Mullins v. State

686 So. 2d 940, 96 La.App. 5 Cir. 547, 1996 La. App. LEXIS 3100, 1996 WL 717056
CourtLouisiana Court of Appeal
DecidedDecember 11, 1996
DocketNos. 96-CA-547, 96-CA-548, 96-CA-549
StatusPublished

This text of 686 So. 2d 940 (Mullins v. State) 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
Mullins v. State, 686 So. 2d 940, 96 La.App. 5 Cir. 547, 1996 La. App. LEXIS 3100, 1996 WL 717056 (La. Ct. App. 1996).

Opinion

hCANNELLA, Judge.

In a wrongful death action, plaintiffs, the seven surviving children of Sylvia Vick MeKellar (Mrs. MeKellar), appeal from a judgment rendered in favor of defendants, Dr. Robert Treuting, Coroner for the Parish of Jefferson, the Estate of Bennie Verdun and the State of Louisiana, which dismisses plaintiffs’ lawsuit at their cost. For the reasons which follow, we affirm.

The wrongful death and survival action arises from a death that occurred approximately 24 years ago, on November 27, 1972. On that date, in the early morning hours, Mrs. MeKellar, a 34 year old woman, was found by her husband, Chet MeKellar (MeKellar), unconscious and gasping for air. He called to his two oldest stepdaughters for help. They came to assist him and likewise found their mother unconscious and gasping for air. MeKellar then instructed one of his daughters to get some cold towels and the other lato make some coffee. He then called out to his friend, Marty Lee, for help. Marty Lee lived in an apartment on the property behind the house that the McKellars lived in. Marty Lee came right over to help. He telephoned the Grand Isle police department for an ambulance. Two police officers came out to the McKellars’ house. One stayed in the police car and the other, Ambrose Bee-son, came in the house. Officer Beeson testified that upon entering the house he was shown a yellow pill and a pill bottle and was told that it was believed that Mrs. MeKellar had taken an overdose of pills. Officer Bee-son signaled to the other officer in the car to radio for an ambulance. The ambulance arrived within minutes. The ambulance driver, Bennie Verdón, was employed by the Jefferson Parish coroner’s office. He entered the McKellars’ house in the kitchen and officer Beeson told Verdón of the situation. Verdón initially made some remarks concerning his instructions not to transport people on drugs or alcohol. However, he thereafter agreed to transport Mrs. MeKellar to Dr. Luker’s office, as per the coroner’s policy and instructions. Because the nearest hospital to Grand Isle, where Ms. MeKellar was located, was approximately one hour away, it was the coroner’s policy in 1972 for the ambulance driver to transport the patient to the local doctor, Dr. Luker, with whom the coroner had an arrangement. Dr. Luker would examine and treat the patient and advise the ambulance driver whether the patient needed . transportation to the hospital. Marty Lee refused to have Mrs. MeKellar taken to Dr. Luker’s office and insisted that Verdón take her directly to the hospital. Verdón told Marty Lee that he could not or would not take Mrs. MeKellar to the hospital without going first, per his instructions, to Dr. Luker’s office. MeKellar never appeared nor spoke to Verdón. Marty Lee thereupon refused the Lambulance transport, stating that he would take Mrs. MeKellar to the hospital himself. At that point the police officer and Bennie Verdón left the MeKellar home.

Marty Lee then called for a Coast Guard ambulance and was told that they could not take Mrs. MeKellar to the hospital. Approximately twenty minutes after the ambulance left the house, Marty Lee, MeKellar and Mrs. MeKellar drove in the family truck to the hospital. They arrived at the hospital at approximately 2:20 a.m. and Ms. MeKellar was pronounced dead at 2:40 a.m.

In 1973, plaintiffs filed the instant suit against the Coroner of the Parish of Jefferson, Bennie Verdón and the State of Louisiana. In a Declaratory Judgment action, it was held that the Coroner’s office was a state agency for which the State of Louisiana was responsible. Mullins v. State, 387 So.2d [942]*9421151 (La.1980). Plaintiffs asserted that defendants were liable because Bennie Ver-don’s refusal to transport delayed Mrs. McKellar’s arrival at the hospital, depriving her of a chance of survival. On January 22, 1996, the ease eventually was tried by judge for five days. The trial judge took it under advisement and judgment was rendered on March 19, 1996, in favor of defendants, dismissing plaintiffs’ case at their costs. In brief reasons for judgment, the trial court found “that the delay in bringing Mrs. McKellar to the hospital did not contribute to or cause her death.” The trial court noted that it was particularly impressed with the testimony of the expert medical witness, Dr. Lauro, on this point. The trial court expressly did not decide whether defendants were in any way negligent, finding that such a determination was unnecessary in view of the conclusion that their actions Rdid not cause or contribute to Mrs. McKellar’s death. It is from this judgment that plaintiffs appeal.

On appeal plaintiffs assign four errors. They argue that: (1) the trial court erred in finding that Mrs. McKellar was not deprived of a chance of survival by defendants’ actions; (2) the trial court erred in not addressing the issue of the negligence of the ambulance driver; (3) the trial court erred in failing to award damages to plaintiffs; and (4) the trial court erred in determining issues of costs without taking evidence.

CHANCE OF SURVIVAL

By this assignment of error plaintiffs argue that the trial court erred in finding that defendants did not deprive Mrs. McKel-lar of a chance of survival when the evidence preponderates to the contrary. In support of their argument, plaintiffs rely on the testimony of Dr. Robiehaux, who stated that he believed that Mrs. McKellar died of a heart attack, and Dr. Van Meter, who stated that the chance of survival for a patient with a drug overdose is 90%. Dr. Butcher, the treating physician at the hospital on the night Mrs. McKellar was brought to the hospital indicated on the death certificate that the primary cause of death was “cardiorespi-ratory arrest” (heart attack) with a secondary cause of overdose of Nembutal.

Defendants argue that the trial court was correct in its findings, and rely on the testimony of Dr. Lauro. Dr. Lauro testified that, after studying all of Mrs. McKellar’s records, and speaking with several of the physicians involved, it was his opinion that Mrs. McKel-lar died from pulmonary embolism, occurring as a complication from her recent surgery. He further stated that in 1972, a patient with pulmonary embolisms had no chance of survival. Moreover, taking plaintiffs’ case at its best, there was only a 301 (¡minute delay that resulted by defendants actions. Dr. Lauro testified that 30 minutes would have made absolutely no difference as to Mrs. McKel-lar’s chance of survival. Defendants also point out that the toxicology report showed that Mrs. McKellar did not have drugs in her system, thus the drug overdose theory was negated.

The appellate standard of review is well settled. On appellate review of a factual determination, the reviewing court may not set aside the trier’s findings of fact in the absence of manifest error or unless they are clearly wrong. Also, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart v. State through DOTD, 617 So.2d 880 (La.1993). Thus, where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra.

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Bluebook (online)
686 So. 2d 940, 96 La.App. 5 Cir. 547, 1996 La. App. LEXIS 3100, 1996 WL 717056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullins-v-state-lactapp-1996.