Ambrose v. New Orleans Police Dept. Ambulance Service

• Decision Date: 05 July 1994
• Citation: 639 So.2d 216
• Parties: 93-3099 La
• Court: Louisiana Supreme Court

Page 216

639 So.2d 216

93-3099 La. 7/5/94

Rosa Mae AMBROSE, et al. v. NEW ORLEANS POLICE DEPARTMENT AMBULANCE SERVICE, et al.

Nos. 93-C-3099, 93-C-3110 and 93-C-3112.

Supreme Court of Louisiana.

July 5, 1994.

Rehearing Denied Sept. 15, 1994.

Kathy Lee Torregano, City Atty., Philip C. Ciaccio, Jr., Earl G. Perry, Jr., for applicant.

David Wallace Oestreicher, II, James E. Uschold, Oestreicher & Hackett, Richard Allen Thompson, Thompson & Lavender, Hon. Mack E. Barham, Robert E. Arceneaux, Gail N. Wise, Barham & Arceneaux, Margaret E. Bradley, for respondent.

Lawrence S. Kullman for amicus curiae, Trial Lawyers Ass'n.

David Robert Jefferson as amicus curiae.

[93-3099 La. 1] CALOGERO, Chief Justice. ^*

In this wrongful death and survival action against two New Orleans Police Department emergency technicians asserting gross negligence, which purportedly reduced a heart attack victim's chance of survival, a jury in Civil District Court, Orleans Parish, rendered a verdict for plaintiff, and the court of appeal affirmed. Plaintiffs were required to prove gross negligence, not negligence alone, because of the qualified statutory immunity afforded emergency medical technicians by R.S. 40:1235.

What prompted the Court's granting the writ sought by Duncan Lill, Timothy Dodson, [93-3099 La. 2] and the City of New Orleans were two considerations: (1) the set of facts surrounding the incident suggested the likelihood that, even giving proper deference to the factfinder, the jury's verdict was not supported by the evidence; and (2) the jury's quantum award should probably have been a lesser sum than actually awarded in light of the fact that plaintiffs proved only a loss of a chance of survival rather than that death was caused by defendants' action. After briefing, argument, and study of the record, we conclude that the plaintiffs did not prove by a preponderance of the evidence that the emergency medical technicians' acts constituted gross negligence, and further that the jury's decision to the contrary was clearly wrong. That being the case, we need not address the quantum assessment for loss of a chance of survival.

The facts in the case are not in dispute. Wilton J. Ambrose, Jr., a fifty-eight-year-old man with a history of diabetes, circulatory and respiratory problems, awoke at approximately 1:45 a.m. in the morning of July 18, 1983, "not feeling well." About 2:00 a.m., Mr. Ambrose told his wife to call to the house his two adult daughters, Gail Ray and Linda Thomas, and their husbands. Gail Ray and her husband, Willie, arrived first about ten minutes later and helped Ambrose from the bathroom to the bedroom, where they sat him on a chair. Ambrose told Ms. Ray that he wanted an ambulance and oxygen. Ms. Ray called two ambulances, one from Medic One and one from the New Orleans Police Department ("NOPD"). An NOPD ambulance run report reflects that the call came in at approximately 2:57 a.m. Linda Thomas and her husband, Hudson, arrived at the Ambrose house about that time. ¹ The Medic One ambulance arrived at approximately 3:00 a.m., shortly after Medic One had arrived. The Medic One emergency medical technicians ("EMT") were certified only as basic EMTs, whereas the NOPD [93-3099 La. 3] EMTs, Timothy Dodson and Duncan Lill, were certified as intermediate EMTs. National EMT operating procedures mandate that where both basic and intermediate personnel are available, the intermediate EMTs are to take over. Accordingly, NOPD EMTs Lill and Dodson took charge at the Ambrose house. After being apprised by Medic One that they had been unable to obtain an adequate medical history or vital signs, Dodson sought to take Mr. Ambrose's vital signs, and Lill questioned the family members present as to the patient's medical history.

While Dodson continued to try to find a pulse sufficient to take Ambrose's blood pressure, Lill brought in the ambulance stretcher. Lill determined that the stretcher could not make the turn from the living room to the bedroom, where Mr. Ambrose was seated in a chair. ² Gail Ray and Linda Thomas suggested the stretcher could be brought through the kitchen into the bedroom, but Lill said the stretcher would not fit through the doorway or maneuver the corridor. Lill admitted that he made no attempt to get the stretcher through the door, but rather made the judgment that it would not fit. Lill suggested that the two sons-in-law lift Ambrose under his arms and walk him to the stretcher, approximately ten to twelve steps away. Once Ambrose was situated on the stretcher, with the oxygen tank between his legs, he was placed in the ambulance, and the stretcher was secured. Mr. Ambrose then stopped breathing, and his son-in-law, Hudson Thomas, who was a respiratory therapist, began CPR, while Lill inserted an esophageal obdurator into the airway, using an ambao bag, to respirate Mr. Ambrose. The ambulance arrived at Jo Ellen Smith Hospital somewhere between 3:20 and 3:24, approximately four to five minutes after leaving the Ambrose house. Mr. Ambrose expired and was [93-3099 La. 4] pronounced dead at 3:52 a.m.

