The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
17-1096
BRENNA ASH MILLER, ET AL
VERSUS
ACADIAN AMBULANCE SERVICE, INC., ET AL
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20126808
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE
**********
CANDYCE G. PERRET
JUDGE
**********
Court composed of Elizabeth A. Pickett, Billy H. Ezell, and Candyce G. Perret,
Judges.
AFFIRMED.
Robert J. David
Walter C. Morison, IV
Kathy A. Rito
Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C.
1100 Poydras St., Suite 2800
New Orleans, LA 70163-2800
(504) 522-2304
COUNSEL FOR PLAINTIFFS-APPELLANTS:
Brenna Ash Miller
Brenna Ash Miller on behalf of the Estate of Richard A. Miller, Jr.
Brenna Ash Miller as legal guardian of minor Skylar Miller
Clint L. Pierson
Pierson Law Firm
5100 Village Walk, Suite 101
Covington, LA 70433
(985) 809-1577
COUNSEL FOR PLAINTIFFS-APPELLANTS:
Brenna Ash Miller
Brenna Ash Miller on behalf of Estate of Richard A. Miller, Jr.
Brenna Ash Miller as legal guardian of minor Skylar Miller
Charles J. Foret
Jason R. Garrot
Briney Foret & Corry, LLP
413 Travis Street, Suite 200
P. O. Drawer 51367
Lafayette, LA 70505-1367
(337) 237-4070
COUNSEL FOR DEFENDANT-APPELLEE:
Northshore EMS, L.L.C.
PERRET, Judge.
Brenna Ash Miller, individually, as the duly appointed guardian of the minor
child, Skyler Miller, and as the individual authorized to make the claim on behalf
of the estate of Richard A. Miller, Jr., appeals the judgment of the trial court that
granted summary judgment in favor of defendant, Northshore EMS, L.L.C., and
dismissed her lawsuit against it with prejudice. For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY:
In this court’s prior opinion, Miller v. Acadian Ambulance Service, Inc., 13-
1269, pp. 1-5 (La.App. 3 Cir. 3/5/14) 134 So.3d 250, 252-254, (footnote omitted)
writ denied, 14-698 (La. 5/16/14), 139 So.3d 1028, this court recited the facts and
procedural history, as follows:
On December 28, 2011, Richard A. Miller, Jr.
(“Mr. Miller”) was involved in a serious motorcycle
accident in Washington Parish. The Northside
[Northshore] Emergency Medical Service (“Northshore”)
responded to a 911 call and transported Mr. Miller to the
Riverside Medical Center (“Riverside”) where he was
attended to by Dr. Barbara Cohn and other Riverside
Emergency Room personnel.
Dr. Cohn determined that Mr. Miller’s condition
was critical. As a result of the accident, he had sustained
extensive internal injuries, which included lacerations of
the lung, heart, and kidney, extensive blood loss, multiple
fractures, and a flail chest, which is a crushing chest
injury due to the fracture of several ribs.
In Dr. Cohn’s opinion, Mr. Miller’s critical
medical condition required her to contact LERN
[Louisiana Emergency Response Network], as Riverside
did not have the necessary level of medical resources to
properly treat Mr. Miller’s injuries. Dr. Cohn’s call to
LERN was the first step in initiating the procedure to
have Mr. Miller transported to a trauma facility equipped
to treat Mr. Miller’s extensive injuries.
LERN was designed to serve as the clearing house
for all of the resources of each medical facility and to
determine which facility is best equipped to treat a
particular patient’s condition. The LERN dispatch center
is staffed with a trained paramedic who receives the
incoming calls, and based on the information provided
from the transferring health care provider, LERN makes
a determination as to the appropriate trauma facility to
treat the injured patient.
The LERN dispatcher informed Dr. Cohn that Mr.
Miller should be transferred to Interim LSU [Interim
LSU Public Hospital]. A call was then placed by a
member of the Riverside staff at 5:36 p.m. to Acadian
[Acadian Ambulance Service, Inc.] to request that a
helicopter be dispatched to Riverside in order to transport
Mr. Miller to Interim LSU.
The recorded telephone conversation between
Riverside and Acadian reflects that Riverside was
informed that due to a required crew change and the need
for refueling of its helicopter, it would be an hour to an
hour and fifteen minutes before Acadian could respond
and arrive at Riverside to transport Mr. Miller. The
Riverside staff member indicated to the Acadian
dispatcher that if this period of time was not acceptable
to Dr. Cohn, he would call back. No call canceling the
helicopter transportation of Mr. Miller was received, and
the Acadian helicopter arrived at Riverside at 7:08 p.m.,
some seventeen minutes after the anticipated arrival time.
