Johnson v. Ray

106 So. 3d 629, 2012 La.App. 4 Cir. 0006, 2012 WL 6055584, 2012 La. App. LEXIS 1582
CourtLouisiana Court of Appeal
DecidedDecember 5, 2012
DocketNos. 2012-CA-0006, 2012-CA-0007
StatusPublished
Cited by7 cases

This text of 106 So. 3d 629 (Johnson v. Ray) 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. Ray, 106 So. 3d 629, 2012 La.App. 4 Cir. 0006, 2012 WL 6055584, 2012 La. App. LEXIS 1582 (La. Ct. App. 2012).

Opinion

JAMES F. McKAY III, Judge.

hln this survival and wrongful death action, the defendants, Nursefinders, Inc. and National Union Fire Insurance Company, appeal the trial court’s judgment in favor of the plaintiff, Desiree Johnson. We affirm. The defendants also raise an exception of prescription, which we deny.

FACTS AND PROCEDURAL HISTORY

On the night of May 11, 2000, John Johnson was admitted to Tulane University Medical Center. Prior to his admission, Mr. Johnson, an insulin-dependent diabetic ■with a history of drug use, had experienced abdominal and back pain accompanied by vomiting, which lead to severe dehydration. His admitting and treating physician, Dr. Tracy Conrad, diagnosed him with diabetic ketoacidosis. Dr. Conrad’s plan was to get Mr. Johnson’s diabetic ketoacidosis under control with gentle hydration and management of blood sugars through insulin therapy. At approximately 9:00 a.m., on the morning of May 12, 2000, Dr. Conrad determined that Mr. Johnson’s condition was improving and he continued to prescribe general hydration, antibiotics, and management of blood sugars.

|2Puring the day on May 12, 2000, Mr. Johnson was cared for by Tulane University Medical Center’s regular nursing staff. One of those nurses, Ms. D. Williams, performed two head-to-toe assessments of Mr. Johnson. In her notes, she indicated that Mr. Johnson’s abdomen was soft and that he had active bowel sounds and yellow urine. She also noted that he had equal range of motion, equal and strong extremity strength, and a steady gait.

At 7:00 p.m., on May 12, 2000, Mr. Johnson’s nursing care was assumed by Harriet Fleming Ray, an agency nurse provided by Nursefinders, Inc. Normally, Ms. Ray would perform an initial assessment of each patient under her care and then return to conduct a full head-to-toe assessment. When Ms. Ray first visited Mr. Johnson’s room, Mr. Johnson and his wife, Desiree, informed her that Mr. Johnson’s legs were numb and that his leg had flopped out of the bed. Ms. Ray told the Johnson’s that this was caused by Mr. Johnson’s fever. Ms. Ray did not report this change in Mr. Johnson’s condition to the charge nurse or a physician.

[634]*634When Ms. Ray conducted the head-to-toe assessment of Mr. Johnson at approximately 8:15 p.m., on May 13, 2000, she noted that he had a firm abdomen and weak extremity strength. However, there is no indication if this weakness was equal or unequal. Ms. Ray also failed to note any comments under “sensation” and was “unable to assess” Mr. Johnson’s mobility. Again, Ms. Ray did not report this change in condition to a charge nurse or a physician.

At approximately 3:40 a.m., on May 13, 2000, Mr. Johnson complained of being unable to move his legs at all. The nurse’s notes indicated that he had not |seliminated since 1:30 p.m. the previous day. At his time, Ms. Ray inserted a Foley catheter and relieved Mr. Johnson of a significant amount of dark brown urine. It was also at this time that Ms. Ray first notified the charge nurse of the change in Mr. Johnson’s condition. The charge nurse notified Dr. Jens Eichorn, a resident in internal medicine. Mr. Johnson was likely already a paraplegic with little chance of recovery at this time.

An MRI revealed an epidural abscess at the T-5 to T-7 level. A neurosurgeon was called in and emergency spinal surgery was performed. Following the surgery, Mr. Johnson was a paraplegic below his mid-thoracic region.

