Wilfred Allridge and Juanika Allridge v. William H. St. Martin, MD

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 1043
WILFRED ALLRIDGE AND JUANIKA ALLRIDGE
VERSUS
WILLIAM H. ST. MARTIN, MD
J£
Judgment rendered DEC 0 7 2021
On Appeal from the
Thirty -Second Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
No. 178306, Div. " D"
The Honorable David W. Arceneaux, Judge Presiding
David W. Ardoin Attorneys for Plaintiffs/Appellants
H. Carson McKowen Wilfred and Juanika Allridge
Thibodaux, Louisiana
Mark D. Plaisance
Marcus J. Plaisance
Prairieville, Louisiana
Jacob K. Best Attorneys for Defendant/Appellee
Stephen M. Pizzo William H. St. Martin, MD
Metairie, Louisiana
BEFORE: McCLENDON, WELCH, THERIOT, HOLDRIDGE AND
WOLFE, JJ.
jj ('J & (j. 65" w iA reasons
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MCCLENDON, J.
In this medical malpractice action, plaintiffs, Wilfred Allridge and Juanika
Allridge (" the Allridges"), appeal a judgment rendered in favor of defendant, Dr.
William H. St. Martin, dismissing their wrongful death and survival claims with
prejudice. For the reasons more fully discussed herein, we reverse and remand to
the trial court for a new trial.
BACKGROUND
On October 8, 2013, 16 -year- old Caleb Allridge injured his knee at football
practice. His brother, Wilfred " P. J." Allridge, III, brought him to Dr. St. Martin' s
office for evaluation on October 21, 2013. Dr. St. Martin, a family physician,
treated P.J. previously, having served as the team physician at the school where
P. J. played football. During that visit, Caleb' s vital signs were taken, including
blood pressure, heart rate, and weight. All vital signs were normal. Based on his
examination of Caleb' s knee and his suspicion of an anterior cruciate ligament
ACL") tear, Dr. St. Martin scheduled an MRI for Caleb. He also advised him to
take ibuprofen for pain and swelling, to continue using crutches, and to return to
the office in one week to discuss the MRI results.
The MRI was completed on October 29, 2013. On the morning of October
31, 2013, Caleb' s mother, Juanika Allridge, telephoned Dr. St. Martin' s office to
schedule an appointment because Caleb was sick. P. J. accompanied Caleb to the
appointment and was present during Dr. St. Martin' s examination of Caleb. It is
undisputed that neither Dr. St. Martin nor his office staff took or recorded certain
vital signs during the October 31St visit. Dr. St. Martin' s medical assistant recorded
Caleb' s weight but did not check Caleb' s blood pressure, heart rate, or respiratory
rate. Dr. St. Martin also failed to check these vital signs. Dr. St. Martin claimed
that he did, however, examine Caleb' s heart and lungs with a stethoscope, and
2
while he did not record an actual number for Caleb' s heart rate or respiratory rate,
he testified that his examination revealed Caleb' s heart rate and respiratory rate to
be normal at the time of the visit. It is also undisputed that Dr. St. Martin failed to
examine Caleb' s knee at the time of the visit. However, the nature of Caleb' s
complaints to Dr. St. Martin that day, the manner in which Caleb presented to Dr.
St. Martin during the examination, and the extent of Dr. St. Martin' s examination
that day are all disputed. According to Dr. St. Martin, Caleb complained of sinus
problems and Dr. St. Martin' s examination revealed that Caleb had a sinus
infection. P. J., however, stated that Caleb never complained of sinus issues;
instead, P. J. testified that both he and Caleb informed Dr. St. Martin that Caleb was
experiencing shortness of breath.
After leaving Dr. St. Martin' s office at approximately 5: 30 p.m., Caleb' s
family participated in a neighborhood party for Halloween. According to the
family, Caleb stayed inside during the event playing video games. The next
morning, P. J. picked up Caleb and Mrs. Allridge and brought them to Mrs.
Allridge' s parents' home, as Mrs. Allridge was recovering from a surgery and was
not able to care for Caleb. According to P. J., Caleb was gasping for air that
morning and continued to complain of shortness of breath. Later that morning,
Caleb went into the bathroom and collapsed on the floor. Caleb died at 12: 35 p.m.
on November 1, 2013, from a massive pulmonary embolism post -knee injury.
PROCEDURAL HISTORY
The Allridges claimed that Dr. St. Martin' s negligence resulted in the death
of their son, and their malpractice claim was submitted to a Medical Review Panel
MRP). The MRP concluded that there was a material issue of fact, not requiring
an expert opinion, bearing on liability for consideration by a court. Specifically,
the MRP concluded that there was a question of fact as to how Caleb presented to
3
Dr. St. Martin on October 31, 2013. The MRP noted the absence of recorded vital
signs and the discrepancy between the parties regarding Caleb' s respiratory status
at that visit.