Once the determination by LERN was made to
transport Mr. Miller to Interim LSU, Dr. Cohn began the
testing on Mr. Miller required by Interim LSU prior to
his transport by Acadian. Upon arrival at Riverside,
Acadian was not permitted to immediately transport Mr.
Miller as the testing required by Interim LSU was not
complete. Once the testing was completed, Mr. Miller
was cleared for transport at 7:40 p.m., thirty-two minutes
after Acadian’s arrival at Riverside.
Mr. Miller was taken to the aircraft by Riverside
personnel and Acadian’s EMT/paramedic Kimberly
Wesley (“Wesley”). Mr. Miller was loaded and secured
for takeoff. Wesley provided constant critical care
monitoring and medical treatment throughout the
transport, which included placing Mr. Miller on a
ventilator and suctioning his chest tube. Mr. Miller’s
condition rapidly declined right before the helicopter
landed in New Orleans near the Superdome, as Interim
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LSU did not have a helicopter landing pad and the
Superdome site was the closest landing pad to Interim
LSU.
Mr. Miller was then transported by ambulance to
Interim LSU, with the ambulance staff continuing to
attempt to maintain Mr. Miller’s medical status. Mr.
Miller unfortunately died at approximately the same time
as his arrival at Interim LSU at approximately 8:12 p.m.
On December 27, 2012, the Millers timely filed a
medical malpractice complaint with the Division of
Administration and the Louisiana Patient’s
Compensation Fund, naming Interim LSU, LERN, and
Acadian . . . .
On December 27, 2012, the Millers also filed a
petition for damages in the Fifteenth Judicial District
Court, Parish of Lafayette naming LERN and Acadian as
defendants. The Millers’ “First Supplemental and
Amending Petition for Damages,” filed on April 2, 2013,
added three other health care providers as defendants,
Interim LSU, Northside EMS, LLC, Barbara Cohn, M.D.,
and her insurer, Proassurance Specialty Insurance
Company (“Proassurance”).
All health care provider defendants, except
Northside, filed dilatory exceptions of prematurity in
response to the Millers’ petitions. Each asserted they
were qualified health care providers pursuant to the
LMMA [Louisiana Medical Malpractice Act], La.R.S.
40:1299.39 & 40:1299.41. As qualified health care
providers under the LMMA, providing medical care to
Mr. Miller, each claimed to be entitled to have the
Millers’ claims dismissed without prejudice pending
review and notification of an opinion by the MRP
[Medical Review Panel], pursuant to La.R.S.
40:1299.47(A)(2)(a) & (B)(1)(a)(i). In granting the
health care provider defendants’ exceptions, the
exceptors assert that the Millers would not be prejudiced,
as under the LMMA prescription is suspended in state
district court until the MRP sends notification of its
opinion, following which the Millers would have ninety
days to file suit in state district court.
A hearing was held on the health care defendants’
exception of prematurity on July 22, 2013. At the
beginning of the hearing, the dilatory exception of
prematurity filed by Dr. Barbara Cohn and her insurer,
Proassurance, was granted by the trial court without
opposition, and the Millers’ claims as to these defendants
3
were dismissed without prejudice in a separate judgment
signed by the trial court on July 22, 2013. The dismissal
of Dr. Cohn and her insurer is not subject to this appeal.
The hearing on Acadian, LERN, and Interim
LSU’s exceptions of prematurity continued with oral
argument, after which the trial court took the matter
under advisement. The trial court issued its written
reasons for judgment on July 26, 2013, and granted the
exceptions of prematurity dismissing the Millers’ claims
without prejudice for the three remaining health care
provider defendants, Acadian, LERN, and Interim LSU.
A judgment reflecting the trial court’s ruling was signed
on August 15, 2013, and is the source of the Millers’
timely appeal to this court.
On March 5, 2014, this court affirmed the trial court’s judgment that granted
exceptions of prematurity filed on behalf of Acadian, LERN, and Interim LSU,
dismissing without prejudice the claims of Brenna Ash Miller, individually and as
the duly appointed guardian of the minor child Skyler Miller, and the individual
authorized to make the claim on behalf of the estate of Richard A. Miller, Jr.,
(collectively “Plaintiff”) pursuant to the LMMA.
Thereafter, the only claims that remained in this litigation were those against
defendant Northshore. Plaintiff alleges that Northshore was negligent in its
treatment of Mr. Miller by transporting him to Riverside instead of a trauma center,
in failing to train its employees of proper protocols, and that it breached its
agreement with LERN.
