The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CW03-332
BILLY A. BROWNING, ET AL.
VERSUS
WEST CALCASIEU CAMERON HOSPITAL
**********
ON APPLICATION FOR SUPERVISORY WRITS FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NUMBER 2002-0060
HONORABLE ALCIDE JOSEPH GRAY, DISTRICT JUDGE
**********
BILLIE COLOMBARO WOODARD
JUDGE
**********
Court composed of Billie Colombaro Woodard, Michael G. Sullivan, and Billy
Howard Ezell, Judges.
WRIT DENIED.
Steven Broussard
Broussard & Hart, L.L.C.
1301 Common Street
Lake Charles, Louisiana 70601
(337) 439-2450
Counsel for Plaintiff/Respondent:
Billy A. Browning
P. Scott Jolly
Watson, Blanche, Wilson & Posner, L.L.P.
505 North Boulevard
Baton Rouge, Louisiana 70821
(225) 387-5511
Counsel for Defendant/Applicant:
West Calcasieu Cameron Hospital
WOODARD, Judge.
The Defendant, West Calcasieu Cameron Hospital, asserts that the trial court
should have granted its motion for summary judgment because the Plaintiffs did not
submit evidence sufficient to support a medical malpractice claim. We deny the
Defendant’s writ.
*****
On June 1, 1999, Mrs. Jewell Browning and her husband, Mr. Billy Browning,
drove into Lake Charles to see a movie. According to Mr. Browning, his wife
complained of pain in her left arm and shoulder on the way to the movie theater. He
asked her if she needed to go to the hospital, but she allegedly responded: “Oh, it’s
just bursitis.”
After the movie, they visited their daughter, Theresa Helton. At Theresa’s
house, they talked for a little while with Theresa and her husband. Afterwards, they
went to visit their other daughter, Patricia Stump. On the way to Patricia’s house, they
stopped by Burger King, where Mrs. Browning had a Whopper and a soda. Soon after
they arrived at her house, Patricia asked her mother if she wanted to go for a short
walk around the neighborhood. On the way back to the house, Mrs. Browning told
Patricia that she was not feeling well.
When they got back to the house, Patricia remembered her mother saying “she
was weak and hot.” Patricia asked her if she wanted to go to the hospital, but she
refused. Patricia called for an ambulance at 7:28 p.m. when her mother began
throwing up.
It took approximately three minutes for an ambulance dispatched from West
Calcasieu Cameron Hospital (WCCH) substation to arrive at the scene. The two
ambulance attendants, Chris Weaver and Brent Andrepont, were EMT-Paramedics
certified in CPR and ACLS (Advanced Cardiac Life Support). Chris was the driver
of the ambulance, and Brent “took the lead.” According to Chris, they “work as a
team,” but Brent did most of the interacting with Mrs. Browning and her family.
The initial ambulance-run-report Brent filled out indicates that Mrs. Browning
needed an ambulance because she was experiencing “Syncopal Episodes” with nausea
1
and vomiting. During his deposition, he noted that “Syncopal” simply meant passing
out or fainting. Another section of the report states the following:
Present Finding: Upon arrival found 57 year-old caucasian female
seated on couch. Noted vomitus on floor. Patient stated had eaten
burger from Burger King approximately one hour prior to going for a
walk. Patient denied any chest pain or any medical history. Patient
stated that when she returned to the house, she became dizzy, light-
headed, and nauseated. Husband stated he assisted her to the floor in
kitchen. Patient’s skin cool and diaphoretic [or sweaty]. Patient AOX3.
Patient stated she felt she was fine after vomiting. Blood pressure was
taken[.] . . . Patient again stated felt fine and refused transport to hospital
for evaluation.
Brent explained that “AOX3” meant that, upon their arrival, Mrs. Browning was “alert
and oriented times three, person, place, and time.”
In addition to the symptoms listed in the report, Patricia alleges that her mother
informed the paramedics that “she was having a hard time breathing.” Mr. Browning
also asserts that he told one of the paramedics on the scene that his wife felt a pain
earlier that day in her left arm and shoulder.
When Brent and Chris arrived on the scene, Brent assessed the situation and
took Mrs. Browning’s pulse. However, according to Patricia and Mr. Browning,
Patricia had to ask them to take her mother’s blood pressure before Chris actually did
so. After she vomited, Mrs. Browning told the paramedics she felt better, but Patricia
noticed that “her face was growing pale.” Then, Brent asked her about her medical
history, after which he told Mrs. Browning that she probably suffered a heat related
injury.
