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Cahanin v. Louisiana Medical Mutual Insurance Co.

Court of Appeals of Louisiana, Fifth Circuit

December 20, 2017

JANET CAHANIN
v.
LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, LUDWIG C. HEINTZ, M.D. AND JULIE A. LAWRENCE, M.D.

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 747-380, DIVISION "B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, JANET CAHANIN Edward F. Downing, III Jason C. Macfetters

          COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, LUDWIG C. HEINTZ, M.D. Craig J. Robichaux, Jocelyn R. Guidry

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson.

          JUDE G. GRAVOIS, JUDGE.

         In this survival action and wrongful death case, plaintiff Janet Cahanin, wife of the decedent Ronald Cahanin, brought suit against Dr. Ludwig Heintz, a general surgeon, for medical malpractice following the death of her husband hours after he underwent elective laparoscopic surgery to repair an inguinal hernia.[1] The jury found that Mrs. Cahanin proved the standard of care, that Dr. Heintz breached the standard of care, but that said breach was not a proximate cause of Mr. Cahanin's death.[2] The trial court entered a judgment reflecting the jury's verdict, dismissing Mrs. Cahanin's suit against defendants with prejudice. Mrs. Cahanin moved for a judgment notwithstanding the verdict, which the trial court denied. Mrs. Cahanin now appeals, arguing that the jury's conclusion that Dr. Heintz's breach of the standard of care was not a proximate cause of her husband's death was manifestly erroneous, and also that the trial court erred in denying her motion for judgment notwithstanding the verdict.

         Following a thorough review of the record in its entirety, as well as the applicable law, we find that the jury's conclusion that Dr. Heintz's breach of the standard of care was not a proximate cause of Mr. Cahanin's death is not reasonably factually supported by the record and is manifestly erroneous. Rather, for the reasons set forth herein, we find that Dr. Heintz's breach of the standard of care was a proximate cause of Mr. Cahanin's death. We accordingly reverse the judgment of the trial court and render judgment in favor of Mrs. Cahanin and against Dr. Heintz and his insurer, Louisiana Medical Mutual Insurance Company, in the amount of $500, 000.00 in damages, plus interest and costs, as further explained below.

         FACTS AND PROCEDURAL HISTORY

         When he elected to undergo surgery to repair a hernia in 2012, Ronald Cahanin was 64 years old and had a preexisting blood disease called polycythemia vera ("PV"), [3] a myeloproliferative disease of the blood.[4] Its hallmarks are: (1) an over production of red blood cells, making the blood thick and "sludgy" and increasing the risk of thrombolytic events, i.e., blood clots; and (2) an impairment in the function of platelets, which are responsible for blood clotting, putting sufferers at greater than the normal risk for bleeding. Mr. Cahanin had discovered that he had PV approximately two years before the hernia surgery. He was under the regular care of a hematologist, Dr. James Carinder, who managed Mr. Cahanin's disease in two ways. To lower the risk of clotting, Dr. Carinder performed regular therapeutic phlebotomy, the taking of blood from Mr. Cahanin in an office procedure, which lowered the amount of red blood cells in his blood and which also made him mildly anemic, which in turn helped suppress the production of new red blood cells. Mr. Cahanin also took low dose (81 mg) aspirin on a daily basis, as well as Vitamin E, as part of Dr. Carinder's treatment plan, which was described as another method of preventing blood clots. Dr. Carinder testified that in general, in a PV patient, the risk of blood clots is greater than the risk of bleeding, which is why they are treated with aspirin, a known anti-coagulant that also interferes with clotting. These two treatments, phlebotomy and aspirin, managed the blood clot risk, but did not treat the bleeding risk.

         When it was discovered in late 2012 that Mr. Cahanin had an inguinal hernia, he elected to have it surgically repaired. He went to Dr. Ludwig Heintz, a general surgeon who had previously operated on Mrs. Cahanin. The surgery was medically indicated because the hernia was symptomatic (painful).[5] A surgical consult appointment took place on November 29, 2012, at which time Mr. Cahanin informed Dr. Heintz about his PV and that he was under Dr. Carinder's care. The surgery was scheduled for December 10, 2012.

