Smith v. State Dept. of Health & Hosp.

650 So. 2d 450, 1995 WL 59979
CourtLouisiana Court of Appeal
DecidedFebruary 15, 1995
Docket94-871
StatusPublished
Cited by5 cases

This text of 650 So. 2d 450 (Smith v. State Dept. of Health & Hosp.) 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
Smith v. State Dept. of Health & Hosp., 650 So. 2d 450, 1995 WL 59979 (La. Ct. App. 1995).

Opinion

650 So.2d 450 (1995)

Carolyn SMITH, et al., Plaintiffs-Appellants,
v.
STATE of Louisiana, Through the DEPARTMENT OF HEALTH & HOSPITALS, Defendant-Appellee.

No. 94-871.

Court of Appeal of Louisiana, Third Circuit.

February 15, 1995.
Writ Denied April 28, 1995.

*451 Joseph Texada Dalrymple, Alexandria, for Carolyn Smith Etc.

Robert S. Leake, Asst. Atty. Gen., Robert W. Stratton, Baton Rouge, for State of La., Through Dept. Health & Hosp.

Before KNOLL, SAUNDERS and AMY, JJ.

SAUNDERS, Judge.

In this wrongful death action, survivors allege that decedent's death was caused by the medical malpractice of the emergency room physician on duty at Huey P. Long Hospital on December 13, 1988. The trial court concluded that plaintiff failed to show by a preponderance of the evidence that the physician deviated from the applicable standard of care. The record reveals no manifest error. Accordingly, we affirm.

FACTS

Plaintiffs are Germaine, Kendrick and Tamekka Smith, decedent's children, who attribute the wrongful death of their father, Carroll D. Smith, on December 13, 1988, to the wrongful diagnosis of Dr. Lachlan Noyes, an emergency room physician employed by the state of Louisiana, who was on duty at Huey P. Long Memorial Hospital in Pineville, Louisiana, in the early morning of December 13, 1988. They argue that Carroll Smith's bacterial pneumonia should have been diagnosed and that had it been properly diagnosed, he would not have died from its continued progression. Defendants, on the other hand, maintain that decedent presented Dr. Noyes with no symptoms suggestive of bacterial infection and that, even if he had, it would have made no difference in the end due to decedent's severely compromised immune system.

Decedent had been paid after finishing work Saturday, after which he and his long-time companion drank alcoholic beverages, as was customary after every pay day. According to Carolyn Smith, his common law wife, decedent did not indicate that he was feeling poorly until Sunday, although in hindsight she believed that he was probably already sick Saturday because he was unable to drink as much beer as usual. (That Sunday morning *452 Carolyn Smith, unable to find her daughter's hair comb, sent decedent to her sister's house to get one. His complaints began upon his return.) In fact, Carolyn Smith thought decedent had only a typical cold until Monday, when he indicated that he was too sick to go to work, which was uncommon for him. That day, according to Ms. Smith, decedent was taking deep breaths and "was spittin' up a lot of green phlegm in the trash can in the room" and had a high fever.

About 1:15 a.m. on the morning of Tuesday, December 13, decedent woke up and indicated his immediate desire to go to the doctor. Ms. Smith drove decedent to the hospital. According to her, decedent became tired in the short distance between the point where he was dropped off and a stool where he was required to sit for 10 or 15 minutes before being evaluated by an orderly.

When an orderly or nurse asked decedent about his symptoms, decedent spoke only of back pains; according to Ms. Smith, she additionally told the medical staff about decedent's difficulty in breathing.

Decedent was eventually seen by the alleged tortfeasor, Dr. Nachlan Noyes, who staffed the emergency room that evening. According to Ms. Smith, when Dr. Noyes approached, decedent again described his symptoms, this time including his breathing complaints. The doctor listened to decedent's chest with a stethoscope, then asked decedent whether he smoked or drank. Decedent answered affirmatively in both instances. Dr. Noyes heard nothing with the stethoscope which he believed required additional testing. After taking decedent's history, Dr. Noyes told Ms. Smith that decedent had symptoms of a flu and should go home and take medication for that illness. According to Ms. Smith, she pointedly asked the doctor whether the doctor should take an X-ray.

Upon his discharge, decedent was given flu medication. On their way home, they stopped at an all-night convenience store to purchase more in compliance with the doctor's orders.

Later that evening, decedent began to hallucinate. Ms. Smith was concerned, but attributed decedent's symptoms to a passing fever. The next morning, Ms. Smith gave decedent more liquid flu medication and brought their daughter to the health clinic. Decedent complied with her instructions that he take two aspirin equivalents.

When Ms. Smith returned, decedent indicated that he was feeling better. Later, Ms. Smith left the couple's sleeping daughter in bed with decedent to go outside and, while outside, heard decedent fall loudly to the bathroom floor inside. Mr. Smith would never regain consciousness.

FIRST ASSIGNED ERROR

From the record, it would seem clear that the presence of green sputum would tend to suggest a bacterial infection rather than a viral one. Bacterial pneumonia is apparently far more serious than viral pneumonia. Appellants' first assigned error urges manifest error. Through it decedent's survivors argue that the attending physician was placed on notice of the presence of green sputum, and Dr. Noyes was negligent in failing to learn of the green sputum and in failing to order X-rays and other tests to confirm or reject the possibility. They maintain that the trial court legally erred in siding with the attending physician's negative testimony from refreshed memory that decedent presented with no life-threatening symptoms, over Ms. Smith's positive testimony to the contrary based on her memory.

Thus, the threshold question is whether Dr. Noyes in fact had reason to know of the presence of green sputum. If he did not, then the premise of appellants' first argument would be lacking and, with it, the conclusion they wish us to draw, that Dr. Noyes negligently failed to order X-rays and possible other tests.

"It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of `manifest error' or unless it is `clearly wrong,' and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the *453 appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973). See also, Sevier v. United States Fidelity & Guaranty Co., 497 So.2d 1380, 1383 (La.1986); West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979); Davis v. Owen, 368 So.2d 1052, 1056 (La.1979); Cadiere v. West Gibson Products Co., 364 So.2d 998, 999 (La. 1978); A. Tate, `Manifest Error' Further observations on appellate review of facts in Louisiana civil cases, 22 La.L.Rev. 605, 611 (1962). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Arceneaux, supra at 1333, Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985).

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Bluebook (online)
650 So. 2d 450, 1995 WL 59979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-dept-of-health-hosp-lactapp-1995.