IN RE: MEDICAL REVIEW PANEL REQUEST OF LIONEL FAVRET, JR.
TOURO INFIRMARY LIONEL FAVRET, JR. AND LYNDA HANNIE FAVRET
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2006-13643 C\W
2009-00960, DIVISION "N-8" Honorable Ethel Simms
J., CONCURRING WITH REASONS Bradford R Roberts, Val Patrick
Exnicios LISKA EXNICIOS & NUNGESSER COUNSEL FOR
FRANKLIN DAVID BEAHM CHRISTOPHER G. OTTEN BEAHM & GREEN
COUNSEL FOR DEFENDANTS/APPELLEES
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Paula A. Brown
A. Brown Judge
is a negligence and premises liability action. Plaintiffs,
Lionel Favret, Jr. ("Mr. Favret") and Lynda Hannie
Favret ("Mrs. Favret") (collectively referenced as
"Mr. Favret"), appeal the district court's
judgment which dismissed their claims against defendant,
Touro Infirmary ("Touro"). For the reasons that
follow, we affirm the judgment.
AND PROCEDURAL HISTORY
Favret was admitted to Touro on August 18, 2005 by Dr. Charles
Billings ("Dr. Billings"), his orthopedist, and
diagnosed with osteomyelitis-an infectious inflammatory
disease of the bone-and back pain. Mr. Favret was treated with
intravenous ("IV") antibiotics and underwent
multi-level back surgery on August 22, 2005. After the
surgery, Mr. Favret experienced some confusion and delirium.
On August 25 and August 26, 2005, during recovery in the
intensive care unit ("ICU"), Mr. Favret
"coded, " and both times he was resuscitated. After
his discharge from ICU, Mr. Favret was transferred to T-7, a
unit in Touro for medical surgical patients. On August 29,
2005, Hurricane Katrina ("Katrina") struck
the city of New Orleans. Mr. Favret's August 30, 2005
progress notes entered by Dr. Richard Meyer ("Dr.
Meyer"), Dr. Billings' partner, indicated that Mr.
Favret was stable; he could use the bathroom with assistance;
he had no calf pain; his dressing was dry; and he should
continue on IV antibiotics.
response to the threat of Katrina, on August 27,
2005, Touro activated its hurricane preparedness plan to
shelter in place. At approximately 3:00 a.m. on August 29,
2005, Touro lost electrical power supplied from Entergy New
Orleans ("Entergy"). Touro then relied on backup
generators for power, including air conditioning for its
first three floors. After some backup generators failed,
Touro was no longer able to provide air conditioning to its
first three floors. Touro opened windows, put box fans in
patients' rooms, and placed "spot" coolers in
the T-7 unit. Touro continued to provide power to its patient
headboards and to the dietary kitchen.
August 30, 2005, Touro lost water pressure when the Sewerage
and Water Board ("SW&B") could no longer pump
water because of extensive flooding caused by the levee
breaches. On the afternoon of August 30, 2005, Touro's
Chief Executive Officer ("CEO"), Leslie Hirsch
("Mr. Hirsch"), decided to evacuate the building.
By the morning of August 31, 2005, Touro lost all running
water. Touro had bottled water for drinking and 55-gallon
drums of water available to flush toilets.
employees carried Mr. Favret down several flights of stairs
to the parking garage-its staging area for evacuation-on
August 31, 3005. The staging area had lights, food, and
water. Mr. Favret sat upright in his wheelchair for over
twenty-four hours, while waiting to be evacuated. At some
point on September 1, 2005, Mr. Favret was transported by
van, in a seated position, to Rapides Regional Medical Center
("Rapides") in Alexandria, Louisiana. He was
transported to Rapides with his medical records from Touro.
Favret arrived at Rapides at approximately 11:22 p.m. He was
initially examined by Dr. Claire Coco ("Dr. Coco").
At the time of his examination, Mr. Favret was sweaty and
mildly dehydrated, and his surgical incision had separated
and reopened by approximately an inch and a half. Dr. Troy
Vaughn ("Dr. Vaughn"), a neurosurgeon, consulted
with Mr. Favret on September 2, 2005. Mr. Favret was
diagnosed with compression fractures in his vertebrae and a
recurring infection. On September 5, 2005, Dr. Vaughn
performed subsequent back surgery on Mr. Favret-he underwent
debridement of his surgical wound to remedy the reoccurrence
of the infection, repair of a vertebral abscess, and a repeat
discectomy at L-4 and foraminotomy at left L2-3. Mr. Favret
was discharged on September 14, 2005, with orders to remain
on IV antibiotics for eight weeks.
