REGINALD LEWIS, ON BEHALF OF ROBERT LEWIS, JR. Plaintiff-Appellant
CORNERSTONE HOSPITAL OF BOSSIER CITY, LLC Defendant-Appellee
Appealed from the Twenty-Sixth Judicial District Court for
the Parish of Bossier, Louisiana Trial Court No. 151, 867
Honorable E. Charles Jacobs, Judge
THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP By: Steven E.
Soileau Counsel for Appellant
HUDSON, POTTS, & BERNSTEIN By: Gordon L. James Sara G.
White Counsel for Appellee
MOORE, PITMAN, and GARRETT, JJ.
Lewis appeals a jury verdict that denied his claims for
medical malpractice and invasion of privacy involving his
late father, Robert Lewis ("Mr. Lewis"), as well as
a judgment that denied his motion for JNOV. The case involves
treatment that Mr. Lewis received at Cornerstone Hospital, a
long-term acute care facility, from April 17 to April 30,
2015. For the reasons expressed, we affirm.
63-year-old Mr. Lewis, a Vietnam veteran and longtime smoker,
went to the emergency room at the VA hospital in Shreveport
with complaints of speech changes, fatigue, decreased oral
intake, and weight loss. Dr. Sean Troxclair, an internist,
critical care and nutrition physician, admitted him and
became his treating physician. Mr. Lewis weighed only 88
pounds, was about half the normal body mass index, and needed
aggressive nutritional support. A CT scan showed a large
malignant mass in his throat; it was cancer. He underwent
surgery to remove the mass. Doctors also inserted a feeding
tube (called a "PEG") into his abdomen to provide
nutritional access and a tracheostomy ("trach")
into his throat to secure his airway. While at the VA, he
developed a large (3 cm × 3 cm) decubitus ulcer, Stage
III, in the sacral area. The oncologist at the VA said Mr.
Lewis needed chemotherapy, but could not undergo it because
he was so underweight.
Troxclair transferred Mr. Lewis to Cornerstone on April 17 so
he could gain weight and strength, with the plan of beginning
chemo and radiation to treat the cancer. Despite his health
problems, doctors at the VA described Mr. Lewis as in
"good condition"; Dr. Troxclair said he was
talking, using a walker, oriented, and having no problem with
the PEG or trach. Dr. Troxclair sent dietary instructions to
Cornerstone: give Mr. Lewis Impact 1.5 at 60 ml/hour, and
feed him like a 70 kg (154-lb.) man instead of the 40-45 kg
(88-99-lb.) man he was.
Lewis arrived at Cornerstone on April 17 and was admitted to
the ICU by Dr. Allan Matriano-Lim, an internist and
pediatrician with privileges there. Oddly, neither Dr.
Matriano-Lim nor Cornerstone's clinical dietician,
Valerie Calhoun, could recall ever seeing Dr. Troxclair's
dietary instructions. However, Ms. Calhoun recalled seeing
some orders from the VA, and Dr. Matriano-Lim gave
orders to feed Mr. Lewis Vital 1.5 at 60 ml/hour. (Ms.
Calhoun testified that Cornerstone did not stock Impact 1.5,
so they used Vital 1.5 instead.) After two days in ICU, Mr.
Lewis was moved to the "floor."
point, unfortunately, Mr. Lewis's condition started to go
downhill. On April 19, he refused his PEG feeding, demanded
solid food, and complained to Ms. Calhoun about cramps and
nausea. Thinking he could not tolerate the high volume and
protein of Vital 1.5, Ms. Calhoun switched him to a formula
called Peptamen 1.5 at 50 ml/hour, and he seemed to respond
better. However, on April 22, Dr. Matriano-Lim issued a new
order to use Impact 1.5, which they had ordered but not yet
received, so they resumed using Vital 1.5. On April 23, Mr.
Lewis vomited it up, and on April 24, he refused any more
tube feeding. On April 25, an attending physician, Dr.
Jackson, found abdominal distension and ordered tube-feeding
stopped; he placed Mr. Lewis on an intravenous
("IV") feed of ProcalAmine at 77 ml/hour. Mr. Lewis
also pulled out his trach at least three times, and nurses
simply replaced it, without notifying Dr. Matrino-Lim. On
April 27, nurses charted "dark liquid input" into
Mr. Lewis's genitourinary bag, but did not chart that
they notified the doctor of this, either.
April 28, at 3:00 am, nurses discovered that Mr. Lewis had
pulled out his PEG tube (which must have involved some effort
and some pain). Nurses removed the broken sutures, and
cleaned and dressed the site; at 8:00 am, they called Dr.
Matriano-Lim about this. At 8:15, he ordered them to place a
catheter in the PEG site and consult with a general surgeon,
but he did not label this STAT or urgent. No surgeon ever
came, but nurses inserted the catheter by 8:35.
Cornerstone's chief of nursing, Tamara Grimm, felt this
was acceptable since Mr. Lewis was getting IV nutrition by
case manager, Connie Combs, testified that she became
"very concerned" about Mr. Lewis's changes at
this point. She faxed a clinical update to the VA (but not
directly to Dr. Troxclair), advising that the PEG feeding had
been "on hold" since April 25 because of abdominal
distension, but that Mr. Lewis was on IV ProcalAmine; he had
a wound on his backside; and he had walked 265 feet with a
rolling walker. The next day, April 29, she phoned her
contact at the VA, a Ms. Sanders, to make sure they got the
message. On April 30, Dr. Troxclair finally received this
information and ordered Mr. Lewis transferred back to the VA.
return to the VA, Mr. Lewis was not in good shape. He was
still emaciated, was noncommunicative, had irritation around
his trach and PEG sites, and still had the decubitus ulcer.
Because of his malnutrition and distended abdomen, he was not
a candidate for surgery or chemo. After consultation with
Reginald, Mr. Lewis's son, Dr. Troxclair placed him on
palliative care, and he died on May 19.
this ordeal, Reginald had been driving down from his home in
Topeka, Kansas, every week or two to see his father. He
admitted the prognosis was bad, but his dad was "a
little better" by the time he was sent to Cornerstone.
In one visit, early during Mr. Lewis's stay there, he
"seemed okay, " and even wanted to leave and go
with the family to Walmart. Reginald was alarmed when he
heard how bad his dad's situation was on his return to
the VA. At some point, Reginald called Dr. Troxclair, who
apparently vented some frustration at Cornerstone, blaming it
for allowing the patient to lose weight and get an ulcer on
his backside. According to Reginald, Dr. Troxclair told him,
"We had him up, almost jogging, ready to go to the
store, " but once at Cornerstone, "he turned so
fast." Reginald then called Ms. Combs, the case manager
at Cornerstone, to complain, particularly about the ulcer Mr.
Lewis got while there.
20, two Cornerstone employees, William Candler, director of
provider relations, and Lindsey Trainor, clinical liaison,
went to the VA to talk to Dr. Troxclair; according to
Candler, he "had questions" and they "did not
have the answers." They checked their records and, on
May 27, went back to the VA to advise Dr. Troxclair that Mr.
Lewis already had that ulcer when he left the VA (in fact, by
their records, it had shrunk slightly while he was at
Cornerstone). They also wanted to repair their damaged
business relationship with the VA. They testified they did
not think they needed the patient's consent to hold this
meeting, but Cornerstone later produced a Health Insurance
Portability and Accountability Act ("HIPAA")
authorization bearing Mr. Lewis's name and marked
"VC" for voice consent.