Johnson v. Morehouse General Hosp.

• Decision Date: 22 December 2009
• Docket Number: No. 44,798-CA.,44,798-CA.
• Citation: 27 So.3d 1085
• Parties: Jonathon JOHNSON and Belinda Johnson, Individually and on Behalf of their Minor Son, Garrett Johnson, Plaintiffs-Appellees v. MOREHOUSE GENERAL HOSPITAL, et al, Defendants-Appellant.
• Court: Court of Appeal of Louisiana — District of US

27 So.3d 1085

Jonathon JOHNSON and Belinda Johnson, Individually and on Behalf of their Minor Son, Garrett Johnson, Plaintiffs-Appellees v. MOREHOUSE GENERAL HOSPITAL, et al, Defendants-Appellant.

No. 44,798-CA.

Court of Appeal of Louisiana, Second Circuit.

December 22, 2009.

Rehearing Denied January 21, 2010.

The Law Offices of Wm. E. Bourgeois, by William E. Bourgeois, for Appellant, Morehouse Parish Hospital Service District.

Nelson & Hammons, by John L. Hammons, Guerriero & Guerriero, by Jeffrey D. Guerriero, for Appellees.

J. Elliott Baker, Special Asst. Attorney General, for Intervenor/Appellee, State of Louisiana.

Perret Doise, by Nadia de la Houssaye, for Louisiana Patient's Comp Fund.

Rankin, Yeldell & Katz, by Stephen J. Katz, for Dr. John Ziegler.

Before BROWN, STEWART, CARAWAY, & PEATROSS & DREW, JJ.

PEATROSS, J.

After a jury trial in this medical malpractice case, the jury returned a unanimous verdict in favor of Plaintiffs, Jonathon and Belinda Johnson, and against Defendant, Morehouse General Hospital, finding that Defendant committed four acts of medical malpractice which caused injury and damage to Plaintiffs' minor child, Garrett Johnson. The jury further found that Dr. John Ziegler, another Defendant who had previously been dismissed from the suit, had committed one act of medical malpractice which caused injury to Plaintiffs. The jury awarded damages to Plaintiffs in the sum of $4,379,946.10.

The trial judge signed a judgment reducing the award in favor of Plaintiffs to $643,946.10, with legal interest thereon. The trial judge further adjudicated the minor child, Garrett, to be a patient in need of continuing medical care pursuant to the provisions of the Louisiana Medical Malpractice Act ("LMMA"). Defendant filed a motion for new trial, which was denied by the trial judge. Both parties now appeal. For the following reasons, we affirm in part, amend in part and affirm as amended.

FACTS

On November 1, 1999, Mrs. Johnson, an insulin-dependent diabetic who was 36½ weeks pregnant at the time, realized that she had not felt fetal movement for two days, so she made an appointment with her obstetrician, Dr. Ziegler. According to the medical expert testimony at trial, insulin-dependent diabetics are considered to have high risk pregnancies because there is often a delay in the lung maturity of the fetus. This presents the risk that the baby, if delivered too soon, may be born before his lungs have fully matured and will not be able to breathe unassisted by a ventilator.

On the other hand, if the baby is delivered too late, there is a risk that the baby will be subjected to intrauterine distress, which can lead to serious complications such as injuries to the heart, lungs, brain and nervous system. Consequently, in high risk pregnancies involving diabetic mothers, a cesarean section is often performed shortly after the child's lungs are proven to have matured.

On the day of Mrs. Johnson's appointment, Dr. Ziegler ordered the scheduling of an amniocentesis, a procedure where amniotic fluid is withdrawn from the uterus, to determine whether the baby's lungs had matured sufficiently for delivery. The amniocentesis was subsequently performed on November 2, 1999, through outpatient services. Dr. Ziegler also ordered an amniostat, a laboratory study analyzing the amniotic fluid obtained during the amniocentesis, to be performed at Morehouse General Hospital. He then ordered that the fluid be sent for testing in two additional laboratory studies, a phosphatidyl glycerol ("PG") and an lecithin/sphingomyelin ratio ("L/S ratio"), the results of which would be sent to a reference lab for analysis. Dr. Ziegler ordered the results of all three studies to be phoned to him as soon as they were available.

