Gray v. FeBornstein

642 So. 2d 245, 1994 La. App. LEXIS 2284, 1994 WL 442775
CourtLouisiana Court of Appeal
DecidedAugust 17, 1994
DocketNos. 93-CA-2060, 93-CA-2061
StatusPublished

This text of 642 So. 2d 245 (Gray v. FeBornstein) 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
Gray v. FeBornstein, 642 So. 2d 245, 1994 La. App. LEXIS 2284, 1994 WL 442775 (La. Ct. App. 1994).

Opinion

| iBARRY, Judge.

Dr. Norman Gray appeals summary judgments granted to several defendants in his wrongful death action.1 According to Dr. Gray’s petition his son, Dr. Martin Gray, was attending a Tulane University Medical Center School of Medicine function at Antoine’s Restaurant on June 10, 1990. During the meal a large mass of meat lodged in his throat and he was asphyxiated. He sued Tulane University Medical Center School of Medicine [Tulane], Dr. Marcos FeBornstein, Antoine’s Restaurant and its maitre d’, Henri’ Alciatore, and the City of New Orleans and the Health Department Emergency Medical Service.

Dr. Norman Gray alleged the negligence of Tulane doctors and residents when they attempted to assist his son. Dr. Gray alleged that Dr. FeBornstein was negligent because he was not able to remove the obstruction. He claimed | aAntoine’s Restaurant and Alcia-tore were negligent because Alciatore did not control the spectators which made it difficult for emergency technicians to carry his ailing son from the restaurant and did not show them the more accessible way out. The deceased’s mother, Vesta Gray, only sued Dr. FeBornstein. The cases are consolidated. (# 93-CA-2060 e/w # 93-CA-2061). Mrs. Gray did not appeal.

Dr. Norman Gray argues that: (1) Tulane Medical Center breached its duty to exercise reasonable care; (2) Dr. FeBornstein did not act with reasonable and due care; (3) Henri’ Alciatore breached his duty of reasonable care; and (4) summary judgment is improper when material issues of fact remain.

THE LAW

Appellate courts review summary judgments de novo and use the same criteria as the trial court. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Kantack v. Progressive Insurance Company, 618 So.2d 494 (La.App. 4th Cir.1993), writ denied, 620 So.2d 845 (La.1993). Summary judgment is proper if the pleadings, admissions, depositions and supporting affidavits show there is no issue of material fact and the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966B; Barham & Churchill v. Campbell, 503 So.2d 576 (La.App. 4th Cir.1987), writ denied, 503 So.2d 1018 (La.1987).

The burden is on the mover to prove the absence of any genuine issue of material fact. Any doubt shall be resolved against the mover and in favor of a trial on the merits. Sassone v. Elder, 626 So.2d 345 (La.1993); Raine v. CECO Corporation, 627 So.2d 713 (La.App. 4th Cir.1993). Affidavits ^submitted by the mover must be closely [247]*247scrutinized while those of the opponent are treated indulgently. Urbeso v. Bryan, 583 So.2d 114 (La.App. 4th Cir.1991).

DR. FEBORNSTEIN AND TULANE MEDICAL CENTER

Dr. FeBornstein and Tulane attached to the motion for summary judgment: (1) Dr. Daniel Winstead’s affidavit; (2) New Orleans Health Department Emergency Medical Service Ambulance run report; (3) Dr. FeBorn-stein’s affidavit; (4) Dr. Martin Gray’s autopsy protocol dated June 11, 1989; (5) the death summary progress notes at Charity Hospital dated June 10, 1989; (6) the coroner’s laboratory report dated June 21, 1989; and (7) the medical review panel opinion.

