Johnson v. CLD, Inc.

179 So. 3d 695, 2015 La. App. LEXIS 1902, 2015 WL 5715131
CourtLouisiana Court of Appeal
DecidedSeptember 30, 2015
DocketNo. 50,094-CA
StatusPublished
Cited by3 cases

This text of 179 So. 3d 695 (Johnson v. CLD, 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
Johnson v. CLD, Inc., 179 So. 3d 695, 2015 La. App. LEXIS 1902, 2015 WL 5715131 (La. Ct. App. 2015).

Opinion

GARRETT, J.

|rIn this medical malpractice case, the widow and adult children óf the late L.D. Johnson, Sr. — who' allegedly died as the result of negligence on the part of the staff at a nursing home where he had been a resident — appeal from a jury verdict and judgment that awarded only $100,000 in survival action damages. The children also appeal from the jury’s failure to grant them any damages for wrongful. death when the widow was awarded $75,000 for such damages.1 The Louisiana Patient’s Compensation Fund (“PCF”) also appeals the award of judicial interest from April 8, 2009, and from the trial court’s action in granting the plaintiffs’ motion for judgment notwithstanding the verdict (“JNOV”), which awarded recovery of all medical bills introduced at trial. For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings.

[699]*699FACTS '

Mr. Johnson, age 80, was admitted to Green Meadow Haven Nursing and Rehabilitation Center (“Green Meadow Haven”) in Coushatta on July 7, 2008. He had suffered a stroke and had several other health issues, some heart-related. He was also incontinent, had only one kidney as the result of kidney cancer, and required an indwelling catheter, as per his doctor’s orders.

On November 11, 2008, his Foley catheter was removed, possibly by Mr. Johnson. However, it was not replaced by the nursing staff, apparently following a nursing home policy not to reinsert a catheter if it came out. When one of his daughters, Cathy Redding, visited him on November 15, | p.2008. he was unresponsive. According to the nurse’s notes, he was not responsive to verbal or painful stimuli. He was taken to Christas Coushatta Health Care Center by ambulance that afternoon. When a catheter was inserted in thé emergency room, 800 milliliters of “thick, brownish urine,” more than thrée times the normal amount expected upon insertion of a catheter, was released. Mr. Johnson had developed a urinary tract infection (“UTI”), which had progressed into severe sepsis and septic shock. Later that evening, he was transferred by ambulance to .Christas St. Francis Cabrini Hospital (“Cabrini”), an acute care facility in Alexandria. Various family members followed in another vehicle. At Cabrini, he was admitted to the intensive care unit for treatment of septic shock.. He was also found to have acute renal failure, for which he was aggressively hydrated. He was further diagnosed with Clostridium difficile colitis; congestive heart failure, secondary to his hypermetabolic state due to the sepsis; and atrial fibrillation. His biliru-bin rate was elevated, and his ultrasound result was consistent with acalculous chole-cystitis (or acute inflammation of the gallbladder in the absence of gallstones). Following treatment, his white blood count started to decline 'and his clinical status improved. Nonetheless, according to his medical records, a consulting doctor described him on November 18, 2008, as remaining “critically ill with [a] guarded prognosis.” ■

On November 19, 2008, Mr. Johnson was transferred to Dubuis Hospital (“Dubuis”), a long-term acute care facility, where he remained for about three weeks. On December 12, 2008, he was. released to Leslie Lakes | Retirement Center . (“Leslie Lakes”), a skilled nursing facility. On December 15, 2008, he was noted as having increased lethargy. He was transferred by ambulance to the emergency room of Minden Medical Center, where he was admitted with a fever, UTI, altered mental status, and worsening renal insufficiency. His condition progressively worsened, and he died on December 25,2008.

A complaint against the nursing home was filed by Mr. Johnson’s family in April 2009. A medical review panel (“MRP”) was later convened to consider the complaint, and its opinion was rendered- in April 2011. Two of the three doctors, Dr. E. Allan Webb and Dr. Clarence R. Teaglé (both of whom are board-certified in internal medicine), concluded that, by failing to reinsert the catheter or consult with Mr. Johnson’s treating physician, the nursing home staff had breached the standard of care. They opined that the breach “led to a chain of events causing a downward spiral of Mr. Johnson’s already compromised health.” As a result, they found that the breach caused and/or contributed to his death. The third panel member, Dr. Allen J. Herbert (who was board-certified in family practice), disagreed, stating that Mr. Johnson appeared to make a good recovery from the UTI, sepsis and septic [700]*700shock. Given Mr. Johnson’s age and “vast array” of medical'problems, 'Dr. Herbert did not find that the nursing home staffs action constituted a breach of the standard of care. If it was a breach, he was not comfortable stating that it contributed to or hastened Mr. Johnson’s death.

Suit was filed on September 14, 2011, by Mr. Johnson’s widow, Claudia Johnson, and nine of his 10 children (“the plaintiffs’’).2 Named as defendant was OLD, Inc., the entity doing business as Green Meadow Haven; it answered the petition with a general denial. In December 2011, Mr. and Mrs. Johnson’s remaining child, Ms. Redding, filed a motion to intervene hi the original petition.3

In January 2012, the appellants filed a petition for authority to settle with reservation of rights. They stated that they had settled with the nursing' home for $100,000, while reserving their rights against the PCF to seek additional recovery, plus medical expenses and legal interest from the date of filing of the original claim and costs. The PCF filed an opposition to the petition, in which it offered no objection to the underlying settlement while affirmatively asserting that the damages spught were not caused by the nursing home’s employees and pleading the-limitations of recovery in the Louisiana Medical Malpractice Act (“LMMA”). Judgment was signed on February 16, 2012, approving the settlement, dismissing all claims against the nursing home (which would remain as a nominal defendant), and reserving all claims against the PCF. Additionally, the PCF was deemed entitled to a credit of $100,000. A further judgment of dismissal was signed on March 26,2012.

| (¡The matter was tried before a jury on June 18, 2014. Mrs. Johnson and three of her daughters, testified at trial. Stipulations were entered as to the testimony of the other seven children. (Among other things, the stipulations provided that two daughters who lived out-of-state and two sons who were incarcerated were unable to be present during much of their father’s last illness.) All three of the MRP doctors testified in conformity with the opinions they expressed in their written opinion. Dr. Teagle and Dr. Webb testified on behalf of the appellants. In addition to Dr. Herbert, the PCF called Dr. Robert Hernandez, who testified as an expert witness in internal medicine. Dr. Hernandez agreed with Dr. Herbert that Mr. Johnson appeared to have recovered from the consequences of. the failure to reinsert the catheter (UTI, sepsis and septic shock) back to his “baseline” by the time he was discharged to Leslie Lakes. However, he disagreed with Dr. Herbert’s opinion that the nursing home committed no breach of the standard of care.

The jury awarded $100,000 in damages for Mr. Johnson’s physical pain and suffering, 'mental anguish and distress, and loss of quality of life, and$75,000 to Mrs. Johnson for the loss of her husband’s love, affection and companionship. However, the jury awarded no damages to any of the children and no recovery for medical ex[701]*701penses.

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Bluebook (online)
179 So. 3d 695, 2015 La. App. LEXIS 1902, 2015 WL 5715131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-cld-inc-lactapp-2015.