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Buggage v. Touro Infirmary

Court of Appeals of Louisiana, Fourth Circuit

October 10, 2018

ANNABELLE BUGGAGE
v.
TOURO INFIRMARY GRACE BUGGAGE, RODNEY BUGGAGE, AND GAIL HOLMES ON BEHALF OF THEIR DECEASED MOTHER, ANNABELLE BUGGAGE
v.
AMERICAN HOME ASSURANCE COMPANY, HEALTHCARE CASUALTY INSURANCE LIMITED, AGGREKO, LLC AND TOURO INFIRMARY

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2007-00434 C\W 2007-00446, DIVISION “M” Honorable Paulette R. Irons, Judge.

          Val Patrick Exnicios Kelsey Leigh Zeitzer LISKA, EXNICIOS & NUNGESSER COUNSEL FOR PLAINTIFF/APPELLANT

          Franklin David Beahm Jeremy Robichaux BEAHM & GREEN, LLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins.

          Regina Bartholomew-Woods Judge.

         In this consolidated appeal, Plaintiffs-Appellants, Grace Buggage, Rodney Buggage, and Gail Holmes appeal the July 25, 2016 judgment of the district court in favor of Defendants-Appellees, Touro Infirmary and Healthcare Casualty Insurance Company, denying their claims. For the reasons that follow, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On August 19, 2005, Mrs. Annabelle Buggage, age 72, was admitted to the care of Touro Infirmary ("Touro") for an infection and ulcer in her left little toe. Further evaluation revealed the toe to have a number of infections, including Methicillin-resistant Staphylococcus aureus ("MRSA"). X-ray scans also revealed osteomyelitis, or bone infection. Mrs. Buggage began a treatment regimen of antibiotics and hyperbarics, and remained at Touro as Hurricane Katrina ("Katrina") made landfall in New Orleans on August 29, 2005. As a result of the storm, Touro sheltered in place and discontinued all "non-essential" services to patients in its care, including those being provided to Mrs. Buggage. City services, including electrical power and water service failed in the aftermath of the storm and levee failures, which lead to the evacuation of the hospital. Ms. Buggage was evacuated to Houma, from where she was transported by family members to Piedmont Atlanta Hospital in Georgia. There, she underwent surgery during which doctors removed her little toe down to the metatarsal bone, or the "knuckle" of the toe.

         Mrs. Buggage passed away in October 2009, and Plaintiffs filed suit in January 2014. Based on theories of negligence and premises liability, Plaintiffs argued that had Touro been adequately prepared for Katrina, Mrs. Buggage would have been evacuated prior to Katrina's landfall and transferred to an acute-care facility that would have provided continual treatment for her toe, eliminating the need to amputate it down to the metatarsal bone.

         The district court presided over a bench trial from May 2 through 4, 2016, rendering a final written judgment and reasons therefor on July 25, 2016.

         In its reasons for judgment, the district court reasoned that "Touro's plan complied with [the] Joint Commission [on Accreditation of Healthcare Organizations, or "JCAHO"], [as well as] state, and federal requirements for hospital emergency preparedness." The court pointed to testimony indicating that Touro had a "written Hurricane Management Plan" as well as an unwritten evacuation plan, and that there was no evidence that a written evacuation plan would have changed the outcome for Mrs. Buggage. The court also noted testimony indicating that the hospital had adequate water, food, and medical supplies throughout the storm up to the evacuation. The court was also not convinced Touro provided inadequate ventilation, or that the lack of running water or air conditioning presented an unreasonably dangerous environment. Further, the court observed that it was common, at the time, for hospitals to shelter in place, and that a total hospital evacuation presented its own risks. The court further indicated that had it found a breach of a duty of care, it could find no basis for finding the breach caused the ultimate amputation or extent thereof, as all the doctors present at trial agreed that Mrs. Buggage's toe could not be revitalized. The court also pointed to other health conditions that may have contributed to the amputation of Mrs. Buggage's toe, including, but not limited to, hypertension, diabetes, and osteomyelitis. Ultimately, the court concluded that it was more probable than not that amputation would have been required even if Hurricane Katrina had not struck.

         STANDARD OF REVIEW

         This is not a medical malpractice claim. Appellants proceeded to trial alleging ordinary negligence and premises liability. Accordingly, as to negligence, this Court

may not set aside the findings of fact made by a jury or trial court unless those findings are clearly wrong or manifestly erroneous . . . . In order to find that the factfinder's determinations were manifestly erroneous or clearly wrong: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. . . . The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one.

Johnson v. Ray, 2012-0006, 2012-0007, p. 6 (La.App. 4 Cir. 12/5/12), 106 So.3d 629, 635 (internal citations omitted). We apply the same standard to Appellants' premises liability claim. Broussard v. State ex rel. Office of State Bldgs., ...


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