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Flournoy v. Our Lady of Lourdes Regional Medical Center, Inc.

Court of Appeals of Louisiana, Third Circuit

May 17, 2017

MAZELLA SHAHAN FLOURNOY
v.
OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC. AND KEITH COLOMB, M.D.

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20094550 HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

          Jason M. Welborn Joseph F. Garr, Jr., APLC COUNSEL FOR PLAINTIFF/APPELLANT: Mazella Shahan Flournoy

          Douglas K. Williams, Kelsey A. Clark, Breazeale, Sachse & Wilson, L.L.P. COUNSEL FOR DEFENDANT/APPELLEE: Our Lady of Lourdes Regional Medical Center

          Court composed of Shannon J. Gremillion, John E. Conery, and David E. Chatelain, Judges.

          DAVID E. CHATELAIN [*] JUDGE

         In this medical malpractice action, Mazella Shahan Flournoy (Plaintiff), the surviving mother of Niki Lynn Gannard (Gannard), appeals the trial court's judgment, granting defendant's Our Lady of Lourdes (OLOL) motion for summary judgment and dismissing Plaintiff's claims with prejudice as to OLOL. Finding Plaintiff failed to produce sufficient evidence to establish her ability to satisfy her evidentiary burden at trial on the elements of breach and causation, we affirm the trial court's judgment.

         FACTS AND PROCEDURAL HISTORY

         This litigation arises out of the treatment and care Our Lady of Lourdes Regional Medical Center, Inc. (OLOL) provided to Plaintiff's daughter, Gannard, following a motorcycle accident just before 3 a.m. on April 21, 2007. In her petition, Plaintiff alleges Gannard was an unhelmeted passenger on the motorcycle when an automobile, traveling in the opposite direction, attempted a left turn directly into the motorcycle's path. Upon impact, Gannard was thrown a distance of approximately 75 to 100 feet, resulting in severe injuries.

         The medical records reflect neither the emergency medical service (EMS) nor Gannard ever advised OLOL that Gannard was not wearing a helmet at the time of impact, that she had suffered any trauma to her head, or that she lost consciousness. To the contrary, the Acadian Ambulance (Acadian) record indicates Gannard was wearing a helmet, she denied loss of consciousness, and no trauma was noted to the head. It was only subsequently revealed during litigation and through witness interviews that Gannard was, in fact, not wearing a helmet and had actually lost consciousness for a period of time before EMS arrived.

         Immediately after the accident, Acadian transferred Gannard to the emergency room (ER) at OLOL. Upon her arrival in the ER, Gannard was not wearing a helmet, but she was conscious and coherent and showed no visible external trauma to her head, according to the emergency room records. At the time of Gannard's admittance to the ER, the records charted a Glasgow Coma Scale (GCS) of fifteen, which is the highest score for alertness or consciousness.[1]

         After the nursing staff and Dr. Gregory S. Thompson, the ER physician, examined Gannard, she was admitted to OLOL's Intensive Care Unit (ICU) for severe orthopedic injuries, including an open book fracture to her pelvis, comminuted fractures to both lower extremities, and an undisplaced right medial malleolar fracture. CT scans of her abdomen, pelvis, and chest were ordered, with Dr. Keith Colomb (Dr. Colomb), a general surgeon, then assuming her care. He, along with Dr. Barry Henry (Dr. Henry), an orthopedic surgeon, first observed Gannard while she was undergoing the CT scans. In his deposition, Dr. Colomb explained that, although a technician asked whether he wanted a CT scan of Gannard's head performed at that time, he rushed Gannard into surgery because her condition had become emergent when the injuries to her pelvis and lower extremities caused a life-threatening drop in blood pressure due to active internal hemorrhaging. As a result of those injuries, Dr. Henry immediately performed two orthopedic surgeries on Gannard, one to repair the open book fracture of the pelvis and the other to repair the three fractures to the lower extremities. Gannard remained intubated during and between both surgeries. Following the orthopedic surgeries by Dr. Henry, she was admitted to the intensive care unit at OLOL for post-surgical care and monitoring.

