STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-175
TAQUETTE L. CRAWFORD AND LARRY COLLIER, JR.
VERSUS
CHARLES RAY PEARSON, M.D.
**********
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 64,516 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE
JOHN E. CONERY JUDGE
Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and John E. Conery, Judges.
AFFIRMED. Samuel Jenkins Attorney at Law 2419 Kings Highway Shreveport, Louisiana 71103 (318) 636-4266 COUNSEL FOR PLAINTIFFS/APPELLANTS: Taquette L. Crawford Larry Collier, Jr.
William Daniel Dyess 870 Main Street Many, Louisiana 71449 COUNSEL FOR PLAINTIFFS/APPELLANTS: Taquette L. Crawford Larry Collier, Jr.
Robert I. Baudouin Blue Williams, L.L.C. 3421 North Causeway, Suite 900 Metairie, Louisiana 70002 (504) 830-4966 COUNSEL FOR DEFENDANT/APPELLEE: Khaled Ghorab, M.D.
Robert W. Robison, Jr. Watson, Blanche, Wilson & Posner 505 North Boulevard Baton Rouge, Louisiana 70802 (225) 387-5511 COUNSEL FOR DEFENDANT/APPELLEE: Sabine Medical Center
Gary J. Delahoussaye Gachassin Law Firm Post Office Box 80369 Lafayette, Louisiana 70598-0369 (337) 235-4576 COUNSEL FOR DEFENDANT/APPELLEE: Charles Ray Pearson, M.D. CONERY, Judge.
Plaintiffs, Taquette Crawford and Larry Collier, Jr., filed the underlying
medical malpractice action seeking damages associated with the death of their infant
son. Following a bench trial, the trial court rendered judgment in favor of the
defendant health care providers finding, in part, that Plaintiffs failed to establish the
relevant standard of care with respect to each defendant. The trial court further
determined that the weight of the evidence established that there was no breach of
the standard of care. Plaintiffs appeal. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
As established both in the record and by the parties’ joint stipulation, Larry
Collier, III (Larry) was hospitalized on four occasions between his December 30,
2008 birth and his October 21, 2009 death. Each hospitalization was associated with
pneumonia and/or asthma.
The last such hospitalization, which occurred October 11, 2009 through
October 13, 2009, was at Rapides Regional Medical Center where the young boy
was discharged with a diagnosis of atypical viral pneumonia with instructions to his
parents to continue him on medications as prescribed.
The medical care at issue in this case occurred only slightly more than a week
later, on October 21, 2009, when Plaintiffs arrived at the Sabine Medical Center
Emergency Department (Sabine Medical Center) at 11:37 a.m. with nine-month old
Larry. Ms. Crawford reported that Larry could “hardly breath[e].” The “Pediatric
Nursing Assessment,” noted that “when patient coughs kind [sic] whistle type
sound” and “adventitious breath sounds.”
Dr. Charles Pearson evaluated Larry at 11:50 a.m., noting the child’s recent
hospitalization due to pneumonia. Dr. Pearson reported that Larry showed shortness of breath, cough, congestion, and that the infant was fussy. Dr. Pearson’s physical
exam revealed the presence of stridor,1 but that the child was not wheezing. A chest
x-ray ordered by Dr. Pearson revealed a “foreign body,” lodged in the esophagus in
the “transverse lie” position, i.e., sideways. The object was determined to be a
penny. Dr. Pearson ordered a surgical consult on an emergency basis.
Dr. Khaled Ghorab performed the surgical consult ordered by Dr. Pearson and
recommended removing the coin by esophagoscopy.2 Ms. Crawford consented to
the procedure. Larry was taken into the operating room at 1:30 p.m. and “inhalation
induction” began, with Trent Friedel, CRNA (Certified Registered Nurse
Anesthetist) administering the anesthesia. Nurse Anesthetist Friedel noted that
Larry had respirations of 32 and “O2 sats” of 98%. The nurse anesthetist also
documented copious clear oral secretions and “breath sounds pos[sible] obstruction
of airway due to the coin.” Medications prior to anesthesia included an albuteral
nebulizer and decadron.
