Aymami ex rel. Children v. St. Tammany Parish Hosp. Serv. Dist. No. 1 & Keva Fontanille

Decision Date07 May 2014
Docket NumberNo. 2013 CA 1034.,2013 CA 1034.
Citation145 So.3d 439
PartiesHeather AYMAMI and Jeremy Aymami, Individually and on Behalf of their Minor Children, Logan Aymami and Savanna Aymami v. ST. TAMMANY PARISH HOSPITAL SERVICE DISTRICT NO. 1 and Keva Fontanille, R.N.
CourtCourt of Appeal of Louisiana — District of US


James A. Marchand, Jr., Elisia Shofstahl Tipton, Frank E. St. Philip, II, Laura M. Pennison, Law Office of James A. Marchand, Jr., L.L.C., Covington, LA, for PlaintiffsAppellees, Heather and Jeremy Aymami, individually and on behalf of their minor children, Logan and Savanna Aymami.

Margaret H. Kern, Bailey D. Morse, Jones Fussell, L.L.P., Covington, LA, for DefendantsAppellants, St. Tammany Parish Hospital Service District No. 1 and Keva Fontanille, R.N.

Ann Marie LeBlanc, Kathryn M. Caraway, Caraway LeBlanc, L.L.C., New Orleans, LA, for IntervenorAppellant, Louisiana Patient's Compensation Fund.



In this medical malpractice case, St. Tammany Parish Hospital, Service District No. 1 (STPH), Keva Fontanille, R.N., and the Louisiana Patient's Compensation Fund (LPCF) 1 appeal a judgment in favor of Heather and Jeremy Aymami, individually and on behalf of their minor children, Logan and Savanna Aymami, for damages they incurred as the result of injuries Heather suffered in a fall at the hospital. The Aymamis answered the appeal, seeking additional damages. For the following reasons, we affirm the judgment.


Heather Aymami was admitted to the labor and delivery unit at STPH at 12:02 a.m. on February 14, 2002. Epidural anesthesia was begun at 8:15 a.m. and continued until she delivered her son, Logan, at 11:20 a.m.2 Keva Fontanille, R.N., was Heather's labor and delivery nurse, and she continued caring for Heather after the birth. Heather experienced numbness and tingling in her legs as the epidural anesthetic wore off, but by 2:45 p.m., these sensations had stopped. About that time, Keva suggested that Heather might enjoy a bath in the room's whirlpool tub. Keva lowered the bed rail in order to remove Heather's IV and Foley catheter and to make it possible for Heather to get out of bed and take a bath. Keva then went to the bathroom to start the bathwater and empty the catheter bag. While the bathtub was filling and Keva was emptying the catheter bag in the bathroom, Heather appeared in the bathroom doorway. She had left the bed and walked several steps to the bathroom with her mother at her side, holding her arm. Keva looked up and saw Heather in the doorway, made a brief comment to her, and turned back to finish emptying the catheter bag. Within a few seconds, Heather tried to take one more step and fell, breaking her left leg.3 She suffered severe comminuted displaced left tibia and fibula shaft fractures, which required surgical correction with rods and pins later that evening. A second surgical procedure was performed about a year later to remove scar tissue.

The Aymamis filed a complaint with the Division of Administration, Patient's Compensation Fund Oversight Board, seeking review by a medical review panel to determine whether Keva's conduct breached the standard of care and caused Heather's injuries. The panel found that Keva's conduct met the applicable standard of care. On June 13, 2005, the Aymamis filed suit against Keva and STPH, alleging that the direct and proximate cause of Heather's injuries was the substandard care received by her while at STPH in Keva's care. The petition stated that Keva encouraged Heather's premature ambulation, but she took no safeguards to test Heather for reactivity and failed to follow hospital protocol for post-surgery ambulation and assessment for risk of falling. The Aymamis sought damages for Heather's pain and suffering, mental anguish, permanent disability, loss of quality of life, medical expenses, and loss of income, as well as loss of consortium damages for her husband and children. The defendants answered, denying the allegations, and extensive discovery took place over a number of years.

