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Deruise-Pierce v. University Healthcare System, L.C.

Court of Appeals of Louisiana, Fourth Circuit

October 24, 2018

DIANA DERUISE-PIERCE, SURVIVING SPOUSE OF ROY T. PIERCE
v.
UNIVERSITY HEALTHCARE SYSTEM, L.C. D/B/A TULANE UNIVERSITY HOSPITAL AND CLINIC, UNIVERSITY MEDICAL CENTER MANAGEMENT CORPORATION D/B/A UNIVERSITY MEDICAL CENTER NEW ORLEANS, DAVIS WENDELL OGITANI, M.D., BRIAN CONKERTON, R.N. AND DANIELLE WILLIAMS-JOHNSON, R.N.

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-08218, DIVISION "G" Honorable Robin M. Giarrusso, Judge

          M. Suzanne Montero Warren A. Forstall, Jr. LAW OFFICES OF CHIP FORSTALL John D. Sileo Casey W. Moll LAW OFFICE OF JOHN D. SILEO, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Christopher M. Moody Albert D. Giraud MOODY LAW FIRM Jeff Landry Attorney General Scott G. Jones Special Assistant Attorney General LAW OFFICE OF SCOTT G. JONES COUNSEL FOR

          DALE N. ATKINS JUDGE

         Plaintiff, Diana Deruise Pierce ("Plaintiff"), appeals two summary judgments dismissing her medical malpractice action against defendants, University Medical Center New Orleans, University Medical Center Management Corporation, Dr. Davis Wendell Ogitani, Brian Conkerton, R.N., and Danielle Johnson, R.N. (collectively, "Defendants"), with prejudice.[1] For the following reasons, we reverse and remand.

         FACTUAL AND PROCEDURAL BACKGROUND

         This is a medical malpractice case that arises as a result of treatment rendered to the decedent, Roy Pierce ("Mr. Pierce"), at University Medical Center in New Orleans in late December of 2012 and early January 2013.

         Mr. Pierce originally presented to LSU Interim Public Hospital on December 27, 2012, for an outpatient EGD.[2] On admission, he was awake, alert, and able to communicate and give consent for medical treatment. He complained of abdominal pain, fatigue, dark urine, and shortness of breath. The initial workup of Mr. Pierce showed that he was anemic, in renal failure, hyponatremiac, [3] and had elevated BUN/creatinine levels. A CT of his abdomen and pelvis showed a large mass in his bladder with a fistula (tunnel) to his colon. Rather than immediately performing the EGD, Mr. Pierce was admitted for a comprehensive workup and placed under the care of Defendant Dr. Ogitani. As part of this comprehensive medical workup, he was referred to Interventional Radiology for placement of a Perm-A-Cath (central line) for hemodialysis, which was scheduled for the morning of January 3, 2013.

         The deposition testimony of Dr. Benjamin Cooper ("Dr. Cooper"), an Interventional Radiology Fellow, reflects that on the evening before the procedure was scheduled, Dr. Cooper was advised that Mr. Pierce was medically stable and able to consent to the treatment. However, overnight, from January 2, 2013 through January 3, 2013, Mr. Pierce's vital and mental status severely deteriorated. Medical records indicate that Mr. Pierce's blood pressure dropped by over 20 points from 4:46 p.m. on January 2, when it was 93/64, pulse 112, to 5:57 a.m. on January 3, when it was 71/46, pulse 83. He was also unable to walk without assistance, and at one point he fell while being assisted from the bathroom to the bed. He was assisted to the floor by the nurse, and then back to bed with the aid of three nurses and one transport employee. The nurse's notes reflect that the physician was on the unit and present while Mr. Pierce was assisted back to bed.

         Despite this acute change in status, the Defendants did not change the treatment plan or render different treatment, such as a transfer to the Critical Care unit, but instead adhered to the original plan to go forward with the central line. Thus, on the morning of January 3, 2013, Mr. Pierce was sent on a gurney to the Radiology Department with a hospital escort (described as "Transport," essentially a porter), who was neither a registered nurse nor a doctor.

