ISIAH COLE JR. AND HIS * NO. 2024-CA-0437 WIFE, KAREN COLE * VERSUS COURT OF APPEAL * NEW ORLEANS EMERGENCY FOURTH CIRCUIT MEDICAL SERVICES, CITY * OF NEW ORLEANS, DERECK STATE OF LOUISIANA BLANCHARD, NICHOLAS * * * * * * * MANNING
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2021-02271, DIVISION “M-13” Honorable Paulette R. Irons ****** Judge Monique G. Morial ****** (Court composed of Judge Daniel L. Dysart, Judge Nakisha Ervin-Knott, Judge Monique G. Morial)
Michael J. Riley, Sr. Michael J Riley, Sr. Attorney LLC 201 St. Charles Avenue Suite 2500 New Orleans, LA 70170
COUNSEL FOR PLAINTIFF/APPELLANT
Jasmine L. Bandy CITY ATTORNEY'S OFFICE Michael J. Laughlin ASSISTANT CITY ATTORNEY William R. H. Goforth ASSISTANT CITY ATTORNEY Corwin M. St. Raymond ASSISTANT CITY ATTORNEY Donesia D. Turner CITY ATTORNEY CITY OF NEW ORLEANS 1300 Perdido Street, Room 5E03 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED MARCH 6, 2025 This is a medical malpractice action. Appellants, Isiah Cole, Jr. (Mr. Cole) MGM and his wife, Karen Cole (Mrs. Cole), seek review of the trial court’s May 10, 2024 DLD judgment denying the liability of Defendants, New Orleans Emergency Medical NEK Services (NOEMS), the City of New Orleans (City), Derek Blanchard (Blanchard)
and Nicholas Manning (Manning) for injuries Mr. Cole sustained during transport
to the hospital. After consideration of the record before this Court and the
applicable law, we affirm the judgment of the trial court.
Facts and Procedural History
On June 23, 2017, Mr. and Mrs. Cole were asleep at their home when Mrs.
Cole was startled awake by noises made by her husband. Mrs. Cole observed Mr.
Cole convulsing in their bed. She immediately dialed 911, awakened her daughter,
Shonda Jenkins, and informed her that Mr. Cole was having a medical episode.
After speaking with 911, Mrs. Cole placed Mr. Cole on his side, counted his
breathing and waited for NOEMS to arrive. Mr. Cole’s symptoms began to wane
as the paramedics arrived.
1 Blanchard and Manning, emergency medical service paramedics
(Paramedics), arrived on the scene and began evaluating Mr. Cole. They took his
vital signs and asked him a series of questions to gauge his mental status. After
conversing with Mr. Cole and observing him, they informed Mr. Cole that he
would be transported to the hospital. Initially, Mr. Cole refused transport. He stated
that he was feeling better after his medical incident and did not want to go to the
hospital. NOEMS continued to assess him and decided to transport Mr. Cole over
his objections. Mr. Cole reiterated that he did not want to go to the hospital, but he
did not resist them. Blanchard and Manning, with the assistance of members of the
New Orleans Fire Department, removed Mr. Cole from the bed and placed him on
a flexible Reeves Stretcher. NOEMS and firemen carried Mr. Cole down a flight of
stairs, placed him on a standard stretcher and transported him to Ochsner Hospital
for further treatment.
Mr. Cole alleges that during transport NOEMS intentionally dropped him at
the top of the stairs to teach him a lesson. When he asked them “why are ya’ll
handling me like this?!,” he said no one responded. He began to cry and
experience an onset of back pain. NOEMS transported him to the hospital for
evaluation. Emergency room doctors determined that Mr. Cole had experienced a
seizure. Several images were taken of Mr. Cole; a CAT scan and an X-ray of the
thoracic spine which noted compression fractures to Mr. Cole’s spine.
On or about June 19, 2018, Mr. and Mrs. Cole filed a complaint with the
Louisiana Patient Compensation Fund requesting a Medical Review Panel (MRP)
2 be convened to consider the incident and the care he received on June 23, 2017.
