Hebert v. Plaquemine Caring, L.L.C.

43 So. 3d 239, 2007 La.App. 1 Cir. 2243, 2010 La. App. LEXIS 913, 2010 WL 2430389
CourtLouisiana Court of Appeal
DecidedJune 16, 2010
Docket2007 CA 2243
StatusPublished
Cited by1 cases

This text of 43 So. 3d 239 (Hebert v. Plaquemine Caring, L.L.C.) 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
Hebert v. Plaquemine Caring, L.L.C., 43 So. 3d 239, 2007 La.App. 1 Cir. 2243, 2010 La. App. LEXIS 913, 2010 WL 2430389 (La. Ct. App. 2010).

Opinions

McDonald, j.

UThis is an appeal of a judgment granting an involuntary dismissal of plaintiffs’ claims of lost chance of survival against defendant. After a thorough review, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

In July of 2001, Morgan Hebert suffered a fractured hip as a result of a fall in his home. He was admitted to American Legion Hospital in Crowley. Prior to surgery to correct the fracture, Mr. Hebert suffered cardiopulmonary arrest, and was subsequently placed on a ventilator to provide respiratory support. He was transferred to the intensive care unit of Our Lady of Lourdes Hospital in Lafayette for [241]*241observation and treatment, where he remained until October 8, 2001.

Upon leaving Our Lady of Lourdes, Mr. Hebert was discharged to Plaquemine Caring, L.L.C. (Plaquemine), a long-term care skilled nursing facility in Plaquemine. At the time of admission, Mr. Hebert was diagnosed with ventilator dependent status, chronic obstructive pulmonary disease, respiratory insufficiency, hypertension, diabetes, and sensation neuromuscular disease. He required a PEG tube (feeding tube) for nourishment. As a result of his ventilator-dependent status, Mr. Hebert was to be monitored regularly to insure that the ventilator was functioning properly.

On October 19, 2001, Mr. Hebert was found by members of his family to be nonresponsive and cold to the touch. The family notified Plaquemine’s staff at once, and Mr. Hebert was pronounced dead as a result of respiratory failure, cerebrovascu-lar accident, and cervical neuropathy.

Plaintiffs Lena Hebert, as surviving spouse, and Diane H. Melvin and Morgan Hebert, Jr., as children of Mr. Hebert, filed their petition against Plaquemine on January 21, 2003, alleging that the fault and negligence of Plaquemine’s personnel proximally and solely caused the loss of Mr. Hebert’s Reliance of survival prior to his death. Lena Hebert died before the matter went to trial.

The bench trial began on May 2, 2007. On May 3, 2007, the trial judge considered and granted Plaquemine’s oral motion for involuntary dismissal, finding that plaintiffs had not established that a breach of the standard of care was a cause of Mr. Hebert’s death. The judgment was signed on June 7, 2007. From this judgment, plaintiffs filed a motion and order for de-volutive appeal on July 25, 2007.

On January 10, 2008, this Court issued a show cause order upon a finding that the trial court’s signed judgment of June 7, 2007 was deficient due to lack of decretal language as required by La. C.C.P. articles 1911, 1917, and 1918. Subsequently, this court issued an interim order, remanding the appellate record to the trial court to be supplemented with a judgment with appropriate language.

On April 25, 2008, this matter was stayed as a result of Bankruptcy proceedings filed by Plaquemine in the United States Bankruptcy Court, Middle District of Louisiana (Chapter 11 Case number 08-10511). Plaintiffs filed for relief from the automatic stay to continue to prosecute their claims. This relief was granted by order of the Bankruptcy Court on June 12, 2009.

