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Kirby v. State

Court of Appeals of Louisiana, First Circuit

November 7, 2014

JOHN KIRBY INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, JONATHAN KIRBY, MICHELLE C. NORTON, WILLIAM ANDREW CUNY AND ANGELA RENEE CUNY
v.
THE STATE OF LOUISIANA THROUGH THE LOUISIANA STATE UNIVERSITY BOARD OF SUPERVISORS, THE LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER, EARL K. LONG MEDICAL CENTER

Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana. Trial Court No. C606526. Honorable William A. Morvant, Judge.

CHARLES R. MOORE, COREY J. HEBERT, BATON ROUGE, LA, ATTORNEYS FOR PLAINTIFFS-APPELLEES, JOHN KIRBY, ET AL.

JAMES D. " BUDDY" CALDWELL, ATTORNEY GENERAL, KATHERINE WHEELER, ASSISTANT ATTORNEY GENERAL, BATON ROUGE, LA, ATTORNEYS FOR DEFENDANT-APPELLANT, THE STATE OF LOUISIANA ON BEHALF OF EARL K. LONG, MEDICAL CENTER.

BEFORE: KUHN, PETTIGREW, AND WELCH, JJ. KUHN, J CONCURS IN PART & DISSENTS IN PART AND ASSIGNS REASONS.

OPINION

[2014 0017 La.App. 1 Cir. 2] PETTIGREW, J.

In this medical malpractice action, the defendant, the State of Louisiana through the Louisiana State University Board of Supervisors, The Louisiana State University Health Sciences Center, Earl K. Long Medical Center (hereinafter, collectively referred to as " defendant" or " EKL" ) appeals a judgment rendered against it based on a jury verdict finding that the internal medicine physicians and staff, as well as the general hospital administrative staff at Earl K. Long Medical Center, breached the established applicable standard of care, and that those breaches caused damages and the ultimate

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death of fifty-one-year-old Amy Kirby. After a thorough review of the record, we find no merit to the defendant's assignments of error, and affirm the judgment. Likewise, we find no merit in the plaintiffs' answer to the appeal, seeking damages for a frivolous appeal, and decline to render an award.

SUMMARY OF BACKGROUND FACTS AND PROCEDURAL HISTORY

On December 19, 1993, Ms. Kirby married the plaintiff, John Kirby, and together they had a child, plaintiff Jonathan Kirby. Ms. Kirby also had three children from a prior marriage, plaintiffs Michelle C. Norton, William Andrew Cuny, and Angela Renee Cuny. In 1994, Ms. Kirby graduated as a registered nurse from Our Lady of the Lake School of Nursing. She worked at the OLOL Medical Center in the Neurology Department, and then later worked as a home health nurse. She was forced to retire due to a back injury sustained in a 1999 automobile accident, for which she took opioid medications. Although Mr. Kirby was employed at Superior Ford, the family had personal financial difficulties and had lost its medical insurance coverage.

Ms. Kirby died at EKL on August 7, 2008, two days after being admitted for continued complaints of severe and worsening

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abdominal pain and constipation, for which she had previously made several recent trips to the emergency room (ER) at EKL. The medical occurrences that led up to Ms. Kirby's death were a perforated colon at the [2014 0017 La.App. 1 Cir. 3] cecum that allowed liquid stool into her abdominal cavity, after which she became septic, and developed DIC[1] and metabolic acidosis.

The record reveals that throughout the two days leading up to her death, Ms. Kirby screamed in agony that she was rupturing from the inside, felt that she was dying, and pleaded with the EKL staff to do surgery, or something, to relieve her of the unrelenting and unbearable pressure and pain in her abdomen. Instead, the EKL staff continued the same treatment it had administered from the inception of her complaints -- administering increasingly strong laxatives, enemas, and pain medication. And indeed, as she predicted, Ms. Kirby's colon ruptured and as a result she ultimately died.

