Judgment rendered September 25, 2019. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,056-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
REGINALD LEWIS, ON BEHALF Plaintiff-Appellant OF ROBERT LEWIS, JR.
versus
CORNERSTONE HOSPITAL OF Defendant-Appellee BOSSIER CITY, LLC
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 151,867
Honorable E. Charles Jacobs, Judge
THOMAS, SOILEAU, JACKSON, Counsel for Appellant BAKER & COLE, LLP By: Steven E. Soileau
HUDSON, POTTS, & BERNSTEIN Counsel for Appellee By: Gordon L. James Sara G. White
Before MOORE, PITMAN, and GARRETT, JJ. MOORE, J.
Reginald Lewis appeals a jury verdict that denied his claims for
medical malpractice and invasion of privacy involving his late father, Robert
Lewis (“Mr. Lewis”), as well as a judgment that denied his motion for
JNOV. The case involves treatment that Mr. Lewis received at Cornerstone
Hospital, a long-term acute care facility, from April 17 to April 30, 2015.
For the reasons expressed, we affirm.
FACTUAL BACKGROUND
The 63-year-old Mr. Lewis, a Vietnam veteran and longtime smoker,
went to the emergency room at the VA hospital in Shreveport with
complaints of speech changes, fatigue, decreased oral intake, and weight
loss. Dr. Sean Troxclair, an internist, critical care and nutrition physician,
admitted him and became his treating physician. Mr. Lewis weighed only
88 pounds, was about half the normal body mass index, and needed
aggressive nutritional support. A CT scan showed a large malignant mass in
his throat; it was cancer. He underwent surgery to remove the mass.
Doctors also inserted a feeding tube (called a “PEG”) into his abdomen to
provide nutritional access and a tracheostomy (“trach”) into his throat to
secure his airway. While at the VA, he developed a large (3 cm × 3 cm)
decubitus ulcer, Stage III, in the sacral area. The oncologist at the VA said
Mr. Lewis needed chemotherapy, but could not undergo it because he was so
underweight.
Dr. Troxclair transferred Mr. Lewis to Cornerstone on April 17 so he
could gain weight and strength, with the plan of beginning chemo and
radiation to treat the cancer. Despite his health problems, doctors at the VA described Mr. Lewis as in “good condition”; Dr. Troxclair said he was
talking, using a walker, oriented, and having no problem with the PEG or
trach. Dr. Troxclair sent dietary instructions to Cornerstone: give Mr. Lewis
Impact 1.5 at 60 ml/hour, and feed him like a 70 kg (154-lb.) man instead of
the 40-45 kg (88-99-lb.) man he was.
Mr. Lewis arrived at Cornerstone on April 17 and was admitted to the
ICU by Dr. Allan Matriano-Lim, an internist and pediatrician with privileges
there. Oddly, neither Dr. Matriano-Lim nor Cornerstone’s clinical dietician,
Valerie Calhoun, could recall ever seeing Dr. Troxclair’s dietary
instructions. However, Ms. Calhoun recalled seeing some orders from the
VA, and Dr. Matriano-Lim gave orders to feed Mr. Lewis Vital 1.5 at 60
ml/hour. (Ms. Calhoun testified that Cornerstone did not stock Impact 1.5,
so they used Vital 1.5 instead.) After two days in ICU, Mr. Lewis was
moved to the “floor.”
At this point, unfortunately, Mr. Lewis’s condition started to go
downhill. On April 19, he refused his PEG feeding, demanded solid food,
and complained to Ms. Calhoun about cramps and nausea. Thinking he
could not tolerate the high volume and protein of Vital 1.5, Ms. Calhoun
switched him to a formula called Peptamen 1.5 at 50 ml/hour, and he seemed
to respond better. However, on April 22, Dr. Matriano-Lim issued a new
order to use Impact 1.5, which they had ordered but not yet received, so they
resumed using Vital 1.5. On April 23, Mr. Lewis vomited it up, and on
April 24, he refused any more tube feeding. On April 25, an attending
physician, Dr. Jackson, found abdominal distension and ordered tube-
feeding stopped; he placed Mr. Lewis on an intravenous (“IV”) feed of
ProcalAmine at 77 ml/hour. Mr. Lewis also pulled out his trach at least 2 three times, and nurses simply replaced it, without notifying Dr. Matriano-
Lim. On April 27, nurses charted “dark liquid input” into Mr. Lewis’s
genitourinary bag, but did not chart that they notified the doctor of this,
either.
