The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
17-1039
KAY HANAGRIFF, INDIVIDUALLY, ETC., ET AL.
VERSUS
PREFERRED PROFESSIONAL INSURANCE COMPANY, ET AL.
**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2012-2388
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE
**********
JOHN D. SAUNDERS
JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Van H. Kyzar, Judges.
AFFIRMED.
Daniel E. Broussard, Jr.
Broussard, Halcomb & Vizzier
429 Murray Street, Suite 3
P. O. Box 1311
Alexandria, LA 71309-1311
(318) 487-4589
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Kay Hanagriff
Kay Hanagriff, o/b/o Abigail Frick
Alexa Yanez
Elizabeth Fontenot Shea
J. Gregory Bergstedt
Fraser, Wheeler, Bergstedt & Courtney, LLP
4350 Nelson Road
Lake Charles, LA 70605
(337) 478-8595
COUNSEL FOR DEFENDANTS/APPELLEES:
Preferred Professional Insurance Company
Shondra L. Smith, M.D.
SAUNDERS, Judge.
This is a case involving a medical malpractice action. Plaintiff instituted an
action against her physician and the physician’s professional liability insurance
carrier (collectively “Defendants”), alleging that Defendants breached the
applicable standard of care in the care and treatment of Plaintiff on September 22,
2008.
On March 2, 2015, this case came before a jury. After a four-day trial, on
March 5, 2015, the jury rendered a verdict adverse to Plaintiff.
On March 26, 2015, Plaintiff filed a Motion for Judgment Notwithstanding
the Verdict, Or in the Alternative, Motion for New Trial. The motion was heard on
June 2, 2017. Judgment was rendered denying the motion on June 21, 2017.
Plaintiff now appeals that judgment. Her argument is that Defendants failed
to furnish Plaintiff with diligent and skillful care; failed to adequately monitor
Plaintiff given her expressed symptoms to ensure that she did not fall from the
examination table while under Defendants’ care; failed to exercise the requisite
amount of care and supervision that Plaintiff’s condition required; failed to take
reasonable steps to promote continuity of appropriate medical care of Plaintiff; and
failed to exercise the reasonable degree of skill and competency ordinarily
employed by members of the medical profession practicing in the same specialty
as Defendants.
FACTS AND PROCEDURAL HISTORY:
On September 22, 2008, Plaintiff, Kay Hanagriff (“Ms. Hanagriff”),
underwent two punch biopsies at the office of Shondra L. Smith, M.D. (“Dr.
Smith”), a dermatologist. During the procedure, Ms. Hanagriff advised Dr. Smith
that she felt queasy, and Dr. Smith instructed Nurse Mindy Walling (“Nurse
Walling”), who was assisting her, to place an ice pack on Ms. Hanagriff’s neck,
which she did. Ms. Hanagriff stated that the ice pack was helping and that she was
starting to feel better.
After the procedure, which was completed in approximately five to ten
minutes, Nurse Walling remained in the exam room placing bandages on Ms.
Hanagriff as she continued to talk to her to ensure that she was feeling better; Ms.
Hanagriff confirmed that she was. Prior to momentarily leaving the exam room,
Nurse Walling instructed Ms. Hanagriff to remain lying on the exam table until a
staff member came back to check on her.
Shortly thereafter, Dr. Smith instructed Diana Perry Beaugh, LPN (“Nurse
Beaugh”) to check on Ms. Hanagriff, which she did. Nurse Beaugh noted that Ms.
Hanagriff was “awake, alert and oriented”, and in response to Nurse Beaugh’s
inquiry as to how she was feeling, Ms. Hanagriff stated “I feel much better.” At
that time, Nurse Beaugh informed Ms. Hanagriff that she would have her sit up
with her feet extended for a short period and adjusted the exam table accordingly
to allow Ms. Hanagriff to do so. Prior to leaving the exam room, Nurse Beaugh
warned Ms. Hanagriff not to get off the exam table or try to stand until a staff
member came in to assist her.
Nurse Walling, who was with another patient in the exam room next to the
one Ms. Hanagriff occupied, heard a noise that she described as “metal-on-metal”
which she determined to be the sound of the leg extensions on the exam table being
pushed in. When Nurse Walling entered Ms. Hanagriff’s exam room, she was off
the exam table and appeared to be falling to the floor, so she took Ms. Hanagriff by
the arm and gently assisted her to the floor, where she remained until Dr. Smith
entered the room to evaluate her. When Dr. Smith informed Ms. Hanagriff that she
was going to write a prescription for a CT scan of the head and cervical spine, Ms.
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Hanagriff refused, stating “I just want to go home.” Ms. Hanagriff also repeatedly
stated that she was embarrassed about the situation.
