Gordon v. LSU BD. OF SUP'RS

669 So. 2d 736
CourtLouisiana Court of Appeal
DecidedMarch 1, 1996
Docket27966-CA
StatusPublished
Cited by1 cases

This text of 669 So. 2d 736 (Gordon v. LSU BD. OF SUP'RS) 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
Gordon v. LSU BD. OF SUP'RS, 669 So. 2d 736 (La. Ct. App. 1996).

Opinion

669 So.2d 736 (1996)

Jerry and Elizabeth GORDON, Plaintiffs-Appellants,
v.
LOUISIANA STATE UNIVERSITY BOARD OF SUPERVISORS, Defendant-Appellee.

No. 27966-CA.

Court of Appeal of Louisiana, Second Circuit.

March 1, 1996.

*738 Jeffrey L. Little, Shreveport, for appellants.

Bennett L. Politz, Shreveport, for appellee.

Before BROWN, STEWART and GASKINS, JJ.

GASKINS, Judge.

The plaintiffs, Elizabeth and Jerry L. Gordon, individually and as administrators of the estate of their minor child, Katherine Gordon, appeal from a trial court judgment in favor of the defendant, Louisiana State University Board of Supervisors, finding that there was no showing that the defendant's actions in treating their daughter resulted in damage to the child. For the following reasons, we affirm the trial court judgment.

FACTS

In 1987, Elizabeth and Jerry L. Gordon were expecting the first child born of their marriage. Mrs. Gordon was thirty-two years old and had two children from a previous marriage. Due to an Rh isoimmunization problem with the unborn child, Mrs. Gordon was referred by her health care provider to Louisiana State University Medical Center in Shreveport (LSUMC.) On June 24, 1987, Mrs. Gordon was admitted to LSUMC and labor was induced. Mrs. Gordon was approximately thirty-five weeks into the pregnancy. A full term pregnancy is forty weeks.

On June 25, the treating physicians noted that the baby's heart rate was consistently low. Then the placenta suddenly separated from the uterus, posing an immediate threat to the life of the mother and the child. An emergency caesarean section was performed. The child exhibited signs of asphyxia at birth, but was resuscitated and placed in the neonatal intensive care unit (NICU). Later, the baby was transferred to the regular nursery. The baby, Katherine Gordon, weighed in excess of five pounds at birth. This was considered a normal birth weight.

Over the next few days, the child's bilirubin level in her blood became elevated, causing a jaundiced condition. This occurs when antigens in the child's blood cause the immune system to destroy its own red blood cells in a process called hemolysis. Bilirubin is a by-product of this process and high levels of it are toxic. This substance is normally extracted from the blood by the liver. In newborns, the liver is often not yet mature enough to perform this function efficiently. If levels of this substance become too high, it can pass between the blood-brain barrier and cause damage to the nervous system, including brain damage. This condition is known as bilirubin encephalopathy or kernicterus.

The child's elevated bilirubin level was treated with phototherapy which acts to neutralize the toxic effects of the bilirubin. She was given fluids to flush the bilirubin from her system and was given glycerin suppositories to eliminate excess bilirubin through the stool. She was also given albumin, which binds with the bilirubin and helps prevent it from damaging the brain. These measures failed to reduce the bilirubin level satisfactorily. The child was then given a total of four exchange transfusions in which the baby's blood was entirely replaced with donor blood. After the fourth blood exchange, it was determined that the child had suffered seizures and hearing loss in both ears.

The plaintiffs contend that LSUMC was negligent in allowing the bilirubin level in the child's blood to rise to unacceptable levels before beginning the exchange transfusions. These claims were submitted to a medical review panel which failed to timely rule on the allegations. On April 24, 1989, the plaintiffs *739 filed suit against LSUMC in the district court, claiming that the hospital and its employees were negligent in treatment of Katherine and that the negligence resulted in the child's hearing deficit. They claimed damages for past and future medical expenses, disability, loss of earning capacity, pain and suffering and loss of consortium.

The case was tried in October, 1994. On February 28, 1995, the trial court filed reasons for judgment in favor of LSUMC. The trial court noted that Katherine suffered a hearing loss, fine motor control problems, a slight speech impediment due to her hearing loss, and according to her parents, dental staining. The court noted that the child wears hearing aids and relies heavily on lip reading.

The court stated that the main issue in this case was whether the blood exchanges were ordered and performed timely within the applicable medical standards in 1987. The trial court found that the delay between the third and fourth blood exchange fell below the applicable standard of medical care. Following the third exchange, the child's bilirubin level was 11.8 at 2:23 a.m. on June 30. By 5 a.m. the level had risen to 17.5 and rose steadily throughout the day. At 2:07 p.m. on June 30, the bilirubin level was 21.3. A fourth exchange was not commenced until 11:30 p.m. on June 30 when the bilirubin level had risen to 25.5.

However, the court found that the evidence failed to establish that this delay caused any damage or injury to Katherine Gordon. The trial court noted that, according to expert testimony, the child did not exhibit symptoms of bilirubin damage. Therefore, it could not conclude that the delay between the third and fourth exchange was the cause of the child's hearing loss. Accordingly, the trial court entered judgment in favor of LSUMC, rejecting the plaintiffs' claims.

On March 20, 1995, the plaintiffs filed a motion for new trial, arguing that the trial court judgment was contrary to the law and evidence. The motion for new trial was denied on April 20, 1995. The plaintiffs appealed the trial court judgment.

ARGUMENTS ON APPEAL

The plaintiffs argue that the trial court erred in finding that no causal connection had been established between the high bilirubin levels and the child's hearing loss. The plaintiffs contend that the child was normal following birth and exhibited the hearing loss only after the abrupt elevation in bilirubin level. Because the child appeared to be normal before the elevation in her bilirubin level the plaintiffs contend that the presumption of causation applies. The plaintiffs argue that the trial court erred in discounting expert testimony indicating that the elevation in bilirubin level most probably caused the hearing loss. They also argue that the trial court misconstrued expert testimony in concluding that there was no causation between the bilirubin level and the hearing loss. We find these arguments to be without merit.

LEGAL PRINCIPLES

La.R.S. 9:2794 provides in pertinent part:

A. In a malpractice action based on the negligence of a physician ... the plaintiff shall have the burden of proving:
(1) ... [W]here 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 ... 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.

La.R.S.

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