         What happened next is unclear from the record. Plaintiff alleges that Mr. Pierce was parked and left alone and unattended in the hallway-acutely hypotensive and in an altered mental state, until he was found by Dr. Cooper, alone and unattended, at approximately 8:00 a.m. on January 3, 2013. Defendants argue that there is no evidence that Mr. Pierce was left unattended, and in support of this, reference portions of Dr. Cooper's deposition testimony that were not included in the record on appeal.[4] Thus, whether or not Mr. Pierce was left unattended in his severely deteriorated state is simply not clear from the record.

         The deposition testimony does establish that upon finding Mr. Pierce, Dr. Cooper called for Defendant Davis Ogitani, M.D., the primary care doctor assigned to Mr. Pierce, and had an emergency consent executed to place the central line so that Mr. Pierce could receive treatment for his deteriorating condition. Mr. Pierce went into cardio-pulmonary arrest as they were transferring him to the radiology table, and heroic efforts to resuscitate him were futile. Mr. Pierce died on the table in the radiology suite.

         In his deposition, Dr. Cooper also testified that it was unusual for someone incapable of consenting to be sent to radiology, that the change in the patient's condition overnight had not been conveyed to him, and as a result the patient was "not in the place where that patient should [have been] in that moment." Dr. Cooper also testified that he agreed with the statement that Mr. Pierce should not have been transported to the radiological suite in the condition he was in, because he was unstable, and further testified that Mr. Pierce's blood pressure reflected a dangerously hypotensive state. He also stated that he could not say one way or the other whether Mr. Pierce would have had a better chance of surviving if he had been in the ICU rather than the radiology suite. As well, he acknowledged that the medical record doesn't indicate that Mr. Pierce was transported or attended by anyone other than a standard escort (transport employee).

         Subsequent to Mr. Pierce's death, a request for review of the Plaintiff's malpractice claims was filed before a medical review panel.[5] An opinion was rendered by the medical review panel on April 20, 2016, concluding that none of the Defendants deviated below the standard of care, and that the decedent was properly monitored, and all physician orders were timely and appropriately followed.

         On August 16, 2016, Plaintiff (Mr. Pierce's widow) filed a petition for damages. On October 18, 2016, Defendants, University Medical Center New Orleans and University Medical Center Management, filed for summary judgment. Shortly thereafter, Defendants Ogitani, Conkerton, and Johnson also filed a motion for summary judgment. The motions were originally set for hearing on December 2, 2016, but were continued at Plaintiff's request to March 3, 2017, and then to May 19, 2017. They were then continued without date to allow Plaintiff to conduct further discovery. On October 23, 2017, the summary judgments were re-set for December 1, 2017. Prior to that hearing, on November 29, 2017, Plaintiff filed a motion to continue the summary judgment hearing, as well as a statement of material facts in dispute, asserting a single material fact in dispute, as follows: "Whether the defendants…breached the standard of care when they transported and abandoned Roy Pierce in the hallway outside of the Radiology suite when he was in an acutely decompensated, mentally altered hypotensive state."[6] On November 30, 2017, one day before the hearing, Plaintiff filed an opposition to the motions. It is undisputed that no Independent Medical Expert testimony was provided in support of Plaintiff's opposition.

         The Court, ruling from the bench, denied the motion to continue, and granted both summary judgment motions, signing the judgment as to the hospital defendants on December 1, 2017, and as to the remaining practitioner defendants on December 19, 2017. The December 19, 2017 judgment also denied the motion to continue. This timely appeal followed.

         ASSIGNMENTS OF ERROR

         Plaintiff has asserted the following assignments of error on appeal. First, that the district court erred in ruling that an independent medical expert is necessary to establish the standard of care in a medical malpractice case when the breach is objective and apparent and negligence can be reasonably inferred. Second, that the district court erred in ruling that Dr. Cooper was not a medical expert who established the standard of care and its breach, and in ruling that no genuine issue of material fact existed regarding whether or not the Defendants breached their standard of care.[7] Third, Plaintiff ...


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