White v. Touro Infirmary

633 So. 2d 755, 1994 La. App. LEXIS 291, 1994 WL 42212
CourtLouisiana Court of Appeal
DecidedFebruary 11, 1994
Docket93-CA-1617
StatusPublished
Cited by6 cases

This text of 633 So. 2d 755 (White v. Touro Infirmary) 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
White v. Touro Infirmary, 633 So. 2d 755, 1994 La. App. LEXIS 291, 1994 WL 42212 (La. Ct. App. 1994).

Opinion

633 So.2d 755 (1994)

Alfred WHITE Sr., et al.
v.
TOURO INFIRMARY.

No. 93-CA-1617.

Court of Appeal of Louisiana, Fourth Circuit.

February 11, 1994.
Rehearing Denied April 15, 1994.

*757 Joseph W. Thomas, New Orleans, for plaintiffs-appellees Alfred White Sr., et al.

Harold A. Thomas, Thomas, Hayes, Beahm & Buckley, New Orleans, for defendant-appellant Touro Infirmary.

John Neely Kennedy, Charles P. Blanchard, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for intervenors-appellants Louisiana Patient's Compensation Fund Oversight Bd. and Louisiana Patient's Compensation Fund.

Before SCHOTT, C.J., and KLEES and LOBRANO, JJ.

KLEES, Judge.

Defendant Touro Infirmary ["Touro"] appeals from a judgment in favor of plaintiffs, Alfred White, Sr., Alfred White, Jr., and Dinela White, awarding them approximately $300,000.00 in damages for the wrongful death of Enid White. Enid White was the wife of Alfred White, Sr., and the mother of Alfred White, Jr., and Dinela White. An appeal has also been filed by intervenors, the Louisiana Patient's Compensation Fund and the Louisiana Patient's Compensation Fund Oversight Board [collectively "Patient's Compensation Fund"]. After reviewing the record, we affirm.

Enid White, a fifty-four year old teacher, entered Touro on November 16, 1988 for surgery to remove an ovarian cyst, which was scheduled for the next day. During surgery, Mrs. White's attending physician, Dr. Jack Kushner, discovered a tumor in her colon which, after consulting with Dr. Alan Levine and obtaining the consent of Mrs. White's husband, he also removed. The surgery was successfully completed and, according to hospital records, Mrs. White had a largely uneventful, routine post-operative recuperation period. On November 23, 1988, Mrs. White was discharged from Touro. A few minutes after arriving home, Mrs. White collapsed, and despite all efforts, she died a few hours later. Her death was caused by a massive saddle pulmonary embolism which occluded both main pulmonary arteries, triggering pulmonary arrest and heart failure.

Following her death, plaintiffs submitted a claim of negligence against Touro to a medical review panel, which found that Touro's conduct did not fall below the applicable standard of care. Plaintiffs then filed this lawsuit contending that Touro's negligence had denied Mrs. White a chance of survival. The case was tried before a jury for four days in January of 1993. The jury found in favor of plaintiffs, and awarded damages. Defendant filed a motion for judgment notwithstanding the verdict, and alternatively, for a new trial. The motions were denied, and this appeal followed. Because the amount of damages awarded exceeded Touro's statutory maximum liability of $100,000 under R.S. 40:1299.42(B)(2), we granted leave to the Patient's Compensation Fund to appeal as an intervenor.

On appeal, defendant argues that the jury verdict is manifestly erroneous because the evidence does not support the conclusion that Touro's negligence deprived Mrs. White of a chance of survival. Other errors asserted by Touro are the trial judge's allegedly improper framing of a jury interrogatory, the trial court's failure to limit the testimony of plaintiffs' expert Dr. Young, the trial court's alleged violation of the rule of Edmondson v. Leesville Concrete Company, 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), during jury selection, and the trial court's giving of an impermissible "dynamite" charge to the jury during their deliberations. Alternatively, Touro argues that the judgment should be amended to reflect its limited liability. The *758 appeal of the Patient's Compensation Fund is limited to its claim that the damages awarded by the jury are excessive.

With regard to the negligence of Touro, there is conflicting evidence in the record. Mrs. White's two treating physicians, Dr. Kushner and Dr. Levine, testified that she had an uneventful post-operative course, the type of recovery they would like to see every patient have. They stated that they examined Mrs. White every day after the surgery and that they were satisfied with the nursing care and with Mrs. White's progress. Dr. Levine, who discharged Mrs. White on November 23rd, had no doubt that she was ready to be discharged. The hospital charts also reflect a benign post-operative period, except for one notation on the day after surgery that Mrs. White was "anxious about getting up while in so much pain." The charts contain no mention of any respiratory difficulties or other problems. Defendant also presented the expert testimony of the three physicians who had served on the medical review panel. They opined that there were no objective findings which would have indicated the formation or presence of a pulmonary embolism, and that therefore Touro was not negligent.

In contrast to this evidence, plaintiffs presented the testimony of Mrs. White's family members and friends who were with her after the surgery. They indicated that Mrs. White was almost never left alone; she constantly had a family member or friend attending to her needs while she was in the hospital. Jacinta White, Enid White's daughter-in-law, was with her mother-in-law on the day after her surgery. She testified that when Enid White was helped up out of bed for the first time, she had difficulty breathing, collapsed and lost consciousness for ten to fifteen minutes until one of the nurses finally revived her by placing something under her nose. When she had fully revived, Enid White told Jacinta that her mouth felt numb and her speech was "blurry." Jacinta White gave detailed descriptions of the nurses in attendance during this incident, and stated that after her mother-in-law was given intravenous medication and had fallen asleep, Jacinta questioned the nurses at the nurses' station about the incident, but was told not to worry. There is no mention of this incident in the patient's chart or other hospital records.

Alfred White, Sr., Enid's husband, testified that his wife had recurring breathing difficulties, including coughing and struggling to catch her breath, which he reported to the nurses in attendance. Enid's daughter Dinela White testified that when she visited her mother in the hospital, Enid was gasping for breath, her mouth was twitching and her face was numb. Swanson LaBeaud, Enid's sister-in-law who visited her every day, also testified that Enid had difficulty breathing. Ms. LaBeaud confirmed that Enid told her that she had passed out in the presence of some of the nurses, and that none of the nurses would answer Enid's questions about her loss of consciousness, her slurred speech, or the numbness in her face. Again, none of the family members' complaints or Enid's complaints are noted in the hospital records, and none of the nurses testified at trial.

Plaintiffs contended at trial that the nurses' failure to properly monitor and record these complaints constituted negligence on the part of the hospital. Plaintiffs also presented the testimony of an expert witness, Dr. Ronald Young, who concluded that if these symptoms had not been overlooked, some type of a workup could have been performed which may have revealed the presence of smaller emboli, which sometimes proceed a large one, and may have prompted the doctors to take steps which could have prevented the massive embolism that caused Enid White's death. Based on this statement of Dr. Young, the trial judge denied defendant's motion for directed verdict and sent the case to the jury.

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Bluebook (online)
633 So. 2d 755, 1994 La. App. LEXIS 291, 1994 WL 42212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-touro-infirmary-lactapp-1994.