94-1366 La.App. 3 Cir. 7/19/95, Donaldson v. Sanders

• Decision Date: 19 July 1995
• Citation: 661 So. 2d 1010
• Parties: 94-1366 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1010

661 So.2d 1010

94-1366 La.App. 3 Cir. 7/19/95

Harold DONALDSON, et ux, Plaintiffs-Appellees, v.Dr. Charles SANDERS, et al., Defendants-Appellant (St Francis Cabrini Hospital).

No. 94-1366.

Court of Appeal of Louisiana Third Circuit.

July 19, 1995.

Rehearing Denied Nov. 7, 1995.

Edward Ashton Robinson, III, Clarence Horace Thornton Jr., Baton Rouge, for Harold Donaldson.

Frederick Bernard Alexius, Catherine G. Brame, Alexandria, for Charles Sanders.

Margaret Diamond, Stephanie M. Lawrence, New Orleans, for St. Francis Cabrini Hosp.

Before YELVERTON, KNOLL, COOKS, SAUNDERS and SULLIVAN, JJ.

[94-1366 La.App. 3 Cir. 1] SAUNDERS, Judge.

St. Francis Cabrini Hospital appeals the judgment of the trial court finding it liable in a medical malpractice action for the actions of one of its nurses.We reverse.

FACTS

Harold Donaldson entered Cabrini Hospital on June 8, 1989, with atrial fibrillation, right-side paralysis, a dilated heart, and speech impairment.During his hospital stay, if not before, Mr. Donaldson developed blood clots that restricted circulation to his left leg, superimposed on an underlying peripheral vascular disease.[94-1366 La.App. 3 Cir. 2] Mr. Donaldson, who had a history of congestive heart failure, kidney troubles, and depression, each requiring that he take medication, had suffered a stroke, his second in four years.Mr. Donaldson was scheduled for discharge on or before June 17, when the complications giving rise to this dispute arose.These complications would cause Mr. Donaldson to lose his left leg below the knee.

The ultimate question presented, whether Cabrini Hospital is culpable for this terrible loss because of the inactions of its nursing staff, turns on the factual and legal causes of Mr. Donaldson's misfortune.

Mr. Donaldson and his family originally alleged fault on the part of Donaldson's treating physician and the hospital that employed the nurses in charge of his care.The case was submitted to a medical review panel whose medical members unanimously concluded that neither Dr. Charles Sanders, who had treated Donaldson upon his admission to the hospital, nor Cabrini Hospital's nurses were negligent.¹

Donaldson and his wife then took their cause to court, filing suit on May 29, 1992.The trial court found that Felicia Veal, the nurse on duty on the night of June 16, should have notified Dr. Sanders that Donaldson's foot had turned blue; that her decision not to contact Dr. Sanders caused Donaldson's poor condition to worsen; and that Cabrini Hospital, as the employer of Nurse Veal, was liable for the damage caused by Nurse Veal in failing to properly carry out her duties as a nurse.

Cabrini Hospital appeals the judgment of the trial judge finding it liable to Donaldson for $150,000 for past, present and future pain and suffering and $50,000 for past, present and future medical expenses, and to Donaldson's wife for $25,000 for loss of consortium.

[94-1366 La.App. 3 Cir. 3] As noted above, the issues are whether Cabrini's nursing staff should have notified physicians sooner and, if so, whether the physician's notification might have saved Mr. Donaldson's limb.We address these questions separately.

NURSE VEAL'S DUTY

Plaintiffs argue that Nurse Veal should have contacted plaintiff's treating physician during her 7:00 p.m.-7:00 a.m. shift of June 16 and 17, due to plaintiff's deteriorating medical condition.

Cabrini Hospital does not deny that Nurse Veal was required to notify the doctor of all medically significant changes in the patient's condition; rather, it simply claims that there was no significant change in the patient's condition during Nurse Veal's watch because his foot had circulation throughout Nurse Veal's shift, as reflected by the continuing presence of a pedal pulse.While Mr. Donaldson's foot might have shown some discoloration, because he had a pedal pulse throughout the evening, the hospital maintains that there was no significant change in the relevant sense.Because the changes in the foot's coloration in isolation did not represent significant changes per se, it postulates that Nurse Veal was not required to notify a doctor of such a change.

In essence, Cabrini argues that even if Mr. Donaldson's foot had become more discolored during Nurse Veal's shift, which it denies, the trial court committed legal error in imposing upon Nurse Veal a duty to report even though Donaldson had a palpable pedal pulse in both feet throughout her shift.

