Coleman v. Deno

• Decision Date: 25 January 2002
• Docket Number: No. 2001-C-1519, No. 2001-C-1517, No. 2001-C-1521.
• Citation: 813 So.2d 303
• Parties: Louis COLEMAN, Individually and as Father of Louis Frank Coleman v. Dr. Richard DENO, Dr. Ivan Sherman and Joellen Smith Hospital.
• Court: Louisiana Supreme Court

813 So.2d 303

Louis COLEMAN, Individually and as Father of Louis Frank Coleman v. Dr. Richard DENO, Dr. Ivan Sherman and Joellen Smith Hospital.

Nos. 2001-C-1517, 2001-C-1519, 2001-C-1521.

Supreme Court of Louisiana.

January 25, 2002.

Rehearing Denied March 28, 2002.

Gerald E. Meunier, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans, Frank J. D'Amico, Jr., New Orleans, Judy A. Gic, Counsel for Applicant in No. 2001-C-1517.

Michelle A. Bourque, Stewart E. Niles, Jr., Karen M. Fontana, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, C. William Bradley, Jr., Richard E. Gruner, Jr., Lemle & Kelleher, New Orleans, Counsel for Respondent in No. 2001-C-1517.

Stewart E. Niles, Jr., Karen M. Fontana, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, Counsel for Applicant in No. 2001-C-1519.

Michelle A. Bourque, Gerald E. Meunier, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans, Frank J. D'Amico, New Orleans, Judy A. Gic, C. William Bradley, Jr., Richard E. Gruner, Jr., Lemle & Keleher, New Orleans, Counsel for Respondent in No. 2001-C-1519.

Michelle A. Bourque, New Orleans, Counsel for Applicant in No. 2001-C-1521.

Stewart E. Niles, Jr., Karen M. Fontana, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Gerald E. Meunier, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans, Frank J. D'Amico, Jr., New Orleans, Judy A. Gic, C. William Bradley, Jr., Richard E. Gruner, Jr., Lemle & Kelleher, New Orleans, Counsel for Respondent in No. 2001-C-1521.

Charles F. Gay, Jr., New Orleans, Don S. McKinney, Counsel for Amicus Curiae Ochsner Clinic Foundation and American College of Emergency Physicians.

Lawrence S. Kullman, New Orleans, Counsel for Amicus Curiae Louisiana Trial Lawyers Association.

Carlton Jones, III, David A. Woolridge, Baton Rouge, Counsel for Amicus Curiae Patients Compensation Foundation Oversight Board.

Gregory D. Frost, Larry M. Roedel, Baton Rouge, Counsel for Amicus Curiae Louisiana Dental Association.

Amy W. Phillips, Baton Rouge, Robert G. Pugh, Jr., Shreveport, Counsel for Amici Curiae Louisiana State Medical Society, Orleans Par. Medical Society, Jefferson Medical Society, Iberville Parish Medical

Society, St. Martin Medical Society, Rapides Parish Medical Society, Calcasieu Parish Medical Society, Lafayette Parish Medical Society, St. Bernard Parish Medical Society, Acadia Parish Medical Society, East Baton Rouge Parish Medical Society, American Medical Association, Shreveport Medical Society, Louisiana Trial Lawyers Association.

LOBRANO, Justice Pro Tempore.¹

We granted certiorari in this case primarily to determine whether the court of appeal erred in recognizing an intentional tort cause of action against an emergency room physician for improper transfer of a patient under general tort law, which is outside the scope of the limitations set forth in the Medical Malpractice Act, La. R.S. 40:1299.41, et seq. (MMA). After review of the evidence, we conclude that the plaintiff-patient's cause of action against the defendant-doctor is based solely on medical malpractice and thus the court of appeal's finding of an intentional tort of "patient dumping" is in error. With respect to the medical malpractice liability, we find no manifest error in the jury's finding of malpractice on the part of the defendant-doctor; however, we reallocate fault between the defendant-doctor and the non-party charity hospital. With respect to damages, we remand to the court of appeal for both a meaningful quantum review and a recasting of the ultimate judgment in accordance with the limitations of the MMA.

Facts

On June 11, 1988, Louis Coleman, then thirty-two years old, underwent surgery at Charity Hospital in New Orleans (CHNO). During that surgery, his left arm was amputated to save his life. Coleman initially sought emergency treatment at JoEllen Smith Hospital (JESH), where he presented twice within a forty-hour interval on June 7 and 8, 1988. On the second visit to JESH, the emergency room physician transferred Coleman to CHNO.

