Johnson v. Foti

844 So. 2d 1050, 2002 La.App. 4 Cir. 1995, 2003 La. App. LEXIS 1102, 2003 WL 1879132
CourtLouisiana Court of Appeal
DecidedApril 9, 2003
DocketNo. 2002-CA-1995
StatusPublished
Cited by4 cases

This text of 844 So. 2d 1050 (Johnson v. Foti) 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. Foti, 844 So. 2d 1050, 2002 La.App. 4 Cir. 1995, 2003 La. App. LEXIS 1102, 2003 WL 1879132 (La. Ct. App. 2003).

Opinion

1MURRAY, Judge.

Defendants, Orleans Parish Criminal Sheriff Charles Foti and his employee, Mr. Christopher Sampey, appeal the trial court’s judgment in favor of the plaintiff, Shawn Jones 1, awarding her damages in a wrongful death action. For the reasons that follow, we affirm.

FACTS

Darryl Jones, the father of plaintiff Shawn Jones, died of cardiac arrest on March 13, 1987, at Charity Hospital, shortly after being transported there by ambulance from the Orleans Parish Prison, where he had been an inmate. Mr. Jones, who was complaining of chest pains and shortness of breath, was evaluated by defendant Sampey, a corpsman at the jail, at approximately 7:05 a. m. on March 13. Mr. Sampey concluded that Mr. Jones’ pain was probably musculo-skeletal, and prescribed Tylenol and twenty-four hours of bed rest, following which Mr. Jones returned to his cell. Then, at 8:55 a.m., a deputy found Mr. Jones non-responsive and seizing in his cell. Mr. Sampey and Dr. Alper, the physician on | ¡fluty at the prison, were called. Dr. Alper ordered that Mr. Jones be transferred immediately to Charity Hospital. Mr. Jones was then placed on a gurney and taken by elevator from the eighth floor down to an ambulance that was parked at the jail for the purpose of transporting inmates. According to Mr. Sampey, Mr. Jones was breathing and had a faint pulse in the elevator. Mr. Sampey and another corpsman, Mr. Darensburg, accompanied Mr. Jones in the ambulance; Dr. Alper did not. En route to the hospital, Mr. Jones went into cardiac arrest. The two corpsmen began CPR, and while Mr. Sampey was performing the chest compressions, Mr. Jones vomited. There is conflicting evidence, as to whether Mr. Jones’ airway was then cleared, and specifically as to whether he was “bagged” or ventilated during transport. Mr. Jones arrived at Charity Hospital in full cardiac arrest, with no pulse or respiration. Attempts to revive him were unsuccessful, and he was pronounced dead at 9:38 a.m.

PROCEEDINGS BELOW

The instant wrongful death suit was filed on March 11, 1988, by Connie Johnson, on behalf of her then minor child, Shawn Jones, and by Clara Jones, mother of the decedent. After Shawn Jones became a major, she was substituted as party plaintiff and Connie Johnson was removed.2 Also, on September 17, 2001, the trial court maintained the defendants’ exception of no right of action as to plaintiff Clara Jones and dismissed her claims with prejudice.3

LThe matter was tried without a jury on March 25, 2002. The witnesses included the original plaintiffs (Shawn Jones, Connie Johnson, and Clara Jones), Mr. Sam-pey, Dr. Alper, and two medical experts, Dr. Kevin White and Dr. Gregory Vorhoff. On June 6, 2002, the trial court rendered [1053]*1053judgment awarding the plaintiff $85,000 in damages against both defendants. In written reasons for judgment, the trial court stated that the defendants’ liability was based upon the negligent failure to administer proper treatment to Mr. Jones when he went into cardiac arrest in the ambulance, which caused him to lose a chance for survival. Turning to damages, the court noted that the award did not include any amount for the pain and suffering of Mr. Jones (the survival action), but was entirely based upon the relationship between Mr. Jones and his daughter, Shawn.

The defendants filed a suspensive appeal, asserting three assignments of error: (1) The trial court committed legal error by judging the conduct of the two corpsmen who accompanied Mr. Jones in the ambulance according to an ordinary negligence standard; (2) The trial court committed manifest error by concluding that the fault of defendants caused Mr. Jones to lose a chance of survival; and (3) The trial court abused its discretion by awarding an excessive amount of damages.

DISCUSSION

I. The Standard of Care

The defendants contend that the trial court applied the wrong standard of care. in assessing the fault of the two corpsmen who accompanied Mr. Jones in the ambulance. The trial court found that the corpsmen were negligent in that they did I ¿not properly perform CPR, which negligence decreased Mr. Jones’ chance of survival. The defendants argue that pursuant to La. R.S. 40:1235(A), as in effect at the time of Mr. Jones’ death in 19874, the two corpsman are immune from liability, except for acts or omissions that are intentionally designed to harm or are grossly negligent. R.S. 40:1235(A)(1) provides that medical technicians who render emergency medical care to a person “while in the performance of [their] medical duties and following the instructions of a physician” cannot be held individually liable to that person for civil damages as a result of acts or omissions in rendering said care, “except for acts or omissions intentionally designed to harm, or for grossly negligent acts or omissions which result in harm to such person.” Part 2 of the statute (40:1235(A)(2)) extends the immunity granted by Part 1 to parish governing authorities, police departments, sheriffs offices and other public agencies engaged in rendering emergency medical services, and to their insurers.

In response to the defendants’ argument, the plaintiff contends that the immunity statute does not apply because corpsman Sampey was not “following the instructions of a physician” within the terms of the statute. Alternatively, the plaintiff asserts that should corpsman Sampey be found to have been acting under the instruction of Dr. Alper, the corpsman’s failure to clear Mr. Jones’ airway after he vomited during CPR nevertheless constitutes “gross negligence.” Because the defendants’ argument regarding immunity is being asserted for the first time on appeal, the trial court did not consider either of these issues.

|fiWith regard to these issues, there is no evidence of any communication between Dr. Alper and Mr. Sampey after the corpsman left Mr. Jones’ cell with the gurney. Dr. Alper testified that, upon arriving at the cell and examining Mr. Jones, he told corpsman Sampey to give him oxygen, put him on the gurney and get him to Charity Hospital. An assessment form filled out by Dr. Alper after he returned to his office also reflects that he instructed [1054]*1054the corpsman to give oxygen to Mr. Jones. Mr. Sampey testified, however, that he never administered oxygen, either while Mr. Jones was on the gurney or while he was in the ambulance.

In view of these facts, we cannot find that Mr. Sampey was “following the instructions of a physician” within the terms of the immunity statute when he failed to clear Mr. Jones’ airway. In Ambrose v. New Orleans Police Department, 627 So.2d 238, 242-43 (La.App. 4th Cir. 1993), reversed on other grounds, 93-3099, 3110, 3112 (La.7/5/94), 639 So.2d 216, this court held that an emergency room technician was considered to have been following the instructions of a physician, pursuant to R.S. 40:1235(A), whether he had received those instructions via electronic means or he was following a “protocol,” defined as a prescribed set of instructions established by physicians of the Orleans Parish Medical Society. In the instant case, there was no evidence concerning protocols. Moreover, Mr. Sampey clearly did not receive any instructions from Dr. Alper other than to transport Mr. Jones to the hospital and to give him oxygen. As the corpsman admittedly did not administer oxygen, he failed to follow the physician’s instructions.

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Bluebook (online)
844 So. 2d 1050, 2002 La.App. 4 Cir. 1995, 2003 La. App. LEXIS 1102, 2003 WL 1879132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-foti-lactapp-2003.