         The following morning, April 22, 2007, Dr. Colomb visited with Gannard during his morning rounds sometime between 6:00 and 7:00 a.m. Thereafter, Nurse Bambi Rayburn (Nurse Rayburn) did an assessment at 8:00 a.m., during which Gannard indicated she had been having a headache for hours and describes the headache as "sharp" and "constant." Gannard's medical chart also documented she was vomiting. The medication follow-up at 8:46 a.m. indicated Gannard was "[n]o longer complaining of pain" and her pain scale was "0" on a 10 scale of intensity after she had been given "Meperidine (Demerol)" for "[h]eadache[.]"[2]The noon assessment documented a pain scale of "3" and again Gannard described her headache as "sharp" and "constant" for "hours" in duration. The next assessment at 4:00 p.m. charted a pain scale of "5", and at this point, Nurse Rayburn applied cold therapy and called Gannard's treating anesthesiologist, Dr. Timothy Faul (Dr. Faul), who prescribed Morphine. At 4:54 p.m., Nurse Rayburn followed up with Dr. Faul on the Morphine that was administered and noted no improvement with a pain scale of "8".

         At 7:00 p.m., Nurse Rayburn charted that Gannard continued to complain of severe headaches and that Dr. Faul prescribed one intravenous dose of Toradol. The review of systems performed by Nurse Marleen B. Oldenburg (Nurse Oldenburg) at 8:00 p.m. charted a pain scale of "7". After Nurse Oldenburg contacted Dr. Colomb at 8:06 p.m., he faxed an order for Esgic. Nurse Oldenburg explained that Gannard and her mother thought the headache may have been related to caffeine withdrawal and that Esgic had worked in the past for such complaints.

         At 12:00 a.m. on April 23, 2007, Nurse Oldenburg again assessed Gannard and charted a pain scale of "0". The 4:00 a.m. review charted a pain scale of "6" with severe vomiting and a headache that was "sharp" and "constant" for "hours" in duration. When Nurse Casey L. Reeves (Nurse Reeves) performed a review of systems at 8:00 a.m., he noted a pain scale of "0", but also noted a headache that was "sharp" yet "intermittent" in duration and that Gannard was "not able to give pain number" in relation to where the pain was "[r]adiating to[.]" The records showed a GCS score of "15" at this time. At 10:00 a.m., Nurse Reeves noted Gannard complained of a headache:

Points to forehead but unable to give pain scale number. [Patient] cursing & stating her head hurts. Gave 1 Esgic tab [per orders]. [Patient] spit out pill while still cursing & stating "give me something for my head." Morphine PCA in progress. [Patient] did swallow pill w[ith] sip of water.

         Forty minutes later, at 10:40 a.m., Gannard screamed loudly, and Nurse Reeves charted:

RN went immediately into room to evaluate situation. Found [heart rate] 161, [blood pressure] 200's, small amount white foamy secretions around mouth, [patient] unresponsive. RN called for help. A.Autry, RN & B.McWhorter, RN responded to call for help. O[xygen] sat[uration] 98%. Pulled [patient] up in bed. RNs remaining at bedside.

By 10:42 a.m., Gannard was unresponsive to commands, and her GCS score dropped to "11".

         Immediately thereafter, Dr. Colomb was paged at 10:45 a.m. Dr. Colomb ordered a CT scan and neurosurgical consult "stat" at 10:50 a.m., at which point Dr. Patrick Juneau (Dr. Juneau), a neurosurgeon, was paged. At 11:11 a.m., a CT scan of the head was performed, depicting a left scalp hematoma and diffused edema throughout the brain; "tiny" hemorrhages were noted as well. No cranial fracture was seen.

         At 12:00 p.m., Dr. Juneau ordered that a Ventrix monitor be placed on Gannard to determine and monitor her intracranial pressure (ICP). Although OLOL had two such monitors, both malfunctioned. Nurse Reeves charted that Gannard was comatose with a GCS score of "3". Approximately three hours later, OLOL received a functioning Ventrix monitor from Lafayette General Medical Center, which Dr. Juneau installed. At 8:00 p.m., the monitor showed Gannard's ICP at 86 mmHg.[3] At approximately 10:45 a.m., on April 24, 2007, Gannard was pronounced dead.