The MRP convened and rendered a decision on January 26, 2021. It was the
opinion of the MRP that “there is a material issue of fact, not requiring an expert
opinion, bearing on liability for consideration by the Court.”
Mr. and Mrs. Cole filed a petition for damages for medical malpractice
against NOEMS, the City of New Orleans, Blanchard and Manning on March 12,
2021. The Coles alleged that Blanchard and Manning breached the standard of care
owed to Mr. Cole by transporting him to the hospital over his objections and
dropping him. Mr. Cole claimed that as a direct result of being dropped, he
suffered compression fractures to his spine. The Coles alleged that the City was
vicariously liable as Blanchard and Manning were acting in the course and scope
of their employment at the time of the incident.
On May 25, 2023, the Coles filed a motion for summary judgment alleging
that the expert opinion of Dr. Gerald Williams, a former member of the MRP
reviewing Mr. Cole’s care, was sufficient to support summary judgment in their
favor. Dr. Williams’ opinion was Mr. Cole likely suffered a trauma between
leaving his home and arriving at the hospital. The trial court declined to make a
credibility determination between the assertions of Mr. Cole and NOEMS at the
hearing and denied the Coles’ motion for summary judgment. 1
1 In case 2023-C-0697, the Coles sought review of the trial court’s October 2, 2023 judgment
denying their motion for summary judgment. This court denied their writ application. 3 Trial commenced on May 1, 2024. At trial, the court considered the
testimony of the Coles, their medical expert, Dr. Williams, their daughter, Shonda
Jenkins, Blanchard, Deputy Chief of Operations of NOEMS, Christopher Keller,
and Captain Paul Steele of the New Orleans Fire Department. On May 10, 2024,
the trial court rendered its judgment and written reasons finding no liability on
behalf of NOEMS, the City, Blanchard and Manning. The Coles filed a motion for
devolutive appeal on May 30, 2024.
Standard of Review
The standard of review in a medical malpractice action is the manifest error
or clearly wrong standard that is applicable to ordinary negligence actions.
Johnson v. Ray, 12-0006, p. 6 (La. App. 4 Cir. 12/5/12), 106 So.3d 629, 635
(citation omitted). “In order to reverse a fact-finder's determination, an appellate
court must review the record in its entirety and make the following two
determinations: [i] that a reasonable factual basis does not exist for the finding, and
[ii] that the record establishes that the fact-finder is clearly wrong or manifestly
erroneous.” Serpas v. Tulane Univ. Hosp. & Clinic, 13-1590, pp. 12-13 (La. App. 4
Cir. 5/14/14), 161 So.3d 726, 736 (citing Salvant v. State, 05-2126, p. 5 (La.
7/6/06), 935 So.2d 646, 650). The appellate court’s duty is to determine whether
the factual findings made by the trial court are reasonable. Id. If there are two
permissible views of the evidence, then the fact-finder’s conclusion cannot be
manifestly erroneous or clearly wrong. Wallace v. Howell, 09-1146, p. 2 (La. App.
4 Cir. 1/13/10), 30 So. 3d 217, 218.
4 Assignments of Error
On appeal, the Coles raise four assignments of error. In the first assignment
of error, the Coles assert that the trial court was clearly wrong in not accepting as
true the testimony of the accepted medical expert, Dr. Gerald Williams. In the
second assignment of error, the Coles state that the trial court was manifestly
erroneous in not recognizing that Mr. Coles’ constitutional and statutory rights to
refuse treatment were violated by defendants. In the third assignment of error, the
Coles argue that the trial court erred in denying the admission of Dr. Williams’
affidavit. In the final assignment of error, the Coles argue the trial court was
clearly wrong in not finding by a preponderance of the evidence and/or through the
doctrine of res ipsa loquitor that Mr. Cole was not dropped by the defendants. For
the purposes of clarity and cohesion, we will consider assignments of error
numbers one and three together as these assignments reference the Coles’ expert,
Dr. Gerard Williams’ testimony at trial and his trial affidavit which the trial court
excluded as an exhibit.