On June 22, 2017, Northshore filed a motion for summary judgment alleging
that there were no genuine issues of material fact, and as a matter of law,
Northshore has no liability to Plaintiff for the alleged damages.
In support of its motion for summary judgment, Northshore attached: (1) the
affidavit of the Northshore paramedic, Ashley Harper (“Ms. Harper”); (2) certified
medical records from Riverside pertaining to Mr. Miller; (3) the deposition of Dr.
4
Cohn; (4) the deposition of David Marcus, on behalf of Northshore; (5) the
corporate deposition of LERN; (6) certified medical records from Interim LSU
pertaining to Mr. Miller; (7) Mr. Miller’s autopsy report; and (8) the affidavit of
Dr. Joseph Holley, Jr.
On July 21, 2017, Plaintiff filed an opposition to the motion for summary
judgment alleging that issues exist as to whether Northshore is entitled to civil
immunity under La.R.S. 40:1133.13, and that even if La.R.S. 40:1133.13 is
applicable, material issues of fact exist as to whether Northshore, through “the
actions of its paramedic, Ms. Harper, was grossly negligent in providing
emergency medical services to the decedent, Richard Miller.” Plaintiff argues that
Ms. Harper did not follow proper protocol and “unilaterally decided to bring Mr.
Miller to the local emergency department at Riverside Medical Center because of
his ‘shortness of breath’ and ‘vital signs.’”
In support of her opposition, Plaintiff attached: (1) medical records from
Northshore; (2) the deposition and affidavit of Ms. Harper; (3) the deposition of
Dr. Cohn; (4) excerpts of David Marcus’s deposition, on behalf of Northshore; (5)
portions of the LERN deposition and a copy of the LERN protocol guidelines; (6)
answers to interrogatories; (7) the affidavits of Roy D. Ary, Jr., and Dr. Carl J.
Hauser; and (8) a copy of the Washington Parish Major Trauma Destination
Protocol.
On July 25, 2017, Northshore filed a supplemental memorandum in support
of its motion for summary judgment arguing that Plaintiff’s opposition, with
exhibits, was untimely filed pursuant to the provisions of La.Code Civ.P. art. 966.
On July 26, 2017, Plaintiff filed an ex parte motion to continue the hearing
on the motion for summary judgment stating that “Ms. Miller inadvertently filed
5
her opposition to summary judgment on July 21, 2017, less than fifteen days before
the hearing on this motion, set for July 31, 2017.” Plaintiff requested that the trial
court continue the hearing in order to provide “both parties a fair opportunity to
present their arguments on the issue of liability, and [that a continuance] does not
impact any other procedural deadline established by the court.”
Also on that date, Northshore filed objections to and a motion to strike the
affidavits of Dr. Carl Hauser and Dr. Roy Ary arguing that the affidavits were
untimely and that the opinions of these doctors “concerning Northshore’s breach of
the standard of care for paramedics are not admissible because the doctors are not
qualified to render such opinions.”
After a hearing on July 31, 2017, the trial court denied Plaintiff’s motion for
a continuance, granted Northshore’s objection to Plaintiff’s exhibits and its motion
to strike affidavits, and granted Northshore’s motion for summary judgment,
dismissing Plaintiff’s case with prejudice. On August 9, 2017, the trial court
signed a judgment that memorialized its ruling and further stated “[in] so ruling,
the Court finds it would have ruled the same way even if plaintiff’s exhibits and
affidavits in opposition to the summary judgment were admitted into evidence.”
At the hearing, the trial court gave reasons for granting the summary judgment and
stated, in pertinent part:
Even if I were to consider your affidavits of your expert[,]
it wouldn’t change the fact that there appears to be no
liability on the part of the EMT. She had to fight with
this patient for approximately nine minutes in the
ambulance trying to keep his airway clean. He was
pulling things out -- pulling oxygen off of his face and
pulling IVs out of his arms. Most of the time he was
with a doctor and the doctor didn’t see fit to transfer him
-- I believe in this case we’re talking about to a New
Orleans hospital from Washington, Louisiana. So I don’t
see how that would have made a difference. But they
6
were filed too late, anyway, and I’m not going to allow
them.
