96-1990 La.App. 4 Cir. 3/11/98, Brown v. Southern Baptist Hosp.

• Decision Date: 11 March 1998
• Parties: 96-1990 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 423

715 So.2d 423

96-1990 La.App. 4 Cir. 3/11/98

Willie BROWN v. SOUTHERN BAPTIST HOSPITAL, et al.

AMERICAN MOTORISTS INSURANCE COMPANY v. Lisa SULZER, et al.

Nos. 96-CA-1990, 96-CA-1991.

Court of Appeal of Louisiana,

Fourth Circuit.

March 11, 1998.

Opinion Clarifying Judgment

on Grant of Rehearing

April 15, 1998.

Gerald J. Leydecker, New Orleans, and Christopher B. Siegrist, Houma, for Plaintiff/Appellant.

Edward J. Lassus, Jr., Law Office of Cerio A. Dimarco, Slidell, for Plaintiff/Appellant American Motorists Insurance Company.

Gregory C. Weiss, Stephen R. Barry, Weiss & Eason, L.L.P., New Orleans, for Defendants/Appellees Lisa Sulzer and Northeast Louisiana University.

Fred T. Hinrichs, Christovich & Kearney, L.L.P., New Orleans, for Defendant/Appellee Chicago Insurance Company.

Joseph W. Looney, Adams and Reese, New Orleans, for Defendant/Appellant Mercy/Baptist Medical Center.

C.T. Williams, Jr., J. Elliott Baker, Blue Williams, L.L.P., Metairie, for Intervenor/Appellant Louisiana Patient's Compensation Fund and Oversight Board.

Before BARRY, KLEES and LANDRIEU, JJ.

[96-1990 La.App. 4 Cir. 1] LANDRIEU, Judge.

As a result of an injury Willie Brown received while working at the Broadmoor Animal Hospital (Broadmoor), he was admitted to Southern Baptist Hospital ¹ (SBH) in June of 1989 for treatment, including surgery, of a severely-infected finger. On June 30, 1989, Lisa Sulzer, a student extern from Northeast Louisiana University (NLU), working under the direct supervision of Frances Ramos, an SBH pharmacist, allegedly prepared a defective Bunnell's irrigation solution, ² which was administered to Brown's surgical wound. The solution was dripped into the gauze of Brown's dressing from approximately 12:30 p.m. on June 30 until 10:00 a.m. the following day. Throughout the evening, Brown complained to the attending nurse of a burning sensation in his hand, but his complaints went unheeded. When his bandages were removed on July 1, it was [96-1990 La.App. 4 Cir. 2] discovered that Brown had suffered second and third degree burns to his right ring finger and extensive chemical burns to his hand, wrist, and forearm. As a result of the burns Brown underwent six additional surgeries which included the amputation of his ring finger and several skin grafts.

Brown sued Sulzer, the Board of Trustees of NLU, its insurer, the Chicago Insurance Company (Chicago), and SBH. Subsequently, the American Motorist Insurance Company (American), the worker's compensation carrier for Broadmoor, and the Louisiana Patient's Compensation Fund and Oversight Board (LPCF) intervened in the suit. SBH filed a cross-claim against Chicago for coverage of the pharmacist under Sulzer's insurance policy and moved for summary judgment, which was denied. After a jury trial, judgment was rendered in favor of Brown and against SBH in the amount of $1,009,344.00, subject to the statutory cap of the Malpractice Liability for State Services Act (MLSSA), and in favor of American and against SBH for $58,292.83 in medical benefits and $24,127.90 in worker's compensation wage benefits previously paid to Brown. All claims against Sulzer, NLU, and Chicago were dismissed with prejudice. SBH, LPCF, American, and Brown have filed appeals.

SBH asserts:

(1) The trial court failed to give a jury charge on NLU's duty to supervise its students;

(2) The trial court erred in entering judgment in favor of Chicago on SBH's cross-claim for insurance coverage; and

(3) There was insufficient evidence to support the jury's finding of negligence and breach of the standard of care by its nurses.

LPCF asserts the trial court erred in:

(1) Failing to find Sulzer's negligence the legal cause of Brown's injuries;

(2) Failing to cast Chicago in judgment;

[96-1990 La.App. 4 Cir. 3] 3) Finding Sulzer a qualified health care provider under MLSSA;

(4) Awarding $84,000.00 for Brown's past lost wages and $260,344.00 for future lost wages and his loss of earning capacity;

(5) Awarding duplicate damages;

(6) Awarding excessive general damages;

(7) Awarding $23,000.00 for future medical expenses;

(8) Awarding legal interest under La.Rev.Stat. 40:1299.42(B)(3);

(9) Finding the attendant nurses negligent and their negligence the cause of Brown's injuries;

(10) Finding pharmacist Frances Ramos negligent and her negligence the cause of Brown's injuries;

(11) Ruling that Chamberlain v. State, Through Dep't of Transp. and Dev. rendered La.Rev.Stat. 40:1299.39 invalid;

(12) Finding SBH to be a qualified health care provider while not finding its attending nurses and pharmacists to be qualified health care providers; and

(13) Failing to hold Sulzer to a professional standard of care.