         Thereafter, Plaintiff filed a medical malpractice complaint against Dr. Colomb and OLOL (collectively defendants) on April 9, 2008. The medical review panel issued its unanimous decision on May 11, 2009, finding:

The evidence does not support the conclusion that either Dr. Keith A. Colomb or Our Lady of Lourdes Regional Medical Center failed to meet the applicable standard of care as charged in the complaint.

         This opinion is based upon the following:

Ms. Gannard presented to Our Lady of Lourdes via ambulance in the early morning hours of April 21, 2007. She had suffered severe lower extremity and pelvic injuries as a result of a severe motorcycle accident. She was quickly and thoroughly evaluated in the emergency department and appropriately admitted to the intensive care unit for care of her injuries. While many/most patients with Ms. Gannard's injuries would have had an initial CT scan of the head/brain, it is not outside the standard of care to omit the scan in a patient with normal neurologic status and no evidence of a head injury. It is repeatedly documented that Ms. Gannard had no evidence of head injury in her chart. It is well documented that Ms. Gannard had an essentially normal neurologic status until she began to abruptly change in the early morning hours of 4/23/07. At that point Ms. Gannard not only changed her neurologic status, but also her respiratory status. Her subsequent course was ongoing worsening with resultant death. Based on the evidence in her chart, this change, occurring more than 48 hours after her initial injury, is most consistent with Fat Embolization Syndrome (altered neurologic status, hypoxia, low platelets, chest x-ray changes consistent with ARDS, multiple long/large bone fractures with surgery). It would be exceedingly rare for a patient with a severe traumatic brain injury to have remained lucid and neurologically normal for this length of time after such an injury.
The nursing staff and other staff at Our Lady of Lourdes also performed within the expected manner and followed the physician orders appropriately.

         Thereafter, Plaintiff filed the instant suit against defendants on July 30, 2009, asserting a survival action, a wrongful death action, and an action "for the loss of chance of survival of her daughter" resulting from defendants' malpractice. Specifically as to OLOL, [4] Plaintiff alleged:

Petitioner avers that a further sole and proximate cause of the death of her daughter was the fault and/or negligence and/or failure to adhere to the appropriate standard of care on part of defendant, Our Lady of Lourdes Hospital; said breach of the applicable standard of care consisting of the following non-exclusive particulars:
(a) Failure to obtain an accurate history;
(b) Failure to timely observe and/or report symptoms of a closed head injury;
(c) Failure to timely observe and/or diagnose symptoms of a closed head injury;
(d) Failure to timely determine the cause of the continued complaints of headaches and/or nausea;
(e) Failure to have a functioning Ventrix monitor on premises; and
(f) Other acts failing to comply with the applicable standard of care which may become known through discovery or shown at the trial of this matter.

         Over nine years after Gannard's accident, OLOL filed its motion for summary judgment on the basis that Plaintiff could not satisfy her burden of proof on the claims asserted against OLOL at trial, namely, Plaintiff failed to produce expert evidence to establish that OLOL breached the standard of care and/or caused Gannard's death. OLOL attached thereto the following exhibits in support of its position:

(1) Plaintiff's Petition for Damages;
(2) Affidavit, expert report, and deposition of Dr. Christopher J. Chaput (Plaintiff's expert neurosurgeon);
(3) Gannard's Certified Medical Records from OLOL;
(4) Affidavit, expert report, and deposition of Dr. Donald Breech (Plaintiff's expert orthopedic surgeon); and
(5) Affidavit of the medical review panel chairman, David S. Cook, with attached medical review panel opinion and oaths of panel members.

         Alternatively, OLOL also filed a motion for partial summary judgment on the basis that Plaintiff could not satisfy her burden of proof with regard to the wrongful death claims against the hospital. In support thereof, OLOL attached: (1) Plaintiff's petition and (2) excerpts from the depositions of Drs. Breech and Chaput.

         Plaintiff opposed both motions, attaching the following exhibits:

(1) Excerpts of Gannard's medical records, including Acadian's records;
(2) Excerpts of Dr. Colomb's deposition;
(3) Excerpts of Dr. Chaput's deposition;
(4) Excerpts of Dr. Juneau's deposition;
(5) Opinion Letter of Dr. Alan J. Appley (neurosurgeon);
(6) Excerpts from Nurse Oldenburg's deposition;
(7) Excerpts of Dr. Breech's ...

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