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Hoston v. Richland Parish Hospital Service District 1-B

Court of Appeals of Louisiana, Second Circuit

April 5, 2017

LETITIA HOSTON, ET AL. Plaintiffs-Appellants

         Appealed from the Fifth Judicial District for the Parish of Richland, Louisiana Lower Court Case No. 44055 Honorable James M. Stephens, Judge

          OFFICE OF ANTHONY J. BRUSCATO By: Anthony J. Bruscato, Counsel for Appellants.

          WATSON, BLANCHE, WILSON & POSNER, By: Robert Warren Robison, Jr., Benjamin J. Boudreaux, Counsel for Appellee Richland Parish Hospital Service District 1-B.

          COWAN & LEMMON, LLP, By: Thomas Clifton Cowan, Counsel for Appellee Dr. David Lifshutz.

          Before GARRETT, STONE, and COX, JJ.

          COX, J.

         Adult 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.


         On May 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.[1] At 6:15 p.m., Coward was discharged and was able to walk out of the emergency room in police custody.[2] 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.

         The 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[3] 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: Pneumocephalus."

         The discharge instructions issued for Coward by RMC do not include any mention of the CT scan or follow-up procedures.[4] 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 needed.

         The 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 Injury."

         Two 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.[5] 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.

         At his 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 ...

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