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Royal v. Blanch

Court of Appeals of Louisiana, Fourth Circuit

June 14, 2017

ELLA J. ROYAL, ON BEHALF OF THE MINOR CHILDREN, KEVIYON ANTOINETTE MOTT AND TRE'JUAN ANTHONY ROYAL
v.
JUAN S. BLANCH, M.D., LAKELAND MEDICAL CENTER, L.L.C., AND ITS INSURER, HEALTH CARE INDEMNITY, INC., AND LOUISIANA PATIENTS' COMPENSATION FUND ELLA J. ROYAL, ON BEHALF OF THE MINOR CHILDREN, KEVIYON ANTOINETTE MOTT AND TRE'JUAN ANTHONY ROYAL
v.
JUAN S. BLANCH, M.D., LAKELAND MEDICAL CENTER, L.L.C., AND ITS INSURER, HEALTH CARE INDEMNITY, INC., AND LOUISIANA PATIENTS' COMPENSATION FUND

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2004-06136, DIVISION "G-11" Honorable Robin M. Giarrusso, Judge

          Roy A. Raspanti COUNSEL FOR PLAINTIFF/APPELLANT

          Franklin D. Beahm Jeremy Robichaux BEAHM & GREEN, LLC COUNSEL FOR DEFENDANT/APPELLEE

          (Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)

          Joy Cossich Lobrano Judge

         In this medical malpractice case, plaintiff/appellant, Ella J. Royal, on behalf of the minor children Keviyon Antoinette Mott and Tre'Juan Anthony Royal (collectively "the Royals"), appeals the January 4, 2016 judgment of the district court rendering judgment in favor of appellee, Lakeland Medical Center, LLC ("Lakeland" or the "hospital"), and its insurer, Health Care Casualty Insurance, and dismissing all of the Royals' claims with prejudice. For the reasons that follow, we affirm.

         This litigation arises from the March 31, 2003 triage of Wonica Royal, who died on April 1, 2003, from a pulmonary embolism ("PE") after she was discharged from the hospital. On March 31, 2003, Wonica Royal presented to the hospital emergency room, at which time that there was no nurse at the triage desk. Instead, Dr. Juan Blanch ("Dr. Blanch"), an emergency room physician, was at the desk and performed the triage assessment himself. Dr. Blanch did not document in any medical record that a pulse oximetry test was performed during triage or the results of such test. Pulse oximetry is a test used to measure the oxygen saturation level of the blood.[1]

         The case proceeded to a medical review panel. On May 25, 2005, the medical review panel found that the hospital failed to comply with the appropriate standard of care because there was no record of a pulse oximetry reading in the medical record and this testing should have been performed by the hospital, and if not by the hospital, then testing should have been ordered by Dr. Blanch. According to the panel, "[a]s to Dr. Blanch, there was no documentation on the chart, the patient's respiratory rate was not addressed adequately, and he did not request a pulse oximetry reading." The panel also found that Wonica Royal's chances of survival would have been improved had a PE been diagnosed or suspected during the emergency room visit of March 31, 2003.

         On July 13, 2005, Ella J. Royal, in her capacity at tutrix for Wonica Royal's children, filed a petition for damages, raising claims of medical malpractice against the hospital, its insurer, Dr. Blanch, and the Louisiana Patients' Compensation Fund. The nurse who allegedly left the triage desk was not named as a defendant in the lawsuit. The Royals argue that these health care providers are bound by the medical maxim "not charted, not done, " meaning that because pulse oximetry testing was not documented in Wonica Royal's medical records, this testing was not done. The Royals contend that if pulse oximetry testing had been done, the testing would have improved Wonica Royal's chances of survival.

         The case proceeded to a bench trial before the district court, which took place over two days, March 11, 2013 and December 14, 2015. At the end of the first day of trial, the Royals and the hospital reached a settlement, which was ultimately not finalized due to subsequent objection by the Royals' undertutrix.[2]Following a lengthy dispute regarding enforcement of settlement, the second day of trial commenced more than two years later. The only remaining defendant at the time of trial was the hospital, as the Royals had settled their claims with Dr. Blanch and the Louisiana Patients' Compensation Fund before trial.

         The only witness called by the Royals during their case in chief was Ella Royal.[3] Lakeland called Dr. Blanch, Dr. Gerald Cvitanovich, and Dr. Kevin Jordan as witnesses, and each physician was tendered and accepted by the district court as an expert in emergency medicine without objection from the Royals.[4]

         Dr. Blanch testified that he was not an employee of Lakeland; rather, he worked at Lakeland as an independent contractor under the Schumacher Group, which had a contract with the hospital and would in turn contract with individual physicians to provide care at the hospital.

         On March 28, 2003, Dr. Blanch first treated Wonica Royal when she came to the emergency room at the hospital complaining of shortness of breath and fever. Dr. Blanch did not perform the triage assessment at that time, as it was done by a registered nurse who documented Wonica Royal's oxygen saturation levels.

         On March 31, 2003, Wonica Royal returned to the Lakeland emergency room at approximately 7:30 a.m. Dr. Blanch testified that he had an independent recollection of March 31, 2003 "[b]ecause it was an unusual day and then, of course, what happened" to Wonica Royal. Generally, Lakeland was not a busy hospital and was not busy that morning. At that time, staffing was reduced because of the hospital's impending closure. There was only one nurse, "James, " scheduled that morning, and he and Dr. Blanch were the only two health care providers in the emergency room. James asked Dr. Blanch to monitor triage so that James could go to the hospital cafeteria to get coffee, and Dr. Blanch agreed.

         Dr. Blanch was at the triage desk when Wonica Royal presented to the emergency room, complaining of coughing to the point of vomiting. Dr. Blanch testified that there was a machine in triage that tested blood pressure, pulse, temperature, and oxygen saturation, and that he used this machine to perform this testing on Wonica Royal during triage.

         Dr. Blanch testified that Wonica Royal's oxygen saturation level is not included in her hospital record because Dr. Blanch did not have access to the computer at the triage desk. Dr. Blanch testified that there was no doubt in his mind that he tested her oxygen saturation level. He explained that her oxygen saturation level would have been greater than ninety-five percent (95%), because had it been less, Dr. Blanch's course of treatment would have been different. He testified that, in the event of a reading below 95%, he would have ordered an arterial blood gas test. However, based on the results of her pulse oximetry test, he only ordered a blood count, chemistry count, and chest x-ray.

         When James returned to triage, he became the treating nurse. Dr. Blanch did not remember seeing James take a pulse oximetry reading. Wonica Royal was administered breathing treatments and antibiotics, and was discharged from the hospital the same day in "good condition" with instructions to follow up with her primary physician in two days.

         Dr. Blanch was questioned by counsel for the Royals regarding why Dr. Blanch did not include in his submission to the medical review panel that he performed pulse oximetry testing on March 31, 2003. Dr. Blanch testified that he told his attorney that he performed the pulse oximetry test, "no one asked" Dr. Blanch about the test, and he did not know what rules his attorney was bound by before the medical review panel. Dr. Blanch never spoke to the panel. He testified that he saw the written submission his lawyer prepared and presented to the panel. Dr. Blanch's submission to the panel was not introduced into evidence at trial.

         According to Dr. Blanch, the purpose of triage is to assess the severity of illness by evaluating the patient's vital signs. Dr. Blanch testified that, typically, triage was a step before the doctor's visit; however, a doctor can triage a patient as well as a nurse. Dr. Blanch testified that it was the hospital's responsibility to have a medical provider at triage and that by having Dr. Blanch at triage, Lakeland had fulfilled that responsibility. According to Dr. ...


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