On April 28, at 3:00 am, nurses discovered that Mr. Lewis had pulled
out his PEG tube (which must have involved some effort and some pain).
Nurses removed the broken sutures, and cleaned and dressed the site; at 8:00
am, they called Dr. Matriano-Lim about this. At 8:15, he ordered them to
place a catheter in the PEG site and consult with a general surgeon, but he
did not label this STAT or urgent. No surgeon ever came, but nurses
inserted the catheter by 8:35. Cornerstone’s chief of nursing, Tamara
Grimm, felt this was acceptable since Mr. Lewis was getting IV nutrition by
then.
Cornerstone’s case manager, Connie Combs, testified that she became
“very concerned” about Mr. Lewis’s changes at this point. She faxed a
clinical update to the VA (but not directly to Dr. Troxclair), advising that the
PEG feeding had been “on hold” since April 25 because of abdominal
distension, but that Mr. Lewis was on IV ProcalAmine; he had a wound on
his backside; and he had walked 265 feet with a rolling walker. The next
day, April 29, she phoned her contact at the VA, a Ms. Sanders, to make
sure they got the message. On April 30, Dr. Troxclair finally received this
information and ordered Mr. Lewis transferred back to the VA.
On his return to the VA, Mr. Lewis was not in good shape. He was
still emaciated, was noncommunicative, had irritation around his trach and
PEG sites, and still had the decubitus ulcer. Because of his malnutrition and
distended abdomen, he was not a candidate for surgery or chemo. After 3 consultation with Reginald, Mr. Lewis’s son, Dr. Troxclair placed him on
palliative care, and he died on May 19.
During this ordeal, Reginald had been driving down from his home in
Topeka, Kansas, every week or two to see his father. He admitted the
prognosis was bad, but his dad was “a little better” by the time he was sent
to Cornerstone. In one visit, early during Mr. Lewis’s stay there, he
“seemed okay,” and even wanted to leave and go with the family to
Walmart. Reginald was alarmed when he heard how bad his dad’s situation
was on his return to the VA. At some point, Reginald called Dr. Troxclair,
who apparently vented some frustration at Cornerstone, blaming it for
allowing the patient to lose weight and get an ulcer on his backside.
According to Reginald, Dr. Troxclair told him, “We had him up, almost
jogging, ready to go to the store,” but once at Cornerstone, “he turned so
fast.” Reginald then called Ms. Combs, the case manager at Cornerstone, to
complain, particularly about the ulcer Mr. Lewis got while there.
On May 20, two Cornerstone employees, William Candler, director of
provider relations, and Lindsey Trainor, clinical liaison, went to the VA to
talk to Dr. Troxclair; according to Candler, he “had questions” and they “did
not have the answers.” They checked their records and, on May 27, went
back to the VA to advise Dr. Troxclair that Mr. Lewis already had that ulcer
when he left the VA (in fact, by their records, it had shrunk slightly while he
was at Cornerstone). They also wanted to repair their damaged business
relationship with the VA. They testified they did not think they needed the
patient’s consent to hold this meeting, but Cornerstone later produced a
Health Insurance Portability and Accountability Act (“HIPAA”)
4 authorization bearing Mr. Lewis’s name and marked “VC” for voice
consent.
PROCEDURAL HISTORY
Reginald filed a request for Medical Review Panel (“MRP”), but the
panel unanimously found that the evidence did not support the conclusion
that Cornerstone or its nurses failed to meet the applicable standard of care.
The MRP rejected claims that Cornerstone failed to properly maintain and
monitor the PEG and trach sites; allowed a large decubitus ulcer to develop;
and failed to monitor, detect and address the patient’s declining condition.
