Little v. Pou

• Decision Date: 30 January 2008
• Docket Number: No. 42,872-CA.,42,872-CA.
• Citation: 975 So.2d 666
• Parties: Jacqueline LITTLE, Cynthia Little Cameron and Mark S. Little, Plaintiffs-Appellants, v. Dr. David G. POU and Christus Health Northern Louisiana d/b/a Christus Schumpert Health System, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

975 So.2d 666

Jacqueline LITTLE, Cynthia Little Cameron and Mark S. Little, Plaintiffs-Appellants, v. Dr. David G. POU and Christus Health Northern Louisiana d/b/a Christus Schumpert Health System, Defendants-Appellees.

No. 42,872-CA.

Court of Appeal of Louisiana, Second Circuit.

January 30, 2008.

Rehearing Denied March 13, 2008.

Donald Brown, Anthony J. Bruscato, Monroe, for Appellants.

Rountree & Guin by Gordon E. Rountree, Shreveport, for Appellee, David G. Pou, M.D.

Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for Appellee, Christus Health Northern Louisiana d/b/a Christus Schumpert Health System.

Before BROWN, STEWART and CARAWAY, JJ.

CARAWAY, J.

A wrongful death action was instituted against a doctor and hospital after the death of a patient who was hospitalized due to complications from sinus surgery. After three nights in the hospital, the decedent had just returned home when he died from blood clots in his lungs caused by deep vein thrombosis ("DVT"). The wife and children of the decedent sued for medical malpractice relating to the failure of the doctor and nursing staff to take the proper actions to test for and prevent the DVT during the patient's period of immobilization following surgery. The doctor was dismissed on summary judgment, and the hospital received a favorable jury verdict dismissing the action. From these judgments, plaintiffs appeal. Finding no manifest or legal error in the judgments, we affirm.

Facts

Dr. David Pou performed outpatient sinus surgery on Henry Little on Friday, January 8, 1999 at Christus Schumpert Health System Hospital ("Schumpert") in Shreveport. During the procedure, a known risk of surgery, the puncture of the cerebral dura, occurred. This complication required Little's hospitalization over the weekend due to the risk of infection.

Initially, strict bed rest was prescribed. By Sunday, January 10, Little was given bathroom privileges. He was released Monday to travel home to West Monroe.

During the drive home, Little began complaining of leg cramps. In an apparent attempt to relieve his symptoms, Little soaked in a hot bath. As his wife assisted him in getting out of the tub, Little collapsed. He was rushed to a Monroe hospital where he died of an apparent heart attack. A later autopsy report revealed that Little suffered bilateral pulmonary emboli (blood clots in his lungs) caused by DVT.

Evidence contained in the record shows that DVT develops when the same clotting pattern that stops external bleeding occurs in the deep veins located in the arms, legs and pelvic area. A thrombus or clot formed in the veins can release to the lungs or heart causing life-threatening conditions. Age, weight, immobilization and length of surgery are risk factors for DVT, as well as some types of cancer. DVT risk factors can be assessed by nursing staff through dorsiflexion of the patient's foot, also known as Homan's sign, which reveals calf pain. Record evidence also shows that physical evaluation of the leg can disclose signs of DVT such as edema, temperature and color changes in the affected leg, redness of the calf and cyanosis of the foot. Intermittent or constant pain in the affected leg that develops quickly or worsens upon ambulation is also a sign of DVT. Likewise, tenderness or tight or heavy sensation of the limb or firmness in the affected leg may warn that DVT is present. Prophylactic measures for the prevention of DVT may include anticoagulation drugs, pumping of the foot and compression hose.

Attributing Little's death to the failure of the medical providers to guard against DVT, his widow, Jacqueline Little, and two of his three children from another marriage, Mark Little and Cynthia Little Cameron (hereinafter collectively referred to as "plaintiffs"), filed a claim with the Patient's Compensation Fund in January 2000 against Dr. Pou and Schumpert. Plaintiffs sought a medical review panel determination of whether Dr. Pou and Schumpert's nursing staff fell below the standard of care in failing to identify Little's risk for blood clotting and/or utilize precautions to prevent blood clotting which ultimately led to the emboli. On November 17, 2005, the medical review panel determined that the actions of Dr. Pou did not violate the applicable standard of care. Regarding Schumpert, the panel found a factual dispute as to whether or not Little complained of leg cramps on the evening of January 9, 1999.

