Lewis ex rel. Lewis v. Cornerstone Hosp. of Bossier City, LLC

280 So.3d 1262

Reginald LEWIS, ON BEHALF OF Robert LEWIS, Jr., Plaintiff-Appellant

v.CORNERSTONE HOSPITAL OF BOSSIER CITY, LLC, Defendant-Appellee

No. 53,056-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered September 25, 2019.

THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP, By: Steven E. Soileau, Shreveport, Counsel for Appellant

HUDSON, POTTS, & BERNSTEIN, By: Gordon L. James, Sara G. White, Monroe, Counsel for Appellee

Before MOORE, PITMAN, and GARRETT, JJ.

MOORE, J.

Reginald 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.

FACTUAL BACKGROUND

The 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.

Dr. 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.

Mr. 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."

At this 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. Matriano-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.

On 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 then.

Cornerstone's 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.

On his 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.

During 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.

On May 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.

PROCEDURAL HISTORY

Reginald filed a request for Medical Review Panel ("MRP"), but the panel unanimously found that the evidence did not support the conclusion that Cornerstone or its nurses failed to meet the applicable standard of care. The MRP rejected claims that Cornerstone failed to properly maintain and monitor the PEG and trach sites; allowed a large decubitus ulcer to develop; and failed to monitor, detect and address the patient's declining condition.

Reginald filed this suit, in December 2016, for wrongful death and survival damages, against Cornerstone; he named no individual doctors or nurses as defendants. He alleged, in essence, that Cornerstone's conduct deprived Mr. Lewis of a chance of recovery, and he demanded a jury trial. By amended petition, in August 2017, he further alleged that Cornerstone's employees, Candler and Trainor, breached Mr. Lewis's confidentiality, statutory privilege, privacy, and implied contract by going to the VA and discussing his case with Dr. Troxclair, without his (Mr. Lewis's) consent.

The case went to a 12-member jury over four days in July 2018. The witnesses testified as outlined above. For the plaintiff, Dr. Troxclair, who was by then no longer at the VA but a contracting physician at CHRISTUS Schumpert in Coushatta, La., testified that it was a breach of standard for Cornerstone not to follow his dietary instructions to the letter, as Mr. Lewis got less than half the protein he needed; this was why his condition declined. The plaintiff also called Peggy Richardson, RN, as an expert in nursing. She felt Cornerstone's nurses breached the standard of care by not calling a surgeon to replace Mr. Lewis's pulled-out PEG tube as soon as they discovered it; by not notifying a doctor every time he pulled out his trach; by generally failing to document the patient's condition; by failing to provide adequate nutritional support; and by failing to assess, document, report, and treat the decubitus ulcer. Dr. Matriano-Lim, on cross-examination, testified that he did not recall ever seeing Dr. Troxclair's dietary instructions for Mr. Lewis; he felt that if the patient pulled out his trach, and the nurses could get it back in place, there was no need to call him; yet he agreed that nurses should have called him when Mr. Lewis pulled out his PEG.

Cornerstone called the three members of the MRP. Dr. Jon D. LeLeux, a cardiologist in Lafayette, La., testified that the ulcer did not develop while Mr. Lewis was at Cornerstone, and it did not get worse there; it is not malpractice if the patient...