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Blackshear v. Nursing Ctr., LLC

Court of Appeal of Louisiana, Third Circuit

February 4, 2015

RODNEY BLACKSHEAR, ET AL.
v.
GOLDEN AGE NURSING CENTER, LLC, ET AL

APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 36082. HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE.

Sage L. Middleton, Todd A. Townsley, Townsley Law Firm, Lake Charles, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT: Rodney Blackshear, Ms. Edith Blackshear (deceased).

Elizabeth F. Shea, J. Gregory Bergstedt, Fraser, Wheeler, & Bergstedt, Lake Charles, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE: Eulogio L. Tan, M.D.

Court composed of John D. Saunders, Elizabeth A. Pickett, and John E. Conery, Judges.

OPINION

Page 180

[14-723 La.App. 3 Cir. 1] CONERY, Judge.

This medical malpractice action was filed by Rodney Blackshear, individually and on behalf of his deceased mother, Ms. Edith Blackshear. Ms. Blackshear died seven days after having her PEG tube replaced by defendant, Doctor Eulogio Tan. After a trial on the merits, the jury found that Doctor Tan had breached the standard of care in his treatment of Ms. Blackshear, but that Doctor Tan had not caused harm to Ms. Blackshear. Plaintiff appeals the judgment of the trial court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Blackshear was an eighty-four year old nursing home resident who presented at Hardtner Medical Center around 10:00 p.m. on July 1, 2005. Ms. Blackshear had allegedly pulled out her percutaneous endoscopic gastrostomy (PEG) tube.[1] Ms. Blackshear was seen by Doctor Eulogio Tan, an emergency medicine physician. After physical examination, Doctor Tan observed that Ms. Blackshear had normal vital signs, was not in any distress, had a soft and tender abdomen, and had normal heart rate and respirations. Without confirming how long the PEG tube had been in place, or exactly when Ms. Blackshear had allegedly pulled it out, Doctor Tan then replaced Ms. Blackshear's PEG tube and allegedly verified its placement by auscultation[2] and " some aspiration," [3] neither of which was documented in the medical records.

[14-723 La.App. 3 Cir. 2] After concluding that Ms. Blackshear had tolerated the replacement of the PEG tube well and that she was not in any distress, Doctor Tan discharged her. Ms. Blackshear returned to the nursing home around 1:30 a.m. on July 2, 2005. Feeding was resumed through the PEG tube shortly after Ms. Blackshear's return to the nursing home, and a nurse noted that Ms. Blackshear was resting comfortably. At 9:00 a.m., Ms. Blackshear vomited, after which her health then steadily declined.

By 10:30 a.m., Ms. Blackshear was in enough pain to warrant pain medication. At 2:30 p.m., Ms. Blackshear was pale, having trouble breathing, had low oxygen saturation, and was found to be in respiratory distress. Ms. Blackshear was then brought back to Hardtner Medical Center at approximately 3:30 p.m. with a chief complaint of respiratory distress and a tender abdomen on palpation. When her condition did not improve, Ms. Blackshear was transferred to Rapides Regional Medical Center a little after 8:00 p.m. on July 2,

Page 181

2005, where she was admitted by Doctor Jonathan Hunter, a family physician practicing at Rapides Regional Medical Center. An x-ray with Gastrografin dye taken at 9:24 p.m. showed that the PEG tube was in place, as the dye went into the stomach with no extravasation.[4]

When Ms. Blackshear's symptoms did not improve, Doctor Hunter ordered a CT scan of Ms. Blackshear's abdomen taken the next morning on July 3, 2005, at 10:30 a.m. The CT scan showed that the PEG tube was completely out of the stomach. Doctor John McGinity, a general surgeon at Rapides Regional Medical [14-723 La.App. 3 Cir. 3] Center, was called in for a consult, and he immediately performed surgery on Ms. Blackshear, where he discovered a " large stomach laceration at the greater curvature of the old G-tube site." Doctor McGinity repaired the stomach, removed infection from the peritoneal cavity, and surgically inserted a new PEG tube. Ms. Blackshear was then transferred to the ICU on July 3, 2005. Ms. Blackshear died in the ICU a few days later on July 8, 2005.

Rodney Blackshear, individually and on behalf of his deceased mother, Ms. Blackshear, filed a claim for medical practice and damages against Golden Age Nursing Center, L.L.C., LaSalle Hospital Service District #1 d/b/a Hardtner Medical Center, and Eulogio L. Tan, M.D. In accordance with the Louisiana Medical Malpractice Act, a medical review panel (MRP) was empaneled, which consisted of three physicians practicing the medical specialty of emergency medicine. The MRP unanimously found that the evidence did not support a conclusion that defendants had breached the standard of care in treating Ms. Blackshear. Plaintiff's claims against both Golden Age Nursing Center and Hardtner Medical Center were dismissed on motions for summary judgment. Hardtner Medical Center's motion for summary judgment was granted on March 3, 2009, while Golden Age Nursing Center's motion for summary judgment was granted on August 7, 2009. The summary judgment filed by Doctor Tan was denied, and Plaintiff's claims against Doctor Tan proceeded to a jury trial on March 3, 2014. The jury found on special interrogative that Doctor Tan had breached the standard of care, but that Doctor Tan had not caused harm to Ms. Blackshear, or her son, Rodney. A final judgment consistent with the jury's verdict was signed on March 28, 2014. Rodney timely appeals the judgment of the trial court. We find that Rodney's assignment of error lacks merit and affirm.

[14-723 La.App. 3 Cir. 4] ASSIGNMENT OF ERROR

Plaintiff/appellant asserts the following as an assignment ...


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