Judalet v. Kusalavage

762 So. 2d 1128, 0 La.App. 3 Cir. 59, 2000 La. App. LEXIS 1693, 2000 WL 800718
CourtLouisiana Court of Appeal
DecidedJune 21, 2000
DocketNo. 00-59
StatusPublished
Cited by4 cases

This text of 762 So. 2d 1128 (Judalet v. Kusalavage) 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
Judalet v. Kusalavage, 762 So. 2d 1128, 0 La.App. 3 Cir. 59, 2000 La. App. LEXIS 1693, 2000 WL 800718 (La. Ct. App. 2000).

Opinion

JjTHIBODEAUX, Judge.

In this medical malpractice case, Bobby and Debra Judalet, individually and on behalf of their minor child, D’on Renee Judalet, filed suit against Dr. John Kusala-vage, St. Patrick Hospital and St. Paul Fire and Marine Insurance Company (hereinafter “St. Paul”) for failing to exercise the standard of care in treating Ms. Judalet and their child. The Judalets allege that Dr. Kusalavage prematurely ruptured Ms. Judalet’s amniotic sac, thereby resulting in the premature birth of D’on, and D’on’s acquisition of a bacterial infection and permanent complications. Dr. Kusalavage and his insurer,. St. Paul, tendered $100,000 in settlement, the statutory limit.

The Louisiana Patients’ Compensation Fund now appeals a judgment on a motion for declaratory and/or summary judgment that determined that D’on was delivered prematurely, and that the Group B B.eta Streptococcal infection was causally related to the premature birth. General damages in the amount of $500,000, less a credit of $100,000 were awarded.

For the following reasons, we affirm. .

I.

ISSUES

We shall consider:

1., whether the trial court erred in determining that the statutory admission of liability included an admission that D’on Judalet was. premature; and,
2. whether the trial court erred in granting the summary judgment in favor of Bobby and Debra Judalet.

Jsi1-

FACTS

Debra Judalet was an expectant mother who had her first office visit with obstetrician, Dr. John Kusalavage on May 30, 1991. During that visit, she conveyed to the doctor that‘the date-of her last menstrual period was March 16, 1991. From that date, the doctor estimated her due date to be December 23, 1991. Ms. Judal-et’s next visit to Dr. Kusalavage was June 27th. A review of an ultrasound taken on June 20th revealed that the gestational age of the fetus was nine weeks; therefore, the estimated due date was January 20, 1992. July 25th and August 28, 1991 were the subsequent dates of Ms. Judalet’s appointments with Dr. Kusalavage. The fetus’ fundal height1 on August 28th was twenty-one centimeters. This height was different from both the estimated due date based on Ms. Judalet’s last menstrual peri[1130]*1130od and on the June 20 th sonogram. On September 25'th, Ms. Judalet again'had an office visit with Dr. Kusalavage. The fun-dal height of the fetus at this time was twenty-six centimeters, which was consistent with the estimated due date based on the date of Ms. Judalet’s last period. The fundal height measurement on October 23rd was thirty-one centimeters. Another sonogram performed on October 29 th revealed a gestational age of twenty-seven weeks; therefore, the estimated due date was changed to January 28, 1992. Based upon the two ultrasounds, Dr. Kusalavage predicted January 20, 1992 to be Ms. Ju-dalet’s due date. Ms. Judalet’s next visit was on November 20, 1991. Dr. Kusala-vage indicated that the fundal height of thirty-six centimeters seemed large based on the sonograms. December 4; 1991 was Ms. Judalet’s final ^office visit. The fun-dal height was thirty-seven centimeters; however, she had a small amount of dilation.

On December 11,1991, Ms. Judalet went to St. Patrick Hospital’s emergency room with complaints of contractions. A sonogram was done, and it revealed an estimat-, ed gestational age of thirty-seven weeks. After her labor failed to progress, Ms. Judalet was released from the hospital.

On December 18, 1991, Ms. Judalet again experienced contractions and was admitted by Dr. Kusalavage. He proceeded to rupture the membranes and increase the contractions. After approximately twenty-one hours of labor, Ms. Judalet gave birth to D’on Renee, a five pound, four ounce baby girl. D’on subsequently developed respiratory distress and was transferred to Lake Charles Memorial Hospital. While at Memorial, D’on was diagnosed as having Strep and meningitis. D’on was transferred to Oschner Foundation Hospital in New Orleans on December 30, 1991 after a series of seizures, intracra-nial hemorrhage and renal failure. D’on was not discharged from Oschner until February 10,1992.

A medical review panel was instituted against Dr. Kusalavage and St. Patrick Hospital after the Judalets charged that the doctor improperly induced Ms. Judal-et’s labor at an imprudent time, that he failed to adequately monitor for the presence of bacterial infection and that he failed to properly monitor Ms. Judalet’s status. The Judalets furthered their claim by asserting that the respiratory distress suffered by D’on was caused by a combination of her prematurity and the Strep infection. On May 23,1994, the panel unanimously held that the Judalets. failed to prove that D’on was premature as opposed to simply small for her gestational age. The panel also concluded that whether an infant is premature, small for gestational Page, or full-term normal weight, he remains susceptible to an infection and the resulting complications as those experienced by D’on.

The Judalets filed the original petition on July 16, 1994. On June 21, 1995, an amended and supplemental petition for damages was filed, adding St. Paul Fire and Marine Insurance Company and the Medical Arts Group as defendants. After years of litigating this matter, Dr. Kusala-vage and his insurer, St. Paul, tendered $100,000 in settlement in November 1998.

The Judalets subsequently filed a Motion for Summary Judgment, arguing that there were no genuine issues of material fact regarding their argument that no one could dispute that D’on’s pbemature birth was the direct cause of her damages. A Motion for Declaratory Judgment, which was considered as a Motion in Limine, was filed by the Judalets and it addressed the extent of the statutory admission resulting from Dr. Kusalavage’s offering of the $100,000. The Patients’ Compensation Fund (PCF) opposed the Summary Judgment, contending that its expert was of the opinion that D’on was not born prematurely. The trial court judge denied the Judal-ets’ Motion for Summary Judgment.

The Judalets re-urged the Motion for Summary Judgment. After hearing argu[1131]*1131ments, the trial court • determined that D’on’s prematurity was a component of the admission of liability and, as a result of that malpractice, D’on became infected with the Strep infection. The judgment was signed on October 8, 1999, awarding general damages in the amount of $500,-000, less a credit of $100,000, plus interest and costs, and finding D’on in need of future care.

The PCF has suspensively appealed the trial court’s granting of the Summary Judgment in favor of the Judalets.

JiH.

LAW AND DISCUSSION Statutory Admission of Liability

The PCF argues that the statutory admission of liability can not include an admission that the Strep infection and the resulting complications were caused by the statutorily admitted malpractice.. We disagree.

The Patient’s Compensation Fund of La. R.S. 40:1299.44(0(5) provides:

At the hearing the board, the claimant, and the insurer of the health care provider or the self-insured health care provider as the case may be, may introduce relevant evidence to enable the court to determine whether or. not the petition should be approved if it is submitted on agreement without objections.

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Bluebook (online)
762 So. 2d 1128, 0 La.App. 3 Cir. 59, 2000 La. App. LEXIS 1693, 2000 WL 800718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judalet-v-kusalavage-lactapp-2000.