Coleman v. Deno
| Decision Date | 25 April 2001 |
| Docket Number | No. 99-CA-2998.,99-CA-2998. |
| Citation | 787 So.2d 446 |
| Parties | Louis COLEMAN, Individually and as Father of Louis Frank Coleman v. Dr. Richard DENO, Dr. Ivan Sherman and JoEllen Smith Hospital. |
| Court | Court of Appeal of Louisiana — District of US |
Michelle A. Bourque, Jones, Walker, Waechter, Poitevent, Carrere and Denegre, L.L.P., New Orleans, Counsel for Intervenor/Appellant.
Gerald E. Meunier, Darryl M. Phillips, Gainsburgh, Benjamin, David, Meunier & Warshauer, Frank J. D'Amico, Jr., New Orleans, Counsel for Plaintiff-Appellant.
Stewart E. Niles, Jr., Charles L. Rice, Jr., Karen M. Fontana, Jones, Walker, Waechter, Poitevent, Carrere and Denegre, L.L.P., New Orleans, Counsel for Defendant-Appellant.
C. William Bradley, Jr., Richard E. Gruner, Jr., Colleen B. Hand, Lemle & Kelleher, L.L.P., New Orleans, Counsel for Defendant/Appellee.
Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, Judge DENNIS R. BAGNERIS, Sr., and Judge MICHAEL E. KIRBY.
This medical malpractice and general tort case involves the loss of plaintiff's arm. The plaintiff, Louis Coleman, defendant Dr. Richard Deno, and the intervenor, the Louisiana Patients' Compensation Fund ("Patients' Compensation Fund" or "Fund"), appeal a judgment notwithstanding the verdict ("JNOV"), which dismissed the plaintiffs claims and award against Dr. Ivan Sherman. The trial court also lowered the jury award to the plaintiff, Louis
Coleman, on behalf of his son, Louis Frank Coleman, for loss of consortium. We affirm in part, amend in part, and reverse in part.
On June 7, 1988 at 1:44 a.m., plaintiff, Louis Coleman went to the emergency room of JoEllen Smith Hospital where he complained to the nurse that he had pulled something in his chest while lifting, and all movements hurt, including deep breathing. Although his vital signs were normal, he had a fever of 100.3.
Dr. Ivan Sherman, the attending emergency physician, found that the plaintiff's chest was clear but his chest wall was tender. Dr. Sherman diagnosed plaintiff with chest pain and costochondritis. Dr. Sherman prescribed Naprosyn twice a day with meals. Plaintiff was discharged at 3:45 a.m. with instructions to apply heat to his chest and to see his personal physician for a follow up examination. Plaintiff filled his prescription that morning and went home. His left arm began to swell later that morning.
On June 8, 1988 at 8:10 p.m. plaintiff went to the emergency room at JoEllen Smith Hospital, complaining to the nurse that his left arm had begun to swell and ache that morning. The nurse noted that his arm was swollen and warm with bullae in the left atecubital space. Plaintiffs vital signs were normal although he had an elevated heart rate of 120/minute and a fever of 102.8.
When Dr. Richard Deno, the attending emergency room physician, first examined the plaintiff, he noted track marks consistent with intravenous drug use. Dr. Deno drew a diagram of plaintiffs left arm, showing the location of the track marks, the hot swollen area, and the small bullous lesions. Dr. Deno ordered laboratory work that showed a white blood cell count of 27.1. Dr. Deno diagnosed the plaintiff with left arm cellulitis and concluded that the plaintiff needed inpatient intravenous antibiotic therapy. Dr. Deno felt that the patient could receive better treatment at Charity Hospital of New Orleans ("Charity"), which had superior and more immediately available health care services for treatment of plaintiff's left arm while JoEllen Smith Hospital did not have the full laboratory facilities available at Charity. Dr. Deno called the resident in charge of Charity's Accident Room, and the resident accepted plaintiff for immediate admission to the emergency room.
Dr. Deno determined that the plaintiff was stable and could transport himself to Charity. Dr. Deno instructed the plaintiff to go directly to Charity. He was given a copy of his laboratory results and discharged from JoEllen Smith Hospital at about 10:00 p.m.
The plaintiff arrived at Charity over a hours later at 12:21 a.m. on June 9, 1988. He told the nurse that his chief complaint was of left arm edema for one day. Plaintiff related that he had a crushing type injury on Sunday when he fell off of a boat and was wedged between the wharf and the boat.