August 29, 2006, Mr. Favret petitioned for a Medical Review
Panel ("MRP"). In his MRP complaint, Mr. Favret
alleged, in part, that: from August 29, 2005 through
September 1, 2005, Touro failed to provide him with any
antibiotic treatment; he experienced pain when Touro
personnel "jostled" him as he was moved from his
room to a lower floor for evacuation; Touro lacked personnel
to place him in a helicopter that had arrived before the van,
which was ultimately used for his evacuation; and, he was
forced to remain in a seated position during his painful
ten-hour ride to Rapides. Mr. Favret represented that the
post-Touro surgical complications he developed, including the
debridement of his surgical wound, repair of the vertebral
abscess, and a repeat discectomy at L-4 and foraminotomy,
were caused by negligent medical treatment from Touro's
nursing and administrative personnel.
October 30, 2008, the MRP found that Mr. Favret's
evidence failed to prove that Touro did not meet the
applicable standard of care. The MRP further opined the
evidence did not support the allegation that the prescribed
antibiotics were discontinued.
Favret filed a Petition for Damages (the
"Petition") in Civil District Court for Orleans
Parish on January 27, 2009. The Petition alleged that Mr.
Favret suffered severe personal injuries, including damage to
his back, while being moved about the premises from Touro
personnel. Specifically, the Petition averred that
Touro personnel did not properly handle Mr. Favret when they
moved him from his hospital bed and placed him in the van for
transport to Rapides-all in violation of the requirements of
La. R.S. 40:1299.41(A)(8) of the Louisiana Medical
Malpractice Act ("LMMA").
January 12, 2010, Touro filed its first motion for partial
summary judgment that requested dismissal of Mr. Favret's
medical malpractice claims. Touro argued that Mr. Favret had
not offered any expert testimony to prove that Touro breached
any applicable standard of medical care. Touro also cited the
MRP's decision in its favor. Mr. Favret did not oppose
Touro's partial motion for summary judgment. The district
court granted Touro's partial motion for summary judgment
on June 25, 2010, and ordered "that all claims of
Plaintiffs against Touro Infirmary for medical malpractice
including, but not limited to, medical malpractice as defined
by La. R.S. 40:1299.41(A)(13)" be dismissed without
filed a second motion for summary judgment, on November 16,
2011. In this motion, Touro sought dismissal of Mr.
Favret's remaining negligent transportation/premises
liability ("premises liability") claims against
Touro in their entirety. The district court heard the motion
on May 4, 2012.
argued that the deposition testimony of Drs. Billings and
Vaughn, along with the affidavit of Dr. Meyer, showed that
Mr. Favret had not proven the condition of Touro's
premises caused him to suffer any injuries. Rather, Touro
claimed that the only alleged injuries-increased pain and a
possible vertebrae fracture-that possibly resulted
from the transportation of Mr. Favret in a seated, rather
than a supine or recumbent position, arise from the type of
claim that falls squarely within the statutory definition of
"malpractice" as provided in La. 40:1299.41(A)(13).
As such, Touro maintained that these medical malpractice
claims should also be dismissed because all medical
malpractice claims had previously been dismissed by the
district court's June 25, 2010 judgment.
opposition, Mr. Favret argued that the environmental
conditions at Touro caused him to suffer physical and emotion
pain. Further, he contended that he was, indeed, injured as a
direct result of Touro's premises liability when
Touro's personnel mishandled him during Touro's
evacuation process. Mr. Favret iterated that although the
allegations set forth in his Petition are arguably medical
malpractice claims, they also constitute premises liability
claims. He contended that Touro was forced to transport him
in a van because it had inadequate equipment as a direct
result of its lack of preparation for Katrina. He
further alleged that he was required to undergo a post lumbar
fusion and that his damages were substantiated by the
testimonies of Drs. Billings, Vaughn, and Meyer.
court, Mr. Favret requested leave to file a supplemental and
amended petition ("Amended Petition") to set forth
in greater detail the facts alleging premises liability. At
the conclusion of the hearing, the district court took the
summary judgment motion under advisement, permitted the
parties to submit post-trial memoranda, and orally granted
Mr. Favret's motion for leave to file his Amended
Petition. On May 8, 2012, the district court partially
granted Touro's motion for summary judgment against Mr.