The record also reveals

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that there were other tests available that were not performed, specifically, a CT of the abdomen, a colonoscopy, and/or a hypaque/gastrografin enema, through which the EKL physicians would have been able to diagnose Ms. Kirby's malfunctioning bowel, and decompress her expanding colon before it ruptured. Further, the record evidences that the interns and residents attending to Ms. Kirby, including their supervisors, failed to timely or adequately address Ms. Kirby's agonizing screams due to her symptoms or modify the treatment she was being given despite that the treatment showed no signs of improving her symptoms or her condition.

EKL appeals the judgment adopting the jury verdict, which was consistent with a prior medical review panel opinion, concluding that the administrative staff and internal medicine physicians at EKL breached the standard of care owed to Ms. Kirby and that those breaches caused her injuries and death.[2] The jury awarded damages in excess of $1,750,000.00, which were reduced to the medical malpractice cap of $500,000.00. The defendant did not assign error to the damage award; it is not at issue in this appeal.

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[2014 0017 La.App. 1 Cir. 4] SPECIFIC FACTUAL BACKGROUND

Approximately three weeks prior to her death, Ms. Kirby was hospitalized at Lane Memorial Hospital (Lane), from July 15, 2008 to July 17, 2008, for tests and evaluation of complaints of abdominal pain and weight loss. An abdominal CT scan performed at Lane revealed a pancreatic mass and a nearby lymph node was indicative of metastasizing pancreatic cancer. She was released from Lane on July 17, with the continued prescribed use of oxycodone for pain and with instructions to report for follow-up treatment at EKL's Hematology/Oncology Clinic.

Ms. Kirby reported to the EKL clinic on the date of her appointment, July 24, 2008, but was told she did not have one scheduled. However, on that date, she did see a nurse practitioner who ordered some lab work and also scheduled appointments for Ms. Kirby to return to biopsy, confirm, and stage her pancreatic cancer.

However, prior to those appointments, on July 30, 2008, Ms. Kirby went to the EKL ER complaining of pain to her back, stomach, and ribs. An abdominal examination at

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this time revealed diffuse abdominal pain, with bowel sounds present. She reported that her last bowel movement had been the day before, Her prior lab tests indicative of cancer were confirmed; her previously scheduled appointments were confirmed and moved up to August 6, 2008; and she was discharged that same day with additional pain medication.

The next day, July 31, 2008, Ms. Kirby reported to the ER at Lane with the same complaints of continuing abdominal pain, now radiating to her back. An abdominal x-ray was performed that revealed scattered gas within her small and large intestines, but no evidence of acute intra-abdominal problems. She was administered additional narcotic medication and discharged that same day.

The following day, August 1, 2008, Ms. Kirby was still in severe abdominal distress and EMS was called to her home. The EMS reports reflect that she complained of pain in the left upper quadrant of her abdomen, radiating into her mid-back. She was transported to EKL where she complained of increasing and worsening abdominal pain despite taking morphine and oxycodone. She was admitted to the hospital for observation and pain medication regulation. She was started on a

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fentanyl patch for the [2014 0017 La.App. 1 Cir. 5] breakthrough pain, which Ms. Kirby reported helped control her pain much better than anything had before. X-rays of her abdomen were performed that revealed " a moderate degree of retained stool throughout the colon," She was diagnosed with refractory narcotic-induced constipation and was placed on a bowel regimen of laxatives and stool softeners. She was discharged at approximately 3:00 p.m. on August 2, 2008, despite that she was unable to have a bowel movement while at the hospital.

However, at 10:49 p.m. that same day, EMS was again called to her home, and the responders found Ms. Kirby in a fetal position, complaining of increasing pain for the past six hours that was getting worse. She was transported back to the EKL ER, and records indicate she complained of " periumbilical" (around the belly button) abdominal pain and reported that she had not had a bowel movement in three days. She was examined again, and her abdomen was noted to be firm, distended, and tender to palpation. An x-ray revealed that she had a large amount of retained stool in her ascending colon (indicating that the stool was not moving as it should through the colon), but no free air,

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or evidence of a small bowel obstruction. After having a " small" bowel movement while in the ER, she was discharged early in the morning on August 3, 2008, with instructions to take a stool softener and a stronger laxative and to report to the Oncology Department within twenty-four hours for pain management and constipation side effects.