Plaintiff now appeals this judgment alleging the following five assignments
of error: (1) the trial court erred in finding that La.R.S. 40:1133.13 provides
Northshore statutory immunity against her negligence claims; (2) the trial court
erred in granting summary judgment in finding that Northshore’s paramedic met
the standard of care in providing emergency trauma treatment to Mr. Miller; (3) the
trial court erred in granting summary judgment based upon its impermissible
credibility determinations, weighing of evidence, and findings of fact to conclude
that summary judgment was appropriate; (4) the trial court erred in granting
summary judgment in finding no genuine issues of material fact existed that
Northshore was grossly negligent in providing emergency trauma treatment to Mr.
Miller; and (5) the trial court abused its discretion in denying her motion to
continue the hearing, despite the fact that her opposition to the motion for
summary judgment was filed five days late.
STANDARD OF REVIEW:
An appellate court reviews a trial court’s granting of a motion for summary
judgment de novo. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d
544. Under this standard of review, the appellate court uses the same criteria as the
trial court in determining if summary judgment is appropriate: whether there is a
genuine issue of material fact and whether the mover is entitled to judgment as a
matter of law. Id. “A fact is ‘material’ when its existence or nonexistence may be
essential to [a] plaintiff’s cause of action under the applicable theory of recovery.”
Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d
730, 751. “[F]acts are material if they potentially insure or preclude recovery,
affect a litigant’s ultimate success, or determine the outcome of the legal dispute.”
7
Id. (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir. 1991),
writs denied, 596 So.2d 211 (La.1992)).
Louisiana Code of Civil Procedure Article 966(D)(1) discusses the mover’s
burden of proof on summary judgments, and states:
The burden of proof rests with the mover.
Nevertheless, if the mover will not bear the burden of
proof at trial on the issue that is before the court on the
motion for summary judgment, the mover’s burden on
the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense,
but rather to point out to the court the absence of factual
support for one or more elements essential to the adverse
party’s claim, action, or defense. The burden is on the
adverse party to produce factual support sufficient to
establish the existence of a genuine issue of material fact
or that the mover is not entitled to judgment as a matter
of law.
DISCUSSION:
The first issue to address is whether the trial court erred in denying
Plaintiff’s motion to continue the hearing on summary judgment and in striking her
evidence in support of the opposition to summary judgment. Although Plaintiff
admits that her opposition and exhibits were not timely filed, she “offered to cure
the prejudice by agreeing to reset the hearing to a date of NSEMS’ [Northshore’s]
own choosing, thus providing it ample time to reply to the opposition.”
Louisiana Code of Civil Procedure Article 1601 provides that “[a]
continuance may be granted in any case if there is good ground therefor.” Under
La.Code Civ.P. art. 1602, a continuance must be granted if “the party applying for
the continuance shows that he has been unable, with the exercise of due diligence,
to obtain evidence material to his case; or that a material witness has absented
himself without the contrivance of the party applying for the continuance.” The
court in Suarez v. Acosta, 15-750, pp. 9-10 (La.App. 5 Cir. 3/16/16), 194 So.3d
8
626, 632 (citations omitted) discussed the trial court’s discretion in granting or
denying a continuance and stated in pertinent part:
In determining whether to grant a continuance, the trial
court must consider the particular facts in each case.
Some factors to consider are diligence, good faith, and
reasonable grounds. The trial court may also weigh the
condition of the court docket, fairness to the parties and
other litigants before the court, and the need for orderly
and prompt administration of justice. A trial court has
great discretion in granting or denying a motion for a
continuance under La. C.C.P. art. 1601, and that
discretion will not be disturbed on appeal in the absence
of clear abuse of discretion.
In this case, Plaintiff did not allege any peremptory grounds for a
continuance. Upon review of the record, and the fact that Northshore has been a
defendant in this case since February 13, 2013, we do not find that the trial court
abused its broad discretion in denying Plaintiff’s motion for a continuance.
Because we find no error in the trial court’s ruling that denied the motion to
continue, we also find that the opposition and exhibits were untimely as they were
filed on July 21, 2017, which was ten days prior to the July 31, 2017 hearing, in
violation of La.Code Civ.P. art. 966(B)(2). As stated in La.Code Civ.P. art.
966(B)(2) (emphasis added):
B. Unless extended by the court and agreed to by
all of the parties, a motion for summary judgment shall
be filed, opposed, or replied to in accordance with the
following provisions:
(1) A motion for summary judgment and all
documents in support of the motion shall
be filed and served on all parties in
accordance with Article 1313 not less
than sixty-five days prior to the trial.
(2) Any opposition to the motion and all
documents in support of the
opposition shall be filed and served in
accordance with Article 1313 not less
9
than fifteen days prior to the hearing
on the motion.