Discussion
Assignments of Error Numbers One and Three
In the first assignment of error, the Coles assert that the trial court did not
accept the testimony of their expert, Dr. Gerard Williams, as true. Dr. Williams is
a board-certified physician in internal medicine and has been a practicing physician
since 1996. He also trained in the field of pediatrics and is a medical director at
two senior care facilities in Lafayette, Louisiana. Dr. Williams was the sole
5 physician on the MRP that reviewed Mr. Cole’s care and treatment by Blanchard
and Manning. After the MRP rendered its opinion, Dr. Williams was contacted by
counsel for Mr. Cole to review Mr. Cole’s medical records and render an expert
opinion. In preparation for trial, Dr. Williams reviewed the records of Mr. Cole
prior to the June 23, 2017 incident and shortly thereafter. After a review of these
records, Dr. Williams’ testified to his opinion at trial that it was highly probable
that Mr. Cole suffered some type of trauma between the time EMS transported him
from his home to the hospital. He stated that there was no evidence of back pain or
fractures in Mr. Cole’s medical records prior to June 23, 2017. Yet after the June
2017 emergency room admission, an X-ray of the spine showed compression
fractures at Mr. Cole’s thoracic and lumbar vertebrae, T4, T5 and L1.
At trial, counsel for appellees challenged Dr. Williams’ expertise in geriatric
medicine but, after questioning his background and education, did not object to
admitting Dr. Williams as an expert in internal medicine and pediatrics. The
Coles’ counsel and the trial court judge then queried the doctor about his
experience in geriatrics. After this colloquy, the trial judge certified Dr. Williams
as an expert in the field of geriatric medicine, based on his experience, expertise
and the fact that he was a member of the MRP.
After a thorough review of the trial transcript, the judgment of the trial court
and its well-reasoned written reasons, we do not find any evidence that the trial
court did not accept Dr. Williams’ testimony. The court qualified him as an expert
in geriatrics, a field for which he is not board-certified. Instead, his specialty and
6 early training were in internal medicine and pediatrics. The trial court was
persuaded by his work with two senior care facilities in Lafayette, Louisiana, and
that he had been responsible for at least two hundred patients there since 2008.
Further, the court did not strike Dr. Williams’ testimony. The record is
devoid of evidence that the trial court did not accept his testimony as true. Instead,
the court allowed him to testify as an expert over the objection of the appellees and
considered his testimony in light of the other testimony and evidence before it.
Thus, we do not find that the trial court committed manifest error in its
consideration of the expert testimony.
In assignment of error number three, the Coles assert that the trial court
erred when it denied the admission of Dr. Williams’ affidavit. A trial court is given
vast discretion in its evidentiary rulings, and its decision to admit or exclude
evidence will not be reversed on appeal in the absence of a clear abuse of
discretion. Moonan v. La. Med. Mut. Ins. Co., 16-113, p. 7 (La. App. 5 Cir.
9/22/16), 202 So.3d 529, 534 (citation omitted). The appellate court must review
whether the ruling was in error and if the error prejudiced the complainant’s case.
(citation omitted). The complainant must prove that the error, in comparison of the
total record, had a substantial impact on the outcome of the case. Id. See also
Perniciaro v. Hamed, 20-62 p. 29 (La. App. 5 Cir. 12/16/20), 309 So.3d 813, 835.
In the instant matter, Dr. Williams was available and testified at trial.
Counsel for the Coles had the opportunity to elicit pertinent and relevant testimony
regarding his medical opinion as to the cause of Mr. Cole’s compression fractures.
7 Further, Dr. Williams was subject to cross-examination and rebuttal. A complete
record was made of Dr. Williams findings in the trial court. Thus, we find no
prejudice here. Weighing the totality of the circumstances, the trial court did not
commit an abuse of discretion in denying the doctor’s affidavit to be admitted into
evidence.
