STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 05-1310
THERESA C. WEEKS
VERSUS
BYRD MEDICAL CLINIC, INC., ET AL.
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 61,408 HONORABLE JOHN C. FORD, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of John D. Saunders, Oswald A. Decuir, and Billy Howard Ezell, Judges.
AFFIRMED.
Frederick Bernard Alexius Jeremy C. Cedars Provosty, Sadler, deLaunay, Fiorenza & Sobel P. O. Drawer 1791 Alexandria, LA 71309-1791 (318) 445-3631 Counsel for Defendant/Appellee: National Healthcare of Leesville, Inc. d/b/a Byrd Regional Hospital Gary M. Cooper Attorney at Law 8480 Bluebonnet Blvd., Suite D Baton Rouge, LA 70810 (225) 763-9998 Counsel for Plaintiff/Appellant: Theresa C. Weeks EZELL, JUDGE.
Theresa Weeks appeals the granting of summary judgment in favor of National
Healthcare of Leesville, Inc. d/b/a Byrd Regional Hospital. Ms. Weeks’ mother fell
and broke her hip while a patient at Byrd Hospital. In granting the motion for
summary judgment, the trial court ruled that Ms. Weeks presented no evidence that
the procedures and policies developed by Byrd Hospital did not meet the required
standard of care.
FACTS
Ms. Weeks’ mother, Goldia Neystel, was transferred from Many Hospital to the
senior care unit at Byrd Hospital on February 25, 1997, due to psychotic and
schizophrenia problems. On intake, it was noted that she was a high risk for falls.
This risk was increased by the fact that the great toe on her left foot had been
amputated. Ms. Neystel was listed as a patient requiring specialist precautions II.
This type of patient required that the nursing staff observe and make contact with the
patient at least every fifteen minutes.
In the early morning hours of March 18, 1997, Ms. Neystel fell while
attempting to get out of bed to use her bedside commode. As a result of the fall, she
fractured her right hip. The next day, she was transferred to a hospital in Baton
Rouge at the request of her daughter. Ms. Neystel died on March 21, 1997.
Ms. Weeks filed suit against Byrd Hospital and other parties. She alleged that
Byrd Hospital was negligent in its care of Ms. Neystel and that it breached the
appropriate standard of care owed to her.
On March 25, 2004, Byrd Hospital filed a motion for summary judgment which
was heard on July 12, 2004. Judgment was signed on February 9, 2005, granting
summary judgment in favor of Byrd Hospital and dismissing Ms. Weeks’ claim
1 against it. Ms. Weeks appeals.
SUMMARY JUDGMENT
Ms. Weeks appeals the summary judgment dismissal of Byrd Hospital, arguing
that there is evidence in the record which indicates that the employees were negligent
in their care of Ms. Neystel by failing to follow policies and procedures. She relies
on the deposition testimony of Dr. Frank Covington, Ms. Neystel’s treating
psychiatrist.
Grants of summary judgment are reviewed by the appellate courts de novo,
using the same criteria that the trial court used in determining whether summary
judgment was appropriate, i.e., whether there is a genuine issue of material fact and
whether the mover is entitled to judgment as a matter of law. Champagne v. Ward,
03-3211 (La. 1/19/05), 893 So.2d 773. Louisiana Code of Civil Procedure Article
966(C)(2) provides that the mover bears the initial burden of proof. If the mover
meets the initial burden, the burden then shifts to the plaintiff to establish that she will
be able to satisfy the evidentiary burden at trial. Champagne, 893 So.2d 773. If the
plaintiff fails to meet this burden, there is no genuine issue and the mover is entitled
to summary judgment. Id.
A genuine issue of material fact exists where reasonable persons, after
considering the evidence, could disagree. P. Charles Calahan, APLC v. Scottsdale
Ins. Co., 05-98 (La.App. 3 Cir. 6/1/05), 903 So.2d 1251(quoting Suire v. Lafayette
City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466, p. 11 (La. 4/12/05), 907
So.2d 37, 48). “‘A fact is ‘material’ if it is one that would matter at trial on the
merits.’” Id. at 1260.
