97-300 La.App. 3 Cir. 10/29/97, Haynes v. Calcasieu Medical Transp., Inc.

• Decision Date: 29 October 1997
• Citation: 702 So.2d 1024
• Parties: 97-300 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1024

702 So.2d 1024

97-300 La.App. 3 Cir. 10/29/97

Carolyn J. HAYNES, Individually and on Behalf of her minor son, Bill Haynes, Stephanie Haynes Lambert and Deena E. Haynes, Plaintiffs-Appellees. v. CALCASIEU MEDICAL TRANSPORTATION, INC., M. Soileau and Bryon P. Ledet, Defendants-Appellants.

No. 97-300.

Court of Appeal of Louisiana, Third Circuit.

Oct. 29, 1997.

Rehearing Denied Jan. 8, 1988.

Kenneth D. St. Pe, for Carolyn J. Haynes, et al.

Henry Eugene Yoes, III, Bernard Hugh McLaughlin, Jr., Lake Charles, for LifeCare Ambulance Service & Hermitage Ins. Co.

Before DOUCET, C.J., and THIBODEAUX and DECUIR, JJ.

[97-300 La.App. 3 Cir. 1] DOUCET, Chief Judge.

The defendants, LifeCare Medical Emergency Services, Inc. and its insurer, Hermitage Insurance Company, appeal a judgment rendered pursuant to a jury verdict, finding them liable for a heart attack victim's loss of a chance of survival.

STATEMENT OF FACTS

On May 12, 1994, Bill Haynes began feeling chest pains. His son, Bill, Jr., called his sister, Stephanie, a nursing student. Stephanie arrived a short time later and took Mr. Haynes' blood pressure. The reading was such that she told her mother to call an ambulance. When the ambulance arrived, the attendants, Bryan Ledet and [97-300 La.App. 3 Cir. 2] Michael Soileau, attempted to enter by the kitchen door with a stretcher. The attendants felt the stretcher would not fit through the kitchen. Therefore, Soileau went around to the front door with the stretcher while Ledet entered through the kitchen equipped only with a stethoscope. Mr. Haynes at first resisted the attendants' attempt to get him to go in the ambulance to the hospital, then acquiesced. Mr. Haynes rose from his chair, took a step or two and collapsed. Ledet sent Soileau to bring in the equipment from the ambulance. Ledet determined that Mr. Haynes was in ventricular fibrillation and attempted to defibrillate him using a portable defibrillator brought in from the ambulance. In spite of several attempts, the defibrillator would not deliver the charge. The ambulance attendants began CPR, oxygen and medications both orally and intravenously. After twenty minutes to half an hour on the scene, Mr. Haynes was taken to DeQuincy Memorial Hospital. At the hospital, the staff attempted to defibrillate Mr. Haynes. However, they were never able to restore a normal heart rhythm. Mr. Haynes was pronounced dead a short time after entering the hospital.

Mr. Haynes' widow, Carolyn J. Haynes, and her children filed this suit, seeking damages for wrongful death, survival, lost chance of survival, and mental anguish. The defendants answered the petition and brought a third party demand against the manufacturer of the defibrillator, Physio-Control. The plaintiffs added Physio-Control as a defendant. All claims against Physio-Control were later voluntarily dismissed.

The case was tried by a jury. After hearing the evidence, the jury returned a verdict finding no negligence on the part of either ambulance attendant. The jury did find that Bill Haynes lost a more than 50% chance of survival entirely as a result of [97-300 La.App. 3 Cir. 3] negligence on the part of LifeCare. As a result, the jury awarded damages for wrongful death. Carol Haynes, the decedent's widow, was awarded $75,000.00 for loss of love, affection and companionship and $25,000.00 for mental anguish, grief and emotional distress. Bill, Jr., the decedent's minor son, was awarded $50,000.00 for loss of love, affection and companionship and $25,000.00 for mental anguish, grief and emotional distress. Deena Haynes and Stephanie Lambreth, the decedent's major daughters, were each awarded $20,000.00 for loss of love, affection and companionship and $15,000.00 for mental anguish, grief and emotional distress.

LifeCare and Hermitage appeal the judgment. The plaintiffs have answered the appeal.

ISSUES FOR REVIEW

The issues presented by this appeal are: 1) whether Haynes lost a chance of survival, 2) the percentage chance lost, if any, 3) who was at fault in causing Haynes to lose a chance of survival? 4) whether the ambulance attendants should have been assessed with fault, 5) whether the decedent and or his family members should have been assessed with fault, and 6) the quantum of damages. After reviewing the evidence adduced at trial and the applicable law, we find that the jury did not err in finding that Haynes lost a more than fifty percent chance of survival as a result of the sole negligence of LifeCare and that the damages awarded were neither inadequate nor excessive.