Mr. Browning said the paramedics kept telling his wife: “You’re going to be
all right, Mrs. Browning.” When Brent asked for permission to transport her to a
hospital, she refused. Even though there is conflicting testimony regarding the total
number of times and the manner in which he asked her this, Mrs. Browning clearly
refused any and all attempts made by the paramedics to transport her to a hospital.
Next, Brent asked Mrs. Browning to sign a form to document the fact that she
refused transport. After the paramedics left, Patricia helped her mother into the
bathtub. Mrs. Browning returned to the living room after her bath and laid down on
the couch. Within a couple of minutes, she was gasping for breath and shaking.
Patricia immediately called for an ambulance. The second ambulance-run-report
2
indicates that it was 8:00 p.m. when Chris and Brent returned. The second report also
states the following:
Present Finding: Upon arrival found 57 year-old caucasian female lying
supine on couch pulseless [and hardly breathing]. No CPR in progress.
Patient had been dizzy and nauseated earlier this evening. Patient moved
to the floor. Cardiac monitor shows ventricular fibrillation. Patient is
pale and [sweaty] but warm. Negative abdomen distention. Patient is
incontinent. Pupils equal at four millimeters and non-reactive. No
available history or findings at present.
Immediately, they placed Mrs. Browning on a cardiac monitor. At 8:06 p.m.,
the monitor recorded ventricular fibrillation which, according to Brent, meant her
heart was “just quivering” and lost its normal rhythm. They started CPR and shocked
her once. At 8:08 p.m., her regular heart rhythm had returned and her pulse
progressively got better. They transported her to St. Patrick Hospital, where she died
the following morning at 4:00 a.m. from a heart attack.
On November 22, 1999, the Plaintiffs filed a complaint with the Patient’s
Compensation Fund. On July 25, 2001, after reviewing all assertions of liability, a
medical review panel unanimously held that the evidence presented did not support
a conclusion that Chris Weaver, Brent Andrepont, or WCCH failed to comply with
the appropriate standards of care.
On August 1, 2001, the Brownings filed a petition for damages with the trial
court. They alleged that WCCH is liable for their EMTs’ negligence: (1) in not
obtaining and documenting Mrs. Browning’s refusal according to WCCH’s protocols;
(2) in failing to warn her of the potential seriousness of her medical condition; (3)
in failing to place her on a cardiac monitor on the first run; (4) in failing to transport
her to a hospital on the first run; (5) in failing to assess her medical condition
properly and completely; and (6) for any other acts of negligence proven at a trial on
the merits.
WCCH responded by filing a pleading titled: “Exceptions of Non-Conformity,
Improper Cumulation, No Right or Cause of Action, Res Judicata, Alternative Motion
for Summary Judgment.” The trial court determined that it should treat all of these
claims as a single motion for summary judgment, which the court denied on February
10, 2003.
3
WCCH appeals, asserting that the trial court erred: (1) by failing to rule that
it is entitled to immunity under La.R.S. 40:1233; (2) by not finding that the
Brownings must produce expert evidence to substantiate a medical malpractice claim;
and (3) in failing to rule that Mrs. Browning waived her claims and those that her
family could raise on her behalf.
*****
STANDARD OF REVIEW
Appellate courts generally review motions for summary judgment de novo,
under the same criteria governing the trial court’s consideration of the appropriateness
of summary judgment.1 Therefore, we must conduct a de novo review of the record
to determine if its denial of summary judgment was proper.
SUMMARY JUDGMENT
A summary judgment is appropriate only “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show that
there is no genuine issue as to material fact, and that mover is entitled to judgment as
a matter of law.”2
Louisiana Code of Civil Procedure Article 966 provides the standard for
considering motions for summary judgment. The 1996 amendments to that article and
the post-amendment jurisprudence clearly suggest that summary judgment grants are
now favored. Specifically, La.Code Civ.P. art. 966(C) provides:
(1) After adequate discovery or after a case is set for trial, a
motion which shows that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if
the movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant’s
burden on the motion does not require him to negate all essential
1
Potter v. First Fed. Sav. & Loan Ass’n of Scotlandville, 615 So.2d 318
(La.1993).