Favret "as to those claims related to any alleged
injuries sustained in the transport of plaintiff, Lionel
Favret." The district court noted that "[t]his
claim sounds in medical malpractice and on June 25, 2010,
this court dismissed plaintiffs' claim for medical
Amended Petition, Mr. Favret alleged the following acts,
among others, of Touro's negligence and premises defects:
(1) failure to use due care under the circumstances; (2)
failure to provide premises free of unreasonable risks of
harm in preparation for the threats posed by a significant
hurricane; (3) failure to provide adequate back-up
generators; (4) failure to evacuate its patients to a safe
and suitable premises as opposed to sheltering in place; (5)
failure to employ a hurricane emergency plan that included a
means to safely transport patients out of harm's way; and
(6) failure to provide appropriate transportation.
Favret filed a motion for new trial on May 16, 2012, which
the district court denied on August 2, 2012. Mr. Favret
timely filed a supervisory writ with this Court for review.
This Court denied the writ, and held that Mr. Favret had an
adequate remedy on appeal after a trial on the merits and
rendition of a final judgment.
February 13, 2013, Touro filed its third motion for summary
judgment, alleging that Mr. Favret had not produced
sufficient evidence to support his allegations that his
injuries were caused by the condition of Touro's
premises. Touro sought dismissal of all claims filed by Mr.
Favret against Touro. A hearing was held on September 20,
2013. After taking the matter under advisement, the court
denied the motion on October 28, 2013.
district court held a judge trial on May 23 through May 25,
2016, on Mr. Favret's premises liability claims. The
pertinent testimony elicited at trial is as follows:
Favret testified that he first began treatment with Dr.
Billings for osteomyelitis due to infection in his foot. Dr.
Billings performed a debridement and removed a piece of bone
in his right foot. Because of his relationship with Dr.
Billings, Mr. Favret said he resumed treatment with Dr.
Billings at East Jefferson General Hospital when he began
having complaints of back pain. Dr. Billings had operating
privileges at Touro and referred him there for back surgery,
which he underwent on August 22, 2005. After surgery, Mr.
Favret was placed in ICU. He recalled that he flat lined and
experienced hallucinations. On August 28, Mr. Favret was
placed in a room on the seventh floor in the T-7 unit. Mr.
Favret testified that during Katrina, Touro
personnel removed him from his room and placed him in a
hallway near the nursing station, and away from windows, to
avoid being struck by debris or falling objects. He recalled
that Dr. Meyers visited with him on August 30, 2005, and gave
him permission to stand.
Favret described the temperature inside Touro as warm and
stated it became progressively hotter. He reiterated that by
August 30th, after Katrina had passed,
the temperature had become unbearable. He likened the
conditions at Touro to that of prison camps where prisoners
are "miserably soaked and wet."
Favret testified that four Touro staff personnel placed him
in a wheel chair to move him from the seventh floor to the
staging area. He said he did not receive footpads on his
wheel chair, which made it "a little bit uncomfortable
to sit." At some point during his wait, Mr. Favret had a
bowel movement in his wheelchair, was cleaned by two nurses
and placed back in the wheel chair.
Favret testified that before he was evacuated, he saw a
helicopter land. A police or rescue officer gestured towards
him, seemingly indicating for him to get onto the helicopter.
After he pointed to his wheelchair, the helicopter then left.
About forty-five minutes later, a van arrived to evacuate
him. Mr. Favret testified that he was the last person to be
evacuated, and he probably sat in the staging area for
twenty-four or thirty hours. He was upset that he was the
last patient to be evacuated. After the van's arrival, an
accumulation of water on the ramp prevented the van from
getting closer to the area where Mr. Favret was seated. He
said two Touro staffers picked him up by the arms and feet
and "flopped" him into the front seat of the van.
Favret testified that the evacuation process took a
psychological toll on him. He described his pain level as a
"twelve" upon his arrival at Rapides General. He
said he remained in the same hospital gown from August 29,
2005 until he arrived at Rapides.
his arrival at Rapides, he received a bath and clean clothes.
He said he interacted mostly with Dr. Vaughn and a female
internist, Dr. Coco. Dr. Vaughn performed surgery to correct
the defects in his back. Mr. Favret testified it took about
four or five months for him to become ambulatory; he received
rehabilitation therapy until November 2005. Mr. Favret could
not recall if he was on antibiotics after he left Touro's
ICU or if Dr. Billings had prescribed antibiotics; although
he remembered he was on an IV while at Touro.
cross-examination, Mr. Favret testified that Touro had fans
in the T-7 unit and that there may have been a fan in his
room at some point. He conceded he had testified in his
deposition that the staging area had air-conditioning. He
explained that it felt cooler in that area than any other
place in the hospital. Mr. Favret acknowledged he had
previously testified in his deposition that he may have been
provided water while awaiting evacuation in the staging area,
and Touro personnel provided the evacuees with nutrient bars
and yogurt cups.