Assignment of error number 2
The Coles aver that the trial court was manifestly erroneous in not
recognizing his right to refuse transport to the hospital pursuant to La. R.S.
40:1159.7, which provides that “[n]othing contained herein shall be construed to
abridge any right of a person eighteen years of age or over to refuse to consent to
medical or surgical treatment as to his own person.”2 La. R.S. 40:1159.4(1)
provides that an adult is empowered to consent to any surgical or medical
procedures not prohibited by law. In the case of an emergency, however, an adult’s
consent may be overridden. La. R.S. 40:1159.5(A) states:
In addition to any other instances in which a consent is excused or implied at law, a consent to surgical or medical treatment or procedures suggested, recommended, prescribed, or directed by a duly licensed physician will be implied where an emergency exists. For the purposes hereof, an emergency is defined as a situation wherein: (1) in competent medical judgment, the proposed surgical or medical treatment or procedures are reasonably necessary; and (2) a person authorized to consent under R.S. 40:1159.4 is not readily available, and any delay in treatment could reasonably be expected to jeopardize the life or health of the person affected, or could reasonably result in disfigurement or impair faculties.
2 The Coles cited La.R.S. 40:1299.56 in his brief. La. R.S. 40:1159.7 has been redesignated
from R.S. 40:1299.56 by H.C.R. No. 84 of the 2015 Regular Session. Added by Acts 1975, No. 798, § 1. 8 At trial, the Coles testified that Mr. Cole did not want to be transported to
the hospital. Mr. Cole testified that he refused to go to the hospital because he was
no longer seizing and he felt okay. He asserted that NOEMS were determined to
take him despite his objections. But he did not resist them. Mrs. Cole testified that
he eventually acquiesced in the transport, but reiterated his unwillingness to go.
Mrs. Cole said that even though he did not want to leave, “he did what he had to
do.” The record is devoid of any testimony or evidence that Mr. Cole was forcibly
removed by NOEMS.
In his brief to this Court, counsel for Mr. Cole focused on the Glasgow score
used by the paramedics on scene in assessing Mr. Cole prior to transporting him to
the hospital to support his contention that Mr. Cole had the mental capacity to
refuse transport. The Glasgow score, according to the testimony of Blanchard, is a
method by which EMS assess a patient’s mental status. Mr. Cole received a score
of 14 on a scale of 15. A score of 15 means the patient is fully alert, aware of his
circumstances and oriented as to time and place. Since Mr. Cole received a
Glasgow score of 14, the Coles argue that there was no sense of urgency in
bringing Mr. Cole to the hospital because he was oriented as to time and place.
They also assert that EMS’s decision to transport Mr. Cole over his objection
violated his right to refuse treatment.
Blanchard testified that when he and his partner, Manning, arrived, Mr.
Cole’s family seemed concerned with his altered mental status.3 They assessed him
and deemed that Mr. Cole had a new onset of confusion. He recalled Mr. Cole
saying he did not want to go to the hospital, but they continued to ask him
3 Nicholas Manning did not appear for trial. He presently resides out of town and his counsel
waived his appearance. 9 questions and assess his vital signs. In regard to the Glasgow score assessed to Mr.
Cole, Blanchard testified that even though Mr. Cole received a score of 14, he was
very confused after his apparent seizure. In the end, they transported Mr. Cole
because he had no prior history of seizures, his mental status was altered, and they
were concerned he may have suffered a stroke.
At the time the June 23, 2017 incident occurred, Mr. Cole was a 75-year-old
man with a number of health problems. EMS evaluated him thoroughly and
determined that a new onset of seizure and his altered mental status necessitated
his transport to the hospital. As Blanchard testified, “Time is brain cells.” The trial
court found that EMS adhered to proper protocol, and their determination that Mr.