Thus, “[t] he time limitation established by La. C.C.P. art. 966(B) for the serving of
affidavits in opposition to a motion for summary judgment is mandatory; affidavits
not timely filed can be ruled inadmissible and properly excluded by the trial court.”
Buggage v. Volks Constructors, 06-175 p. 1 (La. 5/5/06), 928 So.2d 536, 536.
Accordingly, we find that the trial court did not abuse its discretion when it
followed the mandatory fifteen day rule and properly excluded Plaintiff’s
opposition and exhibits as untimely.
The second issue to address is whether the trial court erred in granting
Northshore’s motion for summary judgment and dismissing Plaintiff’s suit against
it with prejudice. On December 10, 2015, Plaintiff alleged the following
negligence claims against Northshore in its Fourth Supplemental and Amending
Petition, which states, in pertinent part:
66.
Had Northshore EMS properly and timely trained
its employees on how and when to activate LERN, when
it became a part of the LERN network on November 11,
2010, Ms. Harper and Mr. Holcomb would have known
to utilize the LERN network in order to obtain medical
care for Mr. Miller at the appropriate trauma facility.
67.
Petitioner avers that Northshore EMS was
negligent in its failure to train and educate its employees
on the availability and use of the LERN response
network for treating and transporting patients with
traumatic injuries.
68.
Petitioner avers that Northshore EMS’ failure to
train its employees to activate the LERN response
network whenever a patient with traumatic injuries is
encountered constituted a breach of[:] (1) its obligations
to adhere to its own promulgated patient care protocols;
(2) its duties to adhere to applicable written pre-hospital
10
EMS protocols . . . and/or[;] (3) its duties to provide
patients with appropriate care . . . .
69.
Petitioner further avers that Northshore EMS’
negligence in its failure to adhere to its internal protocols,
as well as its applicable duties under the law, was a direct,
proximate cause of the injuries Mr. Miller suffered in this
case, including loss of chance of a better outcome, as
well as those injuries and damages sustained by Ms.
Miller and Skylar, the minor child.
70.
Additionally, Northshore EMS’ failure to
appropriately train its employees regarding their duty to
initiate the LERN response network when providing pre-
hospital services to a trauma patient constitutes a tortious
breach [of] its contract with LERN and/or its agreement
to provide appropriate emergency responses services to
Mr. Miller.
Louisiana jurisprudence employs a duty-risk analysis to resolve ordinary
negligence claims under La.Civ.Code art. 2315. Berthiaume v. Gros, 15-116,
(La.App. 3 Cir. 6/3/15), 165 So.3d 1275. To prevail under a negligence claim, the
plaintiff must prove five elements: “1) that the defendant had a duty to conform
his conduct to a specific standard of care; 2) that the defendant failed to do so; 3)
that the substandard conduct was a cause-in-fact of the plaintiff’s injuries; 4) that
the conduct was a legal cause of the plaintiff’s injuries; and 5) actual damages.”
Id. at 1278. The Louisiana Supreme Court in Lemann v. Essen Lane Daiquiris,
Inc., 05-1095, p. 8 (La. 3/10/06), 923 So.2d 627, 633 stated that “[t]he duty of a
paramedic can be broadly defined as the duty to render appropriate medical care
based on the facts and circumstances of the medical situation with which they are
presented.”
Louisiana Revised Statute 40:1133.13, formerly cited as La.R.S. 40:1233,
also addresses the legal duties that emergency medical technicians owe to patients,
and states in pertinent part:
11
A. (1) Any emergency medical services
practitioner, licensed pursuant to the provisions of this
Part 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.
By enacting La.R.S. 40:1133.13, “the Legislature granted EMTs a qualified
immunity for liability from ordinary negligence claims; this immunity does not
cover intentional or grossly negligent acts or omissions.” Rathey v. Priority EMS,
Inc., 04-0199 p. 32 (La.App. 4 Cir. 1/12/05), 894 So.2d 438, 462, writs denied, 05-
0789 (La. 5/6/05), 901 So.2d 1107; 05-0802 (La. 5/6/05), 901 So.2d 1108. The
Legislature “conditioned this immunity by limiting its application to circumstances
in which EMTs are both (i) rendering emergency medical care to an individual
while in the performance of their medical duties, and (ii) following the instructions
of a physician.” Id. at 461. However, there is a “protocol” exception to the
requirement that the EMT be following the instructions of a physician. As the
court stated in Rathey, 894 So.2d at 462:
Legally, the trial court’s reference to a “protocol”
exception to the requirement that the EMT be following
the instructions of a physician is based on well-settled
jurisprudence. Discussing that exception (although not
calling it an exception), we recently noted that “[i]n
Ambrose [v. New Orleans Police Dep’t Ambulance Serv.,
93-3099, 93-3110, 93-3112 (La. 7/4/94), 639 So.2d
216] ... this court held that an emergency room technician
was considered to have been following the instructions of
a physician, pursuant to R.S. 40:1235(A), whether he had
received those instructions via electronic means or he
was following a ‘protocol,’ defined as a prescribed set of
instructions established by physicians of the Orleans
Parish Medical Society.” Johnson v. Foti, 2002-1995, p.