In written reasons for judgment the trial court ruled that “[p]laintiff . . .
presented no evidence that the procedures and policies developed by Byrd Hospital
2 did not meet the required standard of care.” The court further stated that:
The only evidence of a deviation from the standard of care was the hearsay statement of Goldia Neystel that nurses failed to respond timely to her signal for assistance. The hospital records do not corroborate this statement. No evidence was presented which would indicate the statement would be admitted under an exception to the hearsay rules.
Byrd Hospital claims that the record establishes that it complied with the orders
of Dr. Covington that Ms. Neystel be checked every fifteen minutes. It argues that
Ms. Weeks has not produced any medical evidence that it deviated from the standard
of care and that a deviation caused the injuries or death of Ms. Neystel.
On the other hand, Ms. Weeks argues that she does not need any expert
testimony to establish the standard of care required of Byrd Hospital, as recognized
by the trial court. She claims that Dr. Covington’s deposition, taken on July 23, 2003,
over six years after Ms. Neystel’s fall, establishes a breach of the standard of care
required of Byrd Hospital. Ms. Weeks relies on Dr. Covington’s deposition
testimony that Ms. Neystel told him, on the morning after her fall, that she had
attempted to call the staff on several occasions to help her. She could not wait, so she
got up and fell at the bedside. Ms. Weeks also relies on his statement that a nurse had
told him that a nurse from the unit had been pulled to another floor during the night.
Dr. Covington did not identify any specific nurse that made this statement and was
not sure of the number of nurses that would work the night shift.
We agree that there are cases of obvious negligence in which medical
malpractice plaintiffs need not introduce expert testimony to satisfy their burden of
proof. Thomas v. Southwest Louisiana Hosp. Ass’n., 02-645 (La.App. 3 Cir.
12/11/02), 833 So.2d 548, writ denied, 03-476 (La. 4/25/03), 842 So.2d 401(citing
Pfiffner v. Correa, 94-924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228). These
cases include amputation of the wrong limb, leaving medical equipment inside the
3 patient, or dropping knives or acid on the patient. Id. “The mere fact that an injury
occurs or an accident happens raises no presumption or inference of negligence on
the part of the hospital.” Galloway v. Baton Rouge Gen. Hosp., 602 So.2d 1003,
1008 (La.1992)(quoting Galloway v. Baton Rouge Gen. Hosp., 583 So.2d 1169, 1173
(La.App. 1 Cir. 1991)). However, the supreme court further noted that “‘[i]t is the
hospital’s duty to protect a patient from dangers that may result from the patient’s
physical and mental incapacities as well as from external circumstances peculiarly
within the hospital’s control’.” Galloway, 602 So.2d at 1008 (quoting Hunt v.
Bogalusa Community Med. Ctr., 303 So.2d 745, 747 (La.1974))(alteration in orginal).
Byrd Hospital argues that this testimony relied on by Ms. Weeks to establish
a breach of the standard of care is inadmissible hearsay testimony that would not be
admissible at trial. It claims that this does not create a genuine issue of material fact.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 05-1310
THERESA C. WEEKS
VERSUS
BYRD MEDICAL CLINIC, INC., ET AL.
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 61,408 HONORABLE JOHN C. FORD, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of John D. Saunders, Oswald A. Decuir, and Billy Howard Ezell, Judges.
AFFIRMED.
Frederick Bernard Alexius Jeremy C. Cedars Provosty, Sadler, deLaunay, Fiorenza & Sobel P. O. Drawer 1791 Alexandria, LA 71309-1791 (318) 445-3631 Counsel for Defendant/Appellee: National Healthcare of Leesville, Inc. d/b/a Byrd Regional Hospital Gary M. Cooper Attorney at Law 8480 Bluebonnet Blvd., Suite D Baton Rouge, LA 70810 (225) 763-9998 Counsel for Plaintiff/Appellant: Theresa C. Weeks EZELL, JUDGE.