American asserts the trial court erred in:

(1)-(3) Dismissing its claim against NLU, Sulzer, and Chicago;

(4)-(5) Not finding NLU guilty of malpractice or negligence;

(6) Not finding NLU strictly liable;

(7) Not finding NLU vicariously liable for Sulzer's negligence;

(8) Not finding NLU vicariously liable for Ramos's actions;

(9) Holding that NLU is covered under MLSSA and that the statutory cap applies;

(10) Finding Sulzer's negligence was not the legal cause of Brown's injuries;

[96-1990 La.App. 4 Cir. 4] 11) Finding that Sulzer is covered under MLSSA and that the statutory cap applies;

(12) Holding that the statutory cap under MLSSA is constitutional;

(13) & (15) Not finding NLU vicariously liable for the actions of its professor, Dr. Eugene Watkins;

(14) Determining that SBH and Ramos were instructors and supervisors of NLU's course Pharmacy 495;

(16) & (17) Failing to hold NLU vicariously liable for the actions of SBH and/or its staff under the terms of their contract;

(18) Failing to find NLU negligent for its failure to instruct Sulzer properly;

(19) Failing to hold Sulzer to a professional standard of care;

(20) Failing to find Chicago liable if Sulzer is found liable;

(21) Failing to find Chicago liable in solido for Ramos's negligence; and

(22) Failing to cast Chicago for the negligence of Watkins under the Direct Action Statute.

Sulzer asserts:

(1) If the trial court erred in not finding her negligent, then the judgment dismissing NLU and Chicago was an error (2) If the trial court erred in finding that she was covered by MLSSA, but the statutory cap does not apply, then the judgment should be amended accordingly; and

(3) If the trial court erred in holding the statutory cap is constitutional, then the judgment should be amended accordingly.

[96-1990 La.App. 4 Cir. 5] DISCUSSION

SBH'S ASSIGNMENTS OF ERROR

Omission of Jury Charge

SBH argues the trial court erred when it did not correctly instruct the jury on the pharmacist's duty to supervise, which would result in the case being reviewed de novo. SBH asserted at trial that its pharmacist was an adjunct faculty member of NLU and that her duty to supervise Sulzer was equivalent to NLU's duty to supervise its students. In this vein, SBH requested the court instruct the jury that "a teaching institution and its personnel are not obligated to maintain constant surveillance of students without some notice or indication of possible trouble." Instead, the judge instructed the jury that the duty to supervise varies with the facts and circumstances of the individual cases:

Under Louisiana law a teacher is not liable in damages unless it is shown that he or she by exercising a degree of supervision required by the circumstances might have prevented the act which caused the damage and did not do so.

* * * * * *

So the degree of supervision as to a proctor or a teacher depends on the particular circumstances involved and the risks, type of duty being performed, the type of work being exercised and all of those things may be considered by you in determining whether or not there was negligence or malpractice in the failure of supervision.

Article 1792, Section B of the Louisiana Code of Civil Procedure provides that "[a]fter the trial of the case and the presentation of all the evidence and arguments, the court shall instruct the jurors in the law applicable to the cause submitted to them." The trial court has a duty to give accurate and necessary jury instructions based on the particular facts and evidence of the case. Jones v. Peyton Place, Inc., 95-0574, p. 6 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 760.

The cases cited by SBH as support for its requested jury charge do not comport factually with the instant case and do not support the proposed instruction. [96-1990 La.App. 4 Cir. 6] The cases cited all involved elementary or secondary school students who were injured while on school grounds. Those courts refused to place an impossible duty upon a teacher to monitor every student at all times. Although SBH argues the trial court should have instructed the jury that the supervising pharmacist had no legal duty to monitor Sulzer constantly while she prepared the irrigation solution, Ramos was not a playground supervisor. She was supervising a pharmacy student intern who was preparing compounds and solutions to be administered to patients in the hospital. Therefore, Ramos's duty to supervise and monitor her charge was greater than the duty of an ordinary school teacher.

In Butler v. Louisiana State Bd. of Ed., 331 So.2d 192 (La.App. 3 Cir.), writ refused, 334 So.2d 230 (La.1976), the duty owed by a professor to a volunteer student donating blood was equivalent to the duty owed by a physician to his patient in the same circumstances. There, a university biology professor approved and undertook to supervise a student project which required the withdrawal of blood samples from student volunteers. The blood withdrawals were performed by the student in the professor's office. The plaintiff, who had become syncopic after donating five cubic centimeters of blood, fainted while she was walking towards a conference table where she was going to lie down. Because she was not being assisted with the proper...