Johnson v. Morehouse Gen. Hosp.

• Decision Date: 10 May 2011
• Docket Number: Nos. 10–C–0387,10–C–0488.,s. 10–C–0387
• Citation: 63 So.3d 87
• Parties: Jonathon JOHNSON and Belinda Johnson, individually and on behalf of their minor Son, Garrett Johnsonv.MOREHOUSE GENERAL HOSPITAL, et al.
• Court: Louisiana Supreme Court

63 So.3d 87

Jonathon JOHNSON and Belinda Johnson, individually and on behalf of their minor Son, Garrett Johnson

v.MOREHOUSE GENERAL HOSPITAL, et al.

Nos. 10–C–0387

10–C–0488.

Supreme Court of Louisiana.

May 10, 2011.

Nelson & Hammons, APLC, John Layne Hammons, for Applicant (No. 2010–C–0387), Respondent (No. 2010–C–0387).William Edward Bourgeois, for Respondent (No. 2010–C–0488), Applicant (No. 2010–C–0387).Guerriero & Guerriero, Jeffrey Dowling Guerriero, for Respondent (No. 2010–C–0387).VICTORY, J.^*

[2010-0387 (La. 1] In this medical malpractice case, the jury found Morehouse General Hospital (“Morehouse”) committed four acts of malpractice that caused injury to an infant, Garrett Johnson, and found Dr. John Ziegler was negligent in his care of the infant's mother, Belinda Johnson. The jury apportioned 80% of the fault to Morehouse and 20% of the fault to Dr. Ziegler. The court of appeal found the jury was manifestly erroneous in finding Morehouse liable for three of the four acts of negligence, and held that Morehouse was 20% at fault and Dr. Ziegler was 80% at fault. We granted a writ application to consider whether the court of appeal properly modified the jury verdict. After considering the record and the law, we find that the court of appeal was correct in finding that Morehouse was only liable for one act of negligence; however, we disagree with its apportionment of fault and find Morehouse and Ziegler each to be 50% at fault.

[2010-0387 (La. 2] FACTS AND PROCEDURAL HISTORY

On November 1, 1999, Belinda Johnson (“Johnson”), an insulin-dependent diabetic, was 36 1/2 weeks pregnant. Because pregnancies in insulin-dependent diabetics are considered high-risk, diabetic mothers often have a cesarean section (“C-section”) performed shortly after the baby's lungs are proven to have matured. When Johnson realized she had not felt fetal movement for two days, she made an appointment with her obstetrician, Dr. Ziegler. ¹ Dr. Ziegler performed an amniocentesis at Morehouse on November 2, 1999. After the amniocentesis was performed, Dr. Ziegler ordered an amniostat, which is a laboratory study analyzing the amniotic fluid obtained during the amniocentesis. The amniostat tests for phosphatidylglycerol (PG), the presence of which protein could indicate fetal lung maturity. The amniostat was performed at Morehouse on November 2, and the results were communicated to Dr. Ziegler that day. The results of the amniostat were negative for PG, indicating that the baby's lungs had not fully developed. Dr. Ziegler's orders to hospital staff were if the amniostat was negative, the hospital was to send the fluid off for a lecithin to sphingomyelin ration (“L/S ratio”) test, a more advanced test to determine lung maturity, and for a more sophisticated PG test. His [2010-0387 (La. 3] orders stated: “Call me when amniotic fluid report is back.” The Morehouse lab sent the amniotic fluid to its reference lab in Texas for the ordered L/S ratio and PG tests. The results of the PG and L/S ratio tests were transmitted back to Morehouse at 3:28 p.m. on the following day, November 3, 1999. The tests reported a low positive of PG and a L/S ratio greater than 2.5 to 1, indicating that the baby's lungs had matured. These results were not reported to Dr. Ziegler that day.

At approximately 8:00 p.m. that evening, Johnson was admitted to Morehouse with complaints of back pain and pelvic pressure and was placed on a fetal heart monitor, which charted the baby's heart rate in the 140s to 150s and also noted some long term variability, but no accelerations or decelerations in the baby's heart rate.² When Dr. Ziegler saw Johnson in the hospital that evening, he had not received the results of the PG and L/S ratio tests, nor had he inquired about their status. Since he felt the fetal heart monitor did not show any irregularities requiring an immediate C-section, Dr. Ziegler stabilized Johnson and sent her home at about 10:20 p.m.

