Welch v. Willis-Knighton Pierremont
2010 La. App. LEXIS 1585
La. Ct. App.2010Background
- Mrs. Welch died Sept. 4, 1999, ten days after hip surgery at Willis-Knighton Pierremont Health Center; aspiration occurred after a PEG feeding at 6:00 pm Aug. 27, 1999; key issue is whether staff breached duty by not elevating the head of bed to at least 30 degrees during and after feeding; prior to trial, hearsay statements that she had been laid down were disputed; the trial court initially barred dying-declaration testimony but a writ panel allowed it; jury found nursing staff breached standard of care and awarded damages; court dismissed Carrie Lynne Welch for failure to personally appear, which the opinion reverses; the court affirms damages to plaintiffs totaling $478,000 and grants $100,000 to Carrie Lynne Welch while reversing that dismissal; the opinion discusses law-of-the-case and admissibility of dying declarations and note evidence; final judgment: affirmed in part, reversed in part, judgment rendered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of dying declaration | Tedesco statement admissible under 804(B)(2) dying declaration | Statment not meeting dying-declaration criteria; inadmissible | Writ panel correctly admitted Tedesco statement as dying declaration |
| Effect of law-of-the-case on witness testimony | Law-of-the-case requires reconsideration of admissibility ruling | Law-of-the-case forecloses relitigation of issue | Regular panel may reconsider writ-panel ruling if manifest error or injustice; here, reconsideration allowed to resolve admissibility issue? |
| Duty and breach regarding head-of-bed elevation | Record shows bed not raised to 30 degrees; nurse entries support breach | Records equivocal; credibility issues with witnesses | jury could reasonably find breach; trial court’s denial of JNOV/New Trial affirmed |
| Dismissal of Carrie Lynne Welch for non-appearance | Counsel appearance sufficient under law; dismissal error | Statutory rule permits dismissal for non-appearance | Dismissal reversed; Carrie Lynne Welch awarded $100,000 damages |
| Harmlessness of erroneous admission of Mr. Welch note testimony | Note testimony corroborative; error harmless | Testimony prejudicial and not cumulative | Admission deemed harmless error; no reversal based on that evidence |
Key Cases Cited
- Rosell v. ESCO, 549 So.2d 840 (La.1989) (manifest error standard for review of lower court findings)
- Mart v. Hill, 505 So.2d 1120 (La.1987) (standard for reversing trial court findings of fact)
- Dodson v. Community Blood Center of Louisiana, Inc., 633 So.2d 252 (La.App. 1 Cir.1993) (law-of-the-case discretionary limits; reconsideration allowed in some circumstances)
- Turner v. Pelican, 661 So.2d 1065 (La.App. 4 Cir.1995) (discretionary application of law-of-the-case; need for full review on appeal)
- Garza v. Delta Tau Delta Fraternity National, 948 So.2d 84 (La.2006) (dying-declaration elements; timing and content requirements)