12
5 (La.App. 4 Cir. 4/9/03), 844 So.2d 1050, 1054.
Likewise, another court defined “protocol” in this context
to mean “a set of medical orders for life-threatening
situations that EMTs encounter on a routine basis, as
established by the Department of Emergency Medical
Services, approved by the parish medical society, and
distributed to hospitals and individual EMTs.”
Falkowski v. Maurus, 637 So.2d 522, 526 (La.App. 1 Cir.
1993).
Although Plaintiff argues that the trial court erred in finding that La.R.S.
40:1133.13 provided Northshore statutory immunity, we see nothing in the
judgment or in the hearing transcript whereby the trial court noted which standard
of care it used in granting the summary judgment. However, even under an
ordinary negligence standard, Plaintiff must prove that Ms. Harper breached the
standard of care applicable to paramedics when she transported Mr. Miller to
Riverside without first calling LERN. Therefore, we will examine the pleadings,
depositions, affidavits, and medical records filed in support of the motion and
make a de novo determination as to whether material facts remain and whether
Northshore is entitled to summary judgment as a matter of law.
In its memorandum in support of the motion for summary judgment,
Northshore explained the services it provides in Washington Parish, Louisiana, and
its agreement with LERN, as follows (footnotes omitted):
Washington Parish is the geographical boundary for
Northshore. Northshore does not have helicopters to
provide air med transport. Each ambulance is staffed
with an EMT basic and a paramedic. Northshore
provides advanced life support services and
nonemergency care.
An EMT basic must pass courses required by the
State of Louisiana and the national curriculum. They are
able to perform advanced first aid, CPR, oxygen
administration, and some basic airway maneuvers.
Paramedics are trained to do everything an EMT basic
can do, but are also trained to perform endotracheal
intubation, and to administer cardiac drugs and pain
13
medications. Northshore’s paramedics are trained to
assess the patient at the scene, and on the trauma
protocols. Northshore paramedics have the discretion to
deviate from the protocols if they feel the patient is
deteriorating.
....
At the time of the accident involving Mr. Miller,
Northshore was a participating pre-hospital provider in
the Louisiana Emergency Response Network (“LERN”).
The participation agreement between Northshore and
LERN states:
When people are in need of time-sensitive
medical care and treatment as a result of
trauma or other emergencies or disasters,
Participating Pre-Hospital Provider
(Northshore) and LERN, acting through the
LERN Call Center [“LCC”] will use best
efforts to facilitate the movement of patients
following LERN Entry Criteria and
Destination Protocols (the “Protocols”), to
the extent these protocols are applicable to a
particular situation . . . . (Emphasis added)
The LERN protocols were drafted and approved
by the LERN board, which includes a physician medical
director.
Attachment A to the participation agreement is the
LERN Entry Criteria which lists the triage protocol of
when LERN should be contacted. The LERN
Destination Protocol attached to the Agreement provides
that when there is a medical emergency involving a
patient with an unmanageable pathway, the patient
should be transported to the closest emergency
department for intervention. The reason for this is
because the patient will need rapid sequence intubation
and the hospital has this capability. Northshore
paramedic, Ashley Harper, was trained by Northshore on
the LERN Entry Criteria and Destination protocols.
Ms. Harper’s affidavit stated that she obtained a National EMS Certification
as a paramedic by the National Registry of Emergency Medical Technicians in
2005. That same year, she became a licensed paramedic in Louisiana and began
working for Northshore as a paramedic. Ms. Harper’s affidavit stated that she and
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EMT basic, David “Forrest” Holcomb, arrived on the scene of the accident
involving Mr. Miller at 3:39 p.m. on December 28, 2011, and she explained her
treatment of Mr. Miller, as follows, in pertinent part:
8.
Mr. Miller’s chief complaint was shortness of
breath and right-sided back pain. His vital signs were
assessed at the scene. His pulse was 133, he had low
blood pressure of 100/50, his respiratory rate was
elevated at 36, and his SaO2 [oxygen saturation] was low
at 69%. I observed he had an abrasion to his chest.” I
observed his skin was pale, cold, and clammy. These are
signs of shock. My clinical impression was motor
vehicle accident, short of breath, and right sided back
pain.
