Moonan v. Louisiana Medical Mutual Insurance Co.

202 So. 3d 529, 16 La.App. 5 Cir. 113, 2016 La. App. LEXIS 1742
CourtLouisiana Court of Appeal
DecidedSeptember 22, 2016
DocketNO. 16-CA-113
StatusPublished
Cited by13 cases

This text of 202 So. 3d 529 (Moonan v. Louisiana Medical Mutual Insurance Co.) 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
Moonan v. Louisiana Medical Mutual Insurance Co., 202 So. 3d 529, 16 La.App. 5 Cir. 113, 2016 La. App. LEXIS 1742 (La. Ct. App. 2016).

Opinion

CHAISSON, J.

In this medical malpractice suit, Noemie I. Moonan and her son Michael Andrew Moonan, the wife and son of Andrew Vincent Moonan, III, respectively, appeal a. final judgment rendered in favor of Dr. Frank J. Monte and his insurer, Louisiana Mutual Medical Insurance Company, arid the subsequent denial of the Moonans’ motion for new trial. For the following reasons, we affirm both the trial court’s final judgment and the denial of the motion for new trial.

FACTS AND PROCEDURAL HISTORY

On Saturday, October 17, 2009, Andrew Moonan fell while at his home. After calling 911 for emergency services, Mr. Moo-nan was taken by ambulance to the emergency room at East Jefferson General Hospital. X-rays showed that Mr. Moonan suffered two fractured ribs. He was discharged later that day with instructions to return to the emergency room if his condition changed and to follow up with his primary care physician, Dr. Monte, within the next two to four days. Mr. Moonan was driven home by his wife and a friend, Mr. Bowdre Banks, who helped place him in bed,' where he remained for the next four days. During this period, Mr. Moonan made multiple phone calls to-his doctors, including his cardiologist, Dr. Nicholas Pappas, and Dr. Monte. Around 5:00 PM on the evening of October 20th, Mr. Moo-' nan placed an after-hours phone call to Dr. Monte at which time Mr. Moonan requested to return to the hospital. Mr. Moonan did not return to the hospital, but instead remained in bed until October 21st, when Mr. Banks and an off-duty EMT technician got him out of bed and walked him to the restroom and then to a recliner. On October 22nd, Mr. Banks was assisting Mr. Moonan with walking when Mr. Moo-nan collapsed. Emergency 911 services were again called, and Mr. Moonan was taken to University Hospital where he died on October 23rd. The autopsy revealed that Mr. Moonan died of a pulmonary embolism.

Less than a year after Mr. Moonan’s death, Mrs. Moonan and her son, Michael, filed a complaint with the Louisiana Division of Administration for medical malpractice against Dr. Monte. After a review of the evidence, the Medical Review Panel unanimously determined that Dr. Monte was not negligent and did not breach the standard of care in his treatment and communications with Mr. Moonan. Subsequent to the medical review panel’s determination, on November 28, 2012, the Moonans filed suit against Dr. Monte (and his insur.er) for medical malpractice in the 24th Judicial District Court of the Parish of Jefferson. In their suit they alleged that Dr. Monte breached the standard of care in multiple ways, including: (1) failing to inform Mr. Moonan of the risks associated with his immobility, including the risk of blood clots and pulmonary embolism; (2) allowing his medical technologist, Susan Moss, to tell Mrs. Moonan that Mr. Moo-nan’s condition was not serious and he needed only to “get up and walk”; and (3) by failing to instruct Mr. Moonan to return to the emergency room for testing and evaluation. The Moonans also alleged that Dr. Monte’s negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony.

