, Judge.

These consolidated cases involve a wrongful death action brought by the surviving spouse and five children of Margaret Ewing, as well as an action for damages suffered by the youngest child, Troy Ewing. Mrs. Ewing was admitted to Woman's Hospital in East Baton Rouge Parish on February 9, 1979, at which time she was in labor for the birth of her fifth child. Approximately eleven hours later, her uterus ruptured and she suffered a massive amniotic fluid embolism. Shortly thereafter, Troy Ewing was delivered in very poor condition by emergency cesarean section. After unsuccessful resuscitation efforts, Mrs. Ewing was pronounced dead. Today, as a result of suffering severe anoxic brain damage prior to his birth, Troy Ewing is a spastic quadriplegic with cerebral palsy, who has difficulty swallowing and has severe cognitive, motor and language deficits.

Kenneth W. Ewing, individually and as tutor of his minor children, filed suit against Dr. Clinton C. Aubert, Mrs. Ewing's obstetrician; Dr. Debyani Mehta, the anesthesiologist; and Woman's Hospital Foundation for the wrongful death of Margaret Ewing. A second suit was also filed by Mr. Ewing, as natural tutor of Troy Ewing, against the same defendants for the damages suffered by Troy. The wrongful death and personal injury suits were later consolidated.

*878 As Dr. Aubert is a qualified health care provider under the Louisiana Patients Compensation Fund Act, a medical review panel was convened which found that Dr. Aubert's actions failed to comply with the appropriate standard of care and he was thus at fault in this case. Plaintiffs subsequently received the statutory limit of $500,000.00 ($100,000.00, which was deposited into the registry of the court by Dr. Aubert's insurer, St. Paul Fire & Marine Insurance Company, plus $400,000.00 from the Patients Compensation Fund) for their claims against Dr. Aubert—namely, the wrongful death claim and Troy Ewing's claim for general damages. Dr. Debyani Mehta was voluntarily dismissed by plaintiffs from both suits.

Thereafter, a trial by jury was held in this matter against the remaining defendant, Woman's Hospital, from August 11, 1986, through August 22, 1986. By a vote of 11-1, the jury returned a verdict finding that the hospital was not negligent. From a judgment signed in compliance therewith, Mr. Ewing and three of his children perfected this appeal.

We affirm.

FACTS

In the early morning hours of February 9, 1979, Margaret Ewing was admitted to Woman's Hospital in labor with her fifth child. It was to be her fourth delivery, as she previously gave birth to twins. She was observed for approximately two hours and, upon formal admittance, came under the primary care of Nurse Judy Bongiovanni. At 7:40 a.m., as per the orders of Mrs. Ewing's obstetrician, Dr. Clinton C. Aubert, Nurse Bongiovanni began the administration of an oxytocic agent, Pitocin, to Mrs. Ewing. This synthetic hormone is designed to stimulate uterine contractions, and is adjusted (increased or decreased) according to the nurse's assessment of the quality of the patient's contractions. A nurse at Woman's Hospital was required to begin the drip of Pitocin at 4 drops per minute and, in her discretion, could increase the dosage to a maximum of 32 drops per minute if she felt this was justified to establish a good labor pattern. By 8:00 a.m., Nurse Bongiovanni had increased the dosage of Pitocin to 12 drops per minute.

Dr. Aubert examined Mrs. Ewing at 8:40 a.m. for the first time that day, and found that her cervix was dilated 2 centimeters. During the morning hours, either Nurse Bongiovanni or a student nurse monitored Mrs. Ewing's blood pressure approximately every hour and the fetal heart tones (FHTs) approximately every 30 minutes, as was required by hospital standards for a patient receiving Pitocin. At 11:00 a.m., Mrs. Ewing was beginning to feel discomfort with contractions, and discussed her anesthesia options with an anesthesiologist, Dr. Debyani Mehta.

After performing a vaginal examination on Mrs. Ewing at 12:20 p.m., Nurse Bongiovanni charted that her cervix was dilated 3-4 centimeters, was thick and becoming more anterior. Dr. Aubert examined the patient at 1:00 p.m. and found her cervix was dilated 4-5 centimeters. At 1:15 p.m., Dr. Mehta began administering anesthesia to Mrs. Ewing. A caudal catheter was inserted and injected, but was ineffective due to back problems suffered by Mrs. Ewing. An epidural catheter was then inserted and injected, which seemed to provide satisfactory results. At 2:00 p.m., Nurse Bongiovanni charted that Mrs. Ewing was then receiving Pitocin at the rate of 14 drops per minute.

At a 2:15 p.m. vaginal examination of Mrs. Ewing by Dr. Aubert, it was noted that her cervix was dilated 8-9 centimeters. Nurse Bongiovanni charted that she was "encouraged to push with contractions" and that she was comfortable with the contractions. Following a 2:45 p.m. examination by Nurse Bongiovanni, she charted that Mrs. Ewing was "pushing with contractions" and was "becoming uncomfortable with contractions." When a CRNA, Mr. David Chewning, attempted to reinject Mrs. Ewing's epidural catheter with more anesthesia, it was discovered that the catheter had become dislodged.

During the afternoon hours, Mrs. Ewing's blood pressure was charted only at *879 12:25 p.m. and 2:15 p.m. FHTs were charted five times, the last of which was at 2:45 p.m. After a 3:15 p.m. vaginal examination by Nurse Bongiovanni, with Dr. Aubert in attendance, the patient's cervix remained dilated 8-9 centimeters and she remained uncomfortable with contractions. Dr. Aubert then left the hospital and went home. Dr. Mehta saw Mrs. Ewing shortly thereafter, and a decision was made to discontinue efforts at regional anesthesia and to use general anesthesia. Accordingly, at 3:40 p.m., Mrs. Ewing was given the drugs Demerol, Scopolamine and Largon. Mrs. Ewing was then moved to the late labor room at Woman's Hospital.

Nurse Bongiovanni performed a final vaginal examination on Mrs. Ewing at 3:45 p.m., and charted that her cervix had dilated to a rim. She notified Dr. Aubert by telephone of the patient's condition, at which time the doctor ordered that a pelvimetry x-ray be taken at 4:00 p.m. if the patient's condition had not changed by that time.

The following events occurred very rapidly and not necessarily in this order. They were charted by nurse Nancy Tonguis after their occurrence. In late labor, nurse Tonguis examined Mrs. Ewing, but did not chart her findings as she became quite busy. At approximately 3:50 p.m., as she was examining the patient in the next bed, she heard Mrs. Ewing cough. When she went to her, she noticed Mrs. Ewing had vomited a small amount and appeared apneic for 20-30 seconds. When Mrs. Ewing began breathing again, her color was pale and she stated that she was nauseated. Nurse Tonguis turned her to her left side, at which time Mrs.

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Cite This Page — Counsel Stack

Bluebook (online)
532 So. 2d 876, 1988 WL 108809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewing-v-aubert-lactapp-1988.