2
La.Code Civ.P. art. 966(B); Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96),
685 So.2d 691, 694, writ denied, 97-281 (La. 3/14/97), 690 So.2d 41.
4
elements of the adverse party’s claim, action, or defense, but rather to
point out to the court that there is an absence of factual support for one
or more elements essential to the adverse party’s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of material fact.
In Hayes v. Autin,3 this court determined that the burden to show that no
material issues of fact exist remains with the movant, but this burden shifts to the
adverse party once the movant has made a prima facie showing that the motion should
be granted. However, “[i]f qualifying evidence is submitted in opposition to a motion
for summary judgment which creates a dispute as to a genuine issue of material fact,
the motion for summary judgment should be denied.”4
IMMUNITY
Louisiana Revised Statutes 40:1233(A) provides:
(1) Any emergency medical person certified pursuant to the
provisions of this Subpart who renders emergency medical care to an
individual while in the performance of his medical duties and following
the instructions of a physician shall not be individually liable to such an
individual 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 an individual. Nothing herein shall relieve the driver of
the emergency vehicle from liability arising from the operation or use of
such vehicle.
(2) The immunity granted to emergency medical personnel by the
provisions of this Subpart shall extend to parish governing authorities,
police departments, sheriffs’ offices, fire department, or other public
agencies engaged in rendering emergency medical services and its
insurers with respect to such emergency medical services unless the
emergency medical personnel employed by such agencies would be
personally liable under the provisions of Paragraph (1) of this
Subsection.
3
Hayes, 685 So.2d 691.
4
Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 19 (La. 2/29/00),
755 So.2d 226, 237.
5
(Emphasis added.) Thus, our legislature gave emergency medical personnel immunity
from liability only under certain circumstances. In order for the immunity to apply,
the EMT must: (1) render emergency medical care to an individual while in the
performance of his medical duties, and (2) he must be following the instructions of
a physician.5 Nevertheless, the immunity from liability does not apply, inter alia, to
grossly negligent acts or omissions that result in harm to an individual.
WCCH believes it is entitled to immunity for their paramedics’ actions, even
though Chris and Brent admit that they had no direct contact with a physician while
on the first ambulance run. Notwithstanding, WCCH asserts that Chris and Brent
were acting under indirect medical direction, which is equivalent to following the
instructions of a physician.
In Ambrose v. New Orleans Police Department Ambulance Service,6 the fourth
circuit found two EMTs to be following the instructions of a physician when they
acted according to protocols or a prescribed set of instructions which physicians of the
Orleans Parish Medical Society had established. Thus, the Ambrose court held that
an EMT who followed established protocols while in the performance of his medical
duties could only be liable for intentionally harmful or grossly negligent acts or
omissions.7 The court further held that the two EMTs involved were grossly
negligent.8
In that case, our supreme court reversed, holding that the fourth circuit’s finding
of gross negligence was clearly wrong.9 However, it obviously agreed with the fourth
circuit’s assertion that the plaintiffs must prove that the defendants were grossly
negligent in order to recover in light of the limited immunity provided to these EMTs
who were acting pursuant to protocols. On this issue, our supreme court stated:
5
Kyser v. Metro Ambulance, Inc., 33,600 (La.App. 2 Cir. 6/21/00), 764 So.2d
215, writ denied, 00-2212 (La. 10/27/00), 772 So.2d 650.
6
627 So.2d 233 (La.App. 4 Cir. 1993).
7
Id.
8
Id.
9
Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099 (La. 7/5/94),
639 So.2d 216.
6
In order to prevail, plaintiffs must prove that the EMTs owed a
duty to [the decedent], that the EMTs’ acts or omissions caused his death
or were the cause in fact of [his] 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.[10]
No one claims that Chris and Brent’s actions were intentionally designed to
harm Mrs. Browning; thus, we will focus on the remainder of the standard.
Chris and Brent were rendering emergency medical care to Mrs. Browning
while performing their medical duties. However, before they are granted the limited
immunity La.R.S. 40:1233 provides, WCCH must prove that they actually followed
the instructions of a physician given to them indirectly through WCCH’s standing
protocols.
During his deposition, Brent stated that the EMTs are “supposed to pass on
everything” to a doctor. He explained:
You have . . . direct and indirect medical direction. Direct would
be direct communication [via] radio and phone. Your indirect is your
standard order or procedure, protocols. Your guidelines on how you
usually practice.
....
. . . You work under either your indirect or your direct medical direction.
WCCH argues that Chris and Brent were following the instructions of a
physician on the first ambulance run because they were following established
protocols before and after Mrs. Browning refused transport to a hospital. Brent
acknowledged that WCCH’s requires its EMTs to learn and know these protocols.
