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Pennington v. Ochsner Clinic Foundation

Court of Appeals of Louisiana, Fourth Circuit

April 25, 2018

DOROTHY PENNINGTON
v.
OCHSNER CLINIC FOUNDATION, FADI HAWAWINI, D.O., BRENT THIBODEAUX, ANDREW TODD, M.D., JIM AUBRY JONES, M.D. AND GRETCHEN ULFERS, M.D.

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-12190, DIVISION "N-8" Honorable Ethel Simms Julien, Judge

          Kevin C. O'Bryon O'BRYON & SCHNABEL, PLC COUNSEL FOR PLAINTIFF/APPELLANT

          Harvey J. Godofsky GODOFSKY & SCHROEDER Don S. McKinney ADAMS AND REESE LLP COUNSEL FOR DEFENDANT/APPELLEE

          (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Tiffany G. Chase)

          DANIEL L. DYSART JUDGE.

         In this medical malpractice action, plaintiff-appellant, Dorothy Pennington, appeals a judgment granting motions for directed verdicts in favor of defendants, Dr. Andrew Todd ("Dr. Todd"), Ochsner Clinic Foundation ("Ochsner"), Fadi Hawawini, D.O. ("Dr. Hawawini"), Brent Thibodeaux, Jim Aubry Jones, M.D. ("Dr. Jones"), and Gretchen Ulfers, M.D. ("Dr. Ulfers") (collectively, "defendants"), and dismissing all claims with prejudice.

         After viewing the facts in the light most favorable to the plaintiff, as is required for a directed verdict, we do not find that the evidence points so strongly and overwhelmingly in favor of the defendants, with the exception of Dr. Hawawini, or that reasonable minds could not arrive at a contrary verdict. Thus, we find that the trial court erred in granting directed verdict as to the defendants, with the exception of Dr. Hawawini, for whom plaintiff failed to establish both the standard of care and a breach thereof.

         Accordingly, and for the reasons set forth herein, we affirm the trial court's judgment in part, reverse it in part and remand for further proceedings.

         FACTS AND PROCEDURAL BACKGROUND

         According to the Petition for Damages, [1] on February 17, 2011, Richard Smallwood fell at his home and sustained "bilateral patella tendon ruptures, " for which he was admitted to the Ochsner-Baptist facility. After undergoing surgery by Dr. Todd to repair the ruptures, Mr. Smallwood "experienced a slightly complicated post-operative course" and was discharged on February 23, 2017 to the Ochsner Skilled Nursing Unit in Jefferson Parish. On February 26, 2017, Mr. Smallwood died at the skilled nursing unit, and an autopsy revealed that he had suffered a pulmonary embolism, secondary to deep vein thrombosis [DVT], which, according to the Petition, was "secondary to [his] bilateral knee surgery."

         The Petition alleges that Mr. Smallwood had been in "generally good health" prior to his injury, but while a patient at Ochsner-Baptist, "he was not administered appropriate prophylactic anti-coagulant medication, in violation of the standard of care." More specifically, it alleges:

At Ochsner-Baptist, Jim Aubry Jones, M.D. and Gretchen Ulfers, M.D. were consulted for post-surgical medical management purposes, but failed to recognize the lack of, or direct initiation of, appropriate prophylactic anti-coagulant medication. Dr. Todd failed to order appropriate prophylactic anti-coagulant medication at Ochsner-Baptist and in connection with the patient's transfer to and admission at the Ochsner Skilled Nursing Unit facility.

         Named as defendants are Drs. Todd, Jones and Ulfers, as well as Dr. Hawawini, D.O., the director of Ochsner's skilled nursing unit, and nurse Thibodeaux, to whom Mr. Smallwood is alleged to have made complaints which were neglected. The Petition further alleges that, at the skilled nursing unit, Mr. "Smallwood was not assessed by Dr. Hawawini or any other physician."

         A jury trial commenced on April 3, 2017. At the conclusion of the plaintiffs case in chief, the defendants moved for directed verdicts on the ground that the plaintiff failed to meet her burden of proof of medical malpractice. The motions for directed verdicts were verbally granted by the trial court, which found as follows:

. . . based on the testimony that's been adduced as to Dr. Todd that there was a failure to establish the standard of care or a breach thereof. The Court is hereby granting a directed verdict as to Dr. Todd. . . .
* * * *
It's [this] Court's finding that there has been a failure to establish the standard of care as to Dr. Jones, Dr. Ulfers, Dr. Hawawini. And certainly we had no testimony as to the standard of care of a nurse practitioner or how that was breached. The Court has to grant the motion for a directed verdict as to each defendant.