Favret admitted he had signed an informed consent form from
Dr. Billings which informed him of the possibility of future
surgeries and the risk of re-infection regarding his
osteomyelitis. He also confirmed that he experienced
hallucinations after his Touro surgery, which he believed
ceased on August 27th. When shown Dr. Coco's
medical record note that indicated Mr. Favret had been on
antibiotics since his surgery at Touro and had not reported
any pain complaints on initial evaluation, Mr. Favret denied
that he told anyone at Rapides that he was pain-free.
Favret testified in support of her loss of consortium claim.
She said she visited her husband every day, three times a
day, while he was in the hospital at Touro. She visited her
husband on August 28th, but assumed Touro would be
on lock down afterwards because of Katrina. She
evacuated with her daughter on the Sunday before
Katrina made landfall. Following her evacuation, she
was unable to contact Mr. Favret at Touro because the phone
lines were consistently busy. With assistance from her niece
who was in the Risk Management Department at Huey P. Long
Hospital in Alexandria, on September 2, 2005, she learned her
husband was in Rapides. Mrs. Favret testified that she
experienced anxiety because she had no idea where Mr. Favret
was after the storm. Robert Latham, Jr.
trial, Mr. Latham, the former executive director of the
Mississippi Emergency Management Agency, testified as an
expert in general emergency management and preparation
through a videotaped deposition. Mr. Latham admitted that he
had never worked in health care; was not familiar with the
State's standards for a proper hospital emergency
management plan; was unaware if Touro's plan had been
reviewed by the State; and was not familiar with the damage
Touro sustained after the storm. Mr. Latham reviewed five
documents relative to Touro's Katrina
preparedness and emergency plan. He testified the plan lacked
operational details and an integrated planning structure to
ensure its implementation and the continuation of vital
functions. He said Touro was aware from its experience with
Hurricane George and a hurricane simulation exercise that it
could possibly lose power and water. Mr. Latham opined that
Touro was not adequately prepared to evacuate because its
emergency plan did not address all the hazards that could
develop as a result of the storm.
cross-examination, Mr. Latham said he did not know if the
State of Louisiana required hospitals to have contracts in
place to ensure the availability of transportation for
patients in the event of evacuation. He noted that
pre-Katrina, one of the problems with those
contracts was that hospitals typically contracted with the
same parties for evacuation services and because of the
limited amount of transportation providers, "you
can't fill all of those contracts." Mr. Latham could
not say if Touro's emergency plan or its method of
evacuation violated any established regulation. He testified
he was more concerned about the process than the actual plan.
Stephens, an obstetrician/gynecologist, was qualified as an
expert in emergency management preparedness and general
medicine. Dr. Stephens opined that based on the records he
reviewed, Touro did not adequately prepare for
Katrina. He said Touro was not sufficiently
"hardened" to shelter in place due to its lack of
adequate back up power/generators, and an inadequate supply
of food and water. Dr. Stephens also testified that
Touro's staff was not prepared to know the proper method
to transport back surgery patients; Touro failed to ensure
patients were evacuated with adequate medical records; and
Touro failed to ensure there was a continuation of medical
care and services, such as Mr. Favret's antibiotic
therapy. Dr. Stephens opined that Touro did not provide a
safe environment for Mr. Favret and more probably than not,
Mr. Favret's need for subsequent surgeries was caused by
the environmental conditions to which he was exposed at
cross-examination, Dr. Stephens confirmed that Dr. Coco's
September 1, 2005 chart entries indicated Mr. Favret reported
that he had been on IV antibiotics since his Touro surgery;
Mr. Favret had not missed any dose of medication prior to the
date of his arrival at Rapides General; and Dr. Coco
described Mr. Favret's wounds as "clean." Dr.
Stephens conceded that he had not reviewed the testimony of
Peter O'Connell ("Mr. O'Connell")-who
observed that Touro had a substantial amount food, water, and
ice throughout the evacuation-or the testimony of other
witnesses who also were at Touro throughout the
evacuation period who testified they received meals and
plenty of water. Dr. Stephens testified he was unaware of any
Department of Health and Hospitals ("DHH")
regulation that Touro had violated in its preparation for
Katrina. He admitted that Mr. Favret's treating
physician did not order his evacuation pre-Katrina,
and the State did not mandate hospitals to evacuate before
the hurricane made landfall.