Thereafter, the Allridges filed this medical malpractice lawsuit against Dr.
St. Martin. The Allridges alleged that Caleb visited Dr. St. Martin on October 31 St
because he was having difficulty breathing, and despite Dr. St. Martin' s knowledge
of Caleb' s knee injury and the fact that the MRI showed a moderate to large
hemarthrosis ( bleeding) of the left knee, Dr. St. Martin treated Caleb for a cold, did
not conduct even a minimal examination of Caleb, did not take Caleb' s vital signs,
and did not check Caleb' s respiration or heartbeat. The Allridges alleged that Dr.
St. Martin breached the standard of care by, among other things, failing to take
vital signs in a patient seen urgently for shortness of breath and difficulty
breathing, failing to diagnose the pulmonary embolism, failing to undertake
appropriate diagnostic procedures, and failing to treat Caleb for a deep vein
thrombosis ( DVT) and a potential pulmonary embolism. Claiming that Dr. St.
Martin' s breach of the standard of care caused Caleb' s untimely death, the
Allridges sought to recover wrongful death damages pursuant to La. C. C. art.
2315. 2 and Caleb' s own damages pursuant to La. C. C. art. 2315. 1.
A four-day jury trial was held, during which Dr. St. Martin and members of
his staff, numerous medical experts, and members of Caleb' s family testified. The
medical testimony established that Dr. St. Martin failed to take or record certain
vital signs during the October 31St visit and that the failure to take vital signs on a
patient who has a medical condition constituted a breach of the standard of care.
However, the expert testimony was conflicting over whether the failure to take or
record Caleb' s vital signs that day caused Caleb' s death or deprived him of a
chance of surviving the fatal pulmonary embolism. The conflict was rooted in a
CI
determination as to whether Caleb exhibited signs of respiratory distress during Dr.
St. Martin' s examination. The medical testimony established that if Caleb had
exhibited signs of respiratory distress during the visit, then Dr. St. Martin should
have suspected that Caleb would be at risk for developing a DVT or a pulmonary
embolism and should have initiated further medical testing to determine if Caleb
had these conditions, and his failure to do so would constitute a breach of the
standard of care in his treatment of Caleb.
Prior to the conclusion of the evidence, the trial court presented the parties'
attorneys with a proposed jury verdict form, which included specific jury
interrogatories regarding ( 1) whether the jury found Dr. St. Martin breached the
standard of care in his treatment of Caleb; ( 2) whether that breach of the- standard
of care caused Caleb' s death; and ( 3) if so, the damages to which the Allridges
were entitled. The Allridges' attorney objected to the second interrogatory on
causation, arguing that the causation interrogatory should have asked whether the
breach of the standard of care resulted in a loss of the chance of Caleb surviving
the fatal event. The attorney argued that the burden of proving the loss of a chance
of survival was less stringent than the burden of proving wrongful death. Despite
this objection, the jury interrogatory was not altered to include the requested
language.
The court instructed the jury on the causation element of the Allridges'
claims as follows:
In a medical malpractice action a plaintiff does not have to
show that the defendant' s conduct was the only cause of the harm or
that there were no other possible causes, but he must show by a
preponderance of the evidence that he suffered the injury because of
the defendant' s conduct.
Under Louisiana law there may be more than one legal cause of
an injury. In order to prove that Dr. St. Martin' s conduct caused all or
some of the damage claimed, the plaintiffs need only prove by a
5
preponderance of the evidence that Dr. St. Martin' s fault increased the
risk of harm to Caleb Allridge such that it was a substantial factor
causing his death. Dr. St. Martin may be found at fault even if his
fault was not the sole cause of the harm sustained by Caleb Allridge.
If you decide that the plaintiffs have proved their case by a
preponderance of the evidence, you must decide the question of
whether there has been damage to the plaintiffs, and, if so, the amount
of that damage.
If you find that Dr. St. Martin breached his duty to Mr. Allridge
and that the breach of that duty caused Caleb Allridge' s death, then
the plaintiffs are entitled to compensation for the damages sustained
which were caused by the fault of Dr. St. Martin.
Claims have been made in this case by Caleb Allridge' s parents
for their own damages caused by the death of Caleb Allridge. When a
child dies through the fault of another, the law authorizes an award of
what is known as " wrongful death" damages to the parents for their
pain and suffering and loss of love, affection and companionship.