Plaintiffs, Mrs. Ambrose, Gail Ray, Linda Thomas, and Warren Ambrose ³ filed a wrongful death and survival action against the "NOPD Ambulance Service" and EMTs Lill and Dodson, alleging that the actions of Lill and Dodson in spending approximately twenty minutes at the Ambrose house and in having Mr. Ambrose assisted to the stretcher, rather than the stretcher taken to him, constituted gross negligence. They assert that these acts and omissions resulted in the loss of a chance of survival ⁴ for Mr. Ambrose. The trial jury found that the conduct of EMTs Lill and Dodson amounted to gross negligence and awarded to Mrs. Ambrose $475,000, to Gail Ray and Linda Thomas $25,000 each, and to Ambrose's estate $115,000. The court of appeal reduced the trial court's award for Mr. Ambrose's pain and suffering from $115,000 to $75,000 and awarded Warren Ambrose $12,500.

Liability of the EMTs Lill, Dodson, and the City of New Orleans, operator of the NOPD Ambulance Service, is governed by LSA-R.S. 40:1235 A(1), which provides:

[93-3099 La. 5] Any basic, intermediate, or paramedic medical technicians certified pursuant to the terms of this Part who render emergency medical care to a person while in the performance of his medical duties and following the instructions of a physician shall not be individually liable to such a person for civil damages as a result of acts or omissions in rendering the emergency medical care, except for acts or omissions intentionally designed to harm, or for grossly negligent acts or omissions which result in harm to such person....

The immunity granted herein to basic, intermediate, and paramedic emergency medical technicians by the provisions of this Part shall extend to parish governing authorities, police departments, sheriffs' offices, fire departments, or other agencies engaged in rendering emergency medical services and its insurers with respect to such emergency medical services unless the emergency medical technician employed by said agencies would be personally liable under the provisions of Paragraph 1.

In order to prevail, plaintiffs must prove that the EMTs owed a duty to Ambrose, that the EMTs' acts or omissions caused his death or were the cause in fact of Ambrose's loss of a chance of survival, and that the EMTs' acts or omissions were either intended to inflict harm or were grossly negligent. It is not enough for plaintiffs to prove simply that the EMTs acted negligently. Plaintiffs here must prove that defendants' actions or omissions were grossly negligent or intentionally designed to harm. The law, as required by the above quoted statute, thus accords emergency medical personnel a limited immunity from civil damages.

Louisiana courts have frequently addressed the concept of gross negligence. Gross negligence has been defined as the "want of even slight care and diligence" and the "want of that diligence which even careless men are accustomed to exercise." State v. Vinzant, 200 La. 301, 7 So.2d 917 (La.1942). Gross negligence has also been termed the "entire absence of care" and the "utter disregard of the dictates of prudence amounting to complete neglect of the rights of others." Hendry Corp. v. Aircraft Rescue Vessels, 113 F.Supp. 198 (E.D.La.1953) (applying Louisiana law). Additionally, gross negligence has been described as an "extreme departure from ordinary care or the want of even scant care." W. Page Keeton, et. al., Prosser [93-3099 La. 6] & Keeton on the Law of Torts, § 34, at 211 (5th ed. 1984); 65 C.J.S. Negligence, § 8(4)(a), at 539-40 (1966 & Supp.1993). "There is often no clear distinction between such [willful, wanton, or reckless] conduct and 'gross' negligence, and the two have tended to merge and take on the same meaning." Falkowski v. Maurus, 637 So.2d 522 (La.App. 1st Cir.), writ denied, 629 So.2d 1176 (La.1993) (quoting Prosser & Keeton, supra, at 214)). Gross negligence, therefore, has a well-defined legal meaning distinctly separate, and different, from ordinary negligence.

After all the evidence had been presented, the trial judge charged the jury. Near the beginning of the charge, she instructed that plaintiffs had to prove by a preponderance of the evidence the "negligence" of defendants and that the death was caused by defendants' "fault." She thereupon distinguished between direct and circumstantial evidence. In discussing proximate cause, she referred to a more likely than not burden to prove that the "negligence" or "fault" of defendants played a substantial part in causing the injury suffered by plaintiffs, then later referred to "a wrongful act" and "establish[ing] negligence or liability." Sandwiched between the various references to plaintiffs' burden to prove "negligence," the court read to the jury LSA-R.S. 40:1235 regarding the EMTs civil immunity. The court gave no further explanation of the qualified immunity...