Clavier v. Our Lady of the Lake Hosp., Inc., 2012 CA 0560.

• Decision Date: 28 December 2012
• Docket Number: No. 2012 CA 0560.,2012 CA 0560.
• Citation: 112 So.3d 881
• Parties: Faron CLAVIER and Annette Clavier v. OUR LADY OF THE LAKE HOSPITAL, INC., Dr. Richard Byrd, Pathology Group of Louisiana, APMC and Dr. Stephen Mason.
• Court: Court of Appeal of Louisiana — District of US

112 So.3d 881

Faron CLAVIER and Annette Clavier

v.OUR LADY OF THE LAKE HOSPITAL, INC., Dr. Richard Byrd, Pathology Group of Louisiana, APMC and Dr. Stephen Mason.

No. 2012 CA 0560.

Court of Appeal of Louisiana,First Circuit.

Dec. 28, 2012.

Benjamin P. Mouton, Eric E. Helm, Baton Rouge, LA, for Plaintiffs–Appellants Faron Clavier and Annette Clavier.

Vance A. Gibbs, Randal R. Cangelosi, Baton Rouge, LA, for Defendant–Appellee Pathology Group of Louisiana, APMC.

Douglas K. Williams, Jordan L. Faircloth, Baton Rouge, LA, for Defendant–Appellee Our Lady of the Lake Hospital, Inc.Janie Languirand Coles, Baton Rouge, LA, for Defendant–Appellee Richard Byrd, M.D.

Before KUHN, PETTIGREW, and McDONALD, JJ.

KUHN, J.

[1 Cir. 2]Plaintiffs-appellants, Faron and Annette Clavier, individually and as the surviving parents of their deceased son, Casey Clavier, appeal the trial court's judgment sustaining peremptory exceptions raising the objection of prescription and dismissing their claims against defendants-appellees, Dr. Richard Byrd, Our Lady of the Lake Hospital, Inc. (OLOL), and Pathology Group of Louisiana, APMC (PGL). Because we hold that plaintiffs' petition fails to state a cause of action and, alternatively, that the matter is prescribed, we affirm the dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 2009, Casey underwent a surgical procedure, performed by Dr. Byrd at OLOL, to address complications from Crohn's colitis.¹ After the operation, Casey was placed in a recovery unit and then later moved to a regular room. On October 23, 2009, at approximately 2 a.m., Casey died in his room at OLOL. Dr. Byrd advised the Claviers of several possible causes of death. These included that Casey had: bled to death in his pelvis (which was the site where the operation had been performed); an adverse reaction to prescribed narcotics; a cardiac infarction or other cardiac event; or a pulmonary embolus. Because there was no obvious cause of death, Dr. Byrd requested that the Claviers allow an autopsy to be performed on Casey, and they consented.

Dr. Stephen Mason of PGL undertook a restricted, medical autopsy of Casey's abdomen, pelvis, and chest, which was performed at OLOL. Although the results of the autopsy ruled out several suspected causes of Casey's death, certain plausible cardiac events or an adverse reaction to narcotics were potential causes [1 Cir. 3]that could not be eliminated. Dr. Byrd classified Casey's death as “unknown” on the death certificate.

On July 18, 2011, the Claviers filed this lawsuit, alleging that a medical review panel had reviewed Casey's medical care and unanimously concluded the evidence did not support the conclusion that OLOL employees or Dr. Byrd failed to meet the applicable standards of care. Urging that the medical review panel's conclusion was based on a lack of evidence to support their claim that over sedation/respiratory distress/respiratory failure, attributable to breaches in the standards of care that OLOL and Dr. Byrd owed to Casey, was the cause of his death, the Claviers claimed entitlement to damages for spoliation of evidence as a result of the actions and omissions of Dr. Byrd, OLOL, and PGL, naming each as a defendant in this litigation.

Dr. Byrd, OLOL, and PGL each filed a peremptory exception objecting to the timeliness of the Claviers' claims for damages for spoliation. Collectively the defendants maintained that even if it were assumed that the Claviers had a viable cause of action for spoliation, their lawsuit was nevertheless untimely. After a hearing, the trial court agreed with the defendants, sustained the exceptions of prescription, and dismissed the Claviers' petition. This appeal followed.

NO CAUSE OF ACTION

Initially we point out that this court may notice the peremptory exception raising the objection of no cause of action on its own motion. SeeLa. C.C.P. art. 927 B; Capital City Towing & Recovery, Inc. v. City of Baton Rouge, 97–0098 (La.App. 1st Cir.2/20/98), 709 So.2d 248, 251. The function of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether [1 Cir. 4]the law affords a remedy on the facts of the pleading. A court must review the petition and accept all well pleaded facts as true, and the only issue is whether, on the face of the petition, plaintiffs are legally entitled to the relief sought. Pelican Educ. Found., Inc. v. Louisiana State Bd. of Elementary and Secondary Educ., 2011–2067 (La.App. 1st Cir.6/22/12), 97 So.3d 440, 444.

