Broussard ex rel. Broussard v. Univ. Hosp. & Clinics
| Decision Date | 17 November 2021 |
| Docket Number | 21-153 |
| Citation | 330 So.3d 723 |
| Parties | Allen BROUSSARD, O/B/O Rudell BROUSSARD (D) v. UNIVERSITY HOSPITAL & CLINICS, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Sera H. Russell, III, Jamie S. Thistlewaite, LAW OFFICES OF SERA H. RUSSELL, III, 111 Mercury Street, Lafayette, LA 70503, (337) 769-3260, COUNSEL FOR PLAINTIFF/APPELLANT: Allen Broussard on behalf of Rudell Broussard (Deceased)
Bonnie Christie, Attorney at Law, 1944 Norfolk Street, Houston, TX 77098, (832) 317-6587, COUNSEL FOR PLAINTIFF/APPELLANT: Allen Broussard on behalf of Rudell Broussard (Deceased)
Daniel Charles Palmintier, Attorney at Law, 556 Jefferson Street, 4th Floor, Lafayette, LA 70501, (337) 262-1700, COUNSEL FOR DEFENDANT/APPELLEE: Board of Supervisors of Louisiana State University & Agricultural & Mechanical College
Adam Paul Gulotta, JUDICE & ADLEY, P. O. Drawer 51769, Lafayette, LA 70505, (337) 235-2405, COUNSEL FOR DEFENDANT/APPELLEE: Dr. Richard Vanbergen
Nicholas Gachassin, Jr., Gary Delahoussaye, Chelsea Carroll, GACHASSIN LAW FIRM, (A Limited Liability Company), 200 Corporate Boulevard, Suite 103, Lafayette, LA 70598-0369, (337) 235-4576, COUNSEL FOR DEFENDANT/APPELLEE: University Hospital & Clinics
Court composed of Candyce G. Perret, Jonathan W. Perry, and Sharon Darville Wilson, Judges.
Plaintiff, Allen Broussard (Mr. Broussard), appeals the grant of summary judgment dismissing the medical malpractice claim against Defendant, University Hospital & Clinics (UH&C), in connection with the death of his wife, Rudell Broussard (Mrs. Broussard). For the following reasons, we reverse the trial court's decision and remand this matter for further proceedings.
The medical review panel changed its opinion based on deposition testimony of nurses taken after the panel proceedings. Mr. Broussard contends that he should be able to present this "changed" testimony to the jury to weigh whether the medical records or the nurses’ testimony is correct. Mr. Broussard also contends that the report of his expert oncologist, Dr. Tyler Curiel (Dr. Curiel), was ignored by the trial court.
Mrs. Broussard was diagnosed with Stage III triple negative invasive ductal carcinoma of the left breast, with no evidence of metastatic disease, on January 11, 2017. She was fifty-six years old. Her treating oncologist, Dr. Kelvin Raybon (Dr. Raybon), recommended chemotherapy treatment with Adriamycin and Cytoxan every two weeks for four cycles, followed by twelve-week doses of Taxon. After the chemotherapy regime was completed, Mrs. Broussard would be considered for a mastectomy.
On January 20, 2017, Dr. Aimee Hymel (Dr. Hymel) performed a procedure to insert the Mediport through which Mrs. Broussard would receive her chemotherapy treatments.1 The procedure was performed without complication. Dr. Hymel's notes from the procedure indicate that the Mediport drew back easily and flushed easily, indicating that there was blood return and that the Mediport was functioning properly. Dr. Richard Vanbergen (Dr. Vanbergen), a radiologist, reviewed an x-ray taken following the placement of the Mediport and concluded that the Mediport was properly placed.
On January 26, 2017, Mrs. Broussard presented to University Hospital and Clinics Oncology and Fusion Clinic (UH&C) for her first chemotherapy treatment. Despite noting that she was not getting any blood return from the Mediport, Nurse Michelle Briscoe (Nurse Briscoe) administered the full round of chemotherapy. Mr. Broussard contends that the chemotherapy medications were incorrectly delivered into Mrs. Broussard's mediastinum.
Three days later, on January 29, 2017, Mrs. Broussard went to the emergency department at UH&C with a complaint of shortness of breath. She was admitted to the hospital with a diagnosis of pneumonia with right pleural effusion. She was treated with antibiotics and underwent a thoracentesis.2 Mrs. Broussard was discharged on February 7, 2017.
Mrs. Broussard presented to UH&C for her second round of chemotherapy on February 20, 2017. Once again, the oncology nurse, Nurse Joni Acclis (Nurse Acclis) had problems obtaining blood flow from the Mediport. Nurse Acclis called the oncology nurse practitioner, who ordered Cathflo. According to her affidavit, which was obtained after the panel proceedings, Nurse Acclis allegedly administered two rounds of Cathflo and was able to get blood flow through the Mediport. The chemotherapy treatment was started, but approximately five to ten minutes into the procedure, Mrs. Broussard became short of breath. The chemotherapy treatment was discontinued, Dr. Raybon was notified, and Mrs. Broussard was admitted to the hospital. Multiple x-rays were taken and showed a large right pleural effusion. Radiologists opined that the Mediport was still in the correct place.