Approximately fifteen to twenty minutes later, Dr. Smith’s office manager
and licensed pharmacist, Cindy Reed (“Ms. Reed”), entered the exam room to take
Ms. Hanagriff’s blood pressure, which was normal. At that time, Ms. Hanagriff
complained that her head hurt when she moved her neck.
Approximately ten minutes later, Dr. Smith instructed her billing manager,
Kissney Traub (“Ms. Traub”), to take Ms. Hanagriff to Women’s & Children’s
Hospital emergency room for further evaluation. Upon their arrival, Dr. Akanbi,
the ER physician, examined Ms. Hanagriff and performed a CT scan of the head
and cervical spine. Those tests revealed no significant abnormalities, except
muscle spasms. Later that day, Dr. Akanbi informed Dr. Smith that he had
prescribed Ms. Hanagriff a muscle relaxer and a soft neck brace, and that she
would be fine.
The following day Dr. Smith called Ms. Hanagriff to check on her status,
and spoke with her mother, who told her that she was sleeping. Later that day, Dr.
Smith placed another call to Ms. Hanagriff’s cell phone and left a message.
On September 26, 2008, Dr. Smith spoke with Ms. Hanagriff regarding her
biopsy results. Ms. Hanagriff reported that her neck was sore, that she was having
trouble sleeping, and that she had been seen by her primary care physician, who
told her that she had a muscle strain. When Dr. Smith asked Ms. Hanagriff
whether she had any bruising, she replied that she did not.
On September 29, 2008, Dr. Smith saw Ms. Hanagriff for the last time. At
that time, Ms. Hanagriff stated that she was still slightly stiff in the neck but had
returned to work.
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On or about September 22, 2009, Ms. Hanagriff filed a complaint with the
Louisiana Patient’s Compensation Fund (“PCF”), requesting a review of the
medical care provided to her by Dr. Smith and her staff on September 22, 2008.
On February 13, 2012, the Medical Review Panel met and rendered a
unanimous opinion in favor of Dr. Smith, finding neither Dr. Smith nor her staff
had breached the standard of appropriate care as charged in Ms. Hanagriff’s
complaint.
On May 31, 2012, Ms. Hanagriff instituted this lawsuit against Defendants.
The case, which was tried before a jury on March 2 through March 5, 2015,
resulted in a verdict adverse to Ms. Hanagriff.
On or about March 26, 2015, Ms. Hanagriff filed a Motion for Judgment
Notwithstanding the Verdict Or, in the Alternative, Motion for New Trial
(“JNOV”). The motion was heard on June 2, 2017. Judgment was rendered
denying the motion on June 21, 2017.
Ms. Hanagriff timely filed a motion for devolutive appeal. Pursuant to that
motion, Ms. Hanagriff is presently before this court alleging five assignments of
error.
ASSIGNMENTS OF ERROR:
1. The jury erred in not finding that the actions of Dr. Smith and
her staff in truth plaintiff, Kay Hanagriff violated the applicable
standard of care.
2. The facts induced at trial do not support the jury’s findings that
Dr. Smith and her staff did not breach the applicable standard of
care.
3. The facts induced at trial is a matter of law shows that the
procedures used by Dr. Smith and her staff constituted
negligence in that they failed to guard against injury to a patient
from a reasonably foreseeable contingency.
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4. The trial court erred in denying plaintiff’s Motion for Judgment
Not Withstanding the verdict Or, In the Alternative, Motion for
New Trial.
5. The jury erred in failing to render a verdict in favor of plaintiff,
Kay Hanagriff in awarding the damages that she sought.
ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE:
We will address assignments of error one, two, and three together as they all
assert that the jury erred in finding that the actions of Dr. Smith and her staff did
not violate the applicable standard of care by failing to guard against injury to a
patient from a reasonably foreseeable contingency. We find no merit to these
contentions.
In Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1276-1277 (La.
1991), (citations omitted), the Louisiana Supreme Court outlined the burden of
proof and appellate standard of review in medical malpractice actions, as follows:
In a medical malpractice action against a physician [T]he
plaintiff must first establish by a preponderance of the evidence that
the doctor’s treatment fell below the ordinary standard of care
expected of physicians in his medical specialty, and must then
establish a causal relationship between the alleged negligent treatment
and the injury sustained. Resolution of each of these inquiries are
determinations of fact which should not be reversed on appeal absent
manifest error. [. . .]
[I]f the trial court or jury’s findings are reasonable in light of the
record reviewed in its entirety, the court of appeal may not reverse,
even though convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently. . . . [W]here there are
two permissible views of the evidence, the factfinder’s choice
between them cannot be manifestly erroneous or clearly wrong.
In Sharpentier v. LAMMICO Ins. Co., 606 So.2d 83, 87 (La.App. 3 Cir.