Theresa Weeks appeals the granting of summary judgment in favor of National
Healthcare of Leesville, Inc. d/b/a Byrd Regional Hospital. Ms. Weeks’ mother fell
and broke her hip while a patient at Byrd Hospital. In granting the motion for
summary judgment, the trial court ruled that Ms. Weeks presented no evidence that
the procedures and policies developed by Byrd Hospital did not meet the required
standard of care.
FACTS
Ms. Weeks’ mother, Goldia Neystel, was transferred from Many Hospital to the
senior care unit at Byrd Hospital on February 25, 1997, due to psychotic and
schizophrenia problems. On intake, it was noted that she was a high risk for falls.
This risk was increased by the fact that the great toe on her left foot had been
amputated. Ms. Neystel was listed as a patient requiring specialist precautions II.
This type of patient required that the nursing staff observe and make contact with the
patient at least every fifteen minutes.
In the early morning hours of March 18, 1997, Ms. Neystel fell while
attempting to get out of bed to use her bedside commode. As a result of the fall, she
fractured her right hip. The next day, she was transferred to a hospital in Baton
Rouge at the request of her daughter. Ms. Neystel died on March 21, 1997.
Ms. Weeks filed suit against Byrd Hospital and other parties. She alleged that
Byrd Hospital was negligent in its care of Ms. Neystel and that it breached the
appropriate standard of care owed to her.
On March 25, 2004, Byrd Hospital filed a motion for summary judgment which
was heard on July 12, 2004. Judgment was signed on February 9, 2005, granting
summary judgment in favor of Byrd Hospital and dismissing Ms. Weeks’ claim
1 against it. Ms. Weeks appeals.
SUMMARY JUDGMENT
Ms. Weeks appeals the summary judgment dismissal of Byrd Hospital, arguing
that there is evidence in the record which indicates that the employees were negligent
in their care of Ms. Neystel by failing to follow policies and procedures. She relies
on the deposition testimony of Dr. Frank Covington, Ms. Neystel’s treating
psychiatrist.
Grants of summary judgment are reviewed by the appellate courts de novo,
using the same criteria that the trial court used in determining whether summary
judgment was appropriate, i.e., whether there is a genuine issue of material fact and
whether the mover is entitled to judgment as a matter of law. Champagne v. Ward,
03-3211 (La. 1/19/05), 893 So.2d 773. Louisiana Code of Civil Procedure Article
966(C)(2) provides that the mover bears the initial burden of proof. If the mover
meets the initial burden, the burden then shifts to the plaintiff to establish that she will
be able to satisfy the evidentiary burden at trial. Champagne, 893 So.2d 773. If the
plaintiff fails to meet this burden, there is no genuine issue and the mover is entitled
to summary judgment. Id.
A genuine issue of material fact exists where reasonable persons, after
considering the evidence, could disagree. P. Charles Calahan, APLC v. Scottsdale
Ins. Co., 05-98 (La.App. 3 Cir. 6/1/05), 903 So.2d 1251(quoting Suire v. Lafayette
City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466, p. 11 (La. 4/12/05), 907
So.2d 37, 48). “‘A fact is ‘material’ if it is one that would matter at trial on the
merits.’” Id. at 1260.
In written reasons for judgment the trial court ruled that “[p]laintiff . . .
presented no evidence that the procedures and policies developed by Byrd Hospital
2 did not meet the required standard of care.” The court further stated that:
The only evidence of a deviation from the standard of care was the hearsay statement of Goldia Neystel that nurses failed to respond timely to her signal for assistance. The hospital records do not corroborate this statement. No evidence was presented which would indicate the statement would be admitted under an exception to the hearsay rules.