The record establishes that oral intubation was successful, as was the surgical
procedure, which lasted only twelve minutes. The coin was removed at 1:52 p.m.
Dr. Ghorab’s operative report indicates that after the coin was located, the forceps
were not initially able to “grab” the coin, causing it to slip downwards to the
stomach. Dr. Ghorab explained that he was able to grab it “right away,” and it was
removed with “no problems. After the scope was removed, however, Larry’s O2
“sats” fell to 90, and Nurse Anesthetist Friedel began to “manually breath the patient
1 The record indicates that stridor is a “whistling” sound. 2 Dr. Ghorab described the procedure as used in this instance as the introduction of an endoscope (an image sensing instrument) into the esophagus with the intent to grab and remove the foreign object. He explained that if the object was difficult to remove, the object could be pushed into the stomach for capture and for removal.
2 by himself.”3 Dr. Ghorab remarked in his operative report that it seemed like the
child “went into severe bronchospasm.”4
The medical team, including Dr. Pearson, attempted resuscitative efforts for
one hour and six minutes. When attempts proved unsuccessful, Larry was
pronounced dead at 2:56 p.m. A resulting autopsy listed the cause of death, as a
“[r]are complication of removal of a lodged esophageal foreign body (a penny).”
Alleging medical malpractice, Plaintiffs initially requested a Medical Review
Panel be formed to consider their malpractice claim against Sabine Medical Center
and Dr. Ghorab, both qualified health care providers under the terms of the Medical
Malpractice Act (MMA), La.R.S. 40:1231.1. Plaintiffs also filed a February 2013
medical malpractice suit against Dr. Pearson, who was not a qualified health care
provider under the MMA. The Medical Review Panel rendered a unanimous opinion
in February 2014 finding that, “[t]he evidence does not support the conclusion that
the defendant[s], Khaled M. Ghorab, M.D. and Sabine Medical Center, failed to
meet the applicable standard of care as charged in the complaint.” 5 Plaintiffs
3 Nurse Anesthetist Friedel explained that he attempted to improve the child’s ventilation through the intubated tube. Steroids and adrenaline were used to assist in the resuscitative process. Despite the attempt, the child’s lung function would not return. 4 The medical providers referred to “bronchospasm” as a narrowing of the airway. 5 The medical review panel rendered “Written Reasons for Conclusion,” stating:
As to Sabine Medical Center:
As to the failure to supervise, we find that there is no evidence in the records provided to us that the hospital deviated from the standard of care.
As to Dr. Khaled M. Ghorab:
The panel finds that there was no evidence that Dr. Ghorab acted below the standard of care. The child was apparently in respiratory distress. The child was appropriately evaluated and Dr. Ghorab responded promptly. He urgently took the patient to the operating room to remove the coin and try to relieve the respiratory distress. He was successful in removing the coin. Unfortunately, the patient sustained a rare complication from esophagoscopy resulting in bradycardia
3 thereafter amended the initial petition, adding Dr. Ghorab and Sabine Medical
Center as defendants in the malpractice suit initially filed against Dr. Pearson alone.
The matter proceeded to a two-day bench trial in February 2021 against all
defendants. Plaintiffs argued that Defendants breached the applicable standard of
care as they failed to treat what Plaintiffs contended was Larry’s underlying asthma
condition prior to or concurrent with the surgical procedure. Plaintiffs maintained
that their breach of the standard of care put the child at risk for bronchospasm,
leading to his death. Plaintiffs relied on the deposition testimony of Dr. Mark Levin,
their sole expert witness, in seeking to meet their burden of proving the elements of
medical malpractice, including the applicable standard of care. Dr. Levin focused
on Larry’s history of asthma and asserted, generally, that Defendants failed to
properly treat his presenting symptoms. Dr. Levin maintained that it was Larry’s
asthmatic condition, not the coin in the child’s esophagus, causing the symptoms of
shortness of breath and whistling sound when he breathed. He testified that the
asthmatic condition needed to be controlled before any attempt was made to remove
the coin as it placed the child at a risk for desaturation, i.e., a drop in blood oxygen
concentration. Dr. Levin denied that the presence of the coin in the esophagus
presented an emergency condition and suggested that the coin could have possibly
dropped from the esophagus to the child’s stomach without intervention.