1992), (citations omitted), this court stated:
The law does not require perfection in medical diagnoses and
treatment. On the contrary, a doctor’s professional judgment and
conduct must be evaluated in terms of reasonableness under the then
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existing circumstances, not in terms of results or in light of subsequent
events. When the alleged negligence of a specialist is at issue, only
those qualified in that specialty may offer expert testimony and
evidence of the applicable standard of care. When the expert opinions
contradict concerning compliance with the applicable standard of care,
the trial court’s conclusions on this issue will be granted great
deference. It is the sole province of the factfinder to evaluate the
credibility of such experts and their testimony.
What is crucial is that our review of the record reveals that the
contemporaneous medical charting and witness testimonies reveal that when Ms.
Hanagriff indicated that she was beginning to feel “queasy or nauseated,” Dr.
Smith recognized the symptoms as a possible pre-syncopal episode, and reacted
appropriately by:
1. Instructing Nurse Walling during the procedure to apply a cold pack
to Ms. Hanagriff’s neck, which resulted in Ms. Hanagriff’s admittance
that she was feeling better;
2. Instructing Ms. Hanagriff after the procedure to lay flat on the exam
table (with leg extensions out), to which she momentarily complied;
3. Instructing her staff to closely monitor Ms. Hanagriff, which they did;
and
4. Advising Ms. Hanagriff not to attempt to get up from the exam table
without assistance, which she disregarded.
Equally crucial is that no one witnessed Ms. Hanagriff’s fall. Nurse Walling
testified that the alleged fall never occurred, but rather, that she assisted Ms.
Hanagriff to the floor. In addition, the contemporaneous medical charting and
witness testimonies further reveal that after Ms. Hanagriff indicated that she was
feeling better, Dr. Smith’s staff reacted appropriately by:
1. Allowing Ms. Hanagriff to semi-elevate herself after she admitted that
she was feeling better;
2. Continuing to closely monitor Ms. Hanagriff to ensure that she
progressively continued to feel better, which she repeatedly confirmed
that she was feeling better;
3. Continuing to caution Ms. Hanagriff not to attempt to get up from the
exam table without assistance, which she ultimately disregarded;
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4. Only momentarily leaving Ms. Hanagriff alone in the exam room and
only after Ms. Hanagriff repeatedly confirmed that she was feeling
better;
5. Immediately coming to Ms. Hanagriff’s assistance when it became
apparent that she was attempting to get up from the exam table
unassisted.
To sustain her burden in this case, Ms. Hanagriff called medical expert Dr.
Pearson G. Lang, Jr., a board certified dermatologist practicing in Charleston,
South Carolina, who testified as follows:
Q. All right. Do you have an opinion as to whether or not
Dr. Smith and her staff met the standard of care in
dermatology?
A. Well, I think the problem was that when they placed Mrs.
Hanagriff in a sitting position rather than being there
monitoring her. First of all, I would’ve checked the
blood pressure from the beginning, which I don’t think
was done, at least the records don’t indicate that, but that
bring [sic] aside, when she put in a semi-sitting position
things can change and so they can go from feeling okay
until [sic] feeling queasy again or light-headed and that
being the case somebody ought to be in there to monitor
them and not put them in that position and then just walk
out the room.
Dr. Lang’s sole criticism of Dr. Smith’s care of Ms. Hanagriff after the
procedure was that the patient was left alone momentarily when she was (allegedly)
not feeling better:
Q. So in reviewing this case the only criticism you have is
that the patient complained of faintness and was not
feeling well and for a patient like that, they should not
have be [sic] left unattended until it can be reasonable
[sic] ascertained that the patient has recovered
sufficiently to sit up, stand up, ambulate and leave?
A. That’s correct.
To be sure, Dr. Lang’s criticism was based only on Ms. Hanagriff’s own
uncorroborated testimony. Ms. Hanagriff’s testimony, stating that after the
procedure she continued to “feel bad” and that the moment Nurse Beaugh left her
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alone in the exam room, she allegedly felt a “wave of nausea,” began sweating, and
then “everything went black,” contradicts her earlier testimony, in which she stated
that during the procedure she began to feel better after the ice pack was placed on
her neck. Likewise, contrary to her earlier testimony, Ms. Hanagriff then testified
that she had no memory of what happened from the time Nurse Beaugh left the
room momentarily to the time she “came to” and was lying on the floor of the
exam room. In addition, Nurse Walling, who testified that Ms. Hanagriff had not
fallen, but rather, that she had assisted her to the floor to prevent her from falling,
also contradicts Ms. Hanagriff’s testimony that she fell from the exam table.