However, the Brownings have produced solid evidence to support their claim that
Chris and Brent did not follow the hospital’s protocols for obtaining and documenting
a patient’s written refusal on the first ambulance run.
Specifically, WCCH requires their paramedics to complete an
“Acknowledgment of Patient’s Refusal of Care” form in order “[t]o provide
10
Id. at 219.
7
documentation of a patient’s refusal of care for themselves or a member of their
family.” According to WCCH’s protocols for executing this form, the paramedics
must “[r]emember that this form is a legal document and should be completed in its
entirety. This document should be completed and then read to the patient and then
signed by the patient.” (Emphasis added.) The form states:
I admit that the above refusal is against the advice of the personnel of
West Calcasieu Cameron Hospital Ambulance Service who have advised
me of the dangers which may result from my refusal including, and not
limited to the following: ____________________________________
________________________________________________________
________________________________________________________
______________________________________________________.
I realize that my refusal may cause or increase danger to myself or the
patient. Nevertheless, I assume the risk and accept the consequences of
my refusal.
Furthermore, I do forever release and give up any claim, demand or
action against West Calcasieu Cameron Hospital Ambulance Service,
and any and all persons employed by or responding with any fire unit,
rescue squad, police or ambulance unit, and do hereby covenant and
agree to hold such persons and entities harmless from any claim,
demand, loss or action, by myself, the patient, or any person claiming by
or through myself or the patient for any alleged act or omission in the
care or treatment of the patient in compliance with the refusal. This
release is binding on my heirs, executors, and assigns.
(Emphasis added.)
In the blank, Brent filled in: “Advised to suck on ice chips, take a tepid water
bath to cool down and relax.” Under this, Chris later wrote: “Possible heat related
disorder versus syncope of unknown etiology versus possible cardiac problem.”
According to Brent, Chris filled this information in after Mrs. Browning signed it.
Conversely, Chris maintains that he included this notation before they asked her to
sign the refusal form.
Brent admitted that he did not read the refusal form “word for word” to Mrs.
Browning before she signed it, but he did remember advising her of what was stated
in the form. Specifically, he testified: “I advised her that this was a release from
medical responsibility. She had already been advised of the possibilities of what we
were looking at. . . . [T]o me it presented as a heat related injury.” Therefore,
regardless of when Chris filled in the disputed language on the refusal form, Brent
8
made it clear that he did not remember advising her of the fact that she may have a
heart related condition.
When Brent was asked if he told Mrs. Browning her condition could be life
threatening, he responded: “I don’t recall telling her that.” This is consistent with the
testimony of Patricia who believes the paramedics should have told her mother that
she was “possibly having heart problems.” Mr. Browning also remembered the
paramedics telling his wife “that it was heat related.” In fact, Chris is the only person
on the scene who recalls any type of discussion that could have suggested to Mrs.
Browning or her family that she might have something other than a heat related
disorder. Chris alleges that he told her she may have a heart condition and that it
could be life threatening, but no one else, including Brent, substantiates this.
WCCH’s protocol also states that their employees are to “list a detailed list of
possible injuries, illness, and outcomes of refusal of care or transport.” (Emphasis
added.) Thus, if Brent’s memory is correct, the refusal form Mrs. Browning signed
contained no warning, whatsoever, since he simply “advised [her] to suck on ice
chips” and to “[t]ake a tepid water bath to cool down and relax.” Even after Chris
added the disputed language to the refusal form, it still lacked any advice concerning
specific possible dangers or “outcomes of [her] refusal of care or transport.”
The established protocol further states that the people who witness the
completion of the form “should be someone other than ambulance personnel.” Chris
and Brent were the only people who signed as witnesses to the form. This is
obviously a clear violation of WCCH’s written guidelines, given that they could have
easily asked others on the scene to witness the completion of the form.
WCCH also required Chris and Brent to use all their efforts to “convince” Mrs.
Browning that she needed to seek medical treatment and/or transport. WCCH’s rules
state: “All effort to convince the patient to seek medical treatment and/or transport
should be exhausted before the refusal form is attempted.” However, when Brent was
asked if he tried to convince her to go to a hospital, he answered:
It is not my job to convince you. All I’m there . . . to do is to inform you
of the possible injury or medical condition that you have. And if you are
coherent enough and you can make your decision . . . it’s your decision
whether you consent to . . . [being] treated and transported.
