FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
230, 743 C/W 236, 315, DIVISION "B" HONORABLE
THOMAS MARTIN YEAGER, DISTRICT JUDGE
Charles A. Schutte, Jr. Valerie A. Judice Schutte, Terhoeve,
et al COUNSEL FOR DEFENDANTS/APPELLANTS: Oaks Care Center,
LLC Plantation Management Co., LLC.
Lewis Bussey Bussey & Lauve COUNSEL FOR
INTERVENOR/APPELLANT: Louisiana Patient's Compensation
Fund and Oversight Board.
Gregory Brice Jones Paul Damon Hesse Brice Jones &
Associates COUNSEL FOR PLAINTIFFS/APPELLEES: Bartley T.
Cardwell Thomas C. Cardwell.
composed of Elizabeth A. Pickett, John E. Conery, and Candyce
G. Perret, Judges.
E. CONERY JUDGE.
OF THE CASE
nursing home malpractice case, defendants, Oaks Care Center,
LLC and Plantation Management, LLC, appeal a judgment
adopting a jury's verdict in favor of a ninety year old
patient with dementia who was injured in a fall from a
bedside chair where she had been left unattended by the
nursing home staff. The judgment ordered them to pay, in
solido, $100, 000.00. Also appealing the judgment is the
Louisiana Patient's Compensation Fund and Oversight
Board, which was ordered to pay $110, 386.75 (the balance of
the amount awarded).
following reasons, we affirm in its entirety the July 29,
2016 judgment in favor of plaintiffs and we assess all
appellate costs to defendants, Oaks Care Center, LLC and
Plantation Management, LLC. Further, we remand the case to
the trial court to conduct a hearing on the post-trial motion
to tax trial court costs and determine the date legal
interest accrues for all appellants.
AND PROCEDURAL HISTORY
April 16, 2007, Marguerite Fugler Cardwell (Mrs. Cardwell)
fell at her residence and was transported to Christus St.
Frances Cabrini Hospital (Cabrini) in Alexandria, where she
was admitted because of pain in her low back and shoulder.
Her doctors determined she had severe spinal stenosis that
was thought to be a factor in her fall. While at Cabrini, she
was unable to walk without the assistance of two aides. Her
hospital bed rails were used to help prevent her from
her release from Cabrini on April 23, 2007, Mrs. Cardwell was
transported by Acadian Ambulance (Acadian) to The Oaks Care
Center, a nursing home owned by Oaks Care Center, LLC and
leased and/or operated by Plantation Management, LLC
(collectively, the Oaks). The record reflects that Mrs.
Cardwell arrived at the Oaks at approximately 4:45 p.m. on
April 23, 2007. The physician's telephone orders not only
showed she had spinal stenosis, but also Alzheimer's,
dementia, colitis, anxiety, depression, muscle weakness and
debility, gerd, and pain. Mrs. Cardwell's sons were
present when she arrived at the Oaks by ambulance and, aside
from stepping into the hall for a short period of time while
the ambulance crew was unloading her from the stretcher to
her bed, a family member was present until she fell asleep in
her bed with its rails up at approximately 8:30 that evening.
The family testified that no one from the Oaks performed an
evaluation on Mrs. Cardwell, and except for one person coming
to the room with a potty chair, the family did not see anyone
from the Oaks that evening. At some point after all of her
family members left, Mrs. Cardwell was placed in a chair and
left unsupervised. The record shows that the Oaks staff
administered Ms. Cardwell's medication between 5:30 a.m.
and 6:30 a.m. on April 24, 2007. Mrs. Cardwell was found on
the floor of her room by the Oaks staff at approximately 6:50
a.m. on April 24, 2007. She was transported by ambulance back
to Cabrini, where she was treated for the injuries she
sustained in the fall in her room.
Cardwell timely filed a nursing home malpractice claim
alleging that the nursing home was at fault for placing her
in a chair without proper assessment of her ability to sit
unsupervised. A medical review panel convened as required by
La.R.S. 40:1231.8(B)(1)(a)(i). A panel of three doctors
concluded that the nursing home personnel did not violate the
standard of care because the staff of the nursing home
followed "doctors' orders" to have Mrs.
