Scott v. Dauterive Hosp. Corp.

• Decision Date: 23 April 2003
• Docket Number: No. 02-1364.,02-1364.
• Parties: Darrell SCOTT and Bonnie McFarland v. DAUTERIVE HOSPITAL CORPORATION, et al.
• Court: Court of Appeal of Louisiana — District of US

851 So.2d 1152

Darrell SCOTT and Bonnie McFarland v. DAUTERIVE HOSPITAL CORPORATION, et al.

No. 02-1364.

Court of Appeal of Louisiana, Third Circuit.

April 23, 2003.

Rehearing Denied June 18, 2003.

Harry Douglas Hoskins, III, Hoskins & Hoskins, LC, New Orleans, LA, for Plaintiff/Appellant Darrell Scott.

Marc W. Judice, Judice, Hill & Adley, Lafayette, LA, for Defendant/Appellee, Louisiana Insurance Guaranty Association.

Stephen Gary McGoffin, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendant/Appellee, St. Paul Fire & Marine Insurance Company, Dauterive Hospital Corporation.

Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.

AMY, Judge.

The plaintiff filed suit against the defendant hospital, alleging that inadequate care in its emergency room resulted in physical injury. He pursued various negligence theories of recovery and sought damages under the Emergency Medical Treatment and Active Labor Act (EMTALA) as well. The jury denied the plaintiff's claims of EMTALA violations, gross negligence, inadequate credentialing, and inadequate training and supervision of employees, but found the hospital breached the standard of care owed to the plaintiff. However, the jury concluded that this breach did not cause damage to the plaintiff. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Darrell Scott, received injuries as the result of a bar fight on February 27, 1994. The record indicates that injury possibly resulted from a bottle being broken over his head. At the time of the incident, Mr. Scott was accompanied by his girlfriend, Bonnie McFarland. When Ms. McFarland found Mr. Scott lying on the ground outside of the bar in New Iberia, she telephoned for an ambulance. Acadian Ambulance Service received the telephone call, arriving at the scene at 1:36 a.m. Paramedic Keith Pellerin testified that he found Mr. Scott lying on the ground, but his eyes were open. He explained that Mr. Scott was awake, "but very lethargic." He noted a "small one and a half inch laceration to the left temporal lobe." Mr. Pellerin found the plaintiff's pupils to be round, equal, and reactive to light. He found the smell of alcohol on the plaintiff's breath to be "very strong." Mr. Pellerin testified that he indicated on his report that the patient's condition at the scene was "non-emergent," a term he described as meaning "non life threatening." The plaintiff was transported to Dauterive Hospital in New Iberia.

On arriving at the hospital, Mr. Scott was attended by Nurse Mona Moore¹ and Dr. Agapito Castro, a physician with Coastal Emergency Medical Services of Louisiana. By contract, Coastal provided emergency physician services to Dauterive. Nurse Moore noted on the emergency room report that Mr. Scott was "awake, alert, skin warm, dry to touch." She explained that she would have noted if she had found the patient to be lethargic. There is no indication of lethargy on the emergency room record. Furthermore, there is no inscription on the record indicating Dr. Castro's finding as to whether Mr. Scott was awake, alert, or oriented. He stated that "in this particular case the nurse said that the patient was awake, alert, and I took her word for that." Dr. Castro ordered x-rays of Mr. Scott, which, according to the x-ray technician performing the tests, were not completed due to Mr. Scott's inability to keep his mouth open for the completion of one of the tests.² The technician testified that he noted the patient to be "highly intoxicated." Dr. Castro testified that, if he was informed of the inability to complete the x-rays series, he could not recall it. Dr. Castro sutured Mr. Scott's laceration and released him.

According to Ms. McFarland, her brother and the nurse assisted Mr. Scott to the car for transport home. Mr. Scott was released with a set of instructions. Ms. McFarland stated that after she and Mr. Scott were returned to their camper, she attempted to wake Mr. Scott every hour or two, according to the release instructions. She contends that, eventually, she telephoned the ambulance when Mr. Scott became incontinent and began vomiting. Mr. Scott was transported to University Medical Center in Lafayette and then to Charity Hospital in New Orleans. At Charity, he underwent brain surgery, resulting in the removal of two hematomas from his right frontal and right temporal lobes. The parties do not dispute that the surgery has impacted Mr. Scott's life, resulting in behavioral and cognitive imbalances.