Cole did not have the capacity to refuse treatment did not violate the standard of
care. After a review of the record and the applicable law, we agree and find that
EMS acted pursuant to La. R.S. 40:1159.5 because they reasonably believed that
any delay in diagnosis or treatment could have been harmful to Mr. Cole. We do
not find that the trial court failed to recognize Mr. Cole’s constitutional and
statutory rights; instead, we agree with the trial court that NOEMS could supersede
those rights in order to prevent harm to Mr. Cole. Therefore, we find no error in the
trial court’s finding.
Assignment of error number 4
Lastly, the Coles argue that the trial court erred in not finding by a
preponderance of the evidence and/or through the doctrine of res ipsa loquitor that
Mr. Cole was dropped by Blanchard and Manning. We first address the doctrine
of res ipsa loquitor, which according to the Louisiana Supreme Court must be
“sparingly applied.” Spott v. Otis Elevator Co., 601 So.2d 1355, 1362 (La.
1992) (citing Day v. National U.S. Radiator Corp., 241 La. 288, 128 So.2d 660, 10 665 (1961)). The doctrine only applies when “the circumstances surrounding an
accident are so unusual” as to give rise to an inference of negligence. Id. It does
not apply to cases involving ordinary accidents or injuries that often occur in the
absence of negligence. Id.
We note that this doctrine was not raised by the Coles in their petition for
damages or argued at trial. Further, the trial court makes no mention of the doctrine
in its trial judgment or written reasons. Issues raised for the first time on appeal are
not properly before an appellate court. See Quinn v. Palmer, 23-0181, p. 16 (La.
App. 4 Cir. 2/5/24), 385 So.3d 249, 260 (citation omitted). “It is well settled that
appellate courts will not consider issues raised for the first time, which are not
pleaded in the court below and which the district court has not addressed.” Hardy
v. Juvenile Just. Intervention Ctr., 21-0715, p. 5 (La. App. 4 Cir. 6/15/22), 342
So.3d 1076, 1080 (citation omitted). Thus, we decline to discuss the doctrine of res
ipsa loquitor further and instead address the trial court’s factual finding that Mr.
Cole was not dropped by Blanchard and Manning.
“In a medical malpractice case, a plaintiff must establish the following three
elements: (i) the standard of care applicable to the defendant; (ii) the defendant
breached that standard of care; and (iii) the existence of a causal connection
between the breach and the resulting injury.” Patrick v. Triay, 22-0766, p. 5 (La.
App. 4 Cir. 1/26/23), 357 So.3d 872, 875-76 (citation omitted). See also La. R.S.
9:2794 (A). As a general rule, the plaintiffs must provide expert testimony in order
to establish the necessary elements for plaintiffs to meet their burden of proof.
Hawthorne v. Tulane Med. Ctr., 22-0362, p. 7 (La. App. 4 Cir. 12/12/22), 367
So.3d 689, 695 (citation omitted).
11 The standard of care applicable to EMS practitioners is set forth in La. R.S.
40:1133.13(A)(1):
Any certified ambulance operator, certified pursuant to the provisions of this Part, or any emergency medical services practitioner, licensed pursuant to the provisions of this Part, who renders emergency medical care to an individual while in the performance of his medical duties and following the instructions of a physician shall not be individually liable to the individual for civil damages as a result of acts or omissions in rendering the emergency medical care, except for acts or omissions intentionally designed to harm, or for grossly negligent acts or omissions which result in harm to the individual.
Thus, in order for NOEMS to be held liable for injuries allegedly sustained as a
result of their medical treatment of Mr. Cole, the Coles must demonstrate more
than mere negligence. They have to show that Blanchard and Manning either
intentionally tried to harm Mr. Cole, or the harm was caused by gross negligence.
At trial, Blanchard testified that neither he nor his partner dropped Mr. Cole
as they carried him down the stairs of his home. He also testified that had they
dropped Mr. Cole they would have notated the incident in their electronic care
report. They further testified that they likely would not have suffered any
punishment from their employer. The testimony of Christopher Keller bolstered
this testimony. Chief Keller testified that he was well acquainted with EMS
policies regarding discipline and reporting requirements. He referred to a specific
clinical policy that encourages NOEMS to self-report accidents and errors that
cause injury to a patient. He asserted that as long as an incident is reported timely
and not concealed, the NOEMS involved in the incident were not subject to
punitive action.