Cardwell placed "up in chair, frequency as
Cardwell timely filed the petitions in these consolidated
cases-the first in February, 2008, and the second in
September 2009, after the medical review panel issued its
opinion. In 2011, Mrs. Cardwell passed away from unrelated
causes, and in April 2011, her sons filed a motion to
substitute proper parties, which was granted. Because this is
a malpractice suit, the law requires that damages against the
health care provider in excess of $100, 000.00 would be paid
by the Louisiana Patient's Compensation and Oversight
Board (the PCF).
case proceeded to trial and a Rapides Parish jury rendered a
verdict against Oaks Care Center, LLC and Plantation
Management Company, LLC in favor of Mrs. Cardwell's sons.
trial, Mrs. Cardwell's son, Thomas, testified that he
completed the registration paperwork for his mother before
her arrival at the Oaks and he specifically requested that
bed rails be used because while his mother was at Cabrini,
she once tried to get up without assistance. She required two
aides to help her walk. He also completed a restraint consent
form authorizing the use of bed rails. Thomas further
testified that he was told by the Oaks that a full assessment
would be performed to determine what limitations Mrs.
Cardwell did or did not have, and the bed rails would stay up
until after that assessment. Mrs. Cardwell's family
members testified that upon arrival at the Oaks, she was
agitated and did not want to be placed in the nursing home.
Hagaman, Mrs. Cardwell's granddaughter, testified that
before her grandmother was admitted to Cabrini for the fall
at home, she was living at home without major problems. She
could walk without assistance, feed herself and hold
conversations, but was forgetful and had a history of
wandering in the yard. At Cabrini, her grandmother was able
to walk only with assistance, but had no swallowing issues.
Ms. Hagaman testified that while she was with her grandmother
at the Oaks on the evening of April 23, 2007, the only time
she saw nursing home staff was when she had to ask the staff
to help her grandmother use a potty chair. The bed rails of
her grandmother's bed were up, except near her feet.
Other than the nursing staff that brought the potty chair
when requested, Ms. Hagaman did not see any other staff from
the Oaks while she was there. Her grandmother was asleep in
her bed when Ms. Hagaman left at 8:30 p.m.
the next morning, at approximately 6:45 a.m., Mrs. Cardwell
was discovered by the staff of the nursing home on the floor
of her room, bleeding. She had apparently fallen from a chair
where she had been placed by nursing home staff and left
unattended. The nurse's chart stated: "fell on
floor, bleeding from nose, swelling noted to right side of
head, [complains of] pain to R knee." Another note in
her chart stated: "6:50 a.m. Resident attempted to get
out of recliner and walk, fell on floor. Assessed resident-
bleeding from knee, [complains of] pain at knee."
Records from Acadian state: "per [nursing home] staff
stated they helped her up and into the chair, then left the
room, then [patient] found on floor, fall not
the fall, Mrs. Cardwell was transported by Acadian from the
Oaks back to Cabrini. The records reflect she had bruises on
her face, arms, neck, and hands; blood in her hair, ears, and
on her face; and a large knot on her forehead. Imaging
indicated she had a separated and broken vertebra in her
neck, which required spinal surgery. After surgery, Mrs.
Cardwell had trouble swallowing and keeping food down and a
percutaneous endoscopic gastronomy tube (PEG tube) was
surgically implanted. She remained at Cabrini until May 5,
2007, when she was released to Naomi Heights, another nursing
home in Alexandria.
the fall and subsequent surgery, the evidence showed that
Mrs. Cardwell never walked without assistance again, never
fed herself again, was in pain, and would pull the PEG tube
out, requiring surgical re-implementation. According to Ms.
Hagaman, her grandmother was never the same after her fall at
the Oaks. She passed away from unrelated causes on January 5,
2011, approximately three years and eight months after her
Cardwell's family testified that they were never provided
with an explanation by the Oaks about the incident and were
never contacted by the Oaks after the event. Testimony at
trial was conflicting as to what the Oaks did or did not do
with respect to Mrs. Caldwell. The issues centered around
whether the Oaks performed a proper assessment before Mrs.
Cardwell was placed in a chair, whether and/or why Mrs.
Cardwell was placed unsupervised in a chair, whether the
chair had arms or did not have arms, whether Mrs. Cardwell
was restrained (including bed restraints or rails), and
whether the Oaks' charts had been altered or amended
after the accident.
addition to Mrs. Cardwell's family, plaintiffs called an
expert nurse consultant, Luanne Trahant, who was accepted by
the trial court as an expert in the field of nursing homes
and assisted living care. In her expert opinion, Ms. Trahant
unequivocally testified that the nursing home violated the
applicable standard of care, and that Mrs. Cardwell's
fall was a result of the fault of the nursing home staff.
Mrs. Cardwell's treating neurosurgeon, Dr. Gregory C.