Reginald filed this suit, in December 2016, for wrongful death and
survival damages, against Cornerstone; he named no individual doctors or
nurses as defendants. He alleged, in essence, that Cornerstone’s conduct
deprived Mr. Lewis of a chance of recovery, and he demanded a jury trial.
By amended petition, in August 2017, he further alleged that Cornerstone’s
employees, Candler and Trainor, breached Mr. Lewis’s confidentiality,
statutory privilege, privacy, and implied contract by going to the VA and
discussing his case with Dr. Troxclair, without his (Mr. Lewis’s) consent.
The case went to a 12-member jury over four days in July 2018. The
witnesses testified as outlined above. For the plaintiff, Dr. Troxclair, who
was by then no longer at the VA but a contracting physician at CHRISTUS
Schumpert in Coushatta, La., testified that it was a breach of standard for
Cornerstone not to follow his dietary instructions to the letter, as Mr. Lewis
got less than half the protein he needed; this was why his condition declined.
The plaintiff also called Peggy Richardson, RN, as an expert in nursing. She
felt Cornerstone’s nurses breached the standard of care by not calling a
surgeon to replace Mr. Lewis’s pulled-out PEG tube as soon as they 5 discovered it; by not notifying a doctor every time he pulled out his trach; by
generally failing to document the patient’s condition; by failing to provide
adequate nutritional support; and by failing to assess, document, report, and
treat the decubitus ulcer. Dr. Matriano-Lim, on cross-examination, testified
that he did not recall ever seeing Dr. Troxclair’s dietary instructions for Mr.
Lewis; he felt that if the patient pulled out his trach, and the nurses could get
it back in place, there was no need to call him; yet he agreed that nurses
should have called him when Mr. Lewis pulled out his PEG.
Cornerstone called the three members of the MRP. Dr. Jon D.
LeLeux, a cardiologist in Lafayette, La., testified that the ulcer did not
develop while Mr. Lewis was at Cornerstone, and it did not get worse there;
it is not malpractice if the patient pulls out his trach and PEG; the formula
Mr. Lewis received at Cornerstone was identical to that ordered by Dr.
Troxclair, just a different brand made by a different manufacturer; most
doctors rely on dieticians for dietary instructions; it was not malpractice if
the patient could not tolerate the prescribed formula; and Mr. Lewis did not
lose weight while at Cornerstone. Dr. Kyla Lokitz, a rheumatologist in
Shreveport (and also Dr. LeLeux’s sister), testified that Mr. Lewis came to
Cornerstone with advanced disease and a high probability of mortality; she
agreed with the MRP’s finding of no breach, but admitted that failure to
follow Dr. Troxclair’s dietary instructions was outside her field of expertise.
Dr. Brian Dockendorf, a general surgeon in Shreveport, testified that Vital
1.5, the formula given by Dr. Matriano-Lim, was “comparable” to Impact
1.5, the formula prescribed by Dr. Troxclair; if the patient could not tolerate
the prescribed formula, it was appropriate to reduce the intake; because of
Mr. Lewis’s ongoing problems, it was appropriate for Dr. Jackson to place 6 him on IV feeding; when Mr. Lewis pulled out his PEG, it was within the
standard of care for the nurses to put in a catheter and not call the doctor
immediately; Cornerstone’s staff met the standard of care as to his nutrition;
and the ulcer did not get worse while Mr. Lewis was at Cornerstone. On
direct examination, Dr. Matriano-Lim testified that Cornerstone’s nurses and
dieticians followed all his instructions; owing to Mr. Lewis’s complaints, he
changed the formula and increased the volume, but Mr. Lewis still could not
take the PEG feeding, so they had to stop it; if a patient removes his PEG or
IV, nurses need to “fix it,” and need not necessarily call the doctor; and Mr.
Lewis did not lose any weight while at Cornerstone.
ACTION OF THE TRIAL COURT
The jury found, 10-2, that Cornerstone did not breach the standard of
care as to Mr. Lewis’s treatment. It then found, 10-2, that Cornerstone made
an unauthorized disclosure of Mr. Lewis’s medical information, in violation
of HIPAA, and resulting in an invasion of privacy. However, it further
found, 10-2, that Reginald sustained no damages from the invasion of Mr.