ASSIGNMENTS OF ERROR

Plaintiffs make the following assignments of error: 1) the trial court committed manifest error in granting Plaque-mine’s motion for involuntary dismissal; 2) the trial court erred in finding that plaintiffs did not show any right to relief as required by La. C.C.P. article 1672; and 3) the trial court erred as a matter of law in using a “medical certainty” evidentiary standard in weighing plaintiffs’ evidence.

|4In cases of lost chance of survival, the manifest error standard of review applies. Under this standard, a factual finding cannot be set aside unless the appellate court finds the decision to be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transportation and Development, 617 So.2d 880, 882 (La.1993). In order to reverse the determination of the factfinder, the appellate court must review the record in its entirety and 1) find that a reasonable factual basis for the finding does not exist, and 2) further find that the record establishes that the factfin-[242]*242der is clearly in error. The issue to be decided in the review is not whether the trier of fact was right or wrong, but whether the conclusion was reasonable given the entirety of the evidence presented. Id.

LAW AND ANALYSIS

Plaintiffs frame their allegations against Plaquemine in terms of a lost chance of Mr. Hebert’s survival. In a lost chance of survival case, the plaintiff does not have to prove that the patient would have lived had proper treatment been given. Benefield v. Sibley, 43,317, p. 13 (La. App.2d Cir.7/9/08), 988 So.2d 279, p. 289, writs denied, 08-2162, 08-2210, 08-2247 (La.11/21/08), 996 So.2d 1107, 1108, citing Smith v. State through Department of Health and Human Resources Administration, 523 So.2d 815 (La.1988). However, the plaintiff does have the burden of establishing, by a preponderance of the evidence, that the defendant’s conduct denied the patient a chance of survival that he or she had before the defendant’s conduct. Id. To do this, the plaintiff must demonstrate that a chance of survival existed in the first place; if the patient had no chance of survival, there is nothing lost by the defendant’s conduct, even if a breach occurs. See Alphonse v. Acadian Ambulance Services, Inc., 02-0773-76, p. 10 (La. App. 1st Cir.3/28/03), 844 So.2d 294, 300, mil denied 03-1086 (La.6/20/03), 847 So.2d 1240. Once the chance of survival is established, the plaintiff must then demonstrate that the established chance was lost due to the defendant’s negligence. Benefield, 43,317 at Up. 13, 988 So.2d at 289. The defendant’s conduct need not be the only causative factor of the patient’s death, but the factors must have increased the risk of harm. Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 720 (La.1986). There is a right to recover for lost chance of survival even in cases when the chance is a less-than-even chance due to a pre-existing condition. Smith v. State through Department of Health and Hospitals, 95-0038, p. 6 (La.6/25/96), 676 So.2d 543, 547.

The determinations of chance of survival and loss of that chance are given to the finder of fact in these cases. See Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1278 (La.1991). The supreme court has repeatedly explained that “to establish causation in a situation where the patient dies, the plaintiff need only prove that the defendant’s malpractice resulted in the patient’s loss of a chance of survival, and that the plaintiff need not shoulder the ‘unreasonable burden’ of proving that the patient would have survived if properly treated.” Martin at 1278. Where this conclusion is based on evaluations of witness credibility, the standard of review demands that great deference must be given to the factfinder’s determinations. Benefield, 43,317 at p. 6, 988 So.2d at 286.

Plaintiffs offered the testimony of Dr. Louis Roddy. Dr. Roddy, who was tendered as an expert witness by plaintiffs and qualified as an expert in pulmonary medicine and ventilator patient care, testified that Mr. Hebert’s vital signs, as taken by Plaquemine’s staff, indicated that he was in distress in the hours leading up to his death. Dr. Roddy’s expert opinion was that Plaquemine had breached the standard of care. The recordkeeping of the nursing and therapy staff at Plaquemine was a significant factor in Dr.

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Hebert v. Plaquemine Caring, L.L.C.
43 So. 3d 239 (Louisiana Court of Appeal, 2010)

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43 So. 3d 239, 2007 La.App. 1 Cir. 2243, 2010 La. App. LEXIS 913, 2010 WL 2430389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-plaquemine-caring-llc-lactapp-2010.