The case went to a bench trial on April 12, 2012. Following two days of testimony and the introduction of numerous exhibits, including the depositions of expert and lay witnesses, the court took the case under advisement. On September 17, 2012, the court provided written reasons, concluding that Keva had breached the standard of care in several particulars and was liable, along with STPH under the doctrine of respondeat superior, for the injuries sustained by Heather and the damages that resulted. The court found no fault on the part of Heather. The court awarded Heather general damages in the amount of $100,000, medical expenses in the amount of $39,303.53, and lost wages in the amount of $29,300. For loss of consortium, the court awarded Jeremy and each of the two children $5,000. A judgment awarding these amounts, plus court costs and legal interest from the date the complaint was filed with the Patient Compensation Fund Oversight Board, was signed October 18, 2012. This appeal followed.


STPH and Keva submit the following assignments of error:

1. The trial court erred as a matter of law in accepting the testimony of Dr. Jay Turkewitz in support of the contention that “the patient bears no responsibility for their safety at all in a hospital facility,” which resulted in the application of incorrect principlesof law, thereby depriving STPH and Nurse Fontanille of substantial jurisprudential rights and limitations of liability.

2. The trial court erred in determining that the actions of Keva Fontanille, R.N., in the hours following the birth of Ms. Aymami's child, violated the applicable standard of care.

3. Alternatively, it was reversible error for the trial court to conclude that any breach by STPH or its employee, Keva Fontanille, R.N., was the cause in fact of any injuries and damages sustained by the plaintiffs.

4. In the further alternative, the trial court erred in failing to allocate any degree of fault to the plaintiff, Heather Aymami, for her failure to follow Nurse Fontanille's specific instructions.

LPCF submits the following assignments of error:

1. The trial court committed legal error by: (a) failing to reconcile the factual evidence regarding the circumstances leading up to Plaintiffs fall; (b) finding the hospital was the guarantor of the patient's safety, regardless of the facts; and (c) failing to determine if any conduct on the part of the Defendants caused Plaintiffs injuries.

2. The trial court was wrong in finding the hospital was the guarantor of the patient's safety and the Defendants' actions caused the Plaintiffs injuries considering a reconciliation of the facts shows the Plaintiff was clearly advised to wait for assistance and she refused to do so, which was the sole cause of the fall.

3. Assuming the de novo standard of review does not apply, the lower court committed manifest error in finding Defendants liable considering the court ignored crucial testimony in the Defendants' favor and relied on Plaintiffs' experts who were either unqualified or whose testimony was inconsistent and implausible.

4. Under either standard of review, the lower court erred in not finding comparative fault on the part of Plaintiff, Heather Aymami.

5. Assuming the lower court's decision is not reversed on liability or causation, the lost wage claim should be reduced by approximately half of that which was awarded.

The Aymamis answered the appeal and assigned the following as errors:

1. The trial court erred in awarding excessively low general damages for the severe injuries sustained by Heather Aymami.

2. The trial court erred in awarding excessively low loss of consortium awards to Heather Aymami's husband, Jeremy, and the couple's minor children.

Standard of Review

A court of appeal may not overturn a judgment of a trial court unless there is an error of law or a factual finding that is manifestly erroneous or clearly wrong. Morris v. Safeway Ins. Co. of Louisiana, 03–1361 (La.App. 1st Cir.9/17/04), 897 So.2d 616, 617, writ denied,04–2572 (La.12/17/04), 888 So.2d 872. The Louisiana Supreme Court has posited a two-part test for the appellate review of facts in order to affirm the factual findings of the trier of fact: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact; and (2) the appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trier of fact's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep't of Transp. and Dev., 617 So.2d 880, 882 (La.1993); Moss v. State, 07–1686 (La.App. 1st Cir.8/8/08), 993 So.2d 687, 693, writ denied,08–2166 (La.11/14/08), 996 So.2d 1092. If the trial court's factual findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Smegal v. Gettys, 10–0648 (La.App. 1st Cir.10/29/10), 48 So.3d 431, 435; LeBlanc v. Appurao, 13–0491 (La.App. 1st Cir.2/13/14), 138 So.3d 1, 5, writ denied.14–0498 (La.4/17/14), 138 So.3d 632. Where there are two permissible views of the evidence, the fact-finder's choice between them cannot be manifestly erroneous. Adams v. Rhodia, Inc., 07–2110 (La.5/21/08), 983 So.2d 798, 806.

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