Although Manning did not appear at trial, he testified in his deposition that
he and Blanchard did not drop Mr. Cole. Also, Captain Paul Steele with the New
Orleans Fire Department testified that he and a couple of his men assisted the 12 paramedics in transporting Mr. Cole down the stairs of his home in the Reeves
stretcher. In addition to his occupation as a fireman, Captain Steele is also trained
in emergency medical services. On June 23, 2017, he and his crew responded to
Mrs. Cole’s 911 call. He stated that protocol provides when firemen arrive before
NOEMS they assess the patient, take vital signs, and treat for life threats. If they
arrive at the same time as NOEMS or after, the firemen assist NOEMS. On the
night of the incident, Captain Steele’s crew arrived at the same time as NOEMS.
They assisted NOEMS with bringing the necessary equipment inside of the house,
and maintained a backup position as NOEMS assessed Mr. Cole.
Captain Steele testified that once NOEMS decided to transport Mr. Cole to
the hospital, he and the firemen assisted in his transport down the stairs. Captain
Steele had a crew of four at the time of the incident. He, NOEMS and at least one
other member of his New Orleans Fire Department crew were on each corner of
the stretcher for the transport. Captain Steele denied dropping Mr. Cole and stated
that it would have been an abnormal event; therefore, he would have been required
to document it. He also testified that he did not witness any physical trauma to Mr.
Cole prior to or after his transport from upstairs of the home to the ambulance.
Mr. Cole was the sole witness at trial to allege that he had been dropped.
Mrs. Cole and their daughter, Shonda Jenkins, both testified that they were not
near the stairs during Mr. Cole’s transport. Instead, they both testified that NOEMS
asked them to remain upstairs until they moved Mr. Cole downstairs. Ms. Jenkins
testified that she heard a thump on the stairs during his transport, but no other
corroborating testimony was elicited for Mr. Cole’s assertion that he was dropped.
Moreover, Dr. Williams, the Coles’ expert, could not definitively state that Mr.
Cole was dropped. Although he opined that it was possible and probable that Mr. 13 Cole suffered a trauma between the time NOEMS removed him from the home and
he arrived at the hospital because there was no evidence of compression fractures
in his medical records prior to his admission to the emergency room on June 23,
2017, he could not testify with certainty that Blanchard and Manning breached the
standard of care in transporting Mr. Cole. Later in his testimony, he stated: “I
probably believe that he was dropped.” Yet, when specifically asked whether the
EMS breached their standard of care, he said: “That is a harsh statement which it
was because there were some things that were done by NOEMS that were
appropriate. If he was dropped or fell that was inappropriate.”
The relevant standard of care here is not ordinary negligence. Possible
inappropriate conduct by NOEMS is not conclusive of gross negligence or
intentional conduct. Gross negligence has been defined by the jurisprudence as
“want of even slight care and diligence” and “want of that diligence which even
careless men are accustomed to exercise.” See Ambrose v. New Orleans Police
Dep’t Ambulance Serv., 93-3099, p. 5 (La. 7/5/94), 639 So.2d 216, 219 quoting
State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942) (citation omitted).
In order to prevail on the merits at trial, the Coles had to prove at trial that
they could meet each element of their claim for medical malpractice, yet their
expert could not establish the principal requirement-that the standard of care was
breached. After review of the judgment of the trial court and its written reasons, we
find that the trial court was not manifestly erroneous in finding that the Coles
failed to prove by a preponderance of the evidence that Blanchard and Manning
dropped Mr. Cole. We pretermit discussion of the other elements required to
establish medical malpractice for this reason.
14 DECREE
For the reasons discussed herein, we affirm the judgment of the trial court.
AFFIRMED