The fluid from the amniocentesis was analyzed for the amniostat at Morehouse General Hospital with the results indicating that the baby's lungs had matured. The fluid was then sent to the outside reference lab for the PG and L/S ratio, with results also indicating lung maturity. The results were transmitted back to Morehouse General Hospital on the following day, November 3, 1999, at 3:28 p.m. According to the medical expert testimony at trial, an L/S ratio is an important test regarding the health of a fetus, the results of which should ideally be communicated to the physician within one hour of receipt or sooner if possible.

Around 8:00 p.m. on November 3, 1999, Mrs. Johnson was admitted to Morehouse General Hospital and remained in its obstetrical unit for approximately two hours. During that time, however, Dr. Ziegler still had not received the laboratory test results, nor had he inquired as to their status. Dr. Ziegler chose not to perform the cesarean section at that time; and, since the fetal heart monitor strip did not show any abnormalities requiring immediate cesarean section, Mrs. Johnson was stabilized and sent home.

Then on November 4, 1999, at approximately 9:00 a.m., Dr. Ziegler received the laboratory test results and his office scheduled an appointment with Mrs. Johnson to take place shortly after the noon hour that day. According to Dr. Ziegler, during her appointment at his office, Mrs. Johnson's biophysical profile and fetal heart monitor indicated that the baby was in a healthy state with no indication of distress.

Dr. Ziegler testified that, even after he had received the laboratory results indicating lung maturity of the fetus, he chose not to perform the cesarean section immediately. He explained that he wanted to wait to perform the cesarean section because the baby was stabilized at that time, Mrs. Johnson had just eaten lunch, he knew of no available operating rooms in the hospital where he could perform the surgery and the pediatrician, Dr. John Coats, would not be available to care for the baby post-cesarean until later in the day. As a result, Dr. Ziegler scheduled a cesarean section for five hours later at 6:00 p.m.

Around 3:30 p.m. that afternoon, Mrs. Johnson was readmitted to Morehouse General Hospital, taken to the obstetrical unit and placed on a fetal heart monitor. Beginning at approximately 3:47 p.m., the fetal heart monitor began to indicate signs of severe intrauterine distress. There were several different nurses who entered and left Mrs. Johnson's room during and after this time. According to the testimony at trial, Dr. Ziegler was not initially aware of the abnormalities indicated on the fetal heart monitor and did not go to Mrs. Johnson's room. Instead, he finished seeing his clinic patients for the day and then went to check on Mrs. Johnson a little after 5:00 p.m.

After arriving at Mrs. Johnson's hospital room, Dr. Ziegler and Mrs. Johnson began to discuss the tubal ligation procedure which was to be performed after the cesarean section. Soon thereafter, Mrs. Johnson signed the applicable consent forms for the cesarean section and the tubal ligation procedures. Then, at approximately 5:35 p.m., Dr. Ziegler was notified by one of the nurses in the room that the fetal heart monitor strip indicated signs of severe fetal stress. About fifteen minutes later at 5:50 p.m., initial surgery preparations were made by Dr. Ziegler, Dr. Coats and hospital personnel and an emergency cesarean section was performed around 6:00 p.m. Subsequently, Mrs. Johnson's baby, Garrett, was born with brain damage and cerebral palsy.

The case was submitted to a Medical Review Panel which returned an opinion that was favorable to both Dr. Ziegler and Morehouse General Hospital. Shortly thereafter, the current suit was filed. As previously stated, the jury returned a verdict in favor of Plaintiffs, finding four acts of medical malpractice on the part of Morehouse General Hospital, and awarded damages in the amount of $4,379,946.10. In accordance with applicable statutory medical malpractice damages caps, the trial judge reduced the damages to $643,946.10, with legal interest thereon and further found the child to be a patient in need of continuing medical care pursuant to the LMMA. After Defendant's motion for new trial was denied, this appeal ensued with both parties urging assignments of error.

DISCUSSION

On review, an appellate court may not set aside the findings of the trier of fact unless those findings are clearly wrong or manifestly erroneous. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate court must not base its determination on whether it considers the trier of fact's conclusion to be right or wrong, but on whether the fact finder's conclusion was reasonable. Stobart, supra.

In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646; Stobart, supra. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270.

Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently. Id. Causation is a factual finding which should not be reversed on appeal absent manifest error. Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557; Martin v. East Jefferson General Hosp., 582 So.2d 1272 (La.1991); Smith v. State through Dept. of Health and Human Resources Admin., 523 So.2d 815 (La.1988).

Defendant asserts in assignment of error number four that the jury's verdict was manifestly erroneous,...