MALCOLM MATHERNE, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF MITZI N. MATHERNE
JEFFERSON PARISH HOSPITAL DISTRICT NO. 1 D/B/A WEST JEFFERSON MEDICAL CENTER
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 723-188, DIVISION " G" . HONORABLE ROBERT A. PITRE, JR., JUDGE PRESIDING.
SCOTT E. SILBERT, W. GREGORY MERRITT, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.
MICHAEL HINGLE, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.
CARL T. CONRAD, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson.
[14-403 La.App. 5 Cir. 2]
JUDE G. GRAVOIS, Judge.
Plaintiff appeals the trial court's judgment granting defendant's motion for involuntary dismissal of his case upon resting after having presented his case-in-chief in this medical malpractice case. For the reasons that follow, we reverse the trial court's judgment of involuntary dismissal and remand the matter for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
On January 24, 2013, plaintiff, Malcolm Matherne, individually and on behalf of the Estate of Mitzi N. Matherne, filed a petition for damages against Jefferson Parish Hospital District No. 1 d/b/a West Jefferson Medical Center (" West Jefferson" ). The medical malpractice action alleged that on September 2, 2010, while Mrs. Matherne, a patient at West Jefferson, was being transferred from either a wheelchair or a bedside commode to her bed, she was only attended by one assistant despite her high fall risk status. The petition alleges that during the transfer, Mrs. Matherne's leg gave out, and she fell to the floor striking her right knee. Plaintiff alleged that the accident was due solely to the fault and neglect of [14-403 La.App. 5 Cir. 3] West Jefferson for failing to provide Mrs. Matherne with the appropriate and necessary degree of care and attention when being transferred. As
a result of her fall, Mrs. Matherne suffered from a leg injury which required surgery. She continued to have medical complications, requiring her to remain hospitalized and on bed rest for a prolonged period of time. Mrs. Matherne died on April 29, 2012. Plaintiff alleged that Mrs. Matherne's death was a direct consequence of the injuries she suffered at West Jefferson on September 2, 2010. On February 15, 2013, West Jefferson answered the petition asserting that Mrs. Matherne was at fault for failing to wait for assistance before attempting to move herself unassisted from her bedside commode to her bed.
On February 10, 2014, the matter proceeded to a judge trial. At the beginning of the trial, the parties filed a written joint stipulation concerning the contents of Mrs. Matherne's medical records. According to the joint stipulation, the medical records established that on August 23, 2010, Mrs. Matherne, age 76, was admitted to West Jefferson due to a very large hematoma on her left calf. The injury was the result of her leg being smashed between her motorized wheelchair and a step on her vehicle. Upon admission, the initial assessment and plan for Mrs. Matherne's care included, among other things, care of her left lower extremity hematoma, which would be monitored for compartment syndrome, and consultation and care by a dietician for morbid obesity. A fall risk protocol was also established due to Mrs. Matherne's weakened condition, weakened gait, and history of falls. The fall risk protocol included a bed alarm, a locked and low bed with side rails up, and frequent checks. Her high fall risk status was noted by a yellow band on her wrist, a star on the footboard of her bed, a star over the bed, a [14-403 La.App. 5 Cir. 4] star sticker on the door to her room, and a star sticker on her chart. All of her activities were to be restricted in accordance with the interdisciplinary patient care plans. While hospitalized, Mrs. Matherne was kept in bed at all times, wore a diaper at all times, and was assisted with a bedpan for voiding needs.
On September 2, 2010, at 10:05 a.m., Mrs. Matherne's diaper was changed by an attending nurse. At approximately 11:45 a.m., Karen Hepting, a physical therapy assistant, conducted a physical therapy session with Mrs. Matherne. The session concluded at 12:18 p.m., and Mrs. Matherne was left in her room in a recliner with her legs elevated. A nurse checked on her at 1:35 p.m. The nurse's notes reflect that the dressing on her leg was changed, and she was left in the recliner with her legs elevated. Her chart reflected no other encounters with hospital personnel until her accident at approximately 2:30 p.m. Following the accident, Mrs. Matherne sustained a fractured femur for which surgery was performed.
At trial, Karen Hepting testified that she provided physical therapy to Mrs. Matherne on September 2, 2010 to help " [mobilize] her out of bed and [work] on walking," as she was " quite weak and deconditioned." Mrs. Matherne was being taught how to walk with a rolling walker, and she received between 16 and 30 minutes of therapy that day. During the session, Mrs. Matherne rose from sitting to standing with " moderate assist," which means the therapist did 50% of the work and the patient did the other 50% of the work. Mrs. Matherne was able to walk with the walker for six feet while the therapist was " holding her, had the hand on her to minimal assist, meaning that the therapist had to do some work either to
direct the walker or direct the patient while walking." An aid or helper also followed behind with a chair. After therapy was over, Ms. Hepting left Mrs. Matherne in the " reclined bedside chair with needs at hand," including the call [14-403 La.App. 5 Cir. 5] button. The records confirm no one else from the physical therapy department attended to Mrs. Matherne after Ms. Hepting left her at approximately 12:18 p.m. Ms. Hepting testified that it was very unlikely that Mrs. Matherne could have collapsed the recliner and gotten up from it herself. Nonetheless, even if ...