9.
At the scene we gave him oxygen, immobilized his
spine, and put him on a spine board. We also started an
IV of normal saline infusion, performed a blood glucose
check, and connected him to the cardiac/EKG monitor.
The EKG showed he had sinus tachycardia, which is an
elevated heartrate.
10.
We left the scene at 15:51 [3:51 pm]. I was
concerned Mr. Miller had life threatening internal
injuries compromising his ability to breathe. I made the
decision to transport him to Riverside due to his poor
vital signs and shortness of breath. Based on my
evaluation of him and his vital signs, he needed
immediate intervention at an emergency department to
prevent an unmanageable airway. He needed intubation
to maintain an open airway and to provide oxygen to his
lungs. Because he was conscious, intubation could have
only been performed at a hospital. I chose to transport
him to Riverside because it was the hospital with the
closest emergency department where he could be
intubated and stabilized.
11.
Based on my observations and treatment of Mr.
Miller, he appeared to be in a lot of pain and was highly
agitated. His agitation was likely due to his shortness of
breath and not remembering what happened. During the
trip to Riverside he was constantly moving his arms and
trying to remove the IV and oxygen. During the trip I
repeatedly tried to calm him down and had to hold his
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arms down and straight to prevent the IV from corning
out and to prevent him from harming himself by
removing his IV and oxygen. Due to these circumstances,
I did not have time to place a call to LERN.
12.
We arrived at Riverside at approximately 16:00
[4:00 p.m.]. The trip from the accident scene to the
hospital was approximately 6.8 miles.
13.
The services, treatment, and procedures provided
to Richard Miller by Northshore were at all times
consistent with the national EMS education standards and
were consistent with my training and education as a
paramedic.
The deposition of Chris Hector, the administrative director of LERN, stated
that he is a medic who supervises and oversees the LERN communication center.
He testified to the procedures used by EMTs when responding to an emergency
and stated, in pertinent part:
EMS providers in the field arrive at the scene of an
incident and they assess their patient and the accident.
They determine if that patient or the mechanism by
which the accident occurred meets the criteria as defined
in the participation agreement. If the patient does meet
one of those criteria, they would contact the
communication center and then the communication
center would direct them to the closest appropriate
facility based on what’s relayed in that report, what the
patient’s needs may be.
When discussing the LERN Entry Criteria and the Pre-Hospital and Hospital
Triage Protocol, Mr. Hector testified as follows:
Each box is basically its own category. So you have the
top box is [and its] what’s considered an unstable patient
and goes to the closest appropriate -- or the closest
hospital: unmanageable airway; tension pneumo[thorax];
traumatic cardiac arrest; burn patient without patent
airway; burn patient with greater than 40 percent body
surface area without IV.
....
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The top box refers to the closest hospital because
these patients are considered unstable and they’re going
there for immediate emergent stabilization type care.
Mr. Hector repeatedly stated in his deposition that once a medic determines
that a patient has an unmanageable airway, then the proper destination protocol is
for the medic to go to the closest emergency department in order to stabilize the
patient. Mr. Hector also stated in his deposition that the paramedic is not required
to make a phone call to LERN when a patient has an unmanageable airway
because the paramedic’s first concern is treating the patient.
The deposition of David Marcus, the corporate representative for Northshore,
stated that he provides training to EMTs, from the first responders to the
paramedics. Mr. Marcus testified that starting in 2010, Northshore mandated that
all EMTs and paramedics be trained on the LERN protocols and that he has
continually updated the information when the policy changed. He testified that a
paramedic has the sole discretion in determining where a patient needs to go for
treatment. Mr. Marcus testified as follows:
So we base -- from what we see on the scene, what
the patient tells us, what our signs and symptoms are,
based on all the criteria that are built into the protocols –
abdominal trauma, head trauma, chest pain, arm pain,
whatever that is. That’s how we base the course of
treatment and how -- where this patient needs to go.
....
You follow the guidelines that the protocols are,
but we [paramedic’s] have that ability or that discretion
to deviate from some of the protocols if we feel that the
patient is deteriorating . . . .
When asked whether a paramedic should still call LERN when a patient has an
unmanageable airway, Mr. Marcus testified:
If we have time. There are times when we’re in
the back of that ambulance, we got a critical patient; it’s
hard to try to save your [patient’s] life and be -- you
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know, be on the phone at the same time. Sometimes
that’s where that little deviation comes in. I’m not saying
it’s right; I’m not saying it’s wrong. But a lot of times, if
I’m dealing with a severe bleeder or I’m having to do
chest compressions on this person, I don’t have time to
sit and wait because I’m usually the only one in the back
of the truck.
