142 So. 3d 40
La. Ct. App.2014Background
- Infant Alex Ducre, Jr., born at 35 weeks 6 days, developed jaundice within ~37 hours after premature membrane rupture; neonatology consult recommended CBC monitoring but no infection occurred during hospitalization.
- Nurse observed jaundice ~9:00 p.m. the night before discharge but did not notify attending Dr. Waring; Dr. Waring examined the infant the next morning, noted mild jaundice, and discharged the infant with instructions to follow up and use indirect sunlight.
- Three days after discharge the infant was lethargic with marked jaundice; admitted with bilirubin of 44.8, underwent unsuccessful exchange transfusion, suffered multiorgan failure, and died of kernicterus.
- Plaintiffs obtained a medical review panel: first panel split (one member found breaches), second panel found no deviation from standard of care. Plaintiffs sued Dr. Waring and Slidell Memorial Hospital; trial judge credited plaintiffs’ expert (Dr. York) and awarded $50,000 each to mother, father, and "Estate." Judge found breaches by Dr. Waring and by hospital nurses (failure to report jaundice and other issues).
- On appeal the court: affirmed liability and awards against Dr. Waring (but adjusted interest accrual date), reversed judgment against Slidell Memorial Hospital for lack of proven causation, and vacated the award to the non-party "Estate." Appellate court apportioned appeal costs and denied remand for fault allocation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Waring breached standard of care by not ordering pre-discharge bilirubin and inadequate discharge follow-up instructions | Dr. York: premature infant with early jaundice required bilirubin test before discharge and closer follow-up; failure caused or contributed to death | Dr. Waring and defense experts: 2000 standard did not require routine bilirubin for a 48-hour near-term infant with minimal jaundice; her exam was appropriate | Court upheld trial judge’s credibility choice favoring Dr. York and affirmed judgment against Dr. Waring (breach and causation found) |
| Whether hospital breached standard of care by nurses failing to report observed jaundice and abnormal vitals | Plaintiffs: nurses should have notified physician of early jaundice and elevated respirations; omissions contributed to death | Hospital: plaintiffs failed to show notification would have changed treatment or outcome; causation lacking | Court found record supported breach for failure to report jaundice and respirations but reversed judgment against hospital because plaintiffs failed to prove causation (no evidence notification would have changed care) |
| Whether parents (Washington) bore comparative fault for relying on hospital instead of calling pediatrician | Defendants: Washington should have called pediatrician when condition changed | Washington: she called hospital per prior care and followed instructions and scheduled follow-up | Court found no abuse of discretion; assigned no fault to Washington |
| Proper recipient and timing of damages/interest (award to "Estate" and accrual date for legal interest) | Plaintiffs sought survival award and interest from original filing with medical review board | Defendants: challenged improper award to non-party estate and interest timing | Court vacated award to non-party estate (survival action belongs to parents), and amended interest to accrue from date complaint naming Dr. Waring was filed (May 15, 2002); concurrence would have used original filing date with board |
Key Cases Cited
- Pfiffner v. Correa, 643 So.2d 1228 (La. 1994) (elements and expert-proof rule in medical malpractice)
- Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La. 1991) (appellate standard for review of factual findings)
- Adams v. Rhodia, Inc., 983 So.2d 798 (La. 2008) (deference to factfinder when credibility choices presented)
- Graf v. Jim Walter Homes, Inc., 713 So.2d 682 (La. App. 1 Cir.) (1998) (trier-of-fact resolves conflicting expert testimony)
- Smith v. State through Department of Health & Human Resources Administration, 523 So.2d 815 (La. 1988) (elements for hospital liability in malpractice)
- Burton v. Foret, 498 So.2d 706 (La. 1986) (legal interest accrual when petition amended to add defendants)
- Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La. 1982) (solidary obligor interruption of prescription and interest principles)
- LeBouef v. Gross, 506 So.2d 879 (La. App. 1 Cir.) (1987) (application of Burton principles to interest accrual)