LETITIA HOSTON, ET AL. Plaintiffs-Appellants
RICHLAND PARISH HOSPITAL SERVICE DISTRICT 1-B d/b/a RICHARDSON MEDICAL CENTER Defendant-Appellee
from the Fifth Judicial District for the Parish of Richland,
Louisiana Lower Court Case No. 44055 Honorable James M.
OF ANTHONY J. BRUSCATO By: Anthony J. Bruscato, Counsel for
WATSON, BLANCHE, WILSON & POSNER, By: Robert Warren
Robison, Jr., Benjamin J. Boudreaux, Counsel for Appellee
Richland Parish Hospital Service District 1-B.
& LEMMON, LLP, By: Thomas Clifton Cowan, Counsel for
Appellee Dr. David Lifshutz.
GARRETT, STONE, and COX, JJ.
children of the deceased, Cleveland Coward
("Coward"), filed suit against a hospital,
Richardson Medical Center ("RMC"), and later
amended to include the treating emergency room physician, Dr.
David Lifshutz ("Dr. Lifshutz"), alleging
negligence and medical malpractice when their father died
after being treated for several blows to the head with a
steel pipe received during a fight. The plaintiffs, Letitia
Hoston, et al. ("Hoston"), appeal from a partial
summary judgment in favor of RMC which dismissed the
negligence claims against the hospital but excepted any
potential vicarious liability for the actions of Dr. Lifshutz
in treating Coward. Pursuant to the trial court's
judgment of August 15, 2016, the trial court granted the
motion for summary judgment dismissing all claims of the
plaintiffs against RMC, except as to the vicarious liability
of RMC regarding the emergency room doctor, David Lifshutz,
which was still pending before a medical review panel. For
the following reasons, we respectfully reverse the judgment
of the trial court regarding the dismissal of RMC and remand
for further proceedings.
28, 2011, at 3:30 p.m., Coward, a 66-year-old man, was
admitted to RMC after having been involved in a fight with
another man. In the course of the fight, Coward was struck in
the head with a steel pipe approximately four times. Upon
arrival at RMC, Dr. Lifshutz, the attending ER physician,
examined Coward and ordered a CT scan of his head. Coward was
treated for a laceration to his forehead and loss of
consciousness before being taken for a CT scan at 4:21 p.m.
While the CT images were sent to an off-site radiologist for
evaluation, Coward underwent an alcohol screen that showed
results of greater than 300 mg/dl. At 6:15 p.m., Coward was
discharged and was able to walk out of the emergency room in
police custody. Dr. Lifshutz testified at his deposition
that Coward would not have been discharged without his
permission. RMC records show that the radiologist's
report of findings from Coward's CT scan was transmitted
to RMC at 6:38 p.m., 23 minutes after Coward was discharged.
radiologist's findings from the CT report state that
there was soft tissue swelling with scalp sutures on the left
side of the frontoparietal area and
pneumocephalus with small collections of air along the
right side of the cranial vault. The report notes that there
was no evidence of acute traumatic intracranial brain injury,
nor were there any visible skull fractures. The
radiologist's impression was of a normal brain with
"no obvious acute intracranial brain injury, "
although the report notes pneumocephalus with several
droplets of air along the right side of the cranial vault.
The report concludes with the statement "Urgent Finding:
discharge instructions issued for Coward by RMC do not
include any mention of the CT scan or follow-up
procedures. They instruct Coward to follow up with his
primary care physician in 7 days, to change dressings on the
laceration every 24 hours, and to take Tylenol for pain as
record indicates that neither Dr. Lifshutz nor any other RMC
staff member communicated with Coward or the Richland
Detention Center following receipt of the CT scan report. On
June 1, 2011, police department personnel observed that
Coward was "unaware of his surroundings" and
"refused to walk." He was transported to E.A.
Conway Medical Center for evaluation and treatment. A CT scan
performed at E.A. Conway Medical Center on June 1, 2011,
showed Coward had sustained a skull fracture, subdural
hematoma, and extensive pneumocephalus. By June 2, 2011, he
had lapsed into a coma, and, after extensive treatment, he
died on August 9, 2011. The autopsy report lists Coward's
cause of death as "Pneumonia Complicating Head
separate medical malpractice panels were empanelled to render
opinions on the plaintiffs' claims. The first medical
review panel rendered its opinion on May 13, 2014, and
unanimously concluded that the RMC staff had met the
applicable standard of care. It also found that there was a
material issue as to whether RMC was vicariously liable for
any wrongdoing by Dr. Lifshutz but determined not to make a
finding on that issue. The second medical review panel was
tasked with determining the fault of Dr. Lifshutz. That panel
has, according to Hoston's brief, returned a conclusion
that Dr. Lifshutz was negligent; however that opinion is not
included in the record.
deposition, Dr. Lifshutz testified that, at the time of the
incident, he was employed by Emergency Staffing Solutions. He
went from one location to another performing emergency room
services at various medical centers. When rendering services
at the RMC emergency room, he was the only physician there to
see patients, and he was solely responsible for determining
the level of care given to a patient. Dr. Lifshutz stated
that he did not think he gave the discharge instructions to
the police, but his consent was required to discharge Coward.
He stated that the results of the CT scan at RMC were
markedly different than the results of the later CT scans. He
could not recall when or how (i.e. orally by phone or as a
physical document) he received the report from the
radiologist after the RMC CT scan, but he believed he
received the information before Coward left the hospital.
This conclusion was based on his statement that he
"would not have discharged him, released him to police
custody, without knowing the results of the CT scan." As
a result of this conclusion, Dr. Lifshutz stated that he must
have received a call from the radiologist about the report
because he wrote down "no acute injury" on his
chart. He also stated that sometimes physicians will indicate
the basis of the information they include on the chart, but