FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2007-00434 C\W
2007-00446, DIVISION “M” Honorable Paulette R.
Patrick Exnicios Kelsey Leigh Zeitzer LISKA, EXNICIOS &
NUNGESSER COUNSEL FOR PLAINTIFF/APPELLANT
Franklin David Beahm Jeremy Robichaux BEAHM & GREEN, LLC
COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Daniel L. Dysart, Judge Regina
Bartholomew-Woods, Judge Dale N. Atkins.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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., ...