Over the next two days, Mrs. Broussard underwent multiple thoracentesis procedures to remove significant amounts of fluid and blood serum from the pleural space on both sides of her lungs. CT scans were taken and reviewed by Dr. Raybon and Dr. Mohammed Kahn, a radiologist, who both expressed concern that the Mediport may have become displaced. On February 24, 2017, Dr. Hymel injected contrast into the Mediport. This procedure showed that the tip of the Mediport was not placed correctly. At that time, the Mediport was removed and replaced. X-rays confirmed the placement of the Mediport tip within the junction of superior vena cava with the right atrium. Mrs. Broussard was discharged on March 3, 2017.
Mrs. Broussard received her third, fourth, and fifth cycles of chemotherapy from March through April 18, 2017. Mrs. Broussard had some problems with infection, and chemotherapy was discontinued. Mrs. Broussard was admitted to UH&C but later transferred to Tulane Hospital, at her request, on May 12, 2017. She had respiratory issues and metabolic disturbances. Mrs. Broussard died on June 7, 2017, from cardiopulmonary arrest secondary to bilateral pleural effusions with left lung empyema and hypoxia secondary to left breast ductal carcinoma, Stage III.
Mr. Broussard requested the formation of a medical review panel to review the treatment rendered by Dr. Vanbergen, Dr. Chappuis, Dr. Hymel, Dr. Brashear, UH&C, and Louisiana State University Health Sciences Center (LSUHSC).3 The panel rendered its decision in June 2019, finding no breach of the standard of care by Dr. Vanbergen, Dr. Chappuis, Dr. Hymel, Dr. Brasher, or LSUHSC. The panel did find that UH&C breached the standard of care because its employees used the Mediport without ensuring that it was functioning properly. The panel, however, was of the opinion that this breach in the standard of care did not affect Mrs. Broussard's cancer or impact her chance of survival.
Following the panel's opinion, Mr. Broussard filed suit against Dr. Vanbergen, UH&C, and LSUHSC in the Fifteenth Judicial District Court. All of the claims against Dr. Vanbergen and LSUHSC were dismissed on summary judgments that were not appealed by Mr. Broussard.
Also following the panel opinion, counsel for UH&C deposed the oncology nurses, Nurse Briscoe and Nurse Danielle Malveaux, who treated Mrs. Broussard on January 26, 2017, after it was brought to their attention that pertinent information was allegedly missing from the medical records reviewed by the medical review panel. Nurse Briscoe testified that on January 26, 2017, she contacted the nurse practitioner and UH&C to report that she was unable to get blood return from Mrs. Broussard's Mediport. According to Nurse Briscoe, the nurse practitioner instructed her to contact Dr. Hymel, who ordered the administration of Cathflo and told Nurse Briscoe that if she was able to get blood flow from the Mediport after the administration of the Cathflo, then Nurse Briscoe could proceed with the chemotherapy. Nurse Briscoe testified that by 9:25 a.m., she had administered the Cathflo and was able to get blood flow from the Mediport. Nurse Briscoe then started Mrs. Broussard's chemotherapy treatment. Nurse Briscoe testified that she documented this in Mrs. Broussard's chart. Nurse Malveaux testified that she witnessed these actions by Nurse Briscoe.
This "newly acquired evidence" was presented to the medical review panelists, Dr. James Burke (Dr. Burke), Dr. Julie Cupp (Dr. Cupp), and Dr. Charles Lim (Dr. Lim). The panelists changed their opinions to reflect that: (1) it was reasonable and appropriate for the oncology nurse to contact the surgeon who installed the Mediport for further instructions; (2) it was reasonable and appropriate for Dr. Hymel to order Cathflo; and (3) it was reasonable and appropriate for the oncology nurses to proceed with the chemotherapy after using Cathflo without ordering further testing to verify placement of the Mediport. The panelists then signed affidavits stating that "[h]aving found that the administration of chemotherapy was reasonable and appropriate once the oncology nurses were able to get blood after giving Cathflo," the panelists were "of the opinion that [Mrs.] Broussard's recurrent thoracentesis procedures, the progression of her cancer, and her death were not caused by any breach of the standard of care applicable to University Hospitals and Clinics, [the Louisiana State University Health Sciences Center], or anyone affiliated with either institution" and "that [Mrs.] Broussard did not lose any chance of survival from the substandard conduct of University Hospitals and Clinics, the Louisiana State University Health Sciences Center, or anyone affiliated with either institution." (Emphasis added.)
Based on the depositions of Nurse Briscoe and Nurse Malveaux and the new affidavits from the panelists, UH&C filed a motion for summary judgment and a supplemental motion for summary judgment. UH&C alleged that Mr. Broussard could not produce expert medical evidence that any of the nurses, employees, or staff at UH&C breached the applicable standard of care under the...
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