Lewis’s privacy. The court rendered judgment rejecting all claims.
Reginald then filed a motion for JNOV urging that it was “clearly
erroneous” for the jury to find no breach of the standard of care and, despite
finding an invasion of privacy, to award no damages. The court denied the
motion.
Reginald has appealed, raising three assignments of error.
DISCUSSION
Medical Malpractice – Loss of a Chance
By his first assignment of error, Reginald urges the court erred in
failing to find a breach of the standard of care. He shows that the plaintiff’s 7 burden of proof in a medical malpractice case is that stated in La. R.S.
9:2794 and in Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So. 2d 880: the
plaintiff must prove the standard of care, breach, and causal connection.
Further, the burden of proof in a lost-chance-of-survival case is that stated in
Smith v. State, 95-0038 (La. 6/25/96), 676 So. 2d 543, and Benefield v.
Sibley, 43,317 (La. App. 2 Cir. 7/9/08), 988 So. 2d 279, writs denied, 2008-
2162, -2247 (La. 11/21/08), 996 So. 2d 1107, 1108: the plaintiff must prove
that a chance of survival (even if under 50%) existed, and that it was lost
through the defendant’s negligence. He also contends that the testimony of a
treating physician (here, Dr. Troxclair) is entitled to more weight than that of
physicians called merely for consultation (here, the MRP members),
Schouest v. J. Ray McDermott & Co., 411 So. 2d 1042 (La. 1982); Freeman
v. Rew, 557 So. 2d 748 (La. App. 2 Cir.), writ denied, 563 So. 2d 1154
(1990).
Reginald closely reiterates the facts, stressing (1) Drs. LeLeux and
Lokitz both said a doctor must be notified when the patient pulls out a
feeding tube, but the nurses at Cornerstone failed to do this; (2) Nurse
Richardson, the plaintiff’s expert, strongly found that Cornerstone’s nurses
failed to observe and report evidence of sepsis in Mr. Lewis; (3) only Dr.
Dockendorf, an MRP member, disagreed with the plaintiff’s witnesses, and
he has the reputation of (by his own admission) finding in favor of plaintiffs
only about 3% of the time; and (4) nobody could ever explain what
happened to Dr. Troxclair’s dietary instructions when they arrived at
Cornerstone. Reginald submits that on this record, it was legal error for the
jury to find no breach of duty, so de novo review is warranted. He further
contends that the evidence shows that Mr. Lewis had a significant chance of 8 survival, which was lost through Cornerstone’s negligence. He suggests
general damages of $100,000 to $150,000 for Mr. Lewis’s pain and
suffering.1
The burden of proof in a medical malpractice action is stated in La.
R.S. 9:2794 A:
A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., * * * the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians * * * licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; * **
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
In a malpractice claim against a hospital, the plaintiff must prove, as
in any negligence action, that the defendant owed the plaintiff a duty to
protect against the risk involved, the defendant breached that duty, the
plaintiff suffered an injury, and the defendant’s actions were a substantial
cause in fact of the injury. McGlothlin v. Christus St. Patrick Hosp., 2010-
2775 (La. 7/1/11), 65 So. 3d 1218; Little v. Pou, 42,872 (La. App. 2 Cir.
1/30/08), writ denied, 2008-0806 (La. 6/6/08), 983 So. 2d 920. A hospital is
liable for its employee’s negligence, including its doctors and nurses, under
the doctrine of respondeat superior. Little v. Pou, supra, and citations
1 In support, he cites Toston v. St. Francis Med. Ctr. Inc., 49,963 (La. App. 2 Cir. 10/14/15), 178 So. 3d 1084, Coody v. Barraza, 47,732 (La. App. 2 Cir. 3/6/13), 111 So. 3d 485, Benefield v. Sibley, supra, and McCrery v. Willis Knighton Med. Ctr., 29,999 (La. App. 2 Cir. 12/10/97), 705 So. 2d 753. 9 therein. A hospital is bound to exercise the requisite standard of care toward
a patient that the particular patient’s condition may require and to protect the
patient from external circumstances peculiarly within the hospital’s control.