Damages for wrongful death may include compensation for loss of a
chance of survival.
After deliberating, the jury returned a verdict in which it answered " Yes" to
the first question on the verdict form, finding by a preponderance of the evidence
that Dr. St. Martin breached the applicable standard of care regarding his medical
treatment of Caleb. The verdict form instructed the jury to proceed to the second
question if it answered " Yes" to the first question. As to the second question,
which asked, " Do you find that any breach of the standard of care by William H.
St. Martin, MD, caused the death of Caleb Allridge?" the jury answered " No."
The verdict form instructed the jury to not answer any other questions if it
answered " No" to question two, so that concluded the jury' s deliberations. The
verdict form instructed the jury that if it answered " Yes" to the second question, to
proceed to question three, which asked what sums of money, if any, the Allridges
were entitled to recover for each of the following categories of damages: Survival
Damages for Conscious Pain and Suffering of Caleb Allridge; Wrongful Death
Col
Damages for Wilfred Allridge; Wrongful Death Damages for Juanika Allridge; and
Special Damages. Question three did not include a line item for damages for lost
chance of survival. However, since the jury answered " No" to question two
regarding whether the breach of the standard of care caused Caleb' s death, it did
not address question three.
The Allridges filed a motion for judgment notwithstanding the verdict, or
alternatively, a motion for new trial. Therein, they argued that the jury verdict
form precluded the jury from considering whether Dr. St. Martin' s malpractice
resulted in or caused Caleb to suffer a lost chance of survival. The Allridges
claimed that the jury verdict form permitted only a finding as to whether Dr. St.
Martin' s malpractice caused Caleb' s death, which placed an unrealistic burden of
proof on them. According to the Allridges, they presented overwhelming evidence
that Dr. St. Martin caused Caleb to suffer a loss of a chance of survival by failing
to take Caleb' s vital signs on October 31St, and upon finding a breach of the
standard of care, no reasonable juror could have found that Dr. St. Martin did not
reduce Caleb' s chance of surviving the fatal event. They also asserted that the trial
court' s jury instruction that damages could be awarded for loss of a chance of
survival as a component of the wrongful death claim did not cure the fundamental
defect in the jury verdict form.
On October 30, 2018, the trial court signed a judgment denying both
motions. This appeal by the Allridges followed. The Allridges submit that
although the jury correctly found that Dr. St. Martin breached the standard of care
in his treatment of Caleb, the trial court erred by failing to include an interrogatory
as to causation for lost chance of survival on the jury verdict form. They urge that
the jury interrogatories failed to adequately set forth the issues to be decided by
omitting a key legal principle and theory of recovery. Alternatively, the Allridges
VA
posit that, even if a lost chance of survival was not a separate theory of recovery,
the trial court erred in failing to include a damages category for lost chance of
survival.
JURY VERDICT FORM
Pursuant to La. C. C. P. art. 1812, a trial court is given wide discretion in
determining and framing the issues to be posed as special interrogatories, and
absent an abuse of that discretion, a court will not set aside those determinations.
Schram v. Chaisson, 2003- 2307 ( La. App. 1st Cir. 9/ 17/ 04), 888 So. 2d 247, 251.
In reviewing a jury verdict form, this court employs a manifest error, abuse of
discretion test. Townes v. Liberty Mutual Insurance Company, 2009- 2110 ( La.
App. lst Cir. 5/ 7/ 10), 41 So. 3d 520, 527. It is well- settled that a verdict form may
not be set aside unless the form is so inadequate that the jury is precluded from
reaching a verdict based on correct law and facts. Abney v. Smith, 2009- 0794
La. App. lst Cir. 2/ 8/ 10), 35 So. 3d 279, 283, writ denied, 2010- 0547 ( La. 5/ 7/ 10),
34 So. 3d 864. Jury interrogatories must fairly and reasonably point out the issues
to guide the jury in reaching an appropriate verdict. Id. If the verdict form does
not adequately set forth the issues to be decided by the jury, such as omitting an
applicable essential legal principle or is misleading or confusing, such
interrogatories may constitute reversible error. Id.In order to determine whether the jury interrogatory on causation was so
inadequate that it precluded the jury from reaching a correct verdict on the law and
facts in this case, we shall first examine the evidence submitted to the jury.
THE EVIDENCE
The medical evidence established that vital signs include a patient' s weight,
height, blood pressure, pulse rate, respiratory rate, and temperature. Vital signs
also may include pain levels and can include measurement of oxygen saturation in
N.
a patient exhibiting signs of respiratory distress. The evidence also showed that
risk factors for developing a DVT in the lower extremity include a traumatic injury
to the bones or a joint, obesity,' and