Roark v. Liberty Healthcare Systems, Inc.

197 So. 3d 171, 2016 La. App. LEXIS 1006, 2016 WL 2961389
CourtLouisiana Court of Appeal
DecidedMay 20, 2016
DocketNo. 50,632-CA
StatusPublished
Cited by1 cases

This text of 197 So. 3d 171 (Roark v. Liberty Healthcare Systems, Inc.) 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
Roark v. Liberty Healthcare Systems, Inc., 197 So. 3d 171, 2016 La. App. LEXIS 1006, 2016 WL 2961389 (La. Ct. App. 2016).

Opinion

BLEICH, J„ Ad Hoc.

| plaintiffs, the children of the deceased Justin Roark, Sr,, appeal the awards of damages in this survival and wrongful death action. For the reasons stated herein, we vacate the awards and render.

PROCEDURAL BACKGROUND

This began as a medical malpractice action in which liability and causation for the death of Justin Roark, Sr., were determined on summary judgment and no appeal was taken by the defendants. Thus, the only issue before the court is review of the trial court’s award of damages. The' trial judge awarded $40,000 on the survival action and $30,000 in wrongful death damages to each of the plaintiffs, Mr. Roark’s two children.1 Plaintiffs appeal, urging that the awards are abusively low.

FACTS

The Roarks were married in 1994 and had two children, Justin Dean Roark, Jr., and Shelby Sue Roark, who were both born in 1995, 10 months apart. The only indication in the record is that the marriage was happy and ‘the family was close until the parties “grew apart” arid divorced in 2000. There is no evidence in this record of any animosity between the Roarks and the parents were agreeable and cooperative, ie., not acrimonious, during the divorce and custody proceedings.

The Roarks enjoyed joint custody, with Mr. Roark having visitation every other weekend. Mr. Roark consistently paid child support in an amount agreed upon by the .parties. When Mr. Roark was between jobs, he Ufell behind in child support, but eventually became current again. Ms. Roark testified that Mr. Roark always endeavored to support Dean and Shelby.

[174]*174In September 2001, Ms. Roark and the children, who were five and six years old at the time, moved to Connecticut, where Ms. Roark’s family was located. Ms. Roark testified that she moved because she lost her job and that, although he was unhappy with the move, Mr. Roark understood her reasoning and agreed that the move was appropriate. According to Ms. Roark, she and Mr. Roark agreed that he would enjoy full summer visitation and would bear the children’s travel expenses in lieu of paying monthly child support. Both parties agree that Mr. Roark maintained contact with the children by telephone and sent gifts on holidays and special occasions. Dean spent the first summer with his father (Shelby was too young to fly unattended). Both children spent the summers of 2002, 2003 and 2004 with their father.

In 2004, after the final summer visit, Mr. Roark suffered an offshore head and neck injury. He was hospitalized and, thereafter, treated outpatient for physical and mental injuries. After the accident, Mr. Roark’s contact with the children tapered off and, apparently, he began experiencing the onset of adult schizophrenia and bipolar disorder. Mr. Roark did not tell Ms. Roark and the children; he did not want them to know of his condition. He was receiving medical care and, in 2007, Mr. Roark’s doctors changed his medications. Following the change in medications, Mr. Roark began having problems and, in August 2007, he was admitted to the nursing home | aowned by Liberty Healthcare in order for his medications to be stabilized and with the intent that he would be released once he was stable.

During his inpatient stay, Mr. Roark developed strep throat type symptoms. He began running fever and complained to the staff of a sore throat and difficulty breathing. On August 24, 2007, the staff gave Mr. Roark Tylenol and advised him to gargle with saltwater. The following morning, at 7:00 a.m., Mr. Roark’s temperature was 102 degrees and his pulse rate was high at 138 beats per minute. During the course of the morning, Mr. Roark repeatedly told the staff that he was very ill and could not breathe well. Midmorning, Mr. Roark asked to go to the emergency room. The LPN on duty, Ms. Stevens, told RN David Allen, who, in turn, called Lois Evans, the nurse practitioner, to ask for instructions. Ms. Evans testified that Nurse Allen did not tell her that Mr. Roark was having difficulty breathing — if she had been aware, of this, she would have instructed that Mr. Roark be taken to the emergency room. Instead, Ms. Evans instructed Nurse Allen to give Mr. Roark an injection of Rocephin STAT (within 15 minutes). Nurse Allen did not give the injection. Some three hours later, Nurse Allen called in the order of Rocephin to the pharmacy. As discussed below, Mr. Roark did not receive the medication until minutes before his death.

The nursing home records reflect that throughout the afternoon, Mr. Roark had hard chills, difficulty breathing and abnormal vital signs. At 2:00 p.m., during a visit from his sister, Mr. Roark complained that the staff would not help him and that he was dying. Mr. Roark walked from his bed 14to the nurses station several times to tell them he could not breathe and needed to go to the emergency room. Specifically, at 4:00 p.m., Mr. Roark went to the nurses station and asked for oxygen and was refused. At 4:45 p.m., he returned to the nurses station again and asked for oxygen and was refused. LPN Stevens observed that he could not breathe well, but attributed it to anxiety and gave him a Xanax. Mr. Roark went back to his room and collapsed. The staff then attempted to administer oxygen, but it was not connected properly so no oxygen was received by [175]*175Mr. Roark. He fell unconscious and CPR was administered, but Mr. Roark died. A short time before his death, the Rocephin injection was finally administered.

A DHH investigation revealed violations of its standards in many respects.

Dr. Perretti performed an autopsy and determined the cause of death to be suffocation due to swelling of the epiglottis and an excess of pus blocking the breathing passages, both secondary to a bacterial infection. Dr. Perretti testified that the condition can develop suddenly if caused by an allergic reaction, but progresses slower when caused by a bacterial infection such as in Mr. Roark’s ease.

Ms. Roark filed a complaint in medical malpractice and a medical review panel was convened. The panel unanimously found a breach of the standard of care, discrediting the testimony of LPN Stevens and Nurse Allen. The panel concluded that seven hours prior to Mr. Roark’s death he exhibited symptoms that should have been treated with emergent care and hospitalization. Ms. Roark filed a motion for summary judgment on pliability and causation, which was granted by the trial court and from which there was no appeal.

The matter proceeded to trial on quantum alone. In addition to the medical evidence and testimony of Ms. Roark as outlined above, Dean and Shelby testified. Dean was 12 years old when his father died and Shelby was 11. Dean, who was 20 years old at the time of trial, testified that he was too young to remember specific events prior to the move to Connecticut. However, he did recall family trips to Oklahoma and standing up as best man and ring bearer at his father’s marriage to his stepmother, Terri. Dean remembers this special event as an honor and said that it made him feel good to stand at his father’s side. Dean also remembers fishing with his father and grandfather on his grandfather’s pond and working on his father’s truck and Camaro together during his summer visits. He testified that he still works on his car and has fond memories . of learning from his father.

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197 So. 3d 171, 2016 La. App. LEXIS 1006, 2016 WL 2961389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roark-v-liberty-healthcare-systems-inc-lactapp-2016.