Landry v. Doe

307 So.3d 1064

Jennifer LANDRY, Individually and on Behalf of Her Minor Children, Austin M. Landry and Haylea N. Landry, Surviving Spouse and Children of Decedent, Jamie Landry

v.John DOE and Our Lady of the Lake Regional Medical Center

2019 CA 0880

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: JUNE 26, 2020

Janie Languirand Coles, Jonathan E. Thomas, Baton Rouge, Louisiana, Counsel for Defendant/Appellant, Mitchell J. Hebert, M.D.

Scott H. Fruge, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellees, Jennifer Landry, individually and on behalf of her minor children, Austin M. Landry and Haylea N. Landry, surviving spouse and children of decedent, Jamie Landry

BEFORE: WHIPPLE, C.J., GUIDRY AND BURRIS,¹ JJ.

BURRIS, J.

In this medical malpractice action, the trial court rendered judgment on March 6, 2019 in favor of the plaintiffs and against the defendant health care provider upon finding the defendant breached the applicable standard of care by failing to reduce the dose of Dilaudid (hydromorphone) administered to the decedent, the plaintiffs' husband and father, and this breach was causally connected to the decedent's death. The defendant appealed and also filed an exception raising the objection of prescription with this court, asserting for the first time that the plaintiffs' medical malpractice claims are prescribed. For the following reasons, the March 6, 2019 judgment is affirmed, and the defendant's exception of prescription is denied.

FACTS AND PROCEDURAL HISTORY

Prior to his death on May 6, 2013, the decedent, Jamie Landry, had a complex medical history, including type 1 diabetes, hypertension, pancreatitis, and stage 5 renal failure. Jamie presented to Pointe Coupee General Hospital on May 1, 2013 with complaints of abdominal pain. He was diagnosed with acute pancreatitis and was given one milligram of Dilaudid, an opioid, intravenously at 8:43 pm. After the first milligram did not sufficiently alleviate his pain, Jamie was given another one milligram dose of Dilaudid intravenously at 9:23 pm. He had no adverse reaction.

The treating physician at Pointe Coupee General concluded that Jamie's renal function was worsening due to the pancreatitis. Further, although Jamie was not yet on dialysis, the physician was concerned that dialysis would become an issue. After consulting with Dr. Mitchell Hebert (defendant), the nephrologist on duty at Our Lady of the Lake Regional Medical Center ("OLOL"), the decision was made to transfer Jamie to OLOL for a "higher level of care in Baton Rouge." Dr. Hebert accepted Jamie for direct admission into the OLOL nephrology unit on May 1, 2013 at 11:35 pm.

Dr. Hebert was aware of the seriousness of Jamie's medical history and present diagnosis. Additionally, prior to Jamie's transfer, the physician at Pointe Coupee General advised Dr. Hebert that Jamie was given one milligram of Dilaudid twice, which did not relieve his pain "much." Therefore, Dr. Hebert believed that Jamie needed a higher dose to achieve efficacy and appropriate pain control. With this in mind, as well as Jamie's medical history and obesity, Dr. Hebert ordered two milligrams of Dilaudid to be given intravenously every four hours as needed.

Jamie received the first two milligrams of Dilaudid at OLOL at 1:42 am on May 2, 2013, over four hours after the last dose was given at Pointe Coupee General. He received three additional two milligram doses of Dilaudid on May 2nd at 8:44 am (seven hours later), at 2:14 pm (over five hours later), and at 9:21 pm (seven hours later).

Dr. Hebert's shift at OLOL ended at 7:00 am on May 2, 2013, and he had no further involvement with Jamie's treatment. Thereafter, Jamie was evaluated by a gastroenterologist who had previously "followed" Jamie for pancreatitis, a gastroenterology nurse practitioner, and Dr. Daniel Marsh, Jamie's primary nephrologist. Dr. Marsh was also Dr. Hebert's partner at Renal Associates of Baton Rouge, LLC. None of these medical providers adjusted the dose of Dilaudid ordered by Dr. Hebert.

Jamie's wife, Jennifer, and the couple's children visited him in the hospital at 4:00 pm on May 2nd. During the course of their visit, Jennifer noted that Jamie was "really drowsy" and was "too tired" to open his eyes. Jamie "really couldn't interact" with his family and wanted to "just lay there and sleep." According to Jennifer, a nurse's aide entered Jamie's room during their visit to take his vital signs. The nurse's aide shook Jamie to wake him from a "sound sleep" and told him to sit up and "take some deep breaths." She measured Jamie's oxygen level, then left his room. Sometime later, Jamie's family returned home to Livonia.