Coleman first visited JESH at 1:44 a.m. on June 7, 1988. On that occasion, Coleman never complained of any problems with his arm. Rather, Coleman told the triage nurse that he had pulled something in his chest while lifting and that all movement hurts including deep breathing. With the exception of an elevated temperature (100.3~F), his vital signs were normal. Dr. Ivan Sherman, the emergency room physician who examined Coleman, found his chest was clear, but his chest wall was tender. Dr. Sherman ordered an EKG and a chest x-ray. Based on the negative results of those tests and the physical examination, Dr. Sherman diagnosed chest pain and costochondritis, which is an inflammation of the area between the ribs and sternum

At 3:45 a.m., Coleman was discharged with instructions to take the prescribed medication, Naprosyn (an anti-inflamatory); to apply heat to his chest; and to follow-up with a named physician. Realizing that all area pharmacies were closed at that time of day, Dr. Sherman not only gave Coleman a prescription for Naprosyn, but also ordered that an initial double dose of Naprosyn be dispensed to him in the emergency room.

At 8:10 p.m. on June 8, 1988, Coleman returned to JESH. Coleman told the triage nurse that at about 3:00 or 4:00 a.m. that day his left arm had started aching and swelling. Coleman testified that he attributed these symptoms to be side effects of the Naprosyn. The triage nurse noted that Coleman's arm was swollen with warm bullae in the left antecubital space. With the exception of an elevated temperature (102.8~F), and heart rate (120 beats per minute), his vital signs were normal. Dr. Richard Deno, the emergency room physician who examined Coleman, documented his findings by drawing a picture of Coleman's left arm on which he depicted: (1) small bullous lesions; (2) a hot, swollen area (which, using his engineering background, he depicted by using thrash marks); and (3) track marks (consistent with intravenous drug abuse).

Dr. Deno initially believed that Coleman could be treated on an outpatient basis and thus wrote discharge instructions (similar to Dr. Sherman's) for outpatient treatment with oral antibiotics and follow-up with a named physician. However, upon receiving the laboratory results reflecting a markedly elevated white blood count (27.1), Dr. Deno diagnosed Coleman with left arm cellulitis,² and determined that Coleman required inpatient intravenous antibiotic treatment. At that point, the treatment decision became where Coleman should receive such treatment. Ultimately, Dr. Deno determined that a transfer for inpatient admission at CHNO was appropriate for two reasons: (1) given Coleman's lack of insurance he would not be able to financially afford private hospitalization at JESH;³ and (2) given CHNO-a Level I Trauma Center with a full-scale, on-site laboratory—was better equipped and more experienced than JESH—a Level II Trauma Center lacking such an inhouse laboratory—at treating complicated infections of the type experienced by Coleman.

An evidentiary ruling by the trial judge precluded the parties from informing the jury of the former, financial reason for the transfer to CHNO. The sole reason explored at trial was the latter, i.e., CHNO's superior resources. In that regard, Dr. Deno testified that although JESH rarely treats intravenous drug abuse cellulitis, CHNO (where Dr. Deno also practiced) routinely treats this type of complicated infection.

To facilitate Coleman's transfer, Dr. Deno telephoned the CHNO Accident Room charge resident, who accepted Coleman for admission. Documenting this call in the medical record, Dr. Deno wrote "[t]ransfer to Charity, charge resident in accident room accepted,"⁴ and Coleman signed that record documenting the decision to transfer to CHNO.⁵

Once the charge resident accepted Coleman for admission, Dr. Deno testified that it was contraindicated for him to draw blood cultures or to do any further evaluation at JESH. Likewise, Dr. Deno explained that it was contraindicated for him to commence antibiotic treatment as that would distort the blood cultures, and CHNO, as the receiving provider, would want to perform its own cultures. Still further, Dr. Deno explained that any of these treatments would have only delayed Coleman's arrival at CHNO, which is less than a half hour drive from JESH.⁶

Given that Coleman was stable, in good condition, ambulatory, and accompanied by his girlfriend, Dr. Deno saw no need to transfer by ambulance; instead, he found it wholly appropriate for Coleman to self-transport. While Coleman and his girlfriend both testified that Dr. Deno approved their request to first go home—a forty-five minute drive—and get pajamas and other personal belongings before going to CHNO, Dr. Deno testified that he would have never authorized such a detour and denied any such conversation took place. Moreover, Coleman signed the discharge sheet instructing that he was to go "directly" to CHNO and to bring with him the copies he was given of the JESH laboratory work.

Although Coleman was discharged from JESH at 10:00 p.m. on June 8th, he did not arrive at CHNO until about 12:30 a.m. on June 9th. At 12:46 a.m., he was seen by the triage nurse. Coleman's chief complaint was left arm edema. In accordance with CHNO accident room protocol, Coleman was screened by a physician, who ordered blood work and cultures, which were taken at 1:30 a.m. and showed a white blood count of 29.9. Left arm x-rays were taken at 5:00 a.m. and showed a significant amount of soft tissue swelling in the left forearm and elbow consistent with a history of cellulitis; the x-rays, however, showed no sign of gas in the tissue.

At CHNO, Coleman gave two different versions of the cause of his arm ailment. Initially, he gave the nurse a history of having a crushing type injury on Sunday when he fell off a boat and was wedged...