9
Mr. Browning was asked whether the paramedics recommended to his wife that
she go to the hospital. He answered: “They didn’t recommend it. They just asked her
if she wanted to go.” When his daughter, Patricia, was asked if the paramedics tried
to convince her mother to go to a hospital, she said: “No.”
Given the foregoing factual disputes, it would be improper for this court to
decide whether these EMT’s adhered to WCCH’s protocols. Therefore, it is up to the
trier of fact to resolve this issue at a trial on the merits.
BURDEN OF PROVING A MEDICAL MALPRACTICE CLAIM
The claimant has the burden of proving the validity of their medical malpractice
claim. Louisiana Revised Statutes 9:2794(A) provides:
[T]he plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of
care ordinarily exercised by physicians, dentists, or chiropractic
physicians licensed to practice in the state of Louisiana and actively
practicing in a similar community or locale and under similar
circumstances; and where the defendant practices in a particular specialty
and where the alleged acts of medical negligence raise issues peculiar to
the particular medical specialty involved, then the plaintiff has the
burden of proving the degree of care ordinarily practiced by physicians,
dentists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or
skill or failed to use reasonable care and diligence, along with his best
judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or
the failure to exercise this degree of care the plaintiff suffered injuries
that would not otherwise have been incurred.
Thus, according to La.R.S. 9:2794(A), any medical malpractice claimant must
establish, by a preponderance of the evidence: (1) the defendant’s standard of care;
(2) the defendant’s breach of that standard of care; and (3) a causal connection
between the breach and the claimant’s injuries.11
11
Pfiffner v. Correa, 94-924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228.
10
EXPERT TESTIMONY
WCCH submits that the Brownings must produce expert evidence to prove their
medical malpractice claim. Accordingly, WCCH believes the trial court should have
granted it a summary judgment given the Brownings’ failure to present expert
testimony regarding: (1) WCCH’s standard of care; (2) the hospital’s violation of
that standard of care; and (3) the causal connection between its alleged negligence
and the Plaintiff’s injuries.
Expert Testimony on the Standard of Care and Breach of That Standard
Louisiana Revised Statutes 9:2794(B) gives any party to a suit the right to
subpoena any physician, without his or her consent, for a deposition or testimony at
trial to establish a health care provider’s standard of care. However, the statute is
silent on the necessity of experts.
In Pfiffner v. Correa,12 our supreme court pointed out that while a majority of
Louisiana courts have held that expert testimony is necessary, others have held that
it is not absolutely required. The latter merely state that the standard of care and a
breach of that standard are “best determined from the testimony of other experts in the
field.”13 Therefore, such testimony is persuasive, but not always needed.14
The jurisprudence has recognized various situations that do not necessitate
medical malpractice plaintiffs to proffer expert evidence.15 The Pfiffner court listed
a few examples:
Expert testimony is not required where the physician does an obviously
careless act, such as fracturing a leg during examination, amputating the
wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a
sponge in a patient’s body, from which a lay person can infer negligence.
Failure to attend a patient when the circumstances demonstrate the
serious consequences of this failure, and failure of an on-call physician
to respond to an emergency when he knows or should know that his
presence is necessary are also examples of obvious negligence which
12
Id.
13
Id. at 1233 (quoting Broadway v. St. Paul Ins. Co., 582 So.2d 1368, 1373
(La.App. 2 Cir. 1991)).
14
Id.
15
Id.
11
require no expert testimony to demonstrate the physician’s fault.
Likewise, where the defendant/physician testifies as to the standard of
care and his breach thereof, or the alleged negligence consists of
violating a statute and/or the hospital’s bylaws, (violation of LSA-R.S.
40:2113.4 which imposes a duty on a hospital to make emergency
services available to all persons in the community without regard to
income or insurance protection and hospital bylaws establishing duties
for on-call physicians), expert testimony is also unnecessary to establish
a malpractice claim.[16]
(Emphasis added.) Thus, the trier of fact does not need expert testimony to establish
a defendant’s standard of care nor does it need expert testimony to determine whether
the defendant breached that standard when the medical and factual issues are such that
the trier of fact could perceive negligence in the charged defendant’s conduct as well
as any expert could, or when objective evidence, including the defendant’s testimony,
demonstrates a breach of the standard.17 However, if the matter does not involve an
instance of obvious negligence, the plaintiff must establish the standard of care and
its breach through the testimony of an expert witness.18
WCCH’s protocols give their EMTs certain guidelines to follow when
procuring a patient’s refusal. These protocols clearly provide the applicable standard
of care WCCH expected Chris and Brent to use on the first ambulance run. Therefore,
under the circumstances, the Brownings did not need to proffer expert evidence on
that issue.