         The trial court further explained its finding by stating:

. . . the problem is you can't just do a broad brush against everybody unless you can show that that person breached the standard of care. You can't just say well, everybody messed up. No. You have to show that that person breached the standard of care if you're going to hold them liable.

         A written judgment was rendered, memorializing the trial court's verbal judgment on April 11, 2017. The plaintiff timely filed this appeal.

         Dr. Todd answered the appeal, seeking relief only in the event that this Court reverses the trial court's judgment. In that event, Dr. Todd seeks a finding from this Court that the plaintiff failed to properly qualify her expert physician who, thus, lacked the specific capacity to render opinions in this case. An answer to the appeal was also filed by Ochsner, Dr. Hawawini, Mr. Thibodeaux, Dr. Jones, and Dr. Ulfers, who seek similar relief as that sought by Dr. Todd; namely, a finding that the trial court erred in accepting, as expert testimony, the opinions of a general surgeon in this matter. They contend that the plaintiff's expert was not qualified to offer opinions as to specialists in hospital medicine or as to treatment received in a rehabilitation hospital.

         Motions for Directed Verdict, Generally

         La. C.C.P. art. 1810 authorizes a motion for directed verdict and requires that such a motion be made at the close of the evidence offered by the opposing party. See Price v. Law Firm of Alex O. Lewis, III & Assocs., 04-0806, p. 2 (La.App. 4 Cir. 3/2/05), 898 So.2d 608, 610; Jenkins v. State ex rel. Dep't of Transp. & Dev., 06-1804, p. 5 (La.App. 1 Cir. 8/19/08), 993 So.2d 749, 756. While this Court, in Duvio v. Specialty Pools Co., LLC, 15-0423, p. 28 (La.App. 4 Cir. 6/16/16), 216 So.3d 999, 1019, reiterated the established general rule that "a trial court "has much discretion in determining whether or not to grant a motion for directed verdict, " we recognize that "[a] directed verdict is appropriate only when the evidence overwhelmingly points to one conclusion." Roberson v. Aug., 01-1055, p. 4 (La.App. 4 Cir. 5/29/02), 820 So.2d 620, 624 (emphasis added). On appeal, "the standard of review for legal sufficiency of the evidence challenges (a question of law), such as those presented by motions for directed verdicts, is de novo." Provosty, 12-1015, p. 31, 119 So.3d at 32. See also, Hall v. Folger Coffee Co., 03-1734, p. 10 (La. 4/14/04), 874 So.2d 90, 99 (while "the manifest error standard of review applies to all factual findings, including sufficiency of the evidence challenges, . . . legal sufficiency of the evidence challenges, such as those presented by . . . motions for directed verdict . . . are subject to the de novo standard of review that is used for all legal issues.")(emphasis in the original).

         Our jurisprudence as to the propriety of granting a motion for directed verdict is well-settled. As we explained in Wendel v. Travelers Ins. Co., 14-0002, pp. 3-4 (La.App. 4 Cir. 10/8/14), 151 So.3d 828, 832-3, writ denied, 14-2346 (La. 2/6/15), 158 So.3d 818, quoting Simon v. American Crescent Elevator Co., 99-2058, p. 14 (La.App. 4 Cir. 4/26/00), 767 So.2d 64, 73-4, when a trial court considers "the evidence in the light most favorable to the party opposed to the motion, [and] finds that it points so strongly and overwhelmingly in favor of the moving party that reasonable minds could not arrive at a contrary verdict on that issue, " the directed verdict should be granted. See also, Provosty v. ARC Const., LLC, 12-1015, p. 31 (La.App. 4 Cir. 3/20/13), 119 So.3d 23, 44 ("[t]he question to be asked by the court is not whether mover proved its case by a preponderance of the evidence, but rather, upon reviewing the evidence submitted, the court could conclude that reasonable persons could not have reached a verdict in favor of the mover's opponent.").

         Conversely, "[i]f there is substantial evidence opposed to the motion, i.e., evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the case submitted to the jury." Everhardt v. Louisiana Dep't of ...


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