FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. C-20094550 HONORABLE PATRICK LOUIS MICHOT,
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
composed of Shannon J. Gremillion, John E. Conery, and David
E. Chatelain, Judges.
E. CHATELAIN [*] JUDGE
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.
AND PROCEDURAL HISTORY
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
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.
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.
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.
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[.]"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
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
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.
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".
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.
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. At approximately 10:45 a.m., on April 24,
2007, Gannard was pronounced dead.
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.
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.
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,  Plaintiff
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
(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.
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
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.
opposed both motions, attaching the following exhibits:
(1) Excerpts of Gannard's medical records, including
(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 ...