Pettis v. State ex rel. Department of Hospitals

340 So. 2d 1108, 1976 La. App. LEXIS 4873

• Court: Louisiana Court of Appeal
• Decided: December 21, 1976
• Docket: No. 5419
• Status: Published

Opinion

GUIDRY, Judge.

Our judgment on rehearing in this case, 336 So.2d 521 (La.App. 3rd Cir. 1976) granted the State of Louisiana through the Louisiana Health and Human Resources Administration, Third Party Plaintiff, indemnity over against Dr. William L. Kirkpatrick, Sr., and Dr. Earl H. Kent, for the full amount paid by the State of Louisiana in satisfaction of the judgment rendered in favor of plaintiff-appellant, Cecil Pettis. The Supreme Court of Louisiana granted a writ in this matter limited to a consideration of the correctness of our judgment on the third-party demand, 339 So.2d 855 (La. 1976). On December 3, 1976 the Supreme Court of Louisiana reversed and set aside our judgment on the third-party demand and ordered this matter remanded to this court with instructions that we should reconsider such demand in light of the provisions of LSA-R.C.C. Article 2103.

Pursuant to this mandate we have reconsidered our decision and now conclude that the State of Louisiana, through the Louisiana Health and Human Resources Administration, is not entitled to indemnity over against third-party defendants because the State of Louisiana was independently liable to the plaintiff as a result of the negligence of nurses or employees of the hospital who failed to include a vital notation on the “24 hour report”. The State of Louisiana having been found guilty of negligence, independent of that of Drs. Kent and Kirkpatrick, which was a proximate cause of the injuries and damage sustained by plaintiff, it follows that third-party plaintiff is not entitled to indemnity over against third-party defendants. The State of Louisiana is however, entitled, under its third-party demand, to contribution from third-party defendants for their virile portion of the total judgment rendered in favor of plaintiff. LSA-R.C.C. Article 2103.

For the above and foregoing reasons our judgment on rehearing is reinstated with the following modification to the end that the decree portion thereof shall read as follows:

“For the reasons herein set out, the judgment appealed from is affirmed insofar as it rejects plaintiff’s demand against defendant, Dr. Arthur L. Seale, and dismisses the suit as to that defendant. The judgment appealed from is reversed insofar as it dismisses the suit as to all other defendants, and judgment is hereby rendered in favor of plaintiff, Cecil Pettis, and against defendants (1) State of Louisiana, through the Louisiana Health and Human Resources Administration, (2) Dr. William L. Kirkpatrick, (3) Dr. Earl H. Kent, and (4) Tri-State Insurance Company, in solido, for the full sum of $35,-000.00, with legal interest thereon from date of judicial demand until paid, and for all costs of this suit. Further, judgment is rendered in favor of third party plaintiff, State of Louisiana, through Louisiana Health and Resources Administration, and against third party defendants, Drs. Earl H. Kent and William L. Kirkpatrick, for any amount the State may pay in satisfaction of said judgment over and above its virile share, i. e., one-third of the full amount of the judgment herein rendered in favor of plaintiff-appellant, Cecil Pettis. The costs of this appeal are assessed to defendants-appel-lees, State of Louisiana, Dr. Kirkpatrick, Dr. Kent and Tri-State Insurance Company, in equal proportions except that the State of Louisiana is relieved of the payment of any costs which they are not legally obligated to pay.”

AFFIRMED IN PART: REVERSED IN PART AND RENDERED.