McGlothlin v. Christus St. Patrick Hosp., supra; Richardson v. Christus
Schumpert Health Sys., 47,776 (La. App. 2 Cir. 2/27/13), 110 So. 3d 264,
writ denied, 2013-0621 (La. 4/19/13), 112 So. 3d 228. The mere fact that an
injury occurred or an accident happened does not raise a presumption that
the hospital was negligent. Campo v. Correa, 2001-2707 (La. 6/21/02), 828
So. 2d 502; Richardson v. Christus Schumpert, supra.
The loss of a chance of a better outcome is a theory of recovery
recognized in Louisiana law. Burchfield v. Wright, 2017-1488 (La. 6/27/18),
__ So. 3d __; Watson v. Glenwood Reg’l Med. Ctr., 49,661 (La. App. 2 Cir.
4/15/15), 163 So. 3d 817, writ denied, 2015-0945 (La. 8/28/15), 176 So. 3d
404. It is not a separate cause of action from the medical malpractice claim.
Burchfield v. Wright, Watson v. Glenwood, supra. Under this theory, the
plaintiff may carry his burden of proof by showing that the defendant’s
negligence was a substantial factor in depriving the patient of some chance
of life, recovery, or a better outcome. The negligence need not be the only
causative factor, but it must have increased the harm to the patient.
Burchfield v. Wright, supra; Smith v. State, supra.
Appellate review of the trial court’s findings in a medical malpractice
case is limited to manifest error. Johnson v. Morehouse Gen’l Hosp., 2010-
0387 (La. 5/10/11), 63 So. 3d 87; Richardson v. Christus Schumpert, supra.
Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be manifestly erroneous or clearly wrong.
Johnson v. Morehouse, supra; Richardson v. Christus Schumpert, supra. 10 The rule that questions of credibility are for the trier of fact extends to the
evaluation of expert testimony, unless the reasons stated by the expert are
patently unsound. Ryan v. Zurich Amer. Ins. Co., 2007-2312 (La. 7/1/08),
988 So. 2d 214; Van Buren v. Minor, 51,960 (La. App. 2 Cir. 4/11/18), 247
So. 3d 1949, writ denied, 2018-0768 (La. 9/21/18), 252 So. 3d 911.
We have closely examined the jury’s finding that Cornerstone did not
breach the applicable standard of care. At first blush, it does strike us as
unusual that nobody at Cornerstone – notably Dr. Matriano-Lim or Ms.
Calhoun – could recall seeing the specific dietary instructions that Dr.
Troxclair sent with Mr. Lewis. To misplace the orders of the transferring
doctor would seem to defeat the whole purpose of the transfer. However,
Ms. Grimm, Cornerstone’s chief clinical officer, testified that when they
receive transfer records, they keep these in a manila envelope in the
physicians’ dictation area, for the convenience of their physicians, but they
do not incorporate them as part of Cornerstone’s permanent record, they
cannot certify or reproduce them, and, after the patient is discharged, they
destroy them. The plaintiff offered no evidence that this office procedure
was a breach of the standard of care. In addition, Dr. Matriano-Lim testified
that he had seen some orders (we assume these were Dr. Troxclair’s), and in
fact he prescribed Vital 1.5 at 60 ml/hour, a formula which, according to
Drs. Dockendorf and LeLeux, was equivalent to the Impact 1.5 at 60
ml/hour prescribed by Dr. Troxclair. The plaintiff offered no evidence that
these were not equivalent formulas or that giving Mr. Lewis an equivalent
was a breach of the standard of care.
The record further shows that as soon as Mr. Lewis was moved to the
floor, he began suffering cramps and nausea, leading Ms. Calhoun to change 11 his formula; later, when he was returned to the original formula, he
immediately showed that he could not tolerate it, vomiting and complaining
of nausea, leading Dr. Jackson to initiate IV feeding. While Dr. Troxclair
was adamant that failure to follow his dietary orders was malpractice, he
admitted that very underweight patients may “refuse the feed”; critically, he
did not know “the kind of things * * * happening at Cornerstone in terms of
how the patient was responding to the nutrition he was getting.” Dr.