With regard to Sabine Medical Center, Dr. Levin suggested that the hospital
breached its standard of care in failing to have a physician anesthesiologist in place
to supervise Nurse Anesthetist Friedel. He also criticized Nurse Anesthetist
broncospasm, cardiac dysrhythmia resulting in a fatal cardio-pulmonary event. The use of a CRNA was appropriate under the circumstances. There is no evidence that Desflurane was used in this operation. We find there was no deviation from the standard of care.
4 Friedel’s purported use of Desflurane, a general anesthic, in his treatment of the child
and suggested that the drug’s use was one of the factors leading to the child’s death
as it could cause bronchospasm.
In response, Defendants challenged Dr. Levin’s testimony, noting that Dr.
Levin, as an internist, oncologist, and hematologist, lacked a depth of experience
with pediatric patients, particularly those in an emergency setting. Moreover, in
addition to Defendants testifying on their own behalf and presenting the opinion of
the Medical Review Panel, Defendants further presented experts respective to their
own specialties of emergency care and surgery within the critical care context. Each
expert sharply disputed Dr. Levin’s description of Larry’s condition, and each
disputed that Defendants breached the standard of care. With regard to supervision
of Nurse Anesthetist Friedel, Sabine Medical Center pointed out that La.R.S. 37:930
specifically provides that a nurse anesthetist can practice under the supervision of
any physician and, in this case, Dr. Ghorab served in that role.
Following the presentation of evidence, the trial court ruled in favor of
Defendents. Although the trial court did not render specific reasons for ruling, the
resulting final judgment indicated that “Plaintiffs did not establish the relevant
standard of care with respect to each and every Defendant and that the weight of the
evidence that there was no breach of a standard of care[.]” Plaintiffs appealed.
ASSIGNMENTS OF ERROR
In their brief to this court, Plaintiffs assert that:
I. The trial court erred in determining that the plaintiffs[] did not meet their burden of proof that the defendants [’] actions fell below the appropriate standard of care.
II. The trial court erred in finding that the hospital was not liable for the negligent actions of an “independent contractor.”
5 LAW AND DISCUSSION
Standard of Care
Plaintiffs first challenge the trial court’s determination that they did not meet
their burden of proving that Defendants’ actions deviated from the appropriate
standard of care. As they did at the trial court, Plaintiffs rely on Dr. Levin’s broad-
based opinion that it was asthma, not the presence of the coin in Larry’s esophagus,
which caused his respiratory condition. Dr. Levin maintained that the medical team
was required to treat the asthma first before proceeding with the removal of the coin.
Denying that the coin presented an emergency, he suggested that it possibly could
have passed on its own. The alleged failure to treat the underlying asthmatic
condition, Plaintiffs contend, transfers to the entire “team,” including the nurses and
nurse anesthetist.
Louisiana Revised Statutes 9:2794(A) requires that medical malpractice
plaintiffs must prove by a preponderance of the evidence: (1) the applicable standard
of care; (2) the physician’s breach of that standard; and (3) a causal link between the
resulting injury and that breach. See also Burchfield v. Wright, 17-1488 (La.
6/27/18), 275 So.3d 855. The supreme court has set forth the general rule that expert
testimony is required to establish the applicable standard of care and whether that
standard was breached, except where the allegedly negligent act is so obvious that a
lay person can infer negligence in the absence of expert testimony. See Pfiffner v.
