SUSAN DEYKIN, HERBERT DEYKIN, III, NEIL DEYKIN, AND DONNA DEYKIN MOORE, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF THEIR DECEASED FATHER, HERBERT DEYKIN, JR.
OCHSNER CLINIC FOUNDATION, GEORGE CHIMENTO, M.D., LUCAS B. ROMINE, M.D., MICHAEL SPRINTZ, M.D., AND ABC INSURANCE COMPANY
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 700-179, DIVISION
"B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, SUSAN DEYKIN, HERBERT
DEYKIN, III, NEIL DEYKIN, AND DONNA DEYKIN MOORE, ET AL R.
Glenn Cater Amanda C. Graeber.
COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER CLINIC FOUNDATION Don
S. McKinney Diana C. Surprenant.
composed of Fredericka Homberg Wicker, Jude G. Gravois, and
Robert A. Chaisson
A. CHAISSON, JUDGE
medical malpractice suit, Susan Deykin, Herbert Deykin, III,
Neil Deykin, and Donna Deykin Moore, the surviving children
of decedent Herbert Deykin, Jr. ("Mr. Deykin"),
appeal the judgment of the trial court rendered following the
jury's verdict in favor of Ochsner Clinic Foundation
d/b/a Ochsner Medical Clinic ("Ochsner"). For the
following reasons, we affirm the judgment of the trial court.
AND PROCEDURAL HISTORY
suit arises from the death of Mr. Herbert Deykin, Jr.,
following an elective bilateral knee replacement surgery on
December 30, 2008, at Ochsner Medical Center. At the time of
the surgery, Mr. Deykin was an 83-year-old man with a history
of blood pressure and cardiac ailments, including atrial
fibrillation, hypotension, hyperlipidemia, and syncope. Mr.
Deykin and his daughter, Susan, met with Dr. George Chimento,
an orthopedic surgeon, on November 17, 2008, to discuss knee
replacement surgery to address Mr. Deykin's ambulatory
difficulties and severe knee arthritis. Mr. Deykin elected to
undergo the bilateral knee replacement surgery, which was
scheduled for December 30, 2008, pending appropriate
pre-operative clearances began on December 3, 2008, with an
evaluation by Mr. Deykin's primary care physician, Dr. J.
Steven Granier. Dr. Granier noted Mr. Deykin's atrial
fibrillation and performed a physical examination and an EKG,
both of which were stable. Additional testing, including
chest x-rays and blood work, were ordered. Dr. Granier
medically cleared Mr. Deykin for surgery pending clearance
from cardiology. At that time, Dr. Granier also recommended
that Mr. Deykin be given a pre-operative steroid. A
cardiology evaluation was performed that same day by
Stephanie Ryan, PhD, a nurse practitioner in the cardiology
clinic, who evaluated Mr. Deykin using the 2007 American
College of Cardiology/American Heart Association Guidelines
for Perioperative Cardiovascular Evaluation and Care for
Noncardiac Surgery. Ms. Ryan reviewed Mr. Deykin's
medical history, which included his chronic conditions of
atrial fibrillation, syncope, dizziness, orthostatic
hypotension, and hyperlipidimia, all of which were noted as
stable and normal after a physical examination. Following the
guidelines, Ms. Ryan cleared Mr. Deykin for the knee surgery.
There were additional pre-operative consultations on December
12, 2008. Dr. Jack Rentz completed a pre-anesthetic medical
history and physical at which time he noted the potential
problems of atrial fibrillation, hypotension, hyperlipidemia,
frequent syncope and loss of balance. He also discussed with
Mr. Deykin and his daughter different anesthesia alternatives
and their associated risks. On that same day, Mr. Deykin
again met with Dr. Chimento, who discussed with him the risks
associated with the surgery. Mr. Deykin was provided with a
patient consent to medical treatment form for the bilateral
knee surgery as well as a patient consent to anesthesia form,
both of which outline the material risks of the recommended
treatments and procedures. Both were signed by Mr. Deykin.