Dr. Ziegler received the results from the PG and L/S ratio tests at approximately 9:00 a.m. on November 4, 1999. Johnson was scheduled for an office visit at noon that day, during which time Dr. Ziegler again placed her on a fetal heart monitor and performed a biophysical examination of Johnson and the unborn baby. The biophysical profile rating was a four out of ten. According to testimony, that rating did not indicate the need for an emergent C-section but indicated the need for another biophysical profile in a few hours, and if that later score did not improve, the obstetrician should proceed with a C-section. Dr. Ziegler opined that Johnson's biophysical profile and fetal heart monitor at the time of her appointment revealed the [2010-0387 (La. 4] baby was in a healthy state with no indication of distress. Even though Dr. Ziegler had received the test results showing the baby's lungs had matured, he did not schedule a C-section until 6:00 p.m. on November 4. Dr. Ziegler explained he did not schedule the C-section immediately because the baby was stabilized during the office visit, Johnson had just eaten lunch, there were no operating rooms available at Morehouse to perform the surgery, and Dr. John Coats, IV, a physician scheduled to attend and assist Dr. Ziegler in the delivery, would not be available until later in the day.

At approximately 3:30 p.m. that afternoon, Johnson was admitted to the hospital and prepped for surgery by Nurse Gwen Stephenson. Sometime between her admission and 4:00 p.m., she was placed on the fetal heart monitor. There is conflicting testimony regarding when the fetal heart monitor tracings began to show signs of fetal distress. Dr. Ziegler was not initially notified of any abnormalities that may have appeared on the monitor tracings, and he finished seeing patients at his office before attending to Johnson at the hospital. After arriving at her hospital room, Dr. Ziegler discussed and reviewed the tubal ligation procedure with Johnson, which was to be performed after the C-section. Johnson signed the consent forms for the C-section and the tubal ligation procedures at approximately 5:30 p.m. At 5:34 p.m., Nurse Lori Priestley alerted Dr. Ziegler, who was sitting on the side of Johnson's hospital bed, of the decrease in the fetal heart rate to the 80s. In an effort to find a stronger heart beat, Dr. Ziegler adjusted the monitor and ordered the administration of Brethine, a drug which slows or stops contractions in an effort to relieve stress on the placenta and, therefore, the baby's oxygen supply. Dr. Ziegler, along with Dr. Coats, who had arrived to attend the scheduled C-section, and Nurse Priestley, rushed Johnson to the operating room and performed the C-section shortly thereafter, at [2010-0387 (La. 5] around 6:00 p.m. Garrett Johnson was born with no heart beat and no respiration and with only a pulse detected in the umbilical cord. Dr. Coats successfully resuscitated Garrett, who regained his respiratory rate and his heart rate, and, once stabilized, was transferred to the St. Francis Hospital NICU. It was later determined he sustained severe brain damage in utero and suffered the complications of cerebral palsy, caused by hypoxia or lack of oxygen to the brain.

Johnson filed a malpractice complaint with the Louisiana Patients' Compensation Fund against Dr. Ziegler and Morehouse. She voluntarily dismissed her claim against Dr. Ziegler, however, upon his execution of an affidavit, in which he swore that if he had been made aware of the laboratory results on the evening of November 3, 1999, he would have performed the C-section at that time.³ As a result, the Medical Review Panel only reviewed the actions of the nurses at Morehouse. The Medical Review Panel, consisting of three obstetricians/gynecologists, unanimously found the evidence did not support the conclusion that Morehouse or its employees failed to meet the applicable standard of care in the treatment of Johnson.

The panel provided three reasons to support its conclusions. First, it found Morehouse promptly performed the amniostat and promptly reported the result to Dr. [2010-0387 (La. 6] Ziegler. The amniotic fluid was then immediately sent by Morehouse's laboratory to the outside reference laboratory for the L/S ratio test and the patient was discharged from Morehouse later that day. Second, the panel found Morehouse received the results of the L/S ratio test at 3:28 p.m. on November 3, but Dr. Ziegler was unaware of the test results when Johnson returned to Morehouse that evening at approximately 8:00 p.m. The panel found Morehouse did not have a duty on November 3, to report the laboratory information to Dr. Ziegler since Johnson had been discharged from the hospital on November 2, 1999. Third, the panel found the care of Johnson during her hospitalization at Morehouse was within the standard of care for hospital staff, nurses, and other personnel.

After the Medical Review Panel issued its opinion, Mr. and Mrs. Johnson, individually and on behalf of their minor son, Garrett, filed this suit against Morehouse and Dr. Ziegler on October 27, 2000. On August 8, 2003, Dr. Ziegler filed several exceptions, including res judicata, estoppel, prescription, and prematurity. Dr. Ziegler asserted that as a result of a compromise agreement with the plaintiffs, he had executed an affidavit and the plaintiffs had dismissed all claims against him with prejudice, by a letter dated January 28, 2002, addressed to the Patients' Compensation Fund. On November 12, 2003, the trial court sustained Dr. Ziegler's exceptions of res judicata and prescription and dismissed all claims against him with prejudice at the plaintiffs' cost. The case continued to trial against Morehouse as the only defendant.

On January 13, 2007, approximately six years after suit was filed, there was a trial on the matter, and the jury returned a verdict in favor of plaintiffs, finding Morehouse committed four acts of malpractice. The jury found...