Contrary to Ms. Hanagriff’s argument, we find that the jury had a clear grasp
of the evidence, and/or lack thereof. The jury did not believe that Dr. Smith and/or
her staff breached the standard of care to guard against injury to Ms. Hanagriff for
a reasonably foreseeable contingency, in this case, an alleged unwitnessed fall.
Rather, the jury correctly concluded that Ms. Hanagriff failed to carry the three-
prong burden of proof: to establish the standard of care ordinarily practiced by
physicians within the specialty of dermatology; a violation by Dr. Smith of that
standard of care; and a causal connection between Dr. Smith’s negligence and Ms.
Hanagriff’s alleged injuries. As such, we find that the contemporaneous medical
charting and the testimony of Dr. Smith and her staff, as well as the testimony of
Dr. Smith’s expert witnesses, provide a reasonable basis for the jury’s findings.
Accordingly, we affirm the trial court’s ruling on these issues.
ASSIGNMENT OF ERROR NUMBER FOUR:
In her fourth assignment of error, Ms. Hanagriff contends that the trial court
erred in denying her Motion for Judgment Notwithstanding the Verdict Or, in the
Alternative, Motion for New Trial. We find no merit to this contention.
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In Guillory v. Progressive Ins. Co., 12-1284, pps. 10-11 (La.App. 3 Cir.
7/3/13), 117 So.3d 318, 326 (citations omitted), this court stated:
A motion for JNOV should be denied if there is evidence
opposed to the motion of such quality and weight that reasonable
persons in the exercise of impartial judgment might reach different
conclusions. In making this determination, all reasonable inferences or
factual questions should be resolved in favor of the non-moving party.
The rigorous standard for granting a motion for JNOV is based on the
principle that “[w]hen there is a jury, the jury is the trier of fact.” A
motion for JNOV should be granted only when the evidence points so
strongly in favor of the moving party such that reasonable men could
not reach different conclusions.
The jury had the opportunity to hear evidence from Dr. Smith and her
witnesses, including her expert witness, as well as from Ms. Hanagriff, her treating
physicians, and her expert witnesses. They analyzed the medical records and
returned a unanimous verdict finding that the evidence presented at trial did not
support the finding that Dr. Smith and her staff breached the applicable standard of
care in the care and treatment of Ms. Hanagriff. Great deference must be given to
the trier of fact’s findings. It cannot be said that the evidence points so strongly in
favor of the moving party such that reasonable men could not reach different
conclusions. The jury was reasonable in its determination.
The testimony of Dr. Smith and her witnesses, including her expert witness,
was corroborated by the medical records in evidence and clearly contradicted the
testimony of Ms. Hanagriff. The medical records indicated that Ms. Hanagriff
stated on more than one occasion that the ice pack provided to her during the
procedure was helping, that she was feeling better, and she was showing objective
signs of improvement (her color was coming back, etc.). In contrast, there is
nothing documented in the contemporaneous chart by anyone that Ms. Hanagriff
continued to feel “queasy” after the procedure, or that she was complaining of
“waves of nausea”, or that she was sweating. In fact, according to the evidence in
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the record, Ms. Hanagriff’s condition was just the opposite after the procedure. As
Dr. Smith and her witnesses testified, Ms. Hanagriff continued to improve as Dr.
Smith and her staff continued through the step-by-step protocol pursuant to office
policy and the applicable standard of care. As such, we find that the trial court
properly denied Ms. Hanagriff’s JNOV.
ASSIGNMENT OF ERROR NUMBER FIVE:
In her fifth assignment of error Ms. Hanagriff contends that the jury erred in
failing to render a verdict in her favor and in failing to award the damages that she
sought. Our findings in assignments of error numbers one through four, that the
actions of Dr. Smith and her staff did not violate the applicable standard of care in
the care and treatment of Ms. Hanagriff, pretermits this assignment of error.
CONCLUSION:
Kay Hanagriff asserts five assignments of error as to why the trial court
and/or jury erred in finding that the actions of Dr. Smith and her staff did not
violate the applicable standard of care by failing to guard against injury to Ms.
Hanagriff from a reasonably foreseeable contingency; by failing to grant Ms.
Hanagriff’s Motion for Judgment Notwithstanding the Verdict Or, in the
Alternative, Motion for New Trial; by failing to render a verdict favorable to Ms.
Hanagriff; and in failing to award the damages that she sought. Finding no merit
to Ms. Hanagriff’s first four assignments of error, we affirm the trial court and/or
jury’s rulings on these issues. Our findings in assignments of error numbers one
through four pretermits a finding in assignments of error numbers five that the jury
erred in failing to render a verdict in favor of Ms. Hanagriff, and in failing to
award damages. Accordingly, we affirm the trial court’s ruling on this issue.
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Costs of these proceedings are assessed to Ms. Kay Hanagriff.
AFFIRMED.
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