Havard v. Children's Clinic of Southwest Louisiana, Inc.

722 So. 2d 1178, 98 La.App. 3 Cir. 803, 1998 La. App. LEXIS 3614, 1998 WL 857620
CourtLouisiana Court of Appeal
DecidedDecember 9, 1998
DocketNo. 98-803
StatusPublished

This text of 722 So. 2d 1178 (Havard v. Children's Clinic of Southwest Louisiana, Inc.) 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
Havard v. Children's Clinic of Southwest Louisiana, Inc., 722 So. 2d 1178, 98 La.App. 3 Cir. 803, 1998 La. App. LEXIS 3614, 1998 WL 857620 (La. Ct. App. 1998).

Opinion

_|DECUIR, Judge.

This appeal arises out of a suit for medical malpractice for wrongful death by Catherine Havard and Robbie Langley, grandmother and mother respectively, of the decedent, Kasie Nicole Parker, against The Children’s Clinic of Southwest Louisiana, Inc. After a trial on the merits, the trial judge assigned written reasons and rendered judgment apportioning 80% fault to defendant and 20% fault to Catherine Havard. Damages were awarded in the total amount of $168,263.11 to Robbie Langley and $15,000.00 to Catherine Havard, subject to the allocation of fault. The damages were awarded as follows:

In Favor of Robbie Langley:
Survival Action $ 15,000.00
Wrongful Death 125,000.00
Damages Caused by Injury to Another 10,000 .00
^Medical Expenses 16,559.11
Funeral and Headstone 1,704.00
$168,263.11
In Favor of Catherine Havard:
Damages Caused by Injury to Another $ 15,000.00

The Children’s Clinic of Southwest Louisiana, Inc. (Children’s Clinic) appeals, contending that the trial court erred in improperly applying an evidentiary rule and in failing to assign any fault to Robbie Langley, the decedent’s mother. Plaintiffs appeal, contending that the trial court erred in assigning fault to Catherine Havard and in awarding insufficient damages.

Facts

Kasie Parker died at the age of 13 on August 29, 1991, from the effects of diabetic ketoacidosis, allegedly as a result of defendant’s negligence. A medical review panel was convened. The panel issued the following decision:

It’s the opinion of the panel that there’s a material issue of fact not requiring expert opinion bearing on the liability for consideration by the court. Specifically, the issue of fact relates to the telephone conversation on the early afternoon hours of August 28th, in which the grandmother [1180]*1180caretaker states that she related to the office nurse at The Children’s Clinic that her child was vomiting but also a diabetic and in which the records from the clinic relates that the phone conversation recorded by the nurse made no mention of the diabetes. We feel that this fact is important because it was probably of a significant issue in the eventual outcome of this child’s condition. Although, at this point in time, we don’t have enough information to go any further to whether or not the grandmother or the nurse is accurate in their recollection — at least the records from the nurse accurate [sic] and the recollection. So, that’s our position.

Kasie lived with her mother and grandmother. Langley was only 15 years old at the time of Kasie’s birth. Havard was Ka-sie’s legal guardian from the time she was 13 months old to the time of her death.

[¡The record reflects that Kasie vomited in the early morning on August 28,1991. Kasie was diagnosed in 1988 as an insulin dependent diabetic, whose insulin maintenance required two shots of insulin a day, morning and evening. The child’s grandmother, Catherine Havard, withheld the child’s morning dosage after the child’s early morning episode of vomiting. According to Havard, her decision was based on a previous episode when Kasie became hypoglycemic after receiving insulin when vomiting. The child did not attend school. Both her mother and grandmother left for work. According to her testimony, Havard instructed Kasie to eat something and self-administer her shot. Later in the morning, Havard talked to Kasie and learned that she had vomited again. Langley testified that Kasie called her at work at noon and advised that she had again vomited. Langley then asked her mother, Havard, to go home to check on Kasie.

Havard testified that upon arriving at home, she learned Kasie had still not eaten. According to Havard, she then called the Children’s Clinic at approximately 12:30 p.m. The call was received by Debra Fontenot, an LPN. According to the nurses’ call records, the call was received at 1:15 p.m. Havard testified she asked for Dr. Richard Calhoun and was advised by Fontenot that he was not in. Havard testified that she told the nurse that Kasie was a diabetic who was vomiting and had not had her insulin shot that morning. According to Havard, she asked for suppositories for Kasie to stop the vomiting. Havard testified that the nurse advised her she would look at the child’s chart and send Phenegran suppositories.

Fontenot, on the other hand, testified that the caller did not tell her that Kasie was diabetic or had not had her insulin. This information is not recorded in the nurses’ call record. As the trial court notes in reasons for judgment, the call record does not reflect that Havard asked for Dr. Calhoun, but Fon-tenot acknowledged in her testimony ^that the caller asked for him, although she claimed no other independent recollection of the August 28, 1991 call, other than the nurses’ call record and her earlier deposition.

Phenegran was prescribed and administered. The vomiting stopped, but Kasie became lethargic with labored breathing. At approximately 6:00 p.m., according to the child’s mother and grandmother, Kasie ate some soup and received her first insulin dosage for that day. Kasie remained lethargic throughout the evening. At approximately 8:00 p.m., she was administered another Phe-negran suppository. Because her condition did not improve, and she vomited a dark brown material, Kasie was taken to the hospital at approximately 11:00 p.m., according to Havard. The emergency room record reflects the registration time as 12:01 a.m. Notations on the emergency room record reflect that Langley and Havard advised of Kasie’s vomiting and established dosage of insulin twice daily. The emergency room record reflects that the first insulin dosage was administered at 5:00 p.m. Kasie was evaluated, diagnosed and treated in the emergency room until 3:00 a.m. and then transferred to the intensive care unit. Kasie died at 9:20 p.m. on August 29,1991, from diabetic ketoa-cidosis.

Application of Evidentiary Rule

Defendant contends that the trial court improperly applied the evidentiary rule which provides that where there are witnesses of equal credibility and direct contradiction occurs on a fact question, the positive [1181]*1181or affirmative testimony will be given preponderance over that which is negative. Defendant argues that the trial court’s improper application of this evidentiary rule in accepting Havard’s version of the telephone call to the Children’s Clinic over that of Fontenot is “tantamount to an unreasonable evaluation of credibility.”

kiThe trial court recognized that the threshold issue in determining liability was whether Havard did or did not inform the nurse when she called that Kasie was diabetic and had not had her morning dosage of insulin. The trial court correctly noted that this issue was primary since all the physicians who testified indicated that different action would and should have been taken if the prescribing physician knew either or both of these facts.

Defendant contends that the evidentiary rule was improperly applied by the trial court because that rule only applies when a witness’ credibility is not at issue, citing Maroney v. Physicians & Surgeons Hospital, 626 So.2d 833, (La.App. 2 Cir.1993), writ denied,

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Bluebook (online)
722 So. 2d 1178, 98 La.App. 3 Cir. 803, 1998 La. App. LEXIS 3614, 1998 WL 857620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/havard-v-childrens-clinic-of-southwest-louisiana-inc-lactapp-1998.