         Mr. Cahanin had a pre-operative appointment on December 4, 2012 at St. Tammany Parish Hospital. He had blood work done, and also informed Joy Porter, the nurse, that he regularly took aspirin, vitamin E, fish oil, and Novasc (blood pressure medicine). Believing that the aspirin was contraindicated for a surgical procedure, Ms. Porter contacted Dr. Heintz's office to let the surgeon know that Mr. Cahanin was taking aspirin.[6] She spoke with Rhonda Robertson, an employee of Dr. Heintz who assisted him with setting up surgical procedures and who was Ms. Porter's regular contact at that office. Ms. Robertson testified that it was the office's standard procedure to have patients discontinue aspirin use prior to surgery, a claim that Dr. Heintz denied at trial. She advised Ms. Porter that the aspirin needed to be stopped, but this was not an order from a doctor and was not communicated to Mr. Cahanin. Dr. Heintz testified that Ms. Robertson did not tell him that Mr. Cahanin was taking aspirin, nor did he know he was taking aspirin, despite it being in Mr. Cahanin's pre-operative record in at least two places.[7] It is undisputed that Mr. Cahanin was not advised to discontinue taking the aspirin before the surgery and did not do so.

         Mr. Cahanin had an appointment with Dr. Carinder several days before the surgery, but did not tell him that he would be undergoing surgery in a couple of days. The record is undisputed that Dr. Heintz did not contact Dr. Carinder to ask for a surgical clearance for Mr. Cahanin and the two doctors did not communicate before the surgery.[8] The surgery was performed at St. Tammany Parish Hospital on December 10, 2012, from approximately 9:00 - 10:00 a.m.

         On the morning of the surgery, Mr. Cahanin advised the nurse at the surgery intake that he had continued to take all of his medications, including the aspirin. Dr. Heintz reviewed the lab results taken at the pre-operative appointment, which showed that Mr. Cahanin's white blood cell count was abnormally high, as well as several other lab values that were out of the range of normal. Mr. Cahanin told Dr. Heintz that his high white cell count was typical, as was borne out by a later review of Mr. Cahanin's medical records. Dr. Heintz testified that he considered postponing the surgery based on Mr. Cahanin's lab work, but Mr. Cahanin elected to proceed with the surgery.[9] They did not discuss the issue of Mr. Cahanin's aspirin use, because Dr. Heintz was not aware of it.

         Mr. Cahanin's surgery was performed without any difficulties. He was kept for standard post-operative observation, first in a post-anesthesia care unit, and thereafter in an ambulatory care unit. Upon the request of Mrs. Cahanin, Mr. Cahanin was kept a while longer than usual at the hospital because he looked a little gray, pale, and sweaty. However, he was discharged from the hospital around 3:00 in the afternoon, after being cleared by an anesthesiologist, who had reviewed his vital signs prior to discharging him.

         Upon discharge, Mrs. Cahanin brought her husband home and put him to bed, made him a sandwich for dinner, and left to fill his prescriptions. When she returned, she noted that he had not eaten his sandwich. She gave him his medicines and left him resting in their bedroom while she went into the den. She checked on him a few times, and later joined him and went to bed. Mr. Cahanin woke her up in the middle of the night, complaining of shortness of breath and that he did not feel well. She noticed that he was very weak. She called an ambulance, which transported Mr. Cahanin to Lakeview Regional Medical Center, which was closer to their home than St. Tammany Parish Hospital, where the surgery had taken place earlier that day. When the ambulance arrived, Mr. Cahanin could converse with the EMTs, but his condition deteriorated during the transport, and he "coded" on the ramp leading into the emergency room. A heartbeat was reestablished, although it appears that Mr. Cahanin did not regain consciousness at any point thereafter. He was treated in the emergency room by Dr. Julie Lawrence, who felt that Mr. Cahanin might be suffering a pulmonary embolism (blood clot in the lungs, or "PE"). She treated him with tissue plasminogen activator ("tPA"), which is a medicine to dissolve blood clots. Mr. Cahanin was transferred to the intensive care unit, coded again, and was revived a second time. Approximately six hours after he was brought to the emergency room, and approximately twenty hours after the surgery, Mr. Cahanin expired.