Deykin was admitted to Ochsner Medical Center for surgery on
the morning of December 30, 2008. Prior to surgery, Dr.
Michael Sprintz, the anesthesiologist for the surgery,
evaluated Mr. Deykin. The evaluation included a physical
examination, patient interview, and a review of the
pre-operative anesthesia notes. Mr. Deykin was not given the
steroid dose recommended by Dr. Granier prior to surgery, but
it was given following surgery. Dr. Sprintz administered
spinal epidural anesthesia for the duration of the
approximately three-hour long operation and monitored Mr.
Deykin's heartbeat and blood pressure using an arterial
line. There were no complications during the bilateral knee
replacement surgery, which was performed by Dr. Chimento with
the assistance of Dr. Lucas Romine. Upon completion of the
surgery, Mr. Deykin was noted to be in hemodynamically stable
condition and was taken to the post-anesthesia care unit
(PACU) for recovery around 11:00 a.m.
entering the PACU, Mr. Deykin was initially awake and alert;
however, he soon began experiencing fluctuations in his blood
pressure and a decline in his alertness and responsiveness.
Dr. Sprintz was called to Mr. Deykin's bedside around
12:05 p.m., at which time he ordered eight doses of
neo-synephrine vassopressers and a liter of
Hespan. In response to this treatment, Mr.
Deykin's blood pressure returned to normal levels. At the
time that Dr. Sprintz's shift ended around 1:00 p.m., Mr.
Deykin appeared to be in stable condition. Dr. Chimento had
been at Mr. Deykin's bedside at the same time as Dr.
Sprintz, and they conferred regarding Mr. Deykin's
condition. Following Dr. Sprintz's departure at 1:00
p.m., Mr. Deykin's blood pressure began dropping again.
At 1:30 p.m., Dr. Chimento ordered additional Hespan. By 2:00
p.m., Mr. Deykin had become unresponsive and his blood
pressure continued to drop. Over the course of the next few
hours, the attending doctors in the PACU gave Mr. Deykin
several rounds of Hespan fluid in an attempt to elevate his
blood pressure. At around 6:30 p.m., Mr. Deykin was
transferred to the surgical intensive care unit (SICU) under
the care of Dr. Bobby Nossaman. Shortly after his transfer to
the SICU, Mr. Deykin suffered an acute coronary artery
thrombosis and died. Following Mr. Deykin's death, the
hospital informed the surviving family members that they
could request an autopsy, but they declined to make such a
request. No autopsy was performed.
April 5, 2011, Mr. Deykin's surviving children filed a
petition for damages against Ochsner Medical Center, Dr.
Chimento, Dr. Romine, Dr. Sprintz, and their insurer, in
which they claimed that both the hospital and the doctors had
committed medical malpractice. Specifically, they allege that
defendants failed to obtain proper informed consent from Mr.
Deykin prior to surgery, failed to properly evaluate and
treat Mr. Deykin during and following the surgical procedure,
failed to follow specific recommendations of other health
care providers, and failed to properly review Mr.
Deykin's chart/medical history, along with additional
acts of negligence.
days before trial began, both plaintiffs and defendants
submitted proposed jury charges and jury verdict forms
pursuant to a joint pre-trial order. Also prior to trial,
following a stipulation that the hospital was responsible for
any negligence of the doctors under the theory of
respondeat superior, the claims against the doctors
in their individual capacities were dismissed on joint motion
of the parties, so that the case proceeded to trial only
against the hospital. After a four-day trial, the jury
returned a verdict in favor of Ochsner. In accordance with
this verdict, the trial court entered a judgment in favor of
Ochsner and dismissed all of plaintiffs' claims with
prejudice. Plaintiffs filed a motion for judgment
notwithstanding the verdict and/or a motion for new trial,
which were denied by the trial court. This timely appeal
appeal, plaintiffs present three assignments of error:
1) Whether fundamental error occurred by failing to include
jury instructions and jury interrogatories regarding loss of
chance of survival in a medical malpractice action that