93-1434 La.App. 4 Cir. 5/18/94, Smith v. Louisiana Health and Human Resources Admin.

• Decision Date: 18 May 1994
• Citation: 637 So.2d 1177
• Parties: 93-1434 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1177

637 So.2d 1177

93-1434 La.App. 4 Cir. 5/18/94

Deanna SMITH, et al. v. The LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION, et al.

No. 93-CA-1434.

Court of Appeal of Louisiana,

Fourth Circuit.

May 18, 1994.

Darleen M. Jacobs, James L. Yates, Darleen M. Jacobs, A Professional Law Corp., New Orleans, for plaintiffs.

Richard Ieyoub, Atty. Gen., Ivor A. Trapolin, Miles G. Trapolin, Trapolin Law Firm, Sp. Asst. Attys. Gen., New Orleans, for defendants.

Before CIACCIO, ARMSTRONG and JONES, JJ.

[93-1434 La.App. 4 Cir. 1] ARMSTRONG, Judge.

Following the death of Harry Smith, a patient at Charity Hospital in New Orleans, his widow and seven children sued the hospital the state of Louisiana and a state agency for wrongful death. The plaintiffs prevailed in a bench trial and the trial court awarded Mrs. Smith $325,000.00, six of the seven children $80,000.00 each and one of the children, who is mentally retarded, $100,000.00. The defendants appealed. We affirm.

Harry Smith suffered from a number of cardiac and respiratory illnesses. He was transferred from another hospital to Charity when his medicaid benefits ran out. Mr. Smith was advised to remain in bed and to get out of bed only in order to go to the bathroom. When Mr. Smith exerted himself to a greater extent, his medical condition could cause a shortage of oxygen to his brain, which resulted in confusion and disorientation. While at Charity, Mr. Smith suffered confusion on a number of occasions. On at least three occasions he took off all of his clothes and, on at least two of those occasions, was found wandering the halls of the hospital nude. On another occasion, Mr. Smith, believing himself to be in the bathroom, urinated on the hospital floor. The nursing notes indicate that Mr. Smith was observed to be confused on a number of other occasions as well. On one occasion, Mr. Smith told his wife, who was visiting, that a particular former governor of Louisiana had [93-1434 La.App. 4 Cir. 2] been in his ward to visit which, of course, was totally incorrect and the result of a hallucination.

Mr. Smith was given medication for treatment of this confusion on at least three occasions. Mr. Smith also was placed in soft restraints at least twice. However, he was not placed in restraints continuously and was not made the subject of continuous observation to prevent him from coming to harm while in a confused state.

On or about November 10, 1983 in the early morning hours, apparently between 1:00 and 2:00 a.m., Mr. Smith left the ward, made his way to the emergency room, and then to the ambulance ramp outside the emergency room. He then drove away in an ambulance in which the keys had been left. While driving the ambulance, he crashed into a construction barricade near his home and was killed.

The trial court found that Mr. Smith most probably took the ambulance while in a confused state. The trial court also found the defendants negligent in failing to keep Mr. Smith restrained or under observation. "This [trial] court cannot escape the conclusion that the hospital could have, and indeed should have, implemented either a vigorous restraint regimen for the patient [Mr. Smith] or an around-the-clock visual observation of this patient." The trial court also found leaving the keys in the ignition to be negligent.

In their first specification of error, the defendants argue that the trial court erred in stating that this is not a medical malpractice case and in stating that the plaintiffs did not need to use expert testimony to prove their case. Specifically, the defendants complain of the following statements of the trial court:

While this is not a medical malpractice action against defendants, applicable case law seems to dictate that the standard of care for hospitals are the same in actions based on negligence, wrongful death, and torts for damages for mental pain and anguish, as in malpractice actions. Keyworth v. Southern Baptist Hospitals, Inc., 524 So.2d 56 (La.App. 4th Cir.1988) writ denied, 525 So.2d 1058 and writ denied, 525 So.2d 1061 (La.1988); Austin v. St. Charles General Hospital, 587 So.2d 742, 746 (La.App. 4th Cir.1991). Thus, in this action for negligence, as in any malpractice action against a hospital, the plaintiffs must prove that Charity owed them a duty to protect against the risk confronting the decedent, that Charity Hospital breached that duty, that plaintiffs suffered an injury through the decedent's death, and that Charity's actions were substantial cause-in-fact of the injury. See Smith v. State Through Dept. of [93-1434 La.App. 4 Cir. 3] Health and Human Resources Admin., 523 So.2d 815, 819 (La.1988); Austin, supra. In the execution of this burden of proof by the plaintiffs, the Fourth Circuit Court of Appeal in Austin, supra, declared: "Nevertheless, these cases do not specifically mandate that the plaintiff must prove a breach of duty by the use of expert testimony."

