Rоsa Mae AMBROSE, et al. v. NEW ORLEANS POLICE DEPARTMENT AMBULANCE SERVICE, et al.
Nos. 93-C-3099, 93-C-3110 and 93-C-3112.
Supreme Court of Louisiana.
July 5, 1994.
Rehearing Denied September 15, 1994.
639 So. 2d 216
CALOGERO, Chief Justice.
David Wallace Oestreicher, II, James E. Uschold, Oestreicher & Hackett, Richard Allen Thompson, Thompson & Lavender, Hon. Mack E. Barham, Robert E. Arceneaux, Gail N. Wise, Barham & Arceneaux, Margaret E. Bradley, for respondent.
Lawrence S. Kullman, David Robert Jefferson, for amicus curiae, Trial Lawyers Ass‘n.
CALOGERO, Chief Justice.*
In this wrongful death and survival action against two New Orleans Police Department emergency technicians asserting gross negligence, which purportedly reduced a heart attack victim‘s chance of survival, a jury in Civil District Court, Orleans Parish, rendered a verdict for plaintiff, and the сourt of appeal affirmed. Plaintiffs were required to prove gross negligence, not negligence alone, because of the qualified statutory immunity afforded emergency medical technicians by
What prompted the Court‘s granting the writ sought by Duncan Lill, Timothy Dodson, and the City of New Orleans were two considerations: (1) the set of facts surrounding the incident suggested the likelihood that, even giving proper deference to the
The facts in the case are not in dispute. Wilton J. Ambrose, Jr., a fifty-eight-yeаr-old man with a history of diabetes, circulatory and respiratory problems, awoke at approximately 1:45 a.m. in the morning of July 18, 1983, “not feeling well.” About 2:00 a.m., Mr. Ambrose told his wife to call to the house his two adult daughters, Gail Ray and Linda Thomas, and their husbands. Gail Ray and her husband, Willie, arrived first about ten minutes later and helped Ambrose from the bathroom to the bedroom, where they sat him on a chair. Ambrose told Ms. Ray that he wanted an ambulance and oxygen. Ms. Ray called two ambulances, one from Medic One and one from the New Orleans Police Department (“NOPD“). An NOPD ambulance run report reflects that the call came in at approximately 2:57 a.m. Linda Thomas and her husband, Hudson, arrived at the Ambrose house about that time.1 The Medic One ambulance arrived at approximately 3:00 a.m., shortly after Medic One had arrived. The Medic One emergency medical technicians (“EMT“) were certified only as basic EMTs, whereas the NOPD EMTs, Timothy Dodson and Duncan Lill, were certified as intermediate EMTs. National EMT operating procedures mandate that where both basic and intermediate personnel are available, the intermediate EMTs are to take over. Accordingly, NOPD EMTs Lill and Dodson took charge at the Ambrose house. After being apprised by Medic One that they had been unable to obtain an adequate medical history or vital signs, Dodson sought to take Mr. Ambrose‘s vital signs, and Lill questioned the family members present as to the patient‘s medical history.
While Dodson continued to try to find a pulse sufficient to take Ambrose‘s blood pressure, Lill brought in the ambulance stretcher. Lill determined that the stretcher could not make the turn from the living room to the bedroom, where Mr. Ambrose was seated in a chair.2 Gail Ray and Linda Thomas suggested the stretcher could be brought thrоugh the kitchen into the bedroom, but Lill said the stretcher would not fit through the doorway or maneuver the corridor. Lill admitted that he made no attempt to get the stretcher through the door, but rather made the judgment that it would not fit. Lill suggested that the two sons-in-law lift Ambrose under his arms and walk him to the stretcher, approximately ten to twelve steps away. Once Ambrose was situated on the stretcher, with the oxygen tank between his legs, he was placed in the ambulance, and the stretcher was secured. Mr. Ambrose then stopped breathing, and his son-in-law, Hudson Thomas, who was a respiratory therapist, began CPR, while Lill inserted an esophageal obdurator into the airway, using an ambao bag, to respirate Mr. Ambrose. The ambulance arrived at Jo Ellen Smith Hospital somewhere between 3:20 and 3:24, approximately four to five minutes after leaving the Ambrose house. Mr. Ambrose expired and was pronounced dead at 3:52 a.m.