[532]*532The case proceeded to a four-day jury trial on March 23 to 26, 2016. In presenting their case, the Moonans relied primarily on the testimony of Mrs. Moonan and Mr. Banks, both of whom testified about the October 20th phone call between Mr. Moonan and Dr. Monte. They testified that Mr. Moonan called Dr. Monte begging for permission to go to the emergency room because, as they understood it, their medical insurance plan would not cover the cost of ambulatory services to the emergency room unless the insured reasonably believed the situation to be an emergency or had a prior referral to the emergency room by his primary care physician. Mrs. Moonan and Mr. Banks witnessed Mr. Moonan making this call; however, both witnesses acknowledged that they could not hear anything said by Dr. Monte, that they did not know all of what Dr. Monte said to Mr. Moonan, and that Mr. Moonan did not recount Dr. Monte’s words to them except to say that Dr. Monte would not authorize him to return to the hospital and the doctor advised him to get up and walk. Neither witness recalls Mr. Moonan using the words “emergency room.” Mrs. Moo-nan also testified that Mr. Moonan complained to Dr. Monte of shortness of breath, a risk factor that should have alerted the doctor to Mr. Moonan’s emergency condition.

In support of their testimony, the Moo-nans introduced as evidence a timeline chronologizing the events in the days leading up to Mr. Moonan’s death. Mrs. Moo-nan created this timeline some weeks after her husband’s death for her own personal recollection and not in anticipation of litigation. The Moonans also introduced and had read to the jury the deposition of Dr. William Nelson Grant, III, a doctor of internal medicine, who believed Dr. Monte had breached the standard of care based on the facts of this case. Dr. Grant also testified that he had never met Dr. Monte or Mr. Moonan and that all of his knowledge of the case was second-hand.

For their case, the defendants relied on the testimony of Dr. Monte, Dr. Nicholas Pappas, and Dr. Richard Diechmann, á member of the medical review panel.

Regarding the October 20th phone call, Dr. Monte testified that Mr. Moonan called requesting direct admission to the hospital, not permission to return to the emergency room as claimed by the Moo-nans. Dr. Monte stated that he told Mr. Moonan that he could not be directly admitted to the hospital without an in-person evaluation, and instructed Mr. Moonan to come to his office or go to the emergency room for an evaluation. According to Dr. Monte, Mr. Moonan did not make any complaints such as shortness of breath that would alert him that Mr. Moonan required immediate emergency medical care. Dr. Monte also testified that, over the many years of acting as his primary care physician, Mr. Moonan had a history of failing to follow his advice, including for many years refusing to take blood-thinner medication.

Dr. Pappas testified that he also treated Mr. Moonan for many years, and that he communicated with Dr. Monte regularly about Mr. Moonan. Dr. Pappas had also recommended blood-thinning medication to Mr. Moonan as a treatment for his heart-related conditions, but Mr. Moonan declined to take the medication. Dr. Pappas also spoke to Mr. Moonan over the phone on October 19th, when Mr. Moonan called with, complaints of heart palpitations after taking pain medication. Dr. Pappas recommended an immediate electrocardiogram (EKG); however, Mr. Moonan declined to come into the office, claiming he was in too much pain. During that phone call, Dr. Pappas did not hear Mr. Moonan make any complaints such as shortness of breath [533]*533that would have alerted him to any emergency condition that Mr. Moonan was experiencing.

Dr. Diechmann, a doctor of internal medicine who served as a member of the medical review panel, testified that. Dr. Monte did not breach the standard of care in his treatment or communications with Mr. Moonan. He testified that Dr. Monte’s instructions to either report to the emergency room or to Dr. Monte’s office for evaluation were reasonable and the correct standard of care. He explained that physicians are not trained to offer diagnoses over the telephone because they are at a great disadvantage not being able to evaluate the patient. Dr. Diechmann also testified that a patient does not need the approval of his doctor to go to the emergency room, and a physician does not have to authorize a phone call to 911.

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Cite This Page — Counsel Stack

Bluebook (online)
202 So. 3d 529, 16 La.App. 5 Cir. 113, 2016 La. App. LEXIS 1742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moonan-v-louisiana-medical-mutual-insurance-co-lactapp-2016.