On March 27, 2001, Mr. and Mrs. Johnson initiated a Medical Review Panel proceeding against Tulane and Mr. Johnson’s treating physicians. On January 14, 2003, Mr. and Mrs. Johnson supplemented their complaint to name “Nurse Harriet.” On December 29, 2003, they again supplemented their complaint to name Harriet Ray and Nursefinders. When the Patient’s Compensation Fund notified Mr. and Mrs. Johnson that Nursefinders and Ms. Ray were not qualified healthcare providers under the Louisiana Medical Malpractice Act, the Johnsons filed a lawsuit against Nursefinders and Ms. Ray in Orleans Parish Civil District Court.1 After the Medical Review Panel rendered its opinion concerning the qualified defendants, the plaintiffs then amended their lawsuit to add the qualified defendants.

|4On August 18, 2008, Mr. Johnson died due to complications from his paraplegia. On June 23, 2009, Mrs. Johnson filed a wrongfül death and survival action in Orleans Parish Civil District Court.2 The trial court consolidated this lawsuit with the pending medical malpractice action for purposes of discovery and trial. In October of 2010, the trial court severed the two cases.3 The wrongful death and survival action proceeded to trial on March 15 and 16, 2011. After trial, the court awarded the following damages: $900,000.00 for survival; $150,000.00 for wrongful death; $126,105.14 for medical expenses; $178,233.50 for lost wages; and $4,239.00 for funeral and burial expenses.

On June 13, 2011, Mrs. Johnson filed a motion for new trial to establish date of first judicial demand for pre-judgment interest, contending that interest should be calculated from the filing of the 2004 lawsuit. She later amended her request to seek interest from the date of the filing of the PCF complaint. The trial court agreed with the plaintiff and issued a judgment decreeing that interest on the survival, medical expenses, and lost wages damages accrues from March 27, 2001. Following the judgment on new trial, the plaintiff filed a motion to tax costs totaling [635]*635$33,641.37. The trial court awarded these costs.

On September 27, 2011, Nursefinders filed a petition and order for suspensive appeal of the original judgment, the judgment on motion for new trial, and the judgment awarding costs. On February 16, 2012, Nursefinders filed an exception of prescription in this Court.

|,DISCUSSION

On appeal, the defendants raise the following assignments of error: 1) the finding that the conduct of Nursefinders’s licensed practical nurse (LPN) caused Mr. Johnson’s paraplegia is erroneous; 2) the trial court erred in excluding the expert opinions of Dr. Donald Dietze, the neurosurgeon who performed the emergency laminectomy on Mr. Johnson; 3) the trial court erred in allowing a non-practicing rehabilitation doctor, Dr. Harold Katz, to testify as to expert opinions in neurology/neurosurgery, acute care of spinal cord injuries, and the standard of care applicable to acute care hospital nurses; 4) the trial court’s allocation of 100 % fault to Nursefinders and the allocation of no comparative fault to Tulane and its staff and physicians is erroneous; 5) wrongful death damages of $150,000.00 is an excessive award to a wife who has been separated from her husband for six years at the time of death; 6) the judgment erroneously awards lost wages that are completely unsupported by fact or expert evidence; 7) the judgment on motion for new trial erroneously calculates interest on the survival damages in this suit filed in 2009 against non-qualified healthcare providers as relating back to the 2001 filing of the Patient’s Compensation Fund Complaint against qualified providers who were not parties to the judgment awarding the damages; and 8) specific items of costs taxed by the trial court are not allowed by statute or are an abuse of the court’s discretion. The defendants also raise an exception of prescription.

| bFactual Findings

In their first specification of error, the defendants contend that the trial court erroneously found that the conduct of Ms.

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106 So. 3d 629, 2012 La.App. 4 Cir. 0006, 2012 WL 6055584, 2012 La. App. LEXIS 1582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-ray-lactapp-2012.