Bridges v. Baton Rouge Gen. Med. Ctr.

• Decision Date: 30 December 2020
• Docket Number: 2020 CA 0270
• Citation: 317 So. 3d 662
• Court: Court of Appeal of Louisiana — District of US
• Parties: Daisy BRIDGES, Individually and on Behalf of Elzie Bridges (D) v. BATON ROUGE GENERAL MEDICAL CENTER

317 So.3d 662

Daisy BRIDGES, Individually and on Behalf of Elzie Bridges (D)

v.BATON ROUGE GENERAL MEDICAL CENTER

2020 CA 0270

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: DECEMBER 30, 2020

William C. Rowe, Jr., Joseph S. Manning, Adrian P. Smith, Baton Rouge, LA, Counsel for Intervenor/Appellant, Louisiana Patient's Compensation Fund and Louisiana Patient's Compensation Fund Oversight Board, through the nominal defendant, Baton Rouge General Medical Center

Bobby R. Lormand, Jr., Adam W. Taylor, Baton Rouge, LA, Counsel for Plaintiffs/Appellees, Daisy Bridges, Individually and on behalf of Elzie Bridges (D)

Craig J. Sabottke, Courtenay S. Herndon, Benjamin J. Boudreaux, Michael M. Remson, Baton Rouge, LA, Brent C. Wyatt, New Orleans, LA, Counsel for Defendant/Appellee Baton Rouge General Medical Center

BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ.

WHIPPLE, C.J.

In this medical malpractice action, the intervenors, Louisiana Patient's Compensation Fund and Louisiana Patient's Compensation Fund Oversight Board(collectively, the PCF), appeal from a judgment rendered in accordance with a jury verdict that awarded survival and wrongful death damages to the plaintiff, Daisy Bridges, individually and on behalf of her deceased husband, Elzie Bridges.For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 31, 2012, Elzie Bridges presented to the emergency department of Baton Rouge General Medical Center-Bluebonnet (Baton Rouge General) with complaints of respiratory distress and weakness.Mr. Bridges was diagnosed with pneumonia and admitted into Baton Rouge General for treatment.At the time he entered the hospital, Mr. Bridges was sixty-eight and also suffered from dementia, heart arrhythmia, high blood pressure, diabetes, and kidney disease ; he had received a kidney transplant in 1999.Despite these chronic preexisting conditions, prior to his hospitalization, Mr. Bridges could walk with a cane, bathe himself, dress himself, and assist his wife with cooking and cleaning.However, at the time he was admitted into Baton Rouge General with pneumonia, Mr. Bridges was experiencing extreme weakness and was unable to move himself.Given his immobility, the protocol of Baton Rouge General required that nursing staff turn or reposition Mr. Bridges every two hours in order to prevent pressure ulcers (i.e., decubitus ulcers, or bedsores ).On August 12, 2012, a nurse discovered a sacral pressure ulcer on Mr. Bridges’ lower back, which had a dimension of 7.2 by 6.5 cm. and was an open wound (a "Stage II" pressure ulcer ).¹By August 18, 2012, Mr. Bridges’ pneumonia had greatly improved, and he was discharged from Baton Rouge General to a long-term care facility for physical therapy and treatment of his pressure ulcer.Unfortunately, despite treatment at several healthcare facilities, Mr. Bridges’ pressure ulcer worsened, expanded through his muscle down to his bone (a "Stage IV" pressure ulcer ), and became infected.Mr. Bridges developed severe sepsis (i.e., lifethreatening organ dysfunction and was unable to receive any further dialysis.Mr. Bridges passed away on December 13, 2012.

On July 29, 2013, Mr. Bridges’ wife, Daisy Bridges, timely filed a medical review panel complaint for investigation into the care provided to Mr. Bridges by Baton Rouge General.On July 15, 2015, a medical review panel convened and concluded that Baton Rouge General deviated from the appropriate standard of care as there was no documentation that Mr. Bridges was turned every two hours.The panel further concluded that the pressure ulcer was a contributing factor to his death.

On August 26, 2015, Mrs. Bridges, individually and on behalf of Mr. Bridges, filed suit against Baton Rouge General alleging medical malpractice in accordance with the medical review panel opinion.Mrs. Bridges sought survival damages on behalf of Mr. Bridges and individual wrongful death damages.