Nurse Felicia Veal, the alleged tortfeasor, worked the 7 p.m. to 7 a.m. shift on the night of June 16.At 7:30 p.m. and on seven other occasions she assessed Donaldson and noted that his left pedal pulse was palpable but weak, his lower extremity was cool, and his left foot exhibited some bluish discoloration.His [94-1366 La.App. 3 Cir. 4] peripheral pulse was also weak.²Nurse Veal decided not to call Mr. Donaldson's treating physician, Charles Sanders, during her graveyard shift because she did not believe Mr. Donaldson's condition warranted his immediate attention in view of the presence of a pedal pulse.Instead, she thought it appropriate that she monitor her patient's condition throughout the night and take steps to ascertain that Dr. Sanders would see Mr. Donaldson on his regularly scheduled rounds soon after her shift ended.

When Dr. Sanders examined Donaldson at 9:00 a.m. the next morning, two hours after Nurse Veal's shift ended, he found Donaldson's leg to be cyanotic and painful.At that point he consulted Dr. Curt Smith, a cardiovascular surgeon who would eventually perform surgery on Donaldson.By the time he evaluated Mr. Donaldson, Dr. Smith believed that the ischemia (reduced blood circulation) might have developed to a point where an amputation would be necessary, but nonetheless thought it worthwhile to attempt to save the limb by surgically restoring the diminished blood flow.

An embolectomy, the surgical removal of a clot, and a fasciotomy, a procedure to relieve the pressure, were performed by Dr. Smith the afternoon of June 17.³The procedures were successful.Nonetheless, due to the onset of gangrene, Donaldson's left toes had to be amputated several weeks later, on July 3, 1989, followed by his left leg below the knee on July 6, 1989.

The first question is whether the trial court erred in concluding that Nurse Veal was required to contact Mr. Donaldson's treating physician during her graveyard shift [94-1366 La.App. 3 Cir. 5] in the face of his foot's discoloration notwithstanding the presence of a pedal pulse.Because this question presents a legal issue, we will turn to the jurisprudence and statutory law of this state.

The "duty-risk" analysis is employed in Louisiana to determine whether liability exists under the facts of a given case.

... In making the requisite analysis four questions are to be considered:

(1) Was the conduct in question a cause-in-fact of the resulting harm?

(2) What, if any, duties were owed by the respective parties?

(3) Were the requisite duties breached?

(4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821(1970);Shelton v. Aetna Casualty and Surety Co., 334 So.2d 406(La.1976);Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620(1972).

Mart v. Hill, 505 So.2d 1120, 1122(La.1987).

In suits alleging medical malpractice, it is the plaintiff who must prove the applicable standard of care, the breach of that standard, and that the substandard care caused an injury that the plaintiff would not have otherwise suffered.La.R.S. 9:2794; Byrd v. State, Through Dept. of Public Safety, 93-2765 (La. 5/23/94);637 So.2d 114.

As the Louisiana Supreme Court noted in Mundy v. Dept. of Health & Human Res., 620 So.2d 811(La.1993), whether the defendant has breached a duty owed is a question of fact, but whether a duty is owed is a question of law.To determine the latter, "the inquiry is whether the plaintiff has any law--statutory, jurisprudential, or arising from general principles of fault--to support his claim."Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 292(La.1993)(cite omitted).

We now address whether the trial court erred in its interpretation of the standard of care required by this state of Nurse Veal the night of June 16: Was Nurse Veal, as [94-1366 La.App. 3 Cir. 6]the trial court determined, obligated to notify plaintiff's treating physicians; or, as the medical review panel concluded, was she expected to do no more than continue monitoring the course of her patient during the evening and seek a medical doctor's evaluation of her patient's condition the following morning, during his regular morning rounds.

In certain situations, the duty imposed upon a medical provider is established by his or her medical community's standards; at other times, this is not the case.

For instance, the locality rule does not apply in cases calling into question the duty of care owed by hospitals where the skills of individual licensed health care staff are not called into question.Cornett v. State, through W.O. Moss Regional Hosp., 614 So.2d 189(La.App. 3 Cir.), writ denied, 617 So.2d 906, 907(La.1993), citingKeyworth v. Southern Baptist Hospital, 491 So.2d 15(La.1986)andGriffin v. [94-1366 La.App. 3 Cir. 7]Kinberger, 595 So.2d 645(La.1992).⁴But the locality rule does apply where a hospital's liability is alleged to arise through the alleged malpractice of a nurse.

It is a nurse's duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of the nursing or health care profession of good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case.Norton [94-1366 La.App. 3 Cir. 8] v. Argonaut Insurance Company, 144 So.2d 249(La.App. 1st Cir....