In Landry v. Clement,19 this court held that a hospital’s negligence could be
inferred when the claimants establish that the hospital’s employees clearly violated
the hospital’s written rules, regulations, bylaws, or policies.
The objective evidence and testimony of the witnesses support the Brownings’
contention that Chris and Brent failed to adhere to the hospital’s protocols on
obtaining and documenting a patient’s refusal. Furthermore, if proven, the EMTs’
failure to observe WCCH’s established protocols is evidence of their obvious
16
Id. at 1233-34 (citations omitted).
17
Id.
18
Thomas v. Southwest La. Hosp. Ass’n, 02-645 (La.App. 3 Cir. 12/11/02), 833
So.2d 548, writ denied, 03-476 (La. 4/25/03), 842 So.2d 401.
19
97-852 (La.App. 3 Cir. 4/15/98), 711 So.2d 829, writs denied, 98-1281, 98-
1331 (La. 6/26/98), 719 So.2d 1061, 719 So.2d 1288.
12
negligence. Consequently, the trier of fact does not need an expert’s assistance to
understand that this alleged failure constitutes negligence.
Therefore, we find that the Brownings, even without the submission of expert
testimony, presented sufficient evidence to establish that they could satisfy their
evidentiary burden of proving WCCH, through its EMTs, breached its standard of care
at a trial on the merits.
Expert Testimony on Causation
The Plaintiffs must demonstrate by a preponderance of the evidence that a
causal nexus exists between WCCH’s fault and Mrs. Browning’s death. The Pfiffner
court noted that there are “cases in which there are obvious unnecessary delays in
treatment which constitute medical malpractice and where causation is evident.”20
Furthermore, our supreme court recognized that the factfinder does not always need
expert testimony to prove that a patient’s death is causally connected to an
unreasonable delay in diagnosis and treatment of that patient.21
Moreover, in Estate of Adams v. Home Health Care of Louisiana,22 the supreme
court recently set aside an appellate court’s ruling granting a healthcare provider
summary judgment when the plaintiff did not provide expert testimony to prove the
defendant’s negligence (failing to call the attending doctor when the condition
worsened) caused the damages (amputation). Our supreme court found such evidence
to be unnecessary and, thus, explained:
Causation is an issue of fact that is generally decided at the trial
on the merits. As the dissenting judge on the intermediate court noted,
the admitted negligence clearly caused some damages, even if it merely
hastened the amputation by one day. Plaintiff’s damages for pain and
suffering during the period of negligence, for aggravation of her medical
condition, and for loss of any chance of saving her foot or of delaying
the amputation is more appropriately decided by trial on the merits, even
if plaintiff’s case regarding the amount of damages is considerably
weakened by the dearth of expert testimony.[23]
20
643 So.2d at 1234.
21
Id.
22
00-2494 (La. 12/15/00), 775 So.2d 1064.
23
Id. at 1064-65.
13
(Emphasis added.)
Chris admitted that Mrs. Browning’s refusal to go to the hospital might have
jeopardized or compromised her health. He also acknowledged that he believed her
ventricular fibrillations occurred between the first and second ambulance run.
During his deposition, Brent was asked whether, in hindsight, he thought Mrs.
Browning was having a heart attack or a forerunner to a heart attack when he
examined her on the first ambulance run. He answered: “After looking at this and
knowing what happened, she possibly could be.” In addition, both paramedics
recognized that if they had taken her to the hospital on that first run, she would have
been placed on a cardiac monitor that could have detected the presence of any heart
condition immediately. Moreover, while it is true that Brent denied this, Mr.
Browning remembers Brent telling him: “Mr. Browning, we messed up. We should
have transported your wife the first time and I’m really sorry.”