Jennifer spoke to Jamie over the phone at 8:00 pm on May 2nd. He remembered their visit earlier that day but did not recall certain events, like the nurse's aide telling him to take breaths or his daughter asking him to open his eyes as he was falling asleep. Jennifer told Jamie, "something is going on; you must be on too much pain medicine or your oxygen must be going down." She told Jamie to tell the nurse "what's going on." There is no indication that Jamie contacted the nurse at this time.

Jennifer called Jamie's hospital room two hours later, around 10:00 pm, as well as his cell phone. But, Jamie did not answer. Jennifer then called the nurse's station and asked the nurse to check on Jamie. Jennifer explained that she was Jamie's wife and was concerned about her husband. She told the nurse that Jamie was unable to remember some things that happened during their visit and expressed concern that Jamie was "on too much pain medicine" and was "lacking oxygen." Jennifer asked the nurse to call the doctor and to see what she, the nurse, could do. The nurse assured Jennifer that she had just checked on Jamie and that he was sleeping and "breathing fine." The nurse told Jennifer that she would call the doctor in the morning.

There are inconsistencies in the nurse's notes concerning the timing of the following events, but the medical records indicate that Jamie was coherent, alert, and oriented, and his chest was rising and falling symmetrically between 10:45 pm and 11:28 pm on May 2, 2013. However, when the nurse returned to Jamie's room at approximately 11:30 pm to change a bag of fluids, he was unresponsive and was not breathing. A code was called. After the medical team's intervention, Jamie regained a viable heart rhythm but remained unresponsive, with suppressed brain waves. He was moved to the intensive care unit, where he suffered another arrest. Jamie died on May 6, 2013.

Jennifer requested a medical review panel on June 7, 2013 to determine whether OLOL failed to monitor Jamie. Jamie B. Landry (D), et al. vs. Our Lady of the Lake Regional Medical Center, PCF File No: 2013-00574. She subsequently amended the request on May 9, 2014 to add Dr. Hebert to the medical review panel proceeding, alleging that he gave an incorrect dose of pain medication and failed to order appropriate monitoring of Jamie, including testing and lab work. The panel, comprised of Dr. Mark Wilson (nephrologist), Dr. Avanelle V. Jack (nephrologist), and Dr. Katherine Eagan May (internist), rendered its opinion in January 2015, unanimously concluding that Dr. Hebert beached the applicable standard of care and that this breach was causally connected to Jamie's death. Dr. Wilson and Dr. May found the dose of Dilaudid was too high, while Dr. Jack concluded that Jamie should have been monitored more closely in the intensive care unit. Two of the three panel members found that OLOL did not breach the applicable standard of care.

Jennifer filed the instant medical malpractice suit in January 2015, individually and on behalf of Jamie and their two minor children, against OLOL and Dr. Hebert. The trial court granted OLOL's motion for summary judgment in September 2015, dismissing it from suit and precluding any allocation of fault against OLOL per La. Code Civ. P. art. 966(G).² A bench trial was held on December 10-12, 2018 to determine whether the dose of Dilaudid ordered by Dr. Hebert was a breach of the standard of care practiced by physicians in the field of nephrology and, if so, whether a causal connection existed between this breach and Jamie's death.

After taking the matter under advisement, the trial court rendered its ruling on January 25, 2019, answering both questions in the affirmative in the plaintiffs' favor and against Dr. Hebert. A judgment memorializing the trial court's ruling was signed on March 6, 2019, awarding the plaintiffs general and special damages totaling $780,680.98.³ Pursuant to La. R.S. 40:1231, et seq , and in light of Dr. Hebert's status as a qualified health care provider, the amount to be paid by Dr. Hebert or on his behalf was reduced to the statutory maximum of $100,000.00, plus accrued judicial interest and costs in the amount of $9,163.57. The remaining amount payable by the Patient's Compensation Fund and the Patient's Compensation Oversight Board on behalf of Dr. Hebert was reduced to the statutory maximum of $400,000.00, plus $57,915.27 for past medical expenses (which the judgment provides is considered future medical care not subject to the malpractice cap under La. R.S. 40:1231.3(B) and La. R.S. 40:1231.2(B)(1) ), accrued interest, and costs in the amount of $9,163.57.

Dr. Hebert filed the instant appeal, identifying eleven assignments of error primarily challenging the trial court's acceptance of certain expert testimony, its factual conclusions, and its failure to allocate fault to third parties. Dr. Hebert did not appeal the amount of the damage award. However, before we reach the merits of Dr. Hebert's appeal, we must first dispose of his exception of prescription.

EXCEPTION OF PRESCRIPTION

After this appeal was lodged, but prior to submission, Dr. Hebert filed an exception with this court raising, for the first time, the objection of prescription. La. Code Civ. P. art. 927(A)(1). Louisiana Code of Civil...