The instant matter was initially filed in April 1995.³ Dr. Castro, Coastal, Dauterive and its insurer, St. Paul Fire and Marine Insurance Company, were named as defendants in the various supplemental and amending petitions that have been filed since that time. The matter has a lengthy history, with numerous supplemental and amending petitions and the addition of parties and various theories of recovery. The plaintiff's basic contention is that his symptoms were such that a CT scan should have been ordered to eliminate the possibility of injury to the brain while he was at Dauterive. He also asserts that, had a blood alcohol test been performed, it would have eliminated drunkenness as a cause of what he contends was his lethargic condition at the hospital. He argues this was not done due, in part, to his uninsured status. He argues that had the CT scan been performed at the hospital, the surgery required due to the hematomas could have been performed more quickly. He asserts that the resulting damage to his brain was increased by the delay.

Pursuant to a February 2001 settlement, Dr. Castro, Coastal, the Louisiana Patient's Compensation Fund (PCF), and the Louisiana Insurance Guaranty Association, were released from the suit. The plaintiff continued this matter against the instant defendants, Dauterive and St. Paul. At trial, the plaintiff argued that Dauterive breached the standard of care owed in a number of respects, failed to adequately credential Dr. Castro for the emergency room, and failed to properly train and supervise its employees. He argued that the conduct in the emergency room was not only negligent, but grossly negligent. The plaintiff also asserted that the hospital failed to provide an adequate screening as required by EMTALA. The jury denied the plaintiff's claims, although it found that Dauterive breached the standard of care owed. However, it concluded that this breach was not the cause of damages to the plaintiff.

The plaintiff appeals, asserting various interrelated assignments of error and issues for review. With regard to pretrial proceedings, the plaintiff contests a partial summary judgment entered as to Dauterive's status as a qualified health care provider. He also questions the jury charges provided, contending that they were inadequate in several respects. He contends the inadequate instructions caused jury error and require a de novo review. The plaintiff also contests a motion in limine that was granted, which excluded evidence of future medical damages which he argued were available under EMTALA and theories of recovery not arising under the Medical Malpractice Act. Next, the plaintiff contests several of the findings of the jury, contending that their findings required the granting of a new trial. Finally, the plaintiff argues that the trial court erred in excluding evidence as to taxes that would be due from the plaintiff in the event he received a lump sum award for lost earning capacity.

Discussion

Qualified Health Care Provider Status

Prior to trial, the parties filed cross motions for summary judgment on the issue of whether Dauterive is a qualified health care provider, which subjects the plaintiff to the "cap" of the Medical Malpractice Act. The trial court granted the motion filed by Dauterive, concluding that the hospital was a qualified health care provider. The plaintiff's motion was denied. The plaintiff asserts that this determination was in error, arguing that the St. Paul policy issued to the hospital is not a malpractice liability insurance policy at all, but is a "fronting" policy that constitutes a surety agreement. He contends that it does not meet the requirements of La.R.S. 40:1299.42(E)(1) and, therefore, Dauterive cannot avail itself of the cap of the Medical Malpractice Act.⁴ In support of his motion for summary judgment on this issue, the plaintiff points to deposition testimony of a St. Paul representative, Jane Lienemann. She testified that the premium paid by HealthTrust, Inc., Dauterive's parent company, for the policy issued by St. Paul, was not reflective of exposure to liability, but rather, was what she described as a fronting premium, reflective of costs associated with issuing and servicing the policy. She also testified regarding an Indemnification Agreement dated September 1993, in which Health-Trust agreed to indemnify St. Paul for liabilities under the policy. HealthTrust also agreed to establish a trust containing assets in order to cover the liabilities.

The plaintiff further contends that wording in other areas of the medical malpractice provisions indicate that the type of policy issued by St. Paul is not that required for application of the cap described above. Specifically, the plaintiff points to La.R.S. 40:1299.44(A)(3)(a) regarding payment of a surcharge by the health care provider to the Patient Compensation Fund as follows: "Such surcharge shall be due and payable to the patient's compensation fund within forty-five days after the premiums for malpractice liability insurance have been received by the agent of the insurer, risk manager, or surplus line agent from the health care provider in Louisiana." (Emphasis added.) Additionally, La.R.S. 40:1299.45(A)(1) provides that "[o]nly while malpractice liability insurance remains in force, or in the case of a self-insured health care provider, only while the security required by...