ELLA J. ROYAL, ON BEHALF OF THE MINOR CHILDREN, KEVIYON ANTOINETTE MOTT AND TRE'JUAN ANTHONY ROYAL
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
JUAN S. BLANCH, M.D., LAKELAND MEDICAL CENTER, L.L.C., AND ITS INSURER, HEALTH CARE INDEMNITY, INC., AND LOUISIANA PATIENTS' COMPENSATION FUND
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2004-06136,
DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
Raspanti COUNSEL FOR PLAINTIFF/APPELLANT
Franklin D. Beahm Jeremy Robichaux BEAHM & GREEN, LLC
COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Terri F. Love, Judge Madeleine M. Landrieu,
Judge Joy Cossich Lobrano)
Cossich Lobrano Judge
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.
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.
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.
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.
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.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.
only witness called by the Royals during their case in chief
was Ella Royal. 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
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.
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
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.
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.
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.
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.
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
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. ...