We suspect that the trial court's statement that this is "not a medical malpractice action" is a reference to the fact that the 1988 amendment to La.R.S. 40:1299.39, making that "medical malpractice" statute applicable to state hospitals and the state, does not apply in this case which arose and was filed in 1983 (a point which will be discussed below). More importantly, the thrust of the trial court's remarks is that the test of liability is the same for this case as in a "medical malpractice" case. As the defendants are arguing that this is a "medical malpractice" case, they obviously have suffered no prejudice from the trial court applying a "medical malpractice" standard for liability.

As to the trial court's quotation of our decision that expert testimony may sometimes not be necessary in a case of alleged hospital negligence, there cannot possibly have been any prejudice to the defendants because, necessary or not, the record is filled with expert testimony. The plaintiffs called as an expert witness a registered nurse, Celia Krebs, who was a former licensed practical nurse at Charity Hospital. Celia Krebs testified at great length and in some detail. In view of the fact that the issues in this case revolve more around nursing care than physician treatment, Ms. Krebs clearly was a well-qualified expert witness. Moreover, several doctors also testified and, although they were called by the defense, their testimony on cross-examination lent support to the plaintiffs in some respects. In short, it makes no difference whether or not the trial court held that expert testimony was "necessary" in this case because there was expert testimony in support of the plaintiff's position and, in fact, the trial court expressly discussed that expert testimony in its reasons for judgment.

In their second specification of error, the defendants argue that the death of Mr. Smith, occurring in the particular manner that it did, was not proximately caused by any breach of duty of the hospital to keep Mr. Smith either under restraint or under continuous observation. We believe that the trial court was correct in finding the failure of the hospital [93-1434 La.App. 4 Cir. 4] to keep Mr. Smith either under restraint or under continuous observation proximately caused his death despite the unusual manner of his death. (For purposes of this proximate cause specification of error, we will assume the hospital breached a duty it owed to Mr. Smith. Issues of duty and breach will be discussed below in connection with the defendants' seventh and eighth specifications of error.)

The defendants' proximate cause argument boils down to the proposition that it was not foreseeable that Mr. Smith would go to the emergency room ramp and take an ambulance. The defendants might well have added that it was not foreseeable that Mr. Smith would then be killed in a collision in the ambulance. There are two somewhat related reasons why the defendants' proximate cause argument is without merit. First, if some sort of harm is foreseeable, the exact manner of the harm need not be foreseeable. Second, under Louisiana's duty-risk analysis, foreseeability is not in itself determinative, and at times yields to policy considerations in the determination of whether the defendant will be held liable for a particular harm. As will be explained below, the ultimate issue is "ease of association" of the specific actual harm to the breach and/or to foreseeable harms rather than foreseeability per se.

In Forest v. State, Through Louisiana Dept. of Transp. and Development, 493 So.2d 563, 570 (La.1986), a motorist crashed through a road barricade because the barricade had not been marked properly and there was no proper sign warning of the necessary detour. The motorist struck and killed a dismounted bicyclist/pedestrian. The state argued that the death of a bicyclist/pedestrian, as opposed to harm to a motorist, was not foreseeable and was not proximately caused by any failure to mark the barrier properly or to warn of the necessary detour. The Supreme Court rejected that argument:

Whether or not this duty to properly sign and mark highways, to alert unwary drivers to unusually perilous hazards, encompasses the risk of the harm which befell James Forest [the bicyclist/pedestrian] is the next inquiry in a proper duty risk analysis. More simply stated, is the risk that an unwary driver would crash through an improperly marked barricade and kill a pedestrian encompassed within the duty of the State to make highways safe by the proper use of warning devices?

* * * * * *

[93-1434 La.App. 4 Cir. 5] "Furthermore, a risk is not excluded from the scope of the duty simply because it is individually unforeseeable. A particular unforeseeable risk may be included if the injury is easily associated with the rule relied upon and with other risk of the same type that are foreseeable and clearly within the ambit of protection." Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982). Even if...