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In re Medical Review Panel Request of Favret

Court of Appeals of Louisiana, Fourth Circuit

June 1, 2018

IN RE: MEDICAL REVIEW PANEL REQUEST OF LIONEL FAVRET, JR.
v.
TOURO INFIRMARY LIONEL FAVRET, JR. AND LYNDA HANNIE FAVRET

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2006-13643 C\W 2009-00960, DIVISION "N-8" Honorable Ethel Simms Julien, Judge

          LEDET, J., CONCURRING WITH REASONS Bradford R Roberts, Val Patrick Exnicios LISKA EXNICIOS & NUNGESSER COUNSEL FOR PLAINTIFFS/APPELLANTS

          FRANKLIN DAVID BEAHM CHRISTOPHER G. OTTEN BEAHM & GREEN COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown

          Paula A. Brown Judge

          This 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.

         FACTUAL AND PROCEDURAL HISTORY

         Mr. Favret was admitted to Touro[1] 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.[2] Mr. Favret was treated with intravenous ("IV") antibiotics and underwent multi-level back surgery on August 22, 2005.[3] 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.[4] 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.

         In 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.

         On 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.

         Touro's 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.

         Mr. 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.

         On 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.

         On 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.

         Mr. 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.[5] 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").[6]

         On 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 prejudice. [7]

         Touro 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.

          Touro 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.

         In 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.

         In open 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 malpractice."

         In his 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.

         Mr. 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.[8]

         On 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.

         The 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:

         Mr. Favret

         Mr. 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.

         Mr. 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."

         Mr. 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.

         Mr. 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.

         Mr. 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.

         After 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.

         On 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.

         Mr. 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.

         Mrs. Favret

         Mrs. 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.

         At 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.

         On 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.

         Dr. Kevin Stephens

         Dr. 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.[9] 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 Touro.

         On 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[10] ("Mr. O'Connell")-who observed that Touro had a substantial amount food, water, and ice throughout the evacuation-or the testimony of other witnesses[11] 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.

         Leslie Hirsch

         Mr. 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.[12] 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.

         Touro 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, Jr.

         Mr. 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 question.[13]

         John Richard Huerkamp

         Mr. 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.[14]Jesse L. Arnold

         Mr. 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 breach.[15]

         John Matessino

         Mr. 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.[16]

         Scott Landry

         Mr. 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.[17]Mr. Landry described the internal environment in Touro as "warm."

         Mr. 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.

         Mr. 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 by ...


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