Dowd, then testified that Mrs. Cardwell's fall was the
cause of the injuries and fractures to her neck, and her
treatment for these injuries was related to her fall at the
the plaintiffs had rested their case, the defense moved for a
directed verdict, which the trial judge denied, stating,
"there's enough direct and indirect evidence to deny
defense presented the live testimony of Dr. Michael G. Buck,
who served on the medical review panel and was accepted as an
expert in family medicine and in nursing home/long-term care
for elderly people. The video deposition of Dr. Susan E.
Nelson, who was qualified as an expert in internal medicine,
geriatric care, nursing home and long term care was also
presented to the jury. The defendants' experts testified
that the nursing home followed the standard of care and the
Oaks was not at fault for Mrs. Cardwell's fall or
resulting injuries. Defendants also presented the testimony
of Mona Crawford, who was the minimum data set (MDS)
coordinator at the Oaks at the time of the accident, and the
testimony of Ursherell Price, who was an LPN working at the
Oaks at the time of the accident.
conclusion of all of the evidence, and after closing
arguments, the trial judge instructed the jury. Counsel for
all parties approved the jury instructions without objection.
The jury instructions included an explanation of the
plaintiffs' burden of proving the degree of knowledge and
skill possessed or degree of care ordinarily exercised by a
nursing home staff; that plaintiffs had to prove that more
likely than not the nursing home staff in this case either
lacked this degree of knowledge or failed to use reasonable
care and diligence; and that Mrs. Cardwell's injuries
were caused by the nursing home's lack of skill or
failure to use reasonable care and diligence. The jury
instructions further stated that the duty of the nursing home
was "to provide a reasonable standard of care taking in
consideration each patient's known mental and physical
condition" and the nursing home staffs conduct is
evaluated "in terms of reasonableness under the
circumstances existing" at the time of the incident. The
instructions then explained to the jury Louisiana's law
on medical review panels and damages; specified what the jury
could consider when making an award of damages; and asked the
jury to render an impartial verdict, assigning them to
"find and declare the truth."
case was submitted to the jury by way of special
interrogatories that were approved by the trial court without
objection by counsel. Three questions were asked of the jury.
First, "have the plaintiffs, proven beyond a
preponderance of the evidence that Oaks Care Center, LLC and
Plantation Management Company, LLC, through their employees,
breached the applicable standard of care required with regard
[to] the care provided to Marguerite Fugler Cardwell[?]"
The jury answered unanimously, "yes." Second,
"did the breach of the applicable standard of care [the
jury] found in question no. 1 above, cause injury to [Mrs.
Cardwell] that she would not have incurred otherwise?"
By a ten to two vote, the jury answered "yes." And
third, "if damages are awardable to the plaintiffs for
injury to [Mrs. Cardwell], please specify the amount in
dollars." The jury unanimously awarded $100, 000.00 for
physical pain and suffering, $50, 000.00 for mental pain and
suffering, and $60, 306.75 for medical expenses for Mrs.
Cardwell's survival damages. On July 29, 2016, the trial
court entered judgment memorializing the jury's verdict
in favor of plaintiffs.
Oaks timely filed a motion for new trial, which was set for a
September 19, 2016 hearing. At the hearing, the trial court
granted the motion for new trial, vacated its July 29, 2016
judgment memorializing the jury's findings, and rendered
judgment in favor of The Oaks, dismissing plaintiffs'
case with prejudice at their cost. The trial court signed a
judgment on October 7, 2016.
Bartley and Thomas Cardwell, filed for supervisory writs with
this court, which were granted and made peremptory on January
5, 2017. This court overturned the trial judge's order
for new trial and vacated the trial judge's October 7,
2016 judgment, stating:
WRIT GRANTED AND MADE PEREMPTORY. While a
trial court is vested with discretion in deciding whether to
grant motion for new trial pursuant to La.Code Civ.P. art.
1973, "the jury's verdict should not be set aside if
it is supportable by any fair interpretation of the
evidence." Gibson v. Bossier City General
Hosp., 594 So.2d 1332, 1336 (La.App. 2 Cir. 1991),
citing Willis v. Louisiana Power & Light Co.,
524 So.2d 42 (La.App. 2 Cir.), writ denied, 525
So.2d 1059 (La. 1988). We find that a fair interpretation of
the evidence presented provides support for the jury to
conclude that the actions of the employees of Oaks Care
Center amounted to a breach of the standard of care and
caused the neck injuries sustained by Marguerite Fugler
Cardwell. As such, we find that the trial court abused its
discretion when it found that a new trial is warranted in
this case. Therefore, we hereby reverse the trial court's
ruling and enter judgment denying Defendants' motion for
new trial. This case is remanded for further proceedings in
accordance with this court's ruling herein.
Cardwell v. Oaks Care Center, 16-870 (La.App. 3 Cir.
1/5/17). The trial court's judgment of July 29, 2016
awarding damages in the amounts determined in the jury's
verdict in favor of plaintiffs was reinstated, and the
defendants timely appealed.
Oaks assigns the following errors:
1. The plaintiffs did not establish the standard of care
applicable to the Oaks;
2. The jury's finding that the Oaks breached the standard
of care was clearly wrong and manifestly erroneous;
3. The jury's finding that a breach of the standard of
care by the Oaks caused damage to Cardwell was clearly wrong
and manifestly erroneous; and
4. The jury's finding that the Oaks breached the standard
of care and caused injury to Marguerite Cardwell that she
would not have incurred otherwise was clearly wrong and
Louisiana Patient's Compensation Fund and Oversight Board
assigns the following errors:
1. It was an error to assess prejudgment court costs against
the PCF from the date of filing of the medical malpractice
complaint with the Division of Administration;
2. It was error by the jury to find that the defendants
breached the standard of care;
3. It was error by the jury to find that the defendants
"caused" the damages incurred by the plaintiff.
La.R.S. 9:2794(A)(3) requires the plaintiff to prove that as
a "proximate result" of the defendant's failure
to use the required degree of care, "the plaintiff
suffered injuries that would not otherwise have been
4. Alternatively, it was error by the jury to assess the
damages that were assessed. (Damages are excessive in this
assignment of errors of both appellants will be considered in
conjunction with one another where possible.
appeal, our primary objective is to review the trial court
record for manifest error and abuse of discretion. In
Evans v. Lungrin, 97-541, 91-511, pp. 6-7
(La. 2/6/98), 708 So.2d 731, 735, our supreme court
articulated the following standard of review for jury
findings: "It is well-settled that a court of appeal may
not set aside a trial court's or a jury's finding of
fact in the absence of "manifest error" or unless
it is 'clearly wrong.' Rosell v. ESCO, 549
So.2d 840, 844 (La. 1989)." See also Stobart v.
State through Dep't of Transp. and Dev'p., 617
So.2d 880 (La. 1993). Our supreme court further articulated
the role of an appellate court when conducting a review for
manifest error in Hayes Fund for First United Methodist
Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC,
14-2592 (La. 12/8/15), 193 So.3d 1110. It explained:
In all civil cases, the appropriate standard for appellate
review of factual determinations is the manifest
error-clearly wrong standard, which precludes the setting
aside of a trial court's finding of fact unless that
finding is clearly wrong in light of the record reviewed in
its entirety. Cenac v. Public Access Water Rights
Ass' n, 02-2660, p. 9 (La.6/27/03), 851 So.2d 1006,
1023. Thus, a reviewing court may not merely decide if it
would have found the facts of the case differently. Hall
v. Folger Coffee Co., 03-1734, p. 9 (La.4/14/04), 874
So.2d 90, 98. Rather in reversing a trial court's factual
conclusions with regard to causation, the appellate court
must satisfy a two-step process based on the record as a
whole: there must be no reasonable factual basis for the
trial court's conclusion, and the finding must be clearly
wrong. Stobart v. State through Dept. of Transp. and
Development, 617 So.2d 880, 882 (La. 1993).
This test requires a reviewing court to do more than simply
review the record for some evidence, which supports or
controverts the trial court's findings. The court must
review the entire record to determine whether the trial
court's finding was clearly wrong or manifestly
erroneous. Parish Nat. Bank v. Ott, 02-1562, pp. 7-8
(La.2/25/03), 841 So.2d 749, 753-54. The issue to be resolved
on review is not whether the judge or jury was right or
wrong, but whether the judge's or jury's factfinding
conclusion was a reasonable one. Rosell v. ESCO, 549
So.2d 840, 844 (La. 1989); Canter v. Koehring Co.,
283 So.2d 716, 724 (La. 1973).
Hayes Fund, 193 So.3d at 115-16.
Standard of Care
legislature has enacted special legislation limiting the
right to sue certain health care providers, including nursing
homes. See La.R.S. 1231.1(10). Louisiana's
Medical Malpractice Act (the MMA) provides that the plaintiff
must establish that the health care provider breached the
applicable "standard of care" in the locale where
the services were provided. See La.R.S.
case, the Oaks and the PCF argue that plaintiffs have failed
to establish the proper standard of care for nursing home
patients such as ...