The plaintiffs, who are the parents of Casey, have filed this lawsuit separately from the medical malpractice lawsuit they have asserted against defendants Dr. Byrd and OLOL, which has yet to be tried.² They have also included PGL, individually and as employer of Dr. Mason, in this spoliation lawsuit.³

In this petition, the Claviers assert that the action of OLOL employees of unplugging a PCA pump (prescribed by Dr. Byrd to administer Casey's narcotic intake), which resulted in the erasure of recorded data that would have shown the amounts of narcotic drugs that Casey had received subsequent to surgery, constituted intentional spoliation of the evidence by the hospital.⁴ Additionally, the Claviers contend the performance of an autopsy without toxicology screens constituted intentional spoliation of evidence by: Dr. Byrd, who did not expressly request toxicology screens; OLOL for reporting the death to East Baton Rouge Parish rather than Acadia Parish, the latter of which, it is alleged, would have required toxicology screens as part of an autopsy; PGL for the actions of Dr. Mason in failing to include toxicology screens in conducting the autopsy and to advise Dr. [1 Cir. 5]Byrd of such; and by PGL individually for failing to include toxicology screens where an adverse reaction to prescribed narcotics was a possible cause of death.

The theory of “spoliation” of evidence refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. A plaintiff asserting a claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient. Barthel v. State, Dep't of Transp. and Dev., 2004–1619 (La.App. 1st Cir.6/10/05), 917 So.2d 15, 20. Historically, when a litigant fails to produce evidence within his reach, the courts have applied a presumption that the evidence would have been detrimental to his case. See Randolph v. General Motors Corp., 93–1983 (La.App. 1st Cir.11/10/94), 646 So.2d 1019, 1026,writ denied,95–0194 (La.3/17/95), 651 So.2d 276. The obligation or duty to preserve evidence arises from the foreseeability of the need for the evidence in the future. Dennis v. Wiley, 2009–0236 (La.App. 1st Cir.9/11/09), 22 So.3d 189, 195,writ denied,2009–2222 (La.12/18/09), 23 So.3d 949. The failure to identify evidence that was intentionally destroyed to deprive its use where the defendant had a duty to collect such evidence is detrimental to plaintiff's claim for spoliation. See Jackson v. Home Depot, Inc., 2004–1653 (La.App. 1st Cir.6/10/05), 906 So.2d 721, 728.

Initially, we note the Claviers have not alleged that at the time of the acts and alleged omissions of the defendants, litigation was pending or imminent. And the Claviers have not produced anything to support the conclusion that Casey's death was caused by an adverse reaction or overdose of prescribed medication rather than as a result of a cardiac event, both of which were causes of death that were not [1 Cir. 6]eliminated by the autopsy that was performed. Thus, the Claviers have not shown the existence of any evidence that was actually destroyed by the defendants.

Moreover, we conclude that none of the defendants owed a duty to the Claviers to collect the evidence they suggest is the subject of their spoliation claims. The Claviers have not cited any law that required Dr. Byrd, OLOL, Dr. Mason, or PGL to include toxicology screens as part of an autopsy; or for OLOL to require that a PCA pump not be disconnected so that its recorded data could be made part of the hospital's record where no litigation was pending. Whether Dr. Byrd or OLOL breached their respective standards of care on these bases are ostensibly issues the Claviers will pursue in their medical malpractice claim for wrongful death and survival action damages and are not proper issues before us in this spoliation claim.

Importantly, nothing precludes the Claviers from asserting entitlement to an application of the adverse presumption of spoliation in the medical malpractice lawsuit if they have met the requirements for its application. Thus, if the Claviers were permitted to assert a separate cause of action for spoliation against Dr. Byrd and OLOL at this time, it would create a plethora of problems. See Cedars–Sinai Med. Ctr. v. Superior Court, 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998) (where in concluding a separate tort cause of action for intentional spoliation of evidence does not exist when the spoliation is committed by a party to the underlying action to which the evidence is relevant and the spoliation victim knows or should have known of the alleged spoliation before the trial or other decision on the merits of the underlying action, the California Supreme Court pointed out numerous practical and procedural concerns including a strong policy against derivative tort remedies for litigation-related misconduct since such remedies undermine the desire for finality of [1 Cir. 7]adjudication; the existence of effective nontort remedies for spoliation of evidence, including the evidentiary inference that evidence destroyed by a party is unfavorable to that party; sanctions for abuse of discovery; punishment of attorneys who are involved; and criminal penalties).

Insofar as the spoliation claims against PGL, individually and for the actions of Dr. Mason neither of whom are parties to the medical malpractice...