In this action following the medical panel review, the children and widow are represented by separate counsel—the children, by Anthony Bruscato, and Jacqueline, by Donald Brown. On November 7, 2006, Dr. Pou was dismissed from the suit by summary judgment on the strength of the opinion of the medical review panel. Plaintiffs presented no opposition medical expert because they claimed that Bruscato and Brown received insufficient notice of the hearing date for the motion for summary judgment which had been previously continued. The trial court denied plaintiffs' motion for new trial on the summary judgment at which time the issue of plaintiffs' prior notice was reviewed. A formal judgment dismissing Dr. Pou was signed on March 2, 2007.

A jury trial against Schumpert began on February 12, 2007. The jury ruled in favor of Schumpert, finding that the nursing staff had not breached the applicable standard of care. The final judgment in conformance with the jury verdict was also signed by the court on March 2, 2007.

Appealing both judgments, plaintiffs argue that the trial court erred in failing to grant a new trial on the issue of Dr. Pou's dismissal from the suit by summary judgment and that the jury erred in finding that the nursing staff of Schumpert did not violate the standard of care. In a third argument, Plaintiffs contend that the trial court erred in taxing the expert fees of certain witnesses as costs of the litigation.

Discussion

I.

Regarding the procedural notice for the summary judgment hearing, the record shows that the trial court's first scheduling order fixed the trial date for October 16, 2006. On June 14, 2006, Dr. Pou filed a motion for summary judgment which the trial court set for hearing on August 28, 2006. Attorneys Bruscato and Brown concede that they received adequate notice of the order for this initial setting.

On August 18, 2006, Bruscato sent a letter to the court on behalf of all plaintiffs indicating that all counsel had agreed to an extension of the date for filing plaintiffs' opposition. Subsequently, on August 24, 2006, however, both Bruscato and Brown moved for a continuance of the summary judgment hearing. Attached to the motion was a "Rule to Show Cause" (the "Requested Rule") for a hearing on the requested continuance. This Requested Rule contained service instructions regarding the defendants and included the following in bold print:

Please notify Mr. Anthony Bruscato and Mr. Donald Brown at the address shown under their signatures in plaintiffs' motion.

Instead of a formal hearing on the Requested Rule for continuance, the court conducted a telephone conference on August 25, 2006, to address both the continuance of the summary judgment and the October trial setting. All attorneys participated in the telephone conference except Donald Brown. His client's interest for the joint continuance was to be represented by Bruscato's participation. In the telephone conference, the trial court granted continuances of both the trial and the summary judgment hearing, but the record reflects that the new dates for the proceedings were not fixed.

Nevertheless, the dates were soon fixed when the trial court issued a Memorandum Order later, on August 25, 2006. The Memorandum Order set the hearing on the motion for summary judgment on November 6, 2006 and the new trial date for January 22, 2007. The plaintiffs' Requested Rule for the continuance was also lined-out by the district judge who wrote and initialed the following notation on the Requested Rule:

                  See Memo Order
                  8/25/06
                  CRS
                

Both Bruscato and Brown conceded that, in accordance with the instruction on the Requested Rule, they received by regular mail a copy of their lined-out Rule with the judge's notation referencing the Memorandum Order. With only this reference in the notation, the Memorandum Order was not included with the Requested Rule. Instead, the trial court faxed a copy of the Memorandum Order to counsel in accordance with the understanding reached in the telephone conference, as follows:

                    DISTRIBUTION
                    Original to suit record
                    Stamped "Filed" copy via fax to
                    A. Bruscato/D. Brown       318 325-7532
                    G. Rountree                    226-9200
                    M. Goodwin                     222-6420
                

Despite this process for the resetting of the summary judgment hearing, neither Bruscato nor Brown appeared for the November 6, 2006 hearing and no opposition was filed by plaintiffs. The trial judge rendered summary judgment on November 7, 2006, in favor of Dr. Pou "after consideration of the Motion with supporting exhibits and Memorandum, and no Opposition filed by plaintiffs, and plaintiffs having presented no expert witness testimony via affidavit."

On November 15, 2006, all plaintiffs sought a new trial on the summary judgment urging that Dr. Pou was not entitled to summary judgment which was "not secured in accordance with proper procedural laws." At the hearing on the motion for new trial, the court summarized its actions in granting the summary judgment, as follows:

This was a summary judgment that was filed by Dr. Pou represented by Mr. Rountree. We had a telephone conference on this and there were some extensions made and I faxed a memo order.... Back in August sometime, and I set the hearing for November 6th. I only faxed the affidavit to Mr. Bruscato. I faxed it to Mr. Rountree and probably to Mr. Goodwin. After that matter came upon November 6th. There had been no opposition filed by that time....

Thereafter, the court heard the...