Pesses v. Angelica

165 So. 3d 131, 14 La.App. 5 Cir. 336, 2014 La. App. LEXIS 2841, 2014 WL 6687217
CourtLouisiana Court of Appeal
DecidedNovember 25, 2014
DocketNo. 14-CA-336
StatusPublished
Cited by2 cases

This text of 165 So. 3d 131 (Pesses v. Angelica) 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
Pesses v. Angelica, 165 So. 3d 131, 14 La.App. 5 Cir. 336, 2014 La. App. LEXIS 2841, 2014 WL 6687217 (La. Ct. App. 2014).

Opinion

JUDE G. GRAVOIS, Judge.

|2In this medical malpractice suit, plain-tiflyappellant, Harold Pesses, appeals a trial court judgment finding that he failed to bear his burden of proof regarding the negligence of defendant/appellee, Dr. Nicholas J. Angelica, in failing to- call for an emergency cardiac consultation, causing him the loss of a chance for a better medical outcome following a heart attack. For the reasons that follow, we reverse, award damages, and render judgment in favor of plaintiff.

FACTS AND PROCEDURAL HISTORY

On February 11, 2007, plaintiff, Harold Pesses, a 53-year-old man, presented to the emergency room at East Jefferson General Hospital (“EJGH”) with chest pain. He reported to the emergency room physician that he ate an apple fritter earlier that day and feared that it was stuck in his esophagus.1 The medical records show that the emergency room physician considered this a gastrointestinal (“GI”) case and ordered a variety of tests to rule out a GI event. An endoscopy was performed, which located remnants of the fritter, but showed that there was no |slonger any obstruction. Plaintiff was administered a “GI cocktail” that temporarily relieved some of his symptoms, though his pain did not fully abate.2 An electrocardiogram [135]*135(“EKG”) was performed in the emergency room, as well as a cardiac enzyme workup (a blood test), which showed elevation in two of the four cardiac enzymes, but normal levels in the other two.

Because of these results and his continued complaints of chest pain, plaintiff was admitted to the hospital’s telemetry floor around 8:50 p.m. that evening, specifically for cardiac monitoring in order to rule out a heart attack. This admission was made by Dr. Joseph Hauth,.the emergency room physician, in consultation with defendant, Dr. Angelica, an internist and the on-call physician at EJGH that evening for “unre-ferred” patients.3 Plaintiff saw a cardiologist, Dr. Clement Eisworth, approximately eight years earlier for an evaluation after his brother developed heart disease and required a stent in his 40s. However, plaintiff was not under the care of a cardiologist when he was admitted to EJGH.

Plaintiff continued to report chest pain throughout that evening and night.4 Following plaintiffs admission, Dr. Angelica ordered repeat cardiac enzyme labs, an echocardiogram to be performed in the morning, and a cardiology consultation in the morning as well.

The record shows that the second cardiac enzyme labs were drawn later during that night at 1:36 a.m. The results, which were obtained around 2:50 a.m., now showed that all four cardiac enzymes were elevated beyond normal limits. A nurse contacted Dr. Angelica with these results, but according to his testimony, informed him only about the elevation of the Tropo-nin level, one of the enzymes, |4but not the other three. He testified that he was told that otherwise, plaintiffs condition was stable with no changes in the telemetric monitoring or vital signs, and with no worsening chest pain.

In response to the information received at 2:50 a.m., Dr. Angelica issued no new orders. Plaintiffs chest pain essentially resolved by daybreak that morning. He was evaluated around 8:30 a.m. by Dr. Gregory Tilton, a cardiologist, who performed an angiogram that afternoon.5 The angiogram showed an occlusion (an obstruction) at the ostium (opening) of the first diagonal branch artery. Dr. Tilton declined to perform angioplasty, which is the placing of a stent to open the vessel. He was not called to testify, but his procedure notes, introduced into evidence, indicate that he felt angioplasty was not appropriate at that time because Mr. Pesses’ heart muscle had already sustained permanent damage by the time of the angiogram, as indicated by test results and his findings, thus rendering a stent moot,6 and also because the location of the obstruction in the diagonal vessel would be difficult to stent due to the high possibility of causing major damage to a larger vessel, the left anterior descending artery, which is located nearby.

Each expert physician who testified, either live or via deposition, said that plain[136]*136tiff suffered a non-ST segment elevation myocardial infarction (“M.I.”) (“non-STEMI”) (heart attack), as opposed to a ST segment elevation myocardial infarction (“STEMI”). The latter appears differently in telemetric monitoring and involves large areas of muscle mass, whereas the non-STEMI variety typically involves smaller areas of cardiac muscle.

On July 28, 2009, plaintiff filed suit against Dr. Angelica and Louisiana Medical Mutual Insurance Company (“LAM-MICO”), his medical malpractice | liability insurer.7 In his petition for damages, plaintiff contented that Dr. Angelica’s failure to call for an immediate emergency cardiac consultation upon receiving the cardiac enzyme lab results at 2:50 a.m. breached the standard of care and essentially deprived him of a chance to have a better medical outcome. Specifically, he alleged that he “suffered permanent and irreversible heart damage which more probably that not would have been prevented or minimized through a timely cardiac catheterization procedure, angioplasty and/or by-pass surgery to restore the integrity of blood flow to the affected areas of the heart.” A medical review panel previously found that “[t]he evidence does not support the conclusion that [Dr. Angelica] failed to meet the applicable standard of care as charged in the complaint.”

A bench trial was conducted on August 19, 2013, and on October 1, 2013, the trial court rendered judgment in favor of defendants, dismissing plaintiffs petition with prejudice, with each party to bear their own costs. In findings of fact and reasons for judgment filed that same day, the trial court found that Dr. Angelica did indeed deviate below the standard of care when he failed to order an immediate cardiology consultation after being informed of the increase in cardiac énzymes at 2:50 a.m. Telling, according to the trial court, was the testimony of Dr. Jeffrey Coco, one of appellees’ experts, who testified that although he did not believe in his opinion that Dr. Angelica breached the standard of care, he personally would have ordered a cardiology consultation at 2:50 a.m. had plaintiff been his patient.

The trial court further found, however, that Dr. Angelica’s breach of the standard of care was not a proximate cause of the damages alleged to have been |fisustained by plaintiff, finding that “the claim for a lost chance of saving Mr. Pesses’ heart muscle is highly speculative, and not supported by the testimony presented at trial.” Further, the trial court found specifically that “Dr. Angelica’s deviation below the standard of care did not cause Mr. Pesses to suffer any damages that he would not have otherwise suffered.” Plaintiffs appeal followed.

On appeal, plaintiff argues that the trial court erred in finding that he failed to prove that Dr. Angelica’s breach of the standard of care was a proximate cause of his damages, in failing to award him damages, and in failing to allow him to testify about various statements allegedly made by his treating cardiologist. Plaintiff also argues that the trial court committed legal error in its application of the loss of chance doctrine, and thus urges this Court to conduct a de novo review of the evidence.

ANALYSIS

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Bluebook (online)
165 So. 3d 131, 14 La.App. 5 Cir. 336, 2014 La. App. LEXIS 2841, 2014 WL 6687217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pesses-v-angelica-lactapp-2014.