Plaintiffs, Mrs. Ambrose, Gail Ray, Linda Thomas, and Warren Ambrose3 filed a
Liability of the EMTs Lill, Dodson, and the City of New Orleans, operator of the NOPD Ambulance Service, is governed by
Any basic, intermediate, or paramedic medical technicians certified pursuant to the terms of this Part who render emergency medical care to a person while in the performance of his medical duties and following the instructions of a physician shall not be individually liable to such a person for civil damages as a result of acts or omissions in rendering the emergency medical care, except for acts or omissions intentionally designed to harm, or for grossly negligent acts or omissions which result in harm to such person....
The immunity granted herein to basic, intermediate, and paramedic еmergency medical technicians by the provisions of this Part shall extend to parish governing authorities, police departments, sheriffs’ offices, fire departments, or other agencies engaged in rendering emergency medical services and its insurers with respect to such emergency medical services unless the emergency medical technician employed by said agencies would be personally liable under the provisions of Paragraph 1.
In order to prevail, plaintiffs must prove that the EMTs owed a duty to Ambrose, that the EMTs’ acts or omissions caused his death or wеre the cause in fact of Ambrose‘s loss of a chance of survival, and that the EMTs’ acts or omissions were either intended to inflict harm or were grossly negligent. It is not enough for plaintiffs to prove simply that the EMTs acted negligently. Plaintiffs here must prove that defendants’ actions or omissions were grossly negligent or intentionally designed to harm. The law, as required by the above quoted statute, thus accords emergency medical personnel a limited immunity from civil damages.
Louisiana courts have frequently addressed the concept of gross negligence. Gross negligence has been defined as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” State v. Vinzant, 200 La. 301, 7 So.2d 917 (La. 1942). Gross negligence has also been termed the “entire absence of care” and the “utter disregard of the dictates of prudence,
After all the evidence had been presented, the trial judge charged the jury. Near the beginning of the charge, she instructed that plaintiffs had to prove by a preponderance of the evidence the “negligence” of defendants and that the death was caused by defendants’ “fault.” She thereupon distinguished between direct and circumstantial evidence. In discussing proximate cause, she referred to a more likely than not burden to prove that the “negligence” or “fault” of defendants played a substantial part in causing the injury suffered by plaintiffs, then later referred to “a wrongful act” and “establish[ing] negligence or liability.” Sandwiched between the various references to plaintiffs’ burden to prove “negligence,” the court read to the jury
In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), this Court held that the court of appeal should not upset the factual findings of a trial court absent manifest error or unless clearly wrong. A proper review, therefore, cannot be “completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record established that the finding is not clearly wrong.” Id. at 1333. More recently, regarding this constitutional appellate review of fact in civil cases,
Notwithstanding the Court‘s earlier guidance to reviewing courts in Stobart v. State through DOTD, 617 So.2d 880 (La. 1993), it was not our purpose in that case to mandate that the trial court‘s factual determinations cannot ever, or hardly ever, be upset. Although deference to the factfinder should be accorded, the court of appeal, and the Louisiana Supreme Court, nonetheless have a constitutional duty to review facts.5 Of course, the reviеwing court may not merely decide if it would have found the facts of the case differently. Rather, notwithstanding the belief that they might have decided it differently, the court of appeal should affirm the trial court where the latter‘s judgment is not clearly wrong or manifestly erroneous. Because the court of appeal has a constitutional function to perform, it has every right to determine whether the trial court verdict was clearly wrong based on the evidence, or clearly without evidentiary support.6
We revert here to the plaintiffs’ case in support of their preponderance burden to establish gross negligence on the part of the EMTs. Plaintiffs’ contention regarding gross negligence was that the EMTs failed to take the stretcher to Mr. Ambrose. Each plaintiff testified that Mr. Ambrose was made to walk, assisted by his two sons-in-law, because the EMTs determined that the stretcher could not make the right-hand turn from the living room into the bedroom where Ambrose was sitting in a chair. Gail Ray testified that she told Lill of an alternate route for the stretcher to reach the bedroom and her father, namely that he could take the stretcher into the kitchen, “turn the stretcher and [go] straight intо my parents’ bedroom because it‘s directly in line with the kitchen door.” When asked if the stretcher would have had to make a dog-leg right turn to get into the kitchen, Mrs. Ray answered yes. Mrs. Ray admitted that Lill told her that taking the stretcher through the kitchen and into the bedroom “couldn‘t be done. He said, ‘You can‘t get it through this door, and you can‘t get it through there, just leave it in the living room.‘” It is evident that Lill‘s decision was the result of at least his effort at a reasoned judgment call. He might conceivably have been wrong. But surely he did not act precipitously or arbitrarily or with gross disregard for the consequences. And thеre is no contrary evidence in the record.