Mrs. Bridges and Baton Rouge General ultimately settled.On November 28, 2017, Mrs. Bridges filed a petition for approval of settlement of her medical malpractice claims against Baton Rouge General.Mrs. Bridges asserted that she had agreed to settle with Baton Rouge General for a sum of $97,500.00 and wished to reserve her right to proceed against the PCF for damages in excess of $100,000.00, pursuant to LSA-R.S. 40:1231.4(C).²

On January 10, 2018, the PCF filed a motion for intervention and answer to Mrs. Bridges’ petition for court approval of settlement.The PCF objected to the issuance of any payments to Mrs. Bridges from the PCF without the benefit of an adequate opportunity to conduct discovery, identify and retain expert witnesses, prepare a defense, and conduct a trial by jury in accordance with LSA-R.S. 40:1231.4(C)(5)(a).On February 21, 2018, the trial court signed a consent judgment approving the settlement between Mrs. Bridges and Baton Rouge General and retaining Baton Rouge General as a nominal defendant to the extent necessary to allow Mrs. Bridges to seek excess damages against the PCF.³

On May 13, 2019, the PCF filed a motion for partial summary judgment, seeking dismissal with prejudice of Mrs. Bridges’ wrongful death claims averring that Mrs. Bridges would be unable to prove Mr. Bridges’ death was caused by the medical malpractice of Baton Rouge General.Mrs. Bridges opposed the motion for partial summary judgment, arguing that Baton Rouge General's failure to reposition Mr. Bridges every two hours caused his sacral pressure ulcer and subsequent sepsis, which caused his death.On June 24, 2019, a hearing was held on the PCF's motion for partial summary judgment.The trial court denied the motion in an order signed on July 5, 2019.

Following a jury trial on August 6 through August 8, 2019, a jury found in favor of Mrs. Bridges and against the PCF, awarding her survival and wrongful death damages in the following amounts:

Elzie Bridges
Physical Pain and Suffering	$87,500.00
Mental Pain and Suffering	$30,000.00
Loss of Enjoyment of Life	$0
Medical Expenses	$212,100.00
Daisy Bridges
Loss of Love and Affection	$30,000.00
Loss of Enjoyment of Life	$100,000.00
Mental Pain and Suffering	$250,000.00

On August 26, 2019, the trial court signed a judgment in conformity with the jury's verdict.⁴

On September 11, 2019, the PCF filed a motion for judgment notwithstanding the verdict, or alternatively, motion for new trial.On September 12, 2019, Mrs. Bridges filed a rule to tax costs, seeking to have the PCF taxed with all court costs, as well as the expert witness fees incurred by Mrs. Bridges.Following a hearing on November 4, 2019, the trial court denied the PCF's motion for judgment notwithstanding the verdict, or alternatively, motion for new trial, and granted Mrs. Bridges’ motion to tax costs, ordering the PCF to pay Mrs. Bridges’ costs as requested in a judgment signed on December 4, 2019.

The PCF now appeals, contending that: (1)the trial court should have allowed defense counsel to utilize all peremptory strikes during jury voir dire, or should have granted a mistrial; (2)Daisy Bridges, as a codal beneficiary, is only able to recover her virile share of the survivor damages; (3)the trial court should have prevented the admission of Baton Rouge General's internal investigation report at trial; (4)the trial court should not have admitted photographs of Mr. Bridges’ wound; (5) medical expenses paid by Medicare should not have been awarded; (6)the trial court should have granted a new trial or mistrial when Dr. Errol Ozdalga's jury tampering was discovered; (7)the trial court should not have taxed costs for Dr. Ozdalga's testimony; and (8)the trial court should have granted summary judgment on medical causation prior to trial.

DISCUSSION

Evidentiary Challenges

(Assignments of Error Numbers Three and Four)

In its third and fourth assignments of error, the PCF contends that the trial court erred by allowing admission of certain evidence.If a trial court commits an evidentiary error that interdicts its fact-finding process, this court must conduct a de novo review.Thus, any alleged evidentiary errors must be addressed first on appeal, inasmuch as a finding of error may affect the applicable standard of review.Spann v. Gerry Lane Enterprises. Inc., 2016-0793(La. App. 1st Cir.8/24/10), 256 So. 3d 1016, 1022, writdenied, 2018-1584 (La.12/3/18), 257 So. 3d 194, and writdenied, 2018-1649 (La.12/17/18), 258 So. 3d 599.Accordingly, we first address the evidentiary challenges raised by the PCF in assignments of error three and four.

Baton Rouge General Incident Report

The PCF argues in its third assignment of error that the trial court erred by allowing the admission at trial of a Baton Rouge General document titled "Incident Information"(incident report).⁵The incident report contains information regarding Mr. Bridges’ development of the sacral pressure ulcer and specifically notes that the nursing staff on the hospital floor where Mr. Bridges was being treated were "responsible for this pressure ulcer."The incident report also contains a notation that there was a lack of assessment and a "[l]ack of preventative care/turning/floating."Prior to trial, the PCF filed a motion in limine seeking to prevent admission of the incident report at trial.⁶The PCF also objected to the admission of the incident report at trial.

The PCF contends that the incident report was prepared by Baton Rouge General in anticipation of litigation and therefore, was inadmissible under LSA-C.C.P. art. 1424.The PCF also claims the incident report was privileged pursuant to LSA-C.E. art. 407.⁷Additionally, the PCF argues that the use of the document at trial, through the testimony of Robin Passman, R.N. (Nurse Passman), improperly allowed Mrs. Bridges to derive a medical causation opinion without the testimony of a medical expert doctor.

Nurse Passman testified as the corporate representative for Baton Rouge General during a 2016 deposition.At trial, Nurse Passman stated...