Dockendorf testified that Cornerstone’s response to the challenges of
feeding Mr. Lewis was appropriate; Dr. LeLeux testified that the volume of
PEG feeding depends on what the patient can tolerate. The jury could
reasonably infer that Dr. Troxclair simply was unaware of the contingencies
that kept arising with Mr. Lewis’s case.
The record also shows that Dr. Troxclair was plainly wrong in his
initial impression that Mr. Lewis developed a large decubitus ulcer while at
Cornerstone. He conveyed this “fact” to Reginald as proof of Cornerstone’s
negligence. However, the VA’s own records showed that Mr. Lewis had the
ulcer before he left the VA, a point that escaped Dr. Troxclair’s notice. On
this evidence, the jury did not abuse its discretion in discounting his claims
of malpractice, and in accepting the testimony of Drs. Dockendorf and
Matriano-Lim, and of Ms. Calhoun, that Cornerstone did not breach the
standard of care as to Mr. Lewis’s nutrition.
As for Cornerstone’s handling of Mr. Lewis’s PEG and trach, Nurse
Richardson was insistent that the nurses should have called the doctor each
time he pulled these out, and Dr. Lokitz, one of the MRP members, agreed
that when he pulled out his PEG, this probably worsened his condition.
However, Dr. Matriano-Lim testified that when this happens, the nurses are 12 supposed to “fix it”; they did, so it was no breach if they did not promptly
call a doctor; Dr. Dockendorf agreed that because the nurses inserted a
catheter into PEG hole, the situation was not urgent. Nurse Richardson also
faulted Cornerstone for failing to observe and report evidence of sepsis, but
Dr. Dockendorf testified that from his review of the record, Mr. Lewis did
not have sepsis. The record does not show that Drs. Matriano-Lim and
Dockendorf’s view was “patently unsound.” Ryan v. Zurich Amer., supra;
Van Buren v. Minor, supra. In short, the record presents ample evidence to
support the jury’s decision to disregard Nurse Richardson’s claims of nurse
malpractice.
With these conclusions, we need only briefly address the claim for
loss of a chance of survival. Reginald correctly shows that Mr. Lewis
probably had a chance of survival when he came to Cornerstone: this was
the view of Dr. Troxclair and Nurse Richardson, while Dr. Lokitz felt he had
a “high probability of mortality,” and the other experts were not asked to
express an opinion.
As noted, the loss of a chance of a better outcome is a theory of
recovery, not a separate cause of action from medical malpractice.
Burchfield v. Wright, supra; Watson v. Glenwood, supra. The jurisprudence
requires the defendant’s “negligence” to be a substantial factor in harming
the patient. In our view, this negligence requires proof of medical
malpractice, as defined by La. R.S. 9:2794, Little v. Pou, supra, and Pfiffner
v. Correa, supra. The mere fact that an injury occurred does not mean the
physician was negligent. Campo v. Correa, supra; Van Buren v. Minor,
supra. The jury was not plainly wrong to find that Cornerstone did not
13 breach the applicable standard of care with Mr. Lewis; thus, there is no basis
for an award of damages for loss of a chance of survival.
This assignment of error lacks merit.
Invasion of Privacy – JNOV
By his second assignment of error, Reginald urges the court erred in
failing to award damages for invasion of privacy and unauthorized
disclosure of medical records, after finding Cornerstone guilty of this. By
his third assignment, he contends the court erred in denying his motion for
JNOV on this issue. He shows that unauthorized disclosure of medical
information by a medical provider to a third person gives rise to damages,
Williams v. Sistrunk, 417 So. 2d 14 (La. App. 4 Cir. 1982); Glenn v. Kerlin,
248 So. 2d 834 (La. App. 2 Cir. 1971); Doe v. Smith, 2005-0653 (La. App. 4
Cir. 7/13/05), 913 So. 2d 140. He contends that once the jury found a
breach, it was legal error to find no damages, thus activating the standard of
JNOV, Anderson v. New Orleans Public Serv. Inc., 583 So. 2d 829 (La.