Of course, Dr. James Shewmaker, plaintiffs’ expert in pre-hospital care, did testify that “there is no question in [his] mind that a standard ambulance cot or gurney could enter this front door, gone through this opening from the living room into the kitchen area, then turn left [into] the kitchen area, and enter the hallway.” Uncontroverted testimony established that the particular stretcher used by the NOPD Ambulance Service, however, both at the time they were called to the Ambrose house and currently, is six to eight inches longer than the standard stretcher used by other ambulаnce services. When asked why he did not follow the suggestion offered by Mr. Ray to take the stretcher through the kitchen to the bedroom, which would have eliminated the need for Ambrose to walk assisted ten to twelve steps, Lill explained. “I had to accompany Mrs. Ambrose into the kitchen to get the
Defense expert Dr. Norman McSwain, testifying on the appropriate standard of care by EMTs in answering emergency calls, emphatically stated that EMTs must assеss the circumstances faced in each emergency call and make a judgment call as to the best way to get the patient to the hospital. “I expect the EMTs to always think and in thinking they‘ve got to decide what‘s best for their patient with the environment and everything that surrounds them at that time.” He testified that the EMTs should exercise a judgment call about how best to get the patient to the ambulance and that it was not unusual to ask a cardiac patient to be asked to walk or walk with assistance to the stretcher or all the way to the ambulance.
The record does not support a conclusion that the EMTs’ were grossly negligent in their judgment or in any other conduct at the scene of the emergency. Lill and Dodson, having determined that the longer stretcher used by the service could not be taken to Mr. Ambrose so that he could be moved out on the stretcher, made a second judgment call that it would be best for Mr. Ambrose to be brought to the stretcher by his two sons-in-law. Having Mr. Ambrose walk, heavily supported by two grown men, ten to twelve steps under these circumstances does not rise to the level of gross negligence. Nor was any testimony offered at trial unequivocally reciting that these steps taken by Mr. Ambrose, while being all but carried by his sons-in-law, either caused or exacerbated his heart attack.
Plaintiffs also contend that Lill and Dodson spent twenty minutes at the Ambrose house before actually leaving with Mr. Ambrose, allegedly a time so long that it evidences gross negligence. The record reflects some confusion about exactly how long the NOPD EMTs spent at the Ambrose home. Mrs. Ray testified that Lill and Dodson were there for twenty minutes. Hudson Thomas, Mr. Ambrose‘s son-in-law, stated that NOPD was on the scene between fifteen and twenty minutes, and Lill testified that they werе there between ten and fourteen minutes. Even the ambulance run report and the hospital records reflected something different. The ambulance run report states that the emergency call came in at 2:57 a.m., the ambulance arrived at the Ambrose house at 3:00 a.m. and left at 3:20, and arrived at the hospital at 3:24 a.m. The hospital records reflect that the ambulance arrived at 3:20 a.m. Even if we concede the worst-case scenario for defendants—that they were at the Ambrose house for twenty minutes—it does not mandate a finding of gross negligence in favor of рlaintiffs. Additionally, Shewmaker‘s opinion that the EMTs should not have spent more than ten to twelve minutes at the cardiac emergency scene does not alone make plaintiffs’ case. Even Shewmaker conceded that each case is different. Furthermore, these EMTs had numerous tasks to perform: they took vital signs, took a medical history, and started oxygen, all of this in a tense and crowded circumstance. The technicians performed no other unauthorized tasks, and they did not fail to perform the necessary ones. Plaintiffs do not assert that the technicians intentionally acted to harm Mr. Ambrose. Rather, plaintiffs’ allegation is of gross negligence and rests on their assertion that the technicians spent too long at the scene before taking Mr. Ambrose to the hospital—twenty minutes instead of ten to twelve. When asked if there is a recognized standard or guideline that establishes the length of time EMTs should spend at a cardiac emergency site, Shewmaker responded: “I don‘t know of anyone in this field that would attempt to set a time. You can‘t cookbook the delivery of hospital care.