However, at approximately 7:30 p.m. the next day, August 4, 2008, Ms. Kirby again returned to the EKL ER with the same, continued, but worsening abdominal pain complaints and stating that she had not had a bowel movement in six days. She was triaged, x-rayed, and admitted to the hospital at approximately 10:30 p.m., with a diagnosis of constipation secondary to pain medications.[3] A physical examination revealed her abdomen was distended and tender to palpation, with diffuse abdominal pain. She was given fluids, multiple doses of laxatives, stool softeners, and enemas (soap [2014 0017 La.App. 1 Cir. 6] suds and mineral oil), none of which produced a successful bowel movement. She was also given continued and increased morphine for her pain, and valium to calm her down.

In the early

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morning hours of August 5, 2008, after experiencing continued and increased pain with the additional laxative/enema efforts, Ms. Kirby refused another enema, stating she could not endure the pain. At this time, the nurse summoned the medical team to Ms. Kirby's room. Dr. Davey Prout, a first-year intern, and his supervising second-year resident, Dr. Oleana Lamendola, came to Ms. Kirby's bedside. They ordered a portable x-ray that revealed a moderate amount of stool in Ms. Kirby's colon, but no apparent obstruction. Ms. Kirby began vomiting yellow liquid and stating that she felt that " she was exploding inside." Ms. Kirby was given ativan for agitation, and additional doses of oral laxatives (magnesium citrate). She rested for a short period of time; however, at approximately 7:00 a.m., she, again, was in extreme distress, crawling on the floor and screaming that she was " rupturing" inside and was " dying." She began vomiting again, this time, a pink liquid, and a physician was paged due to the attending nurse's concern that the vomit may be blood. A second-year resident, Dr. Anne Price, came to Ms. Kirby's bedside and examined her abdomen, noting that it was " soft, but tender." She

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also noted that Ms. Kirby's abdomen appeared distended, somewhat hard, with no bowel sounds. Dr. Price ordered the placement of an NG tube, and also called for a surgical consult. (Ms. Kirby's daughter, Michelle Norton, whose complete testimony is discussed in more detail below, testified that by this time her mother was pale, her breathing was rapid and shadow, and her mental state had changed dramatically; she was going in and out of lucidity and not able to carry on a meaningful conversation.)

At approximately 7:45 a.m., at the insistence of Ms. Norton, Dr. Price summoned a surgical consult. Fifth-year resident surgeon, Dr. Mark Dominguez, evaluated Ms. Kirby, together with Dr. Lamendola. Dr. Dominguez noted that Ms. Kirby had a diagnosis of a pancreatic head mass, but that she had been readmitted to the hospital with abdominal pain. He also noted that she stated she had not had a bowel movement in seven days, and that this was " secondary to opiate use." He observed that Ms. Kirby was [2014 0017 La.App. 1 Cir. 7] " uncomfortable" and that she stated she wanted them to " get out the stool." Notwithstanding, Dr. Dominguez declined to operate, instead ordering continuing serial abdomen exams and enemas for

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bowel movement.

Medical records also indicate that at 8:00 a.m., Ms. Kirby was seen by first-year ICU resident Dr. Jason Toups, who, without performing a physical examination, ordered yet more laxatives and mineral oil, together with a bolus of saline, in continued attempts to force Ms. Kirby to have a bowel movement.

According to the testimony of Ms. Kirby's daughter, Ms. Norton, who was with her mother from the time she was brought to the emergency room at EKL on August 4, 2008, the entire time they were waiting in the emergency room, her mother complained of severe pain in her abdomen, which Ms. Norton testified was firm, distended, and bloated. She stated that she still had not had a bowel movement and felt that she needed to have one. Ms. Norton testified that her mother told that to everyone she came into contact with in the emergency room. In fact, Ms. Norton divulged that her mother, as a registered nurse, had a patient years before that had died from a perforated bowel; and her mother told her as well as EKL staff members, " [s]he was scared to death to perforate."

Also, according to Ms. Norton, her mother continued to get up and get on the toilet and " strain and ...


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