Stewart v. City of New Orleans

• Court: Court of Appeal of Louisiana
• Writing for the Court: GARRISON
• Citation: Stewart v. City of New Orleans, 418 So.2d 1389 (La. App. 1982)
• Decision Date: 08 June 1982
• Docket Number: No. 12516,12516
• Parties: Cecil STEWART v. CITY OF NEW ORLEANS, New Orleans Police Department, Travelers Insurance Company, and Charity Hospital of Louisiana At New Orleans, a Division of/and Louisiana Health and Human Resources Administration, and ABC Insurance Company.

Page 1389

418 So.2d 1389

Cecil STEWART v. CITY OF NEW ORLEANS, New Orleans Police Department Travelers Insurance Company, and Charity Hospital of Louisiana At New Orleans, a Division of/and Louisiana Health and Human Resources Administration, and ABC Insurance Company.

No. 12516.

Court of Appeal of Louisiana Fourth Circuit.

June 8, 1982.

Rehearing Denied Sept. 24, 1982.

Walter F. Gemeinhard, John P. Keegan, New Orleans, for plaintiff-appellant.

H.M. Westholz, Jr., Staff Atty., Louisiana Dept. of Health and Human Resources, New Orleans, for defendants-appellees.

Before GARRISON, AUGUSTINE and WARD, JJ.

GARRISON, Judge.

This is an appeal from a judgment of the district court, dismissing plaintiff's suit against Charity Hospital and the Louisiana Health and Human Resources Administration. Defendants, Travelers Insurance Co., the City of New Orleans, and the New Orleans Police Department (hereinafter N.O.P.D.), reached a settlement with plaintiff in plaintiff's case against the City prior to rendition of judgment. From the judgment of dismissal, which we affirm, plaintiff appeals.

On appeal, plaintiff argues that the trial court erred in failing to apply the doctrine of res ipsa loquitur as applied in Holloway v. Southern Baptist Hospital, 367 So.2d 871 (La. App. 4th Cir., 1978) or, alternatively, that the trial court erred in failing to provide compensation for the aggravation of a prior existing condition.

The operative facts are as follows:

On November 12, 1974, plaintiff became extremely disoriented, such that his mother notified N.O.P.D. At 4:35 a.m., he was taken into custody on charges of disturbing the peace and was subsequently placed in the House of Detention. Pursuant to a coroner's examination, plaintiff was diagnosed a paranoid schizophrenic and was committed to Charity Hospital. He was admitted to Charity at 9:15 a.m. on November 15. At 10:00 a.m. he was admitted to the psychiatric ward. Restraints had been placed on the plaintiff, including ankle restraints on his right leg. During his stay in Charity Hospital, the area of the right ankle restraint became gangrenous, resulting in the amputation of plaintiff's right leg. The amputation extended to above plaintiff's right knee.

Plaintiff argued that the restraints were improperly applied and excessively tight, resulting in the injury. Plaintiff further argues that he was severely beaten and physically abused while in custody.

At trial Dr. Bruce Iteld testified that the laboratory tests positively indicated that plaintiff had group A beta hemolytic streptococcus bacteria in his blood stream. The bacteria is introduced into the blood stream most commonly by the use of unclean needles and poor dental hygiene. At the time of plaintiff's...