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Deykin v. Ochsner Clinic Foundation

Court of Appeals of Louisiana, Fifth Circuit

April 26, 2017

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.
v.
OCHSNER CLINIC FOUNDATION, GEORGE CHIMENTO, M.D., LUCAS B. ROMINE, M.D., MICHAEL SPRINTZ, M.D., AND ABC INSURANCE COMPANY

         ON 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.

          Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson

         RAC

         FHW

         JGG

          ROBERT A. CHAISSON, JUDGE

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         This 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 clearances.

         Initial 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.

         Mr. 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.

         Upon 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.[1] 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.

         On 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.[2]

         Seven 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 followed.

         On 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 ...

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