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Hawkins v. The Schumacher Group of Louisiana, Inc.

Court of Appeals of Louisiana, Second Circuit

November 20, 2019


          Appealed from the Fourth Judicial District Court for the Parish of Morehouse, Louisiana Trial Court No. 2015189 Honorable Robert W. Kostelka, Judge (Pro Tempore)

          SANGISETTY LAW FIRM, LLC By: Ravi K. Sangisetty Parker N. Hutchinson Counsel for Appellants

          COWAN LAW FIRM By: Thomas C. Cowan Philip E. Reso Sheri S. Gilbert Counsel for Appellees

          Before PITMAN, McCALLUM, and THOMPSON, JJ.

          THOMPSON, J.

         This appeal arises from the granting of a motion for summary judgment in favor of the defendants, Clinical Partners-Louisiana, PLLC, Emcare, Inc., Emcare Holdings, Inc., and Envision Healthcare Corporation (hereinafter "Anesthesia Defendants"), and against plaintiffs for injuries sustained by Charlotte Hawkins (hereinafter "Hawkins") from repeated incorrect intubation of Hawkins while a patient at Morehouse General Hospital. For the reasons more fully detailed below, we reverse the granting of summary judgment and remand for further proceedings.


         Providing anesthesia services in rural hospitals, which do not have a large enough population base to include a local anesthesiologist, is oftentimes accomplished through various intermediaries and agreements necessary to serve citizens in the region. In this instance Morehouse General Hospital and its patients were served through an agreement between Indigent Care Services of Northeast Louisiana, Inc., and Clinical Partners-Louisiana, PLLC, to staff and manage the anesthesia services program and protocols. Clinical Partners-Louisiana, PLLC, would in turn contract with health care providers to deliver those services to patients.

         On June 25, 2012, Hawkins was admitted to Morehouse General Hospital to undergo a C-section. The C-section was performed without complication by Dr. James Gouth, OB/GYN (hereinafter "Dr. Gouth"). Defendant, Andre LeBlanc, CRNA (hereinafter "LeBlanc"), was tasked with performing Hawkins' anesthesia services related to and subsequent to her C-section.

         Following her C-section, Hawkins became agitated and LeBlanc administered intravenous Benadryl to Hawkins. After the administration of the Benadryl, Hawkins experienced respiratory depression and became unresponsive. LeBlanc intubated Hawkins and while doing so he improperly placed the tube in her esophagus causing air to be pumped into Hawkins' stomach instead of her lungs. LeBlanc "called a code" and Dr. Guoth and Dr. Daniel Umoh (hereinafter "Dr. Umoh"), the attending ER physician, responded. Dr. Umoh attempted to resuscitate Hawkins. Dr. Guoth discovered that she was improperly intubated. LeBlanc again attempted to properly intubate Hawkins, but in this second failed attempt he placed the tube too far down her bronchus causing only her right lung to receive oxygen. After a third attempt by LeBlanc, and several minutes after the first failed attempt, Hawkins was finally correctly intubated. As a result of the improper intubation, Hawkins suffered a severe hypoxic brain injury which has caused her significant and permanent damage. Hawkins has now been interdicted as a result of her injuries. The plaintiffs in this matter include Hawkins and her family members.

         Hawkins' family (hereinafter "Plaintiffs") filed an original petition, followed by a first, second, and third supplemental petition for damages against the following defendants: Morehouse Parish Hospital Service District d/b/a Morehouse General Hospital ("Morehouse Hospital"); Dr. James Guoth, the physician who performed the C-section; Linda Richard, CRT, and Bridget Humphrey Major, LPN, Fleta Stell, RN, Adam Clampit, RN, and Teresa Hankins, RN, the nurses and medical staff on duty the day of Hawkins' injury (hereinafter collectively referred to as "the Nurses"); Andre LeBlanc, personally and his limited liability company, Andre LeBlanc Medical Consultants, LLC, as he was the Certified Registered Nurse Anesthetist ("CRNA") who intubated Hawkins and was responsible for her care; Dr. Daniel Umoh, the emergency room physician who responded to the code; the Schumacher Group of Louisiana; Clinical Partners-Louisiana, PLLC, and its related corporate entities Emcare, Inc., Emcare Holdings, Inc., Envision Healthcare Corporation, and Iasis Healthcare, LLC, the corporate entity Plaintiffs asserted had contracted or assumed the contract with Anesthesia Defendants to establish and staff Morehouse with anesthesia services among other responsibilities.

         The Nurses named as defendants in the petition were dismissed by motion and order for partial dismissal dated August 24, 2015. Defendants, Schumacher Group of Louisiana, Inc. and Dr. Daniel Umoh, were dismissed on February 23, 2016, via an unopposed motion for summary judgment. Defendant Indigent Care Services of Northeast Louisiana was dismissed from the suit on April 10, 2018, via an unopposed motion for summary judgment and Iasis Healthcare, LLC, was added because it was the parent company of Indigent Care Services. Defendants Morehouse and Dr. Guoth were dismissed on August 10, 2018, via a motion for summary judgment wherein the district court found no liability for either. Defendants, Andre LeBlanc, CRNA and Andre LeBlanc Medical Consultants, as well as unnamed defendants Liberty Surplus (LeBlanc's malpractice insurer) and the Patient's Compensation Fund, reached a settlement agreement with Plaintiffs and were accordingly dismissed from the suit as a product of that settlement. The only remaining defendants in the suit are: (1) Clinical Partners-Louisiana, PLLC, and its parent or associated entities Emcare, Inc., Emcare Holdings, Inc., and Envision Healthcare Corporation ("Anesthesia Defendants"); and (2) Iasis Healthcare, LLC.

