FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-12190,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
C. O'Bryon O'BRYON & SCHNABEL, PLC COUNSEL FOR
J. Godofsky GODOFSKY & SCHROEDER Don S. McKinney ADAMS
AND REESE LLP COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, Judge Daniel L.
Dysart, Judge Tiffany G. Chase)
L. DYSART JUDGE.
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.
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.
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.
AND PROCEDURAL BACKGROUND
to the Petition for Damages,  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
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.
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
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.
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
written judgment was rendered, memorializing the trial
court's verbal judgment on April 11, 2017. The plaintiff
timely filed this appeal.
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
for Directed Verdict, Generally
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).
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
"[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 ...