STANDARD OF REVIEW

The assignments of error raised by the parties deal essentially with findings of fact made by the jury and/or the trial judge. The standard of review to be applied to jury verdicts has been set out by the Louisiana Supreme Court in Guillory v. [97-300 La.App. 3 Cir. 4] Insurance Company of North America, 96-1084, p. 5 (La.4/8/97); 692 So.2d 1029, 1032:

In a trial where causation and credibility are major issues, a jury's findings of fact are entitled to great deference. Ambrose v. New Orleans Police Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94); 639 So.2d 216; reh'g denied, 9/15/94. Those findings may not be overturned unless they are manifestly erroneous. Stobart v. State, 92-1328 (La.4/12/93); 617 So.2d 880. Moreover, when more than one competing view is permissible, as in this case, a fact finder's choice cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989), writ denied, 561 So.2d 105 (La.1990).

Before reversing a jury's conclusions of fact, an appellate court must satisfy a two step process based on the record as a whole: There must be no reasonable factual basis for the trial court's conclusions, and the finding must be clearly wrong. Stobart v. State, 92-1328 (La.4/12/93); 617 So.2d 880; Weatherford v. Commercial Union Ins., 94-1793, 94-1927 (La.2/20/95); 650 So.2d 763.

This being the standard of review, we will consider the issues raised by the parties.

LOSS OF CHANCE OF SURVIVAL

Was Haynes' condition one that could have been helped by defibrillation?

The defendants assert that the plaintiffs have failed to prove that Haynes lost a chance of survival. They argue that the plaintiffs failed to show that Haynes had any chance of survival at the time of his collapse because they did not prove what caused his death. Defendants argue that determining the cause of death is a necessary precedent to determining whether defibrillation could be expected to alleviate the condition and thus whether failure to defibrillate could be considered a cause in fact of a loss of a chance of survival.

Dr. Chris Mandry testified on behalf of the defendants as an expert in the field of emergency medicine. He testified that if Haynes was suffering from a pulmonary [97-300 La.App. 3 Cir. 5] embolism, cardiac dissection, pericarditis or esophageal perforation rather than myocardial infarction, he would have exhibited the same symptoms but that defibrillation would not have helped him.

However, Dr. Carl Luikart, a cardiologist, opined that Haynes was suffering from either myocardial infarction, an acute ischemic process, unstable angina or angina. Dr. Luikart was definitely of the opinion that Haynes was in ventricular fibrillation and would have benefited from defibrillation. In fact, he stated that without defibrillation, Haynes had no chance of survival.

Dr. Charles A. Prejean is an emergency room doctor at Earl K. Long Hospital in Baton Rouge. Dr. Prejean testified that the medical records he reviewed showed that Haynes was in ventricular fibrillation. He also opined that defibrillation would have saved Haynes life.

Was Haynes already dead before the defibrillation attempts?

The defendants further contend that the evidence shows that Haynes was already dead when he collapsed. Therefore, they argue that the failure of the defibrillator did not cause Mr. Haynes to lose any chance of survival. However, the testimony of record does not support this conclusion.

The Louisiana Supreme Court in Hastings v. Baton Rouge General Hosp., 498 So.2d 713, 720-721 (La.1986) (footnotes omitted) explained the causation as it relates to loss of a chance of survival.

[T]here can be more than one cause in fact making both wrongdoers liable. See Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Anthony v. Hospital Service Dist. No. 1, 477 So.2d 1180 (La.App. 1 Cir.1985), writ den. 480 So.2d 743; and Thomas v. Corso, [265 Md. 84, 288 A.2d 379 (1972)] supra.

[97-300 La.App. 3 Cir. 6] Once a breach of duty constituting malpractice is established, the question of whether the malpractice contributed to the death, i.e., lessened the chance of survival, is a question of fact for the jury. Anthony, supra; Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla.App.1974). A substantial factor need not be the only causative factor; it need only increase the risk of harm. Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981). Jones relied on Restatement (Second) of Torts, § 326 (1965).

....

It is not necessary to prove that a patient would have survived if proper treatment had been given, but only that there would have been a chance of survival. Destruction of a two percent chance of survival has been held to present a jury question as to causation. Kallenberg v. Beth Israel Hospital, 45 A.D.2d 177, 357 N.Y.S.2d 508 (1974), aff'd 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 N.E.2d 128 (1975). See Carr v. St. Paul Fire & Marine Insurance Company, 384 F.Supp. 821 (1974); Whitfield v. Whittaker Memorial Hospital, 210 Va. 176, 169 S.E.2d 563 (1969); and Hicks v. United States, 368 F.2d 626 (4 Cir.1966).

....

Defendant's conduct must increase the risk of a patient's harm to the extent of being a substantial factor in causing the result but need not be the only cause. Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984). Failure to afford a...