Plaintiffs’ expert Shewmaker discussed the importance of using caution in assessing a patient‘s symptoms and medical history before beginning to administer oxygen, because respiratory patients receive one level of oxygen while cardiac patients receive a higher level. To administer a higher level of oxygen to a respiratory patient could be fatal. Accordingly, it was very important for Lill and Dodson to determine accurately both Mr. Ambrose‘s symptoms and his medical history. Where the plaintiffs’ own expert (on whom plaintiffs relied to establish that spending twenty minutes constituted gross negligence) postulated on the one hand that no more than ten to twelve minutes should have been spent at the Ambrose home, but admitted on the other hand that each case is different and that no standard guideline has been established precisely because each case is different, Lill and Dodson cannot fairly be said to have been guilty of gross negligence. The plaintiffs failed to prove by a preponderance of the evidence that Lill‘s and Dоdson‘s actions constituted gross negligence. The actions of the EMTs do not exhibit willful, wanton, or reckless conduct amounting to “complete neglect of the rights of others,” nor an “extreme departure from ordinary care,” nor the “want of even slight care.” The decision of the jury and the corresponding judgment of the trial court, finding Lill and Dodson guilty of gross negligence, was clearly wrong.
For the above reasons, we conclude that plaintiffs did not meet their burden of proof at trial that EMTs Lill and Dodson committed gross negligence in their care of Wilton J. Ambrose, Jr. Accordingly, the judgments of the trial court and court of appeal are reversed.
DECREE
JUDGMENTS OF THE COURT OF APPEAL AND THE DISTRICT COURT REVERSED; PLAINTIFFS’ PETITION DISMISSED WITH PREJUDICE AT PLAINTIFFS’ COST.
ORTIQUE, J., concurs in result and assigns reasons.
KIMBALL, J., concurs for reasons assigned by ORTIQUE, J.
LEMMON, J., concurs and assigns reasons.
ORTIQUE, Justice, concurring.
I concur in the result reached by the majority.
It is a question of law whether plaintiffs’ evidence is sufficient to prove gross negligence. Herein, even when all evidence is viewed in the light most favorable to plaintiffs, the trial evidence falls short of minimum legal requirements for proving that the actions of defendant EMTs constituted gross negligence. Because the totality of the evidence relating to gross negligence is legally insufficient, the actual factual findings of the jury on that evidence are immaterial to our appellate review.
LEMMON, Justice, concurring.
I agree with the result rеached by the majority. However, I disagree that the issue of the sufficiency of the evidence should be determined solely by reference to the manifest error rule.
The manifest error rule is a standard used by appellate courts to resolve conflicting factual evidence; it is not a standard for determining sufficiency of the evidence. The manifest error rule relates purely to questions of fact; sufficiency of the evidence, on
In application, the manifest error rule becomes part of the standard for determining sufficiency of the evidence. The reviewing court first resolves any factual conflicts by application of the manifest error rule which dictates that the appellate court should not disturb the express or implied factual findings of the trier of fact.1 Accordingly, the reviewing court views all evidence in the light most favorable to the party who prevailed in the trial court, and then determines whether the evidence, consisting of the undisputed facts and of the disputed faсts thus viewed under the manifest error rules, was sufficient to preponderate in favor of a conclusion that the plaintiff had proved every element of his cause of action.
There were very few factual disputes in the present case, but deference must be accorded to the factfindings of the trier of fact. Using the appropriate standard for determining the sufficiency of the evidence and resolving conflicting factual disputes and inferences of fact in favor of plaintiffs, I conclude that a reasonable juror could not have determined on thе evidence in this record, even when viewed in the light most favorable to plaintiffs, that gross negligence had been proved by a preponderance of the evidence.
Notes
When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court‘s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court‘s better capacity to evaluate live witnesses (as compared with the appellate court‘s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.
Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.
The Louisiana Constitution, article 5, § 5(C), provides:Except as otherwise provided by this constitution, the jurisdiction of the supreme court in civil cases extends to both law and facts.