1991). He submits that nominal damages, in the amount of $5,000, would
be an appropriate award.2
At the outset, we note that the jury form referred to a “violation of
HIPAA,” as did much of the testimony at trial; however, HIPAA does not
create a private right of action. Acara v. Banks, 470 F. 3d 569 (5 Cir. 2006);
Fox v. City of Alexandria, 2007-810 (La. App. 3 Cir. 12/5/07), 971 So. 2d
468. We also note recent jurisprudence holding that claims of privacy are
2 In support, he cites Taylor v. Action Household Rentals Inc., 351 So. 2d 865 (La. App. 2 Cir. 1977), McAndrews v. Roy, 131 So. 2d 256 (La. App. 1 Cir. 1961), and Jaubert v. Crowley Post Signal, 368 So. 2d 475 (La. App. 3 Cir. 1979). We are constrained to observe, however, that Jaubert was reversed on the merits, with the Supreme Court finding no that invasion of privacy occurred, 375 So. 2d 1386, 5 Media L. Rep. 2084 (La. 1979). 14 personal to the individual, and not heritable. Frigon v. Universal Pictures
Inc., 2017-0993 (La. App. 1 Cir. 6/21/18), 255 So. 3d 591, 46 Media L. Rep.
1861, writ denied, 2018-1868 (La. 1/18/19), 262 So. 3d 896; Tatum v. New
Orleans Aviation Bd., 2011-1431 (La. App. 4 Cir. 4/11/12), 102 So. 3d 144,
40 Media L. Rep. 1649, writ denied, 2012-1847 (La. 11/9/12), 100 So. 3d
838. Although these concepts were not addressed at trial or in the appellate
briefs, they illumine and support the jury’s verdict.
Mr. Lewis left Cornerstone on April 30. At some point after that, Dr.
Troxclair told Reginald that Mr. Lewis had developed an ulcer while there;
Reginald phoned Cornerstone to complain about this. Mr. Lewis died on
May 19. The next day, two of Cornerstone’s employees, Candler and
Trainor, went to the VA to address Dr. Troxclair’s claims about their poor
handling of Mr. Lewis. At the time, none of the persons involved – Candler,
Trainor, or Dr. Troxclair – was aware that Mr. Lewis had passed away. One
week later, Candler and Trainor returned to advise Dr. Troxclair that his
facts were wrong, as Mr. Lewis had the ulcer before he ever got to
Cornerstone. Candler and Trainor testified that both meetings were held in
Dr. Troxclair’s office, with the door closed, and not in a public area. This
was not a “data dump” or a general broadcast of personal information about
a patient. The jury was entitled to find a sharing of information between
healthcare providers who, ultimately, would be entitled to the information.
We perceive no error in the jury’s finding of no damages.
A JNOV is warranted when the facts and inferences point so strongly
and overwhelmingly in favor of one party that the trial court believes that
reasonable persons could not arrive at a contrary verdict. The motion should
be denied if there is evidence opposed to the motion which is of such quality 15 and weight that reasonable and fair-minded persons in the exercise of
impartial judgment might reach different conclusions. Trunk v. Medical
Center of La. at New Orleans, 2004-0181 (La. 10/19/04), 885 So. 2d 534;
Moore v. IASIS Glenwood Reg’l Med. Ctr., 51,177 (La. App. 2 Cir. 2/15/17),
216 So. 3d 187, writ denied, 2017-0465 (La. 5/1/17), 219 So. 3d 1101.
Even if the jury found that an invasion of privacy occurred, on this
record, the evidence with respect to damages was such that reasonable and
fair-minded people could reach different conclusions. As such, the district
court did not err in denying the motion for JNOV.
These assignments lack merit.
CONCLUSION
For the reasons expressed, the judgment on the verdict dismissing all
claims, and the judgment denying the motion for JNOV, are affirmed. All
costs are assessed to the plaintiff, Reginald Lewis.
AFFIRMED.