Gober v. Walgreen Louisiana Co.

80 So. 3d 9, 2011 La. App. LEXIS 1288, 2011 WL 5170467
CourtLouisiana Court of Appeal
DecidedNovember 2, 2011
DocketNo. 46,730-CA
StatusPublished
Cited by5 cases

This text of 80 So. 3d 9 (Gober v. Walgreen Louisiana Co.) 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
Gober v. Walgreen Louisiana Co., 80 So. 3d 9, 2011 La. App. LEXIS 1288, 2011 WL 5170467 (La. Ct. App. 2011).

Opinion

PEATROSS, J.

_|_1In this tort action against Walgreen Louisiana Co., Inc. (“Walgreens”) for damages allegedly sustained by Bridget and Oscar Gober’s minor daughter, Emily, as the result of a mis-filled prescription of the diuretic Lasix, the jury found Walgreens liable and awarded damages in the amount of $35,000. Specifically, the jury found that the Gobers failed to prove that the mis-filled prescription was the cause of Emily’s long-term neurocognitive dysfunction; rather, the damages awarded were for the short-term dehydration symptoms suffered by Emily from the overdose. The Gobers appeal, arguing that it was reversible error for the judge to refuse to charge the jury with the Housley presumption, infra, which could have allowed the jury to presume causation. Finding no manifest error in the trial judge’s determination that the presumption was inapplicable and, thus, no error in the jury charge as given, we affirm.

FACTS

Emily Gober was born prematurely on September 16, 1999. She suffered from pulmonary atresia, meaning that she had no pulmonary valve connecting her heart and lungs. She was in NICU at Tulane for four months following her birth, where shunts were placed to create a conduit from her heart to her lungs. Emily required speech and physical therapy, but did not have neurocognitive problems. In 2001, Emily received an artificial pulmonary valve. The surgery was successful and without complication. On May 2, 2008, at age 8, since she had grown physically, Emily underwent a second pulmonary valve replacement. Again, the surgery was a success with no complications.

|2Following the surgery of May 2, 2008, cardiologist Dr. Robert Ascuitto prescribed Emily a low dose of Lasix, a mild diuretic, to prevent fluid buildup and retention around the heart and lungs. The prescribed dosage was 8 ml. twice a day. The pharmacist at Walgreens mis-filled the prescription, resulting in Emily receiving five times the prescribed amount of Lasix beginning on the evening of May 12, 2008. Walgreens conceded that the prescription was mis-filled.

During the following weeks, Emily showed signs of weakness and lethargy and the Gobers contacted Dr. Ascuitto by phone advising him that “something was not right.” Dr. Ascuitto saw Emily on May 23, 2008. At that time, Emily should have had 160 ml. of Lasix, but she had [11]*11ingested 960 ml. due to the mis-filled prescription. The Gobers testified that Emily was exhibiting cracked lips, excessive urination, excessive fluid consumption, confusion, sunken eyes and altered mental state. During the examination by Dr. Ascuitto, however, Emily’s vital signs, including her electrolytes, were within normal limits. Her weight was slightly down from her pre-operative weight. Dr. Ascuitto ordered discontinuation of the Lasix and reh-ydration at home, advising the family to make sure that Emily drank fluids.

Ten days later, the Gobers took Emily to the pediatrician with no complaints of mental or neuroeognitive problems. Two and one-half months later, on August 7, 2008, Emily saw neurologist Dr. Aristó-teles Pena-Miches. At this time, the Gob-ers complained of Emily’s mental slowness and altered mental state. Dr. Pena recommended a psychologist Revaluation and follow-up by him in three weeks; however, the record does not reflect that the Gobers followed either of these recommendations. Ten months later, and after suit was filed, the Gobers returned to Dr. Pena with complaints of Emily’s regressed mental acuity. Testing, however, showed cognitive functioning to be normal, with a diagnosis of Attention Deficit Disorder.

On November 19, 2008, the Gobers, individually and on behalf of Emily, filed the instant suit for damages against the pharmacist and Walgreens. There was no dispute that Emily had experienced some degree of neuroeognitive impairment and Walgreens conceded that the pharmacist mis-filled the prescription. Thus, the sole issue at trial was causation.

During a two-week trial, the Gober family, including Bridget and Oscar and Emily’s grandmother and sister, along with school personnel, testified regarding Emily’s decline in academic/cognitive function. According to the testimony, Emily’s symptoms included short-term memory loss, inability to focus, decline in study habits and sharp decline in academic performance. The family testified that the change in Emily was an abrupt occurrence that coincided with the overdose of Lasix. The family further testified, and Emily’s math teacher and tutor corroborated that, after the May 2 surgery, Emily had trouble learning and retaining concepts and that Emily was often in a “fog” or “glazed over.”

Dr. Ascuitto testified as to the dehydration. His notes indicate that, in September 2009, he reported to Emily’s pediatrician that the episode of dehydration she had suffered from the Lasix overdose was entirely resolved. [ 4He noted that Emily was experiencing trouble in school and was in a special class and that there may be ADD concerns. He further noted that cognitive dysfunction is a “universal situation” found in patients that have undergone multiple complex cardiac repairs. Dr. Ascuitto deferred to the treating neurologist for an opinion on cause of the neurological deficits experienced by Emily.

Dr. Pena also testified. He opined that the neuroeognitive problems were caused by an acute event. Dr. Pena stated that the acute event was not the surgery because she had quickly recovered her cognitive functions after both surgeries. Had the cause been the surgery, the problems would have manifested within 72 hours of the surgery. Dr. Pena related Emily’s sudden brain dysfunction to the overdose of Lasix. In his opinion, Emily suffered from isonatremic dehydration, an episode of dehydration which attacked the brain and central nervous system. He further opined that this condition is permanent; Emily would likely graduate from high school with assistance, but would not be able to complete higher levels of education.

[12]*12The Gobers also presented two additional non-treating expert witnesses who described the symptoms of dehydration suffered by Emily and that she suffered a brain injury from some external cause.

Walgreens presented expert testimony regarding potential alternative causes of the onset of Emily’s neurological dysfunction. The three experts to testify on behalf of Walgreens were Dr. Robert Marshall, pediatric critical care physician and pharmacologist, Dr. Gil Wernovsky, pediatric cardiologist, and Dr. Gary Clark, pediatric neurologist. Each of these | ¿doctors testified that the mild dehydration experienced by Emily was not the cause of her brain dysfunction. Several other likely causes were presented by Wal-greens’ experts, including the heart defect itself, the stroke Emily suffered as an infant, the multiple hypoxic episodes she suffered in the NICU and the multiple cardiac procedures she underwent in her first eight years of life, including the surgery of May 2, 2008.

At issue is the trial judge’s decision not to include the instruction known as the The Housley presumption, which provides as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
80 So. 3d 9, 2011 La. App. LEXIS 1288, 2011 WL 5170467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gober-v-walgreen-louisiana-co-lactapp-2011.