Hirsch, Touro's CEO at the time of Katrina,
testified that Touro implemented its disaster emergency plan
on Saturday, August 27, 2005, and that Touro discharged those
patients who could be safely discharged. He testified
that Touro, as with most hospitals, did not consider
evacuation in advance of the storm because evacuation
potentially posed a greater risk to patients than sheltering
in place. After Katrina struck, external
communications were extremely limited because the
hospital's phone system was down and cellphones were
inoperable. Touro personnel primarily relied on
walkie-talkies to communicate within Touro. He said the loss
of water and power compromised the hospital's ability to
operate. After consultation with his staff, Mr. Hirsch
decided to evacuate on August 30, 2005.
secured vehicles from Terrebonne Parish and aircraft from
Acadian Ambulance to assist in evacuation. Mr. Hirsch
testified that helicopter evacuations started at a rapid
pace; however, they stalled on Wednesday, August 31, 2005
when the helicopters were re-deployed to assist in rooftop
rescue operations throughout the City of New Orleans. In
response to the stall, Mr. Hirsch and his staff concluded
that it would be more efficient to have the un-evacuated
patients remain in the staging area, rather than returned to
their hospital rooms. Mr. Hirsch testified that Touro
completed its evacuation on the afternoon of Thursday,
September 1, 2005-less than forty-eight hours after it
began-and it was the first acute care hospital to evacuate.
Mr. Hirsch admitted the temperature inside Touro was hot
and/or warmer than usual and acknowledged that he had given
an interview wherein he had described the heat as
"unbearably hot, especially for the patients." Mr.
Hirsch verified that spot coolers were placed in the
hospital's units and denied that Touro ran out of food,
drinking water, or pharmaceuticals. John Joseph Kingston,
Kingston, Entergy's Line Supervisor for Uptown New
Orleans, testified that Entergy's core team stayed at the
Hyatt until the Tuesday following the storm. On Tuesday, at
the instruction of his region manager, the core team left
because of the collapse of the 17th Street Canal
and London Avenue Bridge. Mr. Kingston said he would not have
been able to give Touro a time when services would have been
restored even if asked because Entergy had no generators. He
did not, however, recall if Touro actually called to ask that
Huerkamp, Chief Engineer for the S&WB, testified that the
S&WB's loss of its ability to supply and equipment
failure was catastrophic and had not happened before
Katrina. He stated that the S&WB would have been
unable to tell any customer when water would have been
restored.Jesse L. Arnold
Arnold, a civil engineer in hydraulics, inclusive of soil and
flood water, testified as an expert on behalf of Touro. Mr.
Arnold testified that the S&WB's facilities flooded
and were rendered inoperable because of breaches in the flood
walls and levees associated with the 17th Street
Canal, the London Levee, and to a lesser degree, the inner
harbor. He said Touro's actions did not contribute to the
Matessino, President and CEO of the Louisiana Hospital
Association, testified that he was in constant contact with
Mr. Hirsch. He said the Association lent assistance to
hospital members. He contacted Acadiana Ambulance Service to
assist Touro in its evacuation.
Landry, Touro's Director of Facilities and corporate
representative, testified that he participated in Touro's
emergency planning process. It was his responsibility to
prepare the hospital for Katrina and to implement
Touro's response plan. He said that pre-storm, Touro
stored bottled water and municipal water. As to electric
power, he said Touro had generators in place and had a
contract with Aggreko, LLC ("Aggreko") to provide
backup generators and fuel.Mr. Landry described the
internal environment in Touro as "warm."
Landry testified that Touro met its obligation to provide
ventilation when it deployed two spot coolers, opened and/or
broke windows, and placed fans in Mr. Favret's T-7 unit.
Mr. Landry cited to the Joint Commission for the
Accreditation of Hospital Organizations ("JCAHO")
regulations, which required hospitals to provide ventilation,
not air conditioning. Mr. Landry admitted that Touro did not
have a written evacuation plan and its failure to have a
written plan violated JCAHO standards. Mr. Landry testified
that, notwithstanding a written evacuation plan, Touro
evacuated its patients faster than anybody else in the City
of New Orleans and Touro never lost its accreditation.
Landry stated that FEMA and/or the military halted
Touro's Wednesday nighttime helicopter evacuations
because the military was the only entity allowed to fly at
that time. Mr. Landry, who relayed he was on Touro's
premises throughout the evacuation, also disputed testimony
that Touro ran out of food and medicine for patients. Mr.
Landry identified a medical administration record generated