Washington v. Waring

142 So. 3d 40, 2013 La.App. 1 Cir. 0078, 2014 WL 623393, 2014 La. App. LEXIS 427
CourtLouisiana Court of Appeal
DecidedFebruary 18, 2014
DocketNo. 2013 CA 0078
StatusPublished
Cited by4 cases

This text of 142 So. 3d 40 (Washington v. Waring) 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
Washington v. Waring, 142 So. 3d 40, 2013 La.App. 1 Cir. 0078, 2014 WL 623393, 2014 La. App. LEXIS 427 (La. Ct. App. 2014).

Opinions

CRAIN, J.

12This is the appeal of a judgment in a medical malpractice action arising out of [43]*43the death of an infant. We reverse in part, vacate in part, amend, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

Alex Ducre, Jr. was born at Slidell Memorial Hospital and Medical Center on Wednesday, October 11, 2000, at 8:41 a.m. Shantell Washington went into premature labor and gave birth to Alex at a gestational age of 35 weeks and 6 days. Dr. Phyllis D. Waring was the attending pediatrician, providing coverage for Washington’s chosen pediatrician, Dr. Helen Stevenson.

Washington’s membrane ruptured approximately 37 hours before Alex was born, placing Alex at risk for infection. While Dr. Waring’s initial examination of Alex did not reveal any significant abnormalities, Dr. Judith Zatarain, a neonatologist, was consulted due to the infection risk. Dr. Zatarain’s examination shortly after Alex’s birth revealed a well “near-term” baby. She recommended serial CBC blood work to monitor for any infection. No infection developed, and Dr. Zatarain was not further involved in Alex’s care during this hospitalization.

Dr. Waring examined Alex Thursday morning and he appeared to be doing well. On Thursday night at 9:00 p.m., an attending nurse noted that Alex, for the first time, was jaundiced, a condition causing a yellowing of the skin. The medical testimony established that jaundice is a manifestation of excessive bilirubin in the bloodstream, or “hyperbilirubinemia,” and often occurs in newborn infants until the liver develops sufficiently to filter the bilirubin from the infant’s system. Although jaundice is not uncommon in newborn infants, the timing of its onset is important, particularly with a premature infant, because unresolved hyperbilirubinemia can lead to a serious condition called “kemic-terus,” a form of brain damage.

|sThe nurse did not notify Dr. Waring of the jaundice. However, Dr. Waring testified that nurses normally would not immediately report such a finding unless it was accompanied by other symptoms such as sleepiness, not eating, not drinking, or not voiding, none of which was identified by the nurse. Dr. Waring saw no need for the nurse to notify her that night since she would be examining Alex the following morning.

Dr. Waring examined Alex on Friday, October 13, 2000, at 9:00 a.m., the day he was discharged from the hospital. She conducted a “head to toe” examination and found no abnormalities, but noted “mild jaundice.” Alex and Washington were discharged with instructions to make a followup appointment with Dr. Stevenson and to contact Dr. Stevenson if Alex’s condition changed. Washington was also instructed to place Alex in indirect sunlight periodically for no more than thirty minutes, which, according to the medical evidence, helps remove excessive bilirubin from the body. According to Washington, there were no particular concerns expressed about Alex when he was discharged from the hospital.

After discharge, Alex was placed in indirect sunlight as the nurse instructed, and his physical condition appeared fine until Monday afternoon, October 16, 2000. At that time, Washington noticed that Alex was more sleepy, was not nursing as long, and had developed yellow spots in his eyes. Concerned, she called the hospital nursery and spoke to a nurse who asked if Alex was eating and voiding. Washington confirmed that he was, and the nurse advised her to keep a previously scheduled appointment the following morning with the lactation nurse and to call if anything changed.

[44]*44The next morning Washington noticed Alex’s skin was more yellow, almost orange, and the whites of his eyes were mostly yellow. She presented Alex at the scheduled appointment with the lactation nurse, who noted that Alex was [Jaundiced all over, lethargic, and had poor muscle tone. Washington was told to bring Alex immediately to Dr. Stevenson’s office. Dr. Stevenson then performed a lumbar puncture and admitted Alex to a pediatric intensive care unit with an extremely high bilirubin level of 44.8.

An exchange transfusion was attempted but did not work, and the next day Alex was transferred to Children’s Hospital in New Orleans, where he underwent an exploratory laparotomy and other procedures. One of his lungs collapsed, his kidneys began to fail, and he was placed on life support. His condition became terminal, and the decision was made to remove the life support. Alex died on October 20, 2000, nine days after his birth. The cause of death was kernicterus, secondary to hyperbilirubinemia.

On October 2, 2001, Washington and Alex’s father, Alex Ducre, Sr., filed a request for a medical review panel to review the care provided by one of the physicians at Children’s Hospital. The claim was amended on May 15, 2002, to request review of the care provided by Dr. Waring and Slidell Memorial Hospital. This medical review panel rendered a decision on May 29, 2003, with two members finding no breach of the standard of care by Slidell Memorial Hospital or Dr. Waring, and one member, Dr. Harold R. York, finding a breach of the standard of care by both providers that was a factor in the resultant damage. Although Dr. York found three deviations from the standard of care by Dr. Waring, he ultimately conceded that, in his opinion, only one of those deviations contributed to Alex’s death, specifically, Dr. Waring’s failure to obtain a “bilirubin on a clinically jaundiced premature infant, 48 hours old.” Dr. York also found that Slidell Memorial Hospital deviated from the standard of care because the attending nurses should have notified Dr. Waring of Alex’s “abnormal respiratory rate of 68 at the time of discharge.”

DAfter the parties learned that one of the original panel members had a prior employment relationship with Dr. Waring, another panel was formed to review the claims. On January 16, 2007, the new panel found no deviations from the standard of care by either Dr. Waring or the hospital. The reasoning as to Dr. Waring was “[i]t was not the standard of care in 2000 to order a baseline bilirubin in a 48-hour-old infant with minimal jaundice.”

Washington and Ducre then sued Dr. Waring and Slidell Memorial Hospital asserting breaches of the standard of care in the treatment of Alex that caused or contributed to his death. Both defendants requested a trial by jury, however, Washington and Ducre filed into the record the following stipulation signed by them and their attorney:

Now Into Court, through undersigned counsel, come Shantell Washington and Alex Ducre Sr., Individually and on behalf of Alex Ducre, Jr., who hereby stipulate that the cause of action of each plaintiff does not exceed $50,000.00 exclusive of interest and costs.

The matter proceeded to a two-day trial by a judge. The plaintiffs relied upon the testimony of Dr. York, who opined that Dr. Waring deviated from the standard of care by not determining Alex’s bilirubin level through a blood test prior to his discharge and that Washington should have been instructed at discharge to follow up with her pediatrician the next day. According to Dr. York, Dr. Waring’s deviations from the standard of care caused or contributed [45]*45to Alex’s death. Regarding the hospital, Dr. York testified that the nursing staff breached the standard of care by failing to notify Dr. Waring of the first observation of jaundice at approximately 37 hours of age and of the rise in Alex’s respiratory rates above 60 breaths per minute.

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Cite This Page — Counsel Stack

Bluebook (online)
142 So. 3d 40, 2013 La.App. 1 Cir. 0078, 2014 WL 623393, 2014 La. App. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-waring-lactapp-2014.