Taylor v. Charity Hosp. of Louisiana in New Orleans

• Decision Date: 12 March 1985
• Docket Number: No. CA-2209,CA-2209
• Citation: 466 So.2d 736
• Parties: Jacqueline Snell TAYLOR v. CHARITY HOSPITAL OF LOUISIANA IN NEW ORLEANS.
• Court: Court of Appeal of Louisiana — District of US

Page 736

466 So.2d 736

Jacqueline Snell TAYLOR v. CHARITY HOSPITAL OF LOUISIANA IN NEW ORLEANS.

No. CA-2209.

Court of Appeal of Louisiana, Fourth Circuit.

March 12, 1985.

Paul J. Galuszka, New Orleans, for appellee.

Ivor A. Trapolin, L. Kevin Coleman, New Orleans, for appellant.

Before GULOTTA, CIACCIO and BYRNES, JJ.

BYRNES, Judge.

This appeal arises out of a judgment of the Civil District Court for Orleans Parish awarding appellees damages for the premature death of their daughter.

FACTS

On June 22, 1976, six year old Leslie Ann Snell was admitted to Charity Hospital complaining of severe headaches. An examination revealed that she was suffering from a brain tumor. On June 25, surgery was performed to remove the tumor. By June 27, Leslie had slipped into a semi-comatose state and additional surgery was performed. During this second operation, it was necessary to remove a significant portion of her brain. Leslie remained semi-comatose until she died on September 21, 1976.

On the morning of her death at approximately 1:00 a.m., a nurse noted that Leslie was bleeding from the vaginal area. When the bleeding had not stopped by 2:30 a.m., a doctor examined her and found a laceration in the vaginal area, which he packed because the natural clotting process had not stopped the bleeding. Later that morning it was noted that the laceration was "oozing", rather than "bleeding". The packing was replaced and it was determined that the laceration was approximately one centimeter long. Although Leslie's condition appeared to have stabilized, she died that day at 12:50 p.m., approximately twelve hours after her bleeding was first noted.

Leslie's mother, Mrs. Taylor, was notified by phone that her daughter had died. Later her sister told her of an article in the Times-Picayune, reporting the death of a comatose child at Charity Hospital who may have been sexually molested just before she died. Mrs. Taylor subsequently discovered that the girl referred to in the article was her daughter.

Although an autopsy report revealed no sexual molestation, and classified the death as "natural", Mrs. Taylor and her ex-husband filed this suit against Charity Hospital for the premature death of their child. The matter was tried before a judge and taken under advisement. Six months later, judgment was rendered, awarding plaintiffs $50,000.00 ($25,000.00 per parent), for the pain & suffering of their child, subject to an offset of $8,180.80 in medical expenses owed to Charity Hospital. The Court also awarded Mrs. Taylor an additional $25,000.00 for her loss of Leslie's love and affection.

NEGLIGENCE OF CHARITY HOSPITAL

The trial court, after hearing the evidence, reached the following conclusion concerning the hospital's care of the child:

The fault of the hospital however lies in their failure to properly attend to Leslie Ann Snell after the vaginal bleeding was discovered. The child's debilitated state caused the blood loss to have a more detrimental effect upon her health and life span that it would, had she been an otherwise healthy child.

The Court believes that the negligence of Charity Hospital in its failure to adequately control the bleeding and its failure to transfuse Leslie Ann Snell contributed to and hastened the otherwise certain death of the child.

Appellant contends that this finding was erroneous in light of the evidence presented at trial. We do not agree.

The court heard the testimony of experts for both sides. Plaintiff's expert testified solely on the basis of Leslie's medical records. He focused on hematocrit readings, which indicate the volume of blood relative to total fluid volume in the body. His conclusion was that the child sustained a twenty-percent drop in blood volume as a result of the vaginal laceration, and that in his opinion, this acute blood loss was the final cause of death. He also testified that a transfusion should have been ordered when the child's blood loss became apparent.

Appellant called several experts to testify, including the doctors who treated Leslie after the bleeding was reported. They testified that a uterine pack was placed on the laceration approximately 1 1/2 hours after the bleeding was discovered. The record supports a finding that there was substantial bleeding both before and after the pack had been put in place. However, appellant's experts did not feel that excessive bleeding was the cause of death. They attributed the low hematocrit readings to a combination of kidney failure and pneumonia which caused an increase in the amount of fluids retained by the body. They reasoned that these circumstances led to a low hematocrit reading because the volume of blood appeared low in relation to the increased amount of other fluids Leslie's body was retaining.

While this appears to be a plausible explanation for the low readings, it did not convince the trial judge, who gave more weight to the testimony of the plaintiff's expert. Such a conclusion should not be disturbed on appeal in the absence of manifest error. Schackai v. Tenneco Oil Co., 436 So.2d 729 (La.App. 4th Cir.1983) writ denied 440 So.2d 759 (La.1983); Succession of Godefroy, 428 So.2d 550 (La.App. 4th Cir.1983).

We have carefully reviewed the record, and find no manifest error in the trial court's determination that Charity Hospital's treatment of the laceration was negligent. The record supports the trial judge's conclusion that Leslie should have been transfused, given her generally debilitated condition and the amount of blood she had lost.

PAIN AND SUFFERING

Appellant next contends that the award of $50,000.00 for the child's pain and suffering was manifestly erroneous. The thrust of this argument is that, in her semi-comatose state, Leslie could not feel pain and did not suffer.

If it is shown that a person is most probably unconscious when he suffers a fatal injury, the survivors are not entitled to recover for the decedent's pain and suffering. See: Daniels v. Conn, 382 So.2d 945 (La.1980) and Harrell v. Empire Fire and Marine Insurance Co., 449 So.2d 1177 (La.App.2d Cir.1984).

In Harrell, supra, the burden of proof in such a case was stated in this way:

Plaintiffs had the burden of proving by a preponderance of the evidence that the decedent was conscious following the impact and before he drowned. See Chausse v. Southland Corp., 400 So.2d 1199 (La.App. 1st Cir., 1981), writ den., and McDaniel v. Welsh, 234 So.2d 833 (La.App. 1st Cir.1970), writ ref. 449 So.2d at 1179.

When that burden is not met, damages for a decedent's pain and suffering should not be awarded.

The present case presents the somewhat unusual situation of a semi-comatose decedent suffering injury. Experts for both plaintiff and defendant agreed that this was Leslie's condition during the period leading to her death. The record shows that she responded to some external stimuli by involuntary muscle movements. The experts were divided as to whether these responses were an indication that Leslie could feel as well as react. Taking these factors into account the trial court found:

It would be impossible to determine with certainty whether or not Leslie Ann Snell suffered any pain as a result of the lacerations and bleeding. The testimony was that although comatose, she may have suffered some pain or sensation of pain. She was unable to express herself in that regard. The Court feels that she did, in fact, sustain some sensation of pain as a result of her injuries and bleeding and the Court includes its valuation of that pain and suffering in its award. (Reasons for Judgment, 2)

Given the record before us, we find that the trial court did not commit manifest error in determining that the child "sustained some sensation of pain", however, we find the amount he awarded to be excessive.

In determining the appropriateness of an award, we may...