         On November 9, 2017, Anesthesia Defendants filed their first motion for summary judgment alleging no liability for any acts, including those of LeBlanc, because the agreement between Anesthesia Defendants and LeBlanc defined LeBlanc as an independent contractor, and that, in accordance with such an agreement, Anesthesia Defendants had no right to control the delivery of LeBlanc's anesthesia services at Morehouse. Anesthesia Defendants claimed that LeBlanc was never supervised, trained, or directed by Anesthesia Defendants regarding delivery of anesthesia services. Therefore, Anesthesia Defendants claimed that they were neither vicariously liable nor were they independently negligent with regard to Hawkins' medical care.

         On November 29, 2017, Plaintiffs filed an opposition to Anesthesia Defendants' motion for summary judgment and on January 5, 2018, Anesthesia Defendants' motion for summary judgment was granted in part and denied in part. The district court held that LeBlanc was an independent contractor for Anesthesia Defendants and that Anesthesia Defendants could not be held liable for the actions of Andre LeBlanc or Andre LeBlanc Medical Consultants. The claims against LeBlanc, his company, Liberty Surplus, and the Patient's Compensation Fund were subsequently dismissed due to settlement between the parties. Summary judgment was denied as to the remaining claims against Anesthesia Defendants which duties and responsibilities were created by either contract or applicable standard established by the Code of Federal Regulation.

         On March 9, 2018, Anesthesia Defendants filed a second motion for summary judgment citing the following two reasons for entry:

(1) Plaintiffs were not third party beneficiaries to the contract between Clinical Partners and Indigent Care of Northeast Louisiana; and
(2) 42 C.F.R. 482 does not create a private cause of action for Plaintiffs to recover from Defendants.

         After a hearing, which included discussion in detail between the district judge and both counsel, the district court granted the motion for summary judgment and dismissed the claims against Anesthesia Defendants with prejudice. Plaintiffs filed a motion for new trial which was denied on December 28, 2018. This appeal followed.


         (1) The district court erred in granting Defendants' motion for summary judgment on issues not raised as grounds for dismissal in their motion for summary judgment;

         (2) The district court erred in allowing Defendants to argue under an entirely different theory from that stated in their motion and in resolving questions of fact related to duty of care; and

         (3) The district court erred in granting summary judgment before Plaintiffs were able to conduct court-ordered discovery on fact issues relevant to the scope of Defendants' duty of care.


         De novo review is required when an appellate court considers rulings on motions for summary judgment. Bank of New York Mellon v. Smith, 15-0530 (La. 10/14/15), 180 So.3d 1238, 1243.


         In its third amended petition, Plaintiffs allege that Clinical Partners-Louisiana, PLLC, is liable because Hawkins' injuries and damages were proximately and legally caused by the following acts of negligence:

• Failure to hire qualified personnel;
• Failure to train personnel;
• Failure to perform other administrative functions, including distribution and maintenance of adequate safety protocols, such as those related to proper intubation techniques and drug safety;
• Failure to supervise, train, and/or monitor personnel, including but not limited to LeBlanc and the code team;
• Failure to develop and/or implement adequate policies and procedures to competently address proper intubation of patients;
• Failure to properly staff Morehouse with adequately trained personnel to deliver anesthesia services;
• Failure to enforce the policies, protocols, and procedures of Morehouse;
• Failure to timely assess Mrs. Hawkins;
• Failure to exercise the appropriate standard of care for facilities in intubating patients;
• Vicarious liability for the negligence of Andre LeBlanc, Andre LeBlanc Medical Consultants, LLC, Adam Clampit, RN, and Teresa Hankins, RN;
• Failure to ensure that LeBlanc was practicing anesthesia under the sponsorship of a medical doctor or otherwise ensure anesthesia services were delivered at the hospital in accordance with applicable federal and state laws/regulations; and
• Failure to fulfill its contractual duties to deliver anesthesia services in a safe and competent manner at Morehouse General Hospital.

         Additionally, Plaintiffs claim that Emcare, Inc., and its parent corporations, Emcare Holdings Inc. and Envision Healthcare Corp., are liable because Clinical Partners had no employees or office of its own, but was an alter ego of and operated as a single business enterprise with Emcare, Inc., and its parent corporations. Therefore, Plaintiffs assert in their third amended petition that Emcare, Inc., Emcare Holdings Inc., and Envision Healthcare Corp. are also liable unto them for the acts of negligence detailed above.

         In its oral reasons for ruling, the following exchange occurred between counsel for the parties and the district court:

Yes. Uh, they were, their role in this was to recruit someone like Mr. LeBlanc, Nurse LeBlanc, someone who is qualified to provide these services as a CRNA and have this contract with the hospital to do so. And they did that. And as far as the supervision of the CRNA, we had Dr. Guoth who was there, who was actually performing the caesarean section. And uh, he checked on his patients. Everything was fine. No signs of distress. He walks outside. Um to do what doctors do. Dictate their notes. And he was 60 steps away, but apparently not very far. He was within sight of the room. As soon as the code was called, as is custom and proper procedure, the ER doctor responded. They both went in at the same time. Uh, roughly at the same time. Dr. Guoth is not a trained anesthesiologist. He, uh, he his deposition was clear on that. He was there to consult in the event there was some need to ...

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