Correa, 94-924 (La. 10/17/94), 643 So.2d 1228. In this case, Plaintiffs attempted to
satisfy their burden regarding standard of care and related breach through the use of
Dr. Levin’s deposition testimony.
While Plaintiffs suggest that the trial court erred in its conclusions regarding
the applicable standard of care, “a trial court decision as to whether a plaintiff
6 established the appropriate standard of care and a breach thereof is pursuant to the
manifestly erroneous, clearly wrong, standard of review.” Eggins v. Christus Health
Cent. La., 21-339, p. 9 (La.App. 3 Cir. 2/9/22), 333 So.3d 1270, 1277. An appellate
court only reverses a trial court’s conclusion that a plaintiff failed to establish either
the medical standard of care or a breach of that standard of care if there is no
reasonable basis for the finding. Id. Following review of the record, we find that
the record supports the trial court’s conclusion.
While Plaintiffs relied on Dr. Levin’s opinion, which he offered from the
perspective of an internist, Defendants testified on their own behalf, offered the
unanimous Medical Review Panel opinion in their favor, and presented the
testimony of numerous physicians who testified with expertise in specialties targeted
to the issues at hand.
For instance, Dr. George Martinez, a board certified physician in both internal
medicine and emergency medicine, discounted Dr. Levin’s expertise in the
emergency room setting as well as Dr. Levin’s opinion that the presence of the coin
did not present an emergency. Dr. Martinez instead testified that the coin, although
in the esophagus, had to be immediately removed as it was compressing the trachea,
the air passageway. He denied that the child’s asthma could have been further
treated before the removal of the coin and testified that Dr. Pearson acted
appropriately both in his evaluation of the child and in his immediate pursuit of a
surgical consult.
Further, Dr. James Knoepp, a board certified surgeon, was presented as an
expert in the fields of general surgery, surgical critical care, and critical care. Dr.
Knoepp also served as a member of the Medical Review Panel reviewing the case.
While Dr. Pearson did not appear as a defendant before the panel, Dr. Knoepp
7 explained that he reviewed Dr. Pearson’s care and found that the emergency room
physician acted appropriately in his evaluation and in his seeking of an x-ray of the
child’s chest. Like Dr. Martinez, Dr. Knoepp found the presence of the coin in the
esophagus presented an emergent situation. He explained that it was the coin that
was causing Larry’s difficulty breathing. On this point, Dr. Knoepp observed that
Plaintiffs had administered some of Larry’s respiratory medicines before arrival at
the emergency room, yet the child’s breathing difficulties continued. Given those
circumstances, Dr. Knoepp found no merit in Dr. Levin’s suggestion that the
placement of the coin posed no emergency, and Dr. Knoepp found no fault in Dr.
Ghorab’s decision to address the removal of the coin.
Dr. Knoepp further rejected Dr. Levin’s position that Nurse Anesthetist
Friedel breached the standard of care in his purported use of Desflurane as the
general anesthetic. Pointedly, Dr. Knoepp reviewed the medical record and found
that Sevoflurane was used, not Desflurane. Dr. Knoepp noted that while Desflurane
would potentially cause an irritation, Sevoflurane, an alternative anesthetic agent, is
more generally used and would be potentially therapeutic, although he did not
elaborate as to why. Nurse Anesthetist Friedel confirmed in his own testimony that
he used Sevoflurane and stated that he would never give Desflurane to a nine-month
old infant.
Finally, Defendants presented the testimony of Dr. Dean Edell in the fields of
pediatric, pediatric emergency medicine, and pediatric pulmonology. Like Drs.
Martinez and Knoepp, Dr. Edell explained that the presence of the coin presented an
emergency. He went further, however, testifying that the failure to remove the coin
would have been “malpractice” as its presence in the airway would have caused
8 complete constriction of the airway and closed or partially closed the trachea.6 Dr.