The attending physician noted a small painful and erythematous region approximately one to two inches below the left elbow on the anterior part of the plaintiffs forearm on the morning prior to admission. By that evening plaintiff had swelling up to his elbow, and later that evening he had extremely painful swelling extending into his arm. Plaintiff related that the only recent trauma to his left arm occurred four days before admission when some people injected something into his arm while holding him down. Plaintiff stated that he worked unloading seafood crates from a truck but did not work directly with fish or oysters. He denied having recent cuts while working. He also reported that he fell from a boat five days earlier and was wedged between the bank and the wharf. Plaintiff denied IV drug use although a questionable history of IV drug use was noted.
Plaintiff's physical examination showed that his left upper extremity was swollen and warm from the mid arm to lower forearm, with no fluctuant areas, no streaking, positive axillary node and positive track marks. Plaintiffs white blood cell count was elevated at 29.9. The left arm x-rays, which were completed by 5:00 a.m., showed significant soft tissue swelling but no gas in the tissues. The x-rays demonstrated deformities of the second, third, fourth and fifth digits.
The attending physician diagnosed cellulitis, probable intravenous drug abuse, and noted likely staph or strep infection, ruling out sepsis. The physician determined that the plaintiff should be admitted for intravenous antibiotics (Nafcillin, 2 grams every four hours), tetanus toxoid administration, elevation of warm compresses to the left arm, and additional blood studies.
Seven hours after the plaintiff arrived at the Charity Emergency Room, intravenous antibiotics were initiated at 8:00 a.m. The June 9, 1988 nurse's notes did not show additional swelling or worsening of the plaintiffs left arm. After receiving intravenous antibiotics throughout the day, the plaintiff was admitted to the Hospital's LSU Medicine Service at 6:00 p.m.
At Charity, the attending physician initially noted on June 10, 1988 that he was waiting for the results of blood tests of the plaintiffs blood culture and white blood count to determine the length of the antibiotic treatment, and he planned to consult surgery.
On June 11, 1988 the hospital notes report that the cellulitis with staph was responding to treatment with Nafcillin. After a surgical consult was ordered to evaluate the plaintiffs left arm cellulitis on June 11, 1988, Dr. Clyde R. Redmond, II, initially saw the plaintiff at about 1:00 p.m. that day. Dr. Redmond found that the plaintiff had crepitus, indicating gas in the tissues of his left arm. Dr. Redmond planned to broaden the antibiotic coverage. When x-rays taken about 2:00 p.m. indicated "air" within the soft tissues of plaintiffs left arm, the plaintiff went to surgery at 4:10 p.m.
Dr. Redmond found that the skin, fat, and bulk of the muscles in the plaintiffs left arm were dead as the plaintiff had developed a compartment syndrome within the past few hours. After consulting with an orthopaedic surgeon, Dr. Redmond performed an open left shoulder disarticulation and amputated the plaintiff's left arm at the shoulder. Cultures showed that the dominant infectious organism in the plaintiff's left arm was a gas-forming organism, peptostreptococcus or peptostrep. The peptostrep organism is found in the human mouth and is a common infection with IV drug abusers. Plaintiffs left arm cultures revealed alpha and beta streptococcus. On June 28, 1988, the plaintiff was discharged from Charity.
On April 17, 1989, Louis Coleman, individually and as the father of Louis Frank Coleman, filed a request for a medical review panel pursuant to La. R.S. § 40:1299.41 et seq. under the private malpractice act. Coleman alleged that Dr. Ivan Sherman, Dr. Richard Deno, and JoEllen Smith Hospital were negligent and caused the loss of his left arm. Plaintiff claimed that the defendants failed to properly diagnose or treat his left arm abrasion on June 7 and 8, 1988 at the JoEllen Smith Emergency Room.
Plaintiff also filed a request for a medical malpractice panel pursuant to La. R.S. 40:1299.39 et seq. under the public malpractice act, naming Charity Hospital of New Orleans as a defendant. Plaintiff alleged that Charity was negligent in connection with the treatment of his left arm from June 9 to June 12, 1988.
On May 1, 1990, the medical malpractice panel concluded that there was no breach of the applicable medical standard of care by Dr. Sherman, Dr. Deno or JoEllen Smith Hospital and that "the conduct complained of was not a factor in the resultant damages."
On July 27, 1990, plaintiff filed a petition in civil district court against Dr. Sherman, Dr. Deno and JoEllen Smith Hospital because they failed to properly diagnose and treat plaintiff's left arm abrasion. The Louisiana Patients' Compensation Fund ("Compensation Fund" or "Fund") was an intervenor in the suit. On March 27, 1991, the plaintiff filed a supplemental petition claiming that the defendants violated CO-B RA's anti-dumping provision.1 Plaintiff settled his claim against JoEllen Smith Hospital for $10,000, and the hospital was dismissed from the action on October 10, 1991.
Plaintiff settled his separately filed claim against Charity in March 1993 for $25,000, and Charity was dismissed from the action.
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