Byrd Hospital claims that the record establishes that it complied with the orders
of Dr. Covington that Ms. Neystel be checked every fifteen minutes. It argues that
Ms. Weeks has not produced any medical evidence that it deviated from the standard
of care and that a deviation caused the injuries or death of Ms. Neystel.
On the other hand, Ms. Weeks argues that she does not need any expert
testimony to establish the standard of care required of Byrd Hospital, as recognized
by the trial court. She claims that Dr. Covington’s deposition, taken on July 23, 2003,
over six years after Ms. Neystel’s fall, establishes a breach of the standard of care
required of Byrd Hospital. Ms. Weeks relies on Dr. Covington’s deposition
testimony that Ms. Neystel told him, on the morning after her fall, that she had
attempted to call the staff on several occasions to help her. She could not wait, so she
got up and fell at the bedside. Ms. Weeks also relies on his statement that a nurse had
told him that a nurse from the unit had been pulled to another floor during the night.
Dr. Covington did not identify any specific nurse that made this statement and was
not sure of the number of nurses that would work the night shift.
We agree that there are cases of obvious negligence in which medical
malpractice plaintiffs need not introduce expert testimony to satisfy their burden of
proof. Thomas v. Southwest Louisiana Hosp. Ass’n., 02-645 (La.App. 3 Cir.
12/11/02), 833 So.2d 548, writ denied, 03-476 (La. 4/25/03), 842 So.2d 401(citing
Pfiffner v. Correa, 94-924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228). These
cases include amputation of the wrong limb, leaving medical equipment inside the
3 patient, or dropping knives or acid on the patient. Id. “The mere fact that an injury
occurs or an accident happens raises no presumption or inference of negligence on
the part of the hospital.” Galloway v. Baton Rouge Gen. Hosp., 602 So.2d 1003,
1008 (La.1992)(quoting Galloway v. Baton Rouge Gen. Hosp., 583 So.2d 1169, 1173
(La.App. 1 Cir. 1991)). However, the supreme court further noted that “‘[i]t is the
hospital’s duty to protect a patient from dangers that may result from the patient’s
physical and mental incapacities as well as from external circumstances peculiarly
within the hospital’s control’.” Galloway, 602 So.2d at 1008 (quoting Hunt v.
Bogalusa Community Med. Ctr., 303 So.2d 745, 747 (La.1974))(alteration in orginal).
Byrd Hospital argues that this testimony relied on by Ms. Weeks to establish
a breach of the standard of care is inadmissible hearsay testimony that would not be
admissible at trial. It claims that this does not create a genuine issue of material fact.
We agree.
It is clear that both statements of Dr. Covington relied upon by Ms. Weeks are
hearsay testimony pursuant to La.Code Evid. art. 801. Ms. Weeks argues that the
statement made by her mother to Dr. Covington is admissible as a statement for the
purpose of medical treatment and diagnosis pursuant to La.Code Evid. art. 803(4).
Comments to Exception(4)(b) provide that this subsection “has been interpreted to
limit the scope of this exception to the kind of statements that are usually relied upon
by physicians in their diagnosis and treatment of patients.” It further provides that
“statements as to the cause of a condition not reasonably pertinent to diagnosis or
treatment of it are not within the ambit of this exception.” Ms. Neystel’s statements
to Dr. Covington as to how she fell have nothing to do with the diagnosis or treatment
of her condition and are therefore inadmissible.
4 We have thoroughly reviewed the record and evidence in the case and agree
with the trial court that there is no evidence that Byrd Hospital breached any standard
of care owed to Ms. Neystel. Records indicate that she was checked on every fifteen
minutes. Evidence did establish that the call button was answered when Ms. Neystel
used it on previous occasions. The nursing home records even indicate she was
encouraged to use the call button.
For these reasons, we affirm the summary judgment rendered in favor of
National Healthcare of Leesville, Inc. d/b/a Byrd Regional Hospital. Costs of this
appeal are assessed to Theresa Weeks.