Thus, whether Chris and Brent’s failures, including their failure to adhere to
WCCH’s protocols and their alleged failure to inform Mrs. Browning of the
possibility that she may have a heart condition, bear a causal connection to her
eventual death is an inappropriate question at the summary judgment stage.24
We find the Brownings’ failure to proffer expert evidence to prove causation
unimportant at this stage in the proceedings, even though, ultimately, its absence may
weaken their case, since the delay in diagnosing and treating Mrs. Browning’s heart
condition was surely a factor in bringing about her eventual demise. Clearly, she
would have received immediate emergency medical care for her heart condition much
sooner if she had agreed to transport.25
Thus, we find that the Brownings did not need to present expert testimony to
prove the existence of a causal connection between WCCH’s alleged negligence and
Mrs. Browning’s death.
WAIVER
24
See Id. See also Parker v. Harper, 01-548 (La.App. 3 Cir. 10/31/01), 803
So.2d 76.
25
See Estate of Adams, 775 So.2d 1064.
14
WCCH alleges that Mrs. Browning waived her claims and any claims brought
on her behalf against the hospital by signing the refusal form presented to her by the
paramedics on the first ambulance run.
Louisiana Civil Code Article 2046 provides a general rule of construction that
“[w]hen the words of a contract are clear and explicit and lead to no absurd
consequences, no further interpretation may be made in search of the parties’ intent.”
As a general rule, the intent of the parties is determined from the four corners of the
written instrument, and a court will ordinarily find extrinsic evidence inadmissible
either to explain or to contradict the terms of the instrument.26
However, extrinsic evidence can be considered to determine what differences
the parties intended to settle when disputes over the scope of a compromise agreement
arise.27 Moreover, the courts have recognized exceptions to this rule’s application
when substantiative evidence is presented establishing either: (1) the releasor was
mistaken as to what she was signing, even though fraud was not present; or (2) the
releasor did not fully understand the nature of the rights she released or did not intend
to release certain aspects of her claim.28
Further, La.Civ. Code art. 3073 explains that a compromise agreement
regulates, only, those differences the parties clearly comprehend, unless the
differences are the necessary consequence of what is expressed in the agreement. It
further mandates that a compromise agreement cannot be extended to those
differences the parties never intended to be included in the agreement. In Brown ex
rel. Brown v. Drillers, Inc., our supreme court noted:
In applying the rule of construction set forth in LSA-C.C. Art.
3073, courts are guided by the general principle “that the contract must
be construed as a whole and in light of attending events and
circumstances.” Thus, the intent which the words of the compromise
instrument express in light of the surrounding circumstances at the time
of execution of the agreement is controlling.[29]
26
Brown ex rel. Brown v. Drillers, Inc., 93-1019 (La. 1/14/94), 630 So.2d 741.
27
Ortego v. Dep’t of Transp. & Dev., 96-1322 (La. 2/25/97), 689 So.2d 1358.
28
Wiley v. Rapides Reg’l Med. Ctr., 02-1439 (La.App. 3 Cir. 6/12/03), 847
So.2d 752.
29
630 So.2d at 748 (citation omitted); Ryland v. St. Mary’s Residential Training
School, 03-27 (La.App. 3 Cir. 4/30/03), 843 So.2d 1237.
15
(Emphasis added.)
The refusal form, itself, reveals crucial omissions which are at the heart of
informed consent, and, thus, on its face, vitiates the same; namely:
I admit that the above refusal is against the advice of the personnel of
West Calcasieu Cameron Hospital Ambulance Service who have advised
me of the dangers which may result from my refusal including, and not
limited to the following:
________________________________________________________
________________________________________________________
________________________________________________________
(Emphasis added.) Chris and Brent never included on Mrs. Browning’s refusal form
the specific possible dangers or possible outcomes that might result from her refusal
of care or refusal of transport, thus, her signature on this refusal form does not
evidence her waiver of claims against WCCH.
Furthermore, WCCH adopted strict rules for their EMTs to follow when
attempting to obtain a patient’s refusal. The evidence and testimony presented suggest
that Chris and Brent failed to adhere to all of them. In addition, we documented a few
of the many factual issues that are still in dispute regarding the procedures they used
to procure Mrs. Browning’s signature on the refusal form. As such, the trier of fact
must first attempt to resolve some of these issues and, only after this is done, can there
be an enlightened ruling on whether Mrs. Browning, in light of attending events and
circumstances, could have clearly comprehended the nature of the rights she
released.30
Thus, we find that this issue is not conducive to summary judgment.
30
See Brown ex rel. Brown, 630 So.2d 741.
16
CONCLUSION
Considering the many factual disputes, the trial court correctly denied the
Defendant’s motion for summary judgment. We decline the writ and assess all costs
to the Defendant-Applicant.
WRIT DENIED.
17