Dr. Winstead declared that he attended the departmental graduation dinner in the Japanese Room of Antoine’s Restaurant on June 10, 1989. At about 8:00 p.m. he observed Dr. Martin Gray stagger into the room. Dr. Nancy Chiarello accompanied him to a place at her table which she had reserved for him. Shortly afterward he observed Dr. Gray retching and in distress and Dr. Tomlinson went to assist. Dr. Tomlinson instructed a waiter to call an ambulance and suggested the Heimlich maneuver to remove the obstruction. Dr. Winstead and others pulled Dr. Gray to his feet and Dr. Tomlin-son administered five or six forceful Heimlich maneuvers. Dr. Gray was not breathing, but a neurology resident determined his pulse was 60 and strong. Dr. FeBornstein arrived on the scene and began mouth-to-mouth resuscitation. Dr. Gray’s pulse remained strong but he was not breathing. Dr. Fe-Bomstein unsuccessfully attempted to clear Dr. Gray’s airway with a spoon. Someone Usuggested a tracheostomy and asked a waiter to bring a knife. Within seconds the emergency medical technicians arrived and an ambu bag was used to try to move air. Dr. Gray’s pulse failed, closed chest massage was initiated and again there was talk of a tracheostomy. However, the emergency technicians insisted that Dr. Gray be taken to a hospital and they could use equipment in the ambulance. As Dr. Gray was being taken to the ambulance, Dr. FeBornstein continued his attempts at mouth-to-mouth resusei-tation. Dr. Tomlinson continued to administer closed chest massage. Dr. FeBornstein boarded the ambulance with Dr. Gray.

Dr. FeBornstein stated that he attended the graduation dinner. At about 8:00 p.m. he left to make a telephone call, stepped into the hallway and saw Dr. Gray on the floor in a cyanotic condition and not breathing. Dr. Gray’s heart was beating and he had a pulse. Dr. FeBornstein was told that an ambulance had been called. He began mouth-to-mouth resuscitation and stuck his fingers into Dr. Gray’s mouth, but he could not clear the obstruction. Dr. Gray’s tongue had collapsed. Dr. FeBornstein attempted unsuccessfully to clear the airway with a spoon. Seconds later emergency technicians arrived with an ambu bag and a laryngoscope. He used the laryngoscope to look down Dr. Gray’s throat; however, the laryngoscope was either straight or not lighted and he was unable to observe an obstruction. As the emergency technicians took Dr. Gray to the ambulance he continued mouth-to-mouth resuscitation while Dr. Tomlinson continued to administer closed chest massage. Dr. Fe-Bornstein rode in the ambulance and told the emergency technicians to give Epinephrine, Atropine and sodium bicarbonate. Dr. Gray was still in asystole and no pulse |5was detected. When the ambulance arrived at Charity Hospital, the emergency staff took over.

According to the autopsy protocol, the final diagnosis was asphyxia secondary to aspiration of foreign matter (mass unchewed meat) and the death was classified as accidental. The laboratory report showed that Dr. Gray had a blood alcohol level of .29 percent. According to the medical review panel there was no evidence that Dr. FeBornstein obstructed the efforts of the emergency medical technicians. The EMT reports shows only a momentary deferral to Dr. FeBornstein. The opinion stated that Dr. FeBornstein tried his best with his fingers, a spoon and a laryngoscope to remove the obstruction, which was very deep and required a special instrument to remove it. The panel found no negligence on the part of Dr. FeBornstein and Tulane in providing gratuitous medical treatment to Dr. Gray.

In his opposition and appellate brief Dr. Norman Gray argued that La.R.S. 37:1731, [248]*248the Good Samaritan Statute, applies to rendering medical care to a stranger. Because Dr. Gray was a guest at the party and was known to Dr. FeBornstein, he claimed that the statute did not apply. Dr. Gray claims that his son was an invitee and was owed a duty of care by Tulane and the doctors in attendance at the party who had a duty to protect Dr. Gray from foreseeable dangers. Because eating and drinking were involved in the Tulane function, the defendant hosts should have foreseen such a problem. Alternatively, Dr. Gray submits that the Good Samaritan Statute applies to doctors, not to Tulane Medical Center. He claims that whether or not Dr.

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Related

Schroeder v. Board of Sup'rs
591 So. 2d 342 (Supreme Court of Louisiana, 1991)
Urbeso v. Bryan
583 So. 2d 114 (Louisiana Court of Appeal, 1991)
Sassone v. Elder
626 So. 2d 345 (Supreme Court of Louisiana, 1993)
Kantack v. Progressive Ins. Co.
618 So. 2d 494 (Louisiana Court of Appeal, 1993)
Barham & Churchill v. Campbell & Associates
503 So. 2d 576 (Louisiana Court of Appeal, 1987)
Raine v. CECO CORP.
627 So. 2d 713 (Louisiana Court of Appeal, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
642 So. 2d 245, 1994 La. App. LEXIS 2284, 1994 WL 442775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-febornstein-lactapp-1994.