Edell denied that Larry’s upper respiratory distress was due to asthma, given his
respiratory rate. Likewise, the presence of stridor, the whistling sound
commemorated on the ER notes, is indicative of an upper airway obstruction
according to Dr. Edell. Pointedly, Dr. Edell stated that leaving the coin in place
“wasn’t an option … the coin had to come out.” Dr. Edell explained that the passage
of the coin, as suggested by Dr. Levin, was unlikely, stating that “it’s possible to win
Powerball too, but you’re probably not going to.” Dr. Edell referenced the autopsy
report’s indication of an esophageal tear and explained that, in his opinion, the coin
was embedded and had already begun to erode the esophagus. He stated that had
Larry coughed due to the presence of the coin, it could have entered the airway and
posed a suffocation risk.
Dr. Edell explained that he had performed as many as 7,000 bronchoscopies7
in his career and that Larry’s death resulted from an extremely rare complication of
that surgery. He testified that, given the child’s respiratory history, Larry was prone
to a series of the “cascade of events” that caused his death. When asked whether Dr.
Levin was qualified to comment on this case, Dr. Edell reported that:
Dr. Levin may be a very capable oncologist. His understanding of the pediatric airway and some of his statements that he brought up and some – many of his conclusions – I’m just speechless. I just don’t even know how to comment. They’re just – it’s – they were just – just not grounded in physiology in a pediatric airway.
The death of Plaintiffs’ infant son is indisputably tragic, as Defendants
concede. The trial court, however, was presented with conflicting expert opinions
6 In this regard, Dr. Edell explained that the size of the coin almost completely occluded the esophagus, causing it to bulge and impede on the adjacent trachea. 7 Bronchoscopy involves the placement of a thin tube affixed with a camera into the lungs for visualization of the air passageways.
9 regarding the status of the child’s condition at the time of arrival at the hospital and
during Defendants’ subsequent medical treatment. The trial court plainly did not
accept the opinions offered by Dr. Levin, Plaintiffs’ expert. In such an instance of
conflicting expert opinions concerning compliance with the standard of care, an
appellate court affords great discretion to the trier of fact. See Price v. Erbe USA,
Inc., 09-1076 (La.App. 3 Cir. 6/9/10), 42 So.3d 985, writ denied, 10-1628 (La.
10/8/10), 46 So.3d 1271. Following review of the record, we find that the record
supports the trial court’s determination in this case. We therefore leave the trial
court’s ruling undisturbed.
Certified Registered Nurse Anesthetist
In their second assignment of error, Plaintiffs note the general proposition that
a hospital is responsible for the negligence of its employees and, additionally, a
hospital’s responsibility extends to the selection of a competent staff. Plaintiffs
assert that although Nurse Anesthetist Friedel suggested at trial that he is an
independent contractor and not an employee of the hospital, no contract was offered
in this regard. Given its attendant responsibilities, Plaintiffs argue, Sabine Medical
Center was required to have Nurse Anesthetist Friedel supervised by an attending
anesthesiologist.
We first point out that the trial court made no findings regarding independent
contractor status. Additionally, we have above maintained the trial court’s findings
regarding standard of care and breach of the standard of care, a finding that the trial
court made as to “each and every Defendant.” Finally, while Plaintiffs suggest that
further supervision was required, La.R.S. 37:930 specifically addresses supervision
of a nurse anesthetist and provides, in pertinent part,
10 A. No registered professional nurse shall administer any form of anesthetic to any person under his care unless the following conditions are met:
....
(3) The registered nurse administers anesthetics and ancillary services under the direction and supervision of a physician or dentist who is licensed to practice under the laws of the state of Louisiana.
(Emphasis added.) In this case, the testimony was clear that Nurse Anesthetist
Friedel served under the direction and supervision of Dr. Ghorab. The statute
otherwise makes no reference to a requirement that the nurse anesthetist be
supervised by a physician anesthesiologist as suggested by Plaintiffs.
Given those circumstances, we leave the trial court’s decision undisturbed.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. Costs
of this appeal are assigned to the Plaintiffs/Appellants, Taquette Crawford and Larry
Collier, Jr.
AFFIRMED.