....
Sometimes we do follow up [calls to LERN]
afterwards. You know, take them to the closest facility
because I know I’m in a bind. I don’t have all the tools
that I need in the back of the ambulance. I can take them
to the closest facility, get the initial stabilization, and then
we can activate LERN and say, “Look, I had to do this,”
and then we go from there.
When asked whether it is proper protocol for a paramedic to request the EMT basic
to make that phone call to LERN, Mr. Marcus testified that it is not proper protocol
and that “we try not to do it. There are times when we, you know, have tried a
partner to call, and it still ends up being a mess.” Mr. Marcus further testified that
poor cellular service is another reason why a paramedic may not call LERN. As
stated by Mr. Marcus, “Sometimes I have been on the phone five to ten minutes
trying to give a report . . . . And a lot of times, it’s just continuously repeating
what I [the paramedic] just told them.”
The deposition of Dr. Cohn stated that she was the emergency room
physician at Riverside on the date of Mr. Miller’s accident. When asked what type
of medical services Mr. Miller needed upon his arrival, she responded:
He [Mr. Miller] needed a trauma service. He
needed a blood bank with at least ten units of 0 negative
and the ability to type and cross a patient for type-
specific and patient-specific blood in less than an hour.
He needed the capability for mass transfusion, he
need[ed] anesthesia services[.] . . .
He was not stable.
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When asked whether she contemplated sending Mr. Miller by ground ambulance to
another facility, Dr. Cohn testified that “[e]xactly at that time, the dynamics of the
patient, how the patient looked, . . . I still think that this patient required air
ambulance, and, ah, I think that ground ambulance was inappropriate.”
Further, when Dr. Cohn was asked the reasons for the forty-five minute
delay in having her nurse notify LERN upon Mr. Miller arriving at Riverside, she
responded, in pertinent part:
Patient needed to be assessed. His airway was in
question. He was intubated. Multiple units of blood
were hung. There was an episode where the patient -- I
put down an NG tube. Then the patient vomited. . . . The
patient had catheters placed in him. Uhm, a primary and
secondary survey were -- were performed. Orders were
written. Patient then became quite agitated. I was
holding him down while somebody got medication for
him.
In support of its motion for summary judgment, Northshore also included an
affidavit of Dr. Joseph Holley, an expert in the field of emergency medical
services. After reviewing the Participation Agreement between Northshore and
LERN, the LERN Entry Criteria and Destination Protocols, and Northshore’s
EMS’ Protocols Manual, Dr. Holley testified that:
It is my opinion Ashley Harper did not violate the
standard of care applicable to paramedics. Her treatment
of Mr. Miller was in accordance with the National EMS
Education Standards. Since Mr. Miller had an
unmanageable airway and needed intubation, as well as
aggressive resuscitation interventions, all while
attempting to prevent him from further harming himself,
it is my opinion [that] Ms. Harper followed the LERN
destination protocol and Northshore’s Protocol Manual
when she transported Mr. Miller to Riverside Medical
Center, which was the closest hospital with an emergency
department. Under these circumstances, Ms. Harper did
not have time to call LERN. This is supported by the fact
it took Dr. Cohn and her staff at Riverside 45 minutes to
call LERN after receiving Mr. Miller as a patient and
attempting to stabilize him.
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The evidence attached to Northshore’s motion for summary judgment is the
only evidence we may consider in our review. After a review of the evidence
submitted with Northshore’s motion for summary judgment, we find that
Northshore established that Mr. Miller had an airway emergency that required Ms.
Harper to transport him to Riverside, which was the closest hospital with an
emergency department. The evidence established that Ms. Harper followed
Northshore and LERN’s protocols for when a patient has an unmanageable airway
and properly transported him to Riverside. Accordingly, even under an ordinary
standard of negligence, we find that Plaintiff failed to prove that Northshore,
through its paramedic, breached the standard of care required by paramedics while
treating Mr. Miller.
For the reasons set forth herein, we affirm the trial court’s grant of summary
judgment in favor of defendant, Northshore EMS, LLC. Costs of the appeal are
assessed to the plaintiff, Brenna Ash Miller, individually, as the duly appointed
guardian of the minor child, Skyler Miller, and the individual authorized to make
the claim on behalf of the estate of Richard A. Miller, Jr.
AFFIRMED.
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