         An autopsy on Mr. Cahanin was performed by Dr. Michael DeFatta of the St. Tammany Parish Coroner's Office. Dr. DeFatta noted before he began the autopsy that the suspected cause of death was a PE. He accordingly dissected the blood vessels in the lungs "as far as we can possibly go" looking for evidence of clots, but could find none. However, he did find approximately two liters of blood in the retroperitoneal cavity in Mr. Cahanin's abdomen, in the area of the surgical site and specifically where the mesh used to repair the hernia was present. He found that the mesh was properly placed and intact, and that no large blood vessels had been injured or cut during the surgery. He found no coronary artery blockages or past evidence of heart attacks. Mr. Cahanin's heart was enlarged, most probably from having high blood pressure, which Dr. DeFatta said could have played a role in his death. He opined that Mr. Cahanin had died from bleeding out slowly, rather than from a PE. He allowed that the use of tPA in the emergency room might have caused a PE to dissolve, preventing him from finding it during the autopsy, though he considered it unlikely that tPA would cause all evidence of a clot to disappear. He termed the death of "natural" causes because he felt that the excessive bleeding was caused by the PV, rather than an accident or injury, and the surgical procedure was performed correctly.[10]

         Mrs. Cahanin timely requested a medical review panel in accordance with La. R.S. 40:1299.47 (now La. R.S. 40:1231.8). The panel determined that Dr. Heintz did not breach the standard of care. Mrs. Cahanin timely filed suit following the panel's report. The matter proceeded to a jury trial in October of 2016, and on October 11, 2016, the jury rendered its verdict in favor of Dr. Heintz. A final written judgment confirming the jury's verdict was signed by the trial court on November 4, 2016, dismissing Mrs. Cahanin's case. Mrs. Cahanin moved for a judgment notwithstanding the verdict, which was denied after a hearing. This timely appeal followed.

         ANALYSIS

         To prevail on a medical malpractice claim, a plaintiff must prove three elements: (1) the standard of care applicable to the healthcare provider defendant; (2) a breach of that standard of care; and (3) that the breach of the standard of care proximately caused the plaintiff to suffer injuries that would not otherwise have been incurred. See La. R.S. 9:2794(A).

         "The plaintiff need not show that the doctor's conduct was the only cause of harm, nor must all other possibilities be negated, but the plaintiff must show by a preponderance of the evidence that [the victim] suffered injury because of the doctor's conduct. The test for determining the causal connection is whether the plaintiff proved through medical testimony that it is more probable than not that the injuries were caused by the substandard care." Dumont v. Maaliki, 99-1850 (La.App. 1 Cir. 9/22/00), 769 So.2d 1230, 1232, quoting Hoot v. Woman's Hosp. Foundation, 96-1136 (La.App. 1 Cir. 3/27/97), 691 So.2d 786, 789, writ denied, 97-165 (La. 10/3/97), 701 So.2d. 209.

         "Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirely and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. However, where documents or objective evidence so contradict the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. But where such factors are not present, and a fact finder's finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong." Guy v. Bourgeois, 06-513 (La.App. 5 Cir. 11/28/06), 945 So.2d 161, 164, quoting Salvant v. State, 05-2126 (La. 7/6/06), 935 So.2d 646, 650.

         According to the jury interrogatories, the jury found that Mrs. Cahanin proved the applicable standard of care applicable to Dr. Heintz, and that Dr. Heintz breached that standard of care owed to Mr. Cahanin. The jury further found, however, that Dr. Heintz's breach of the standard of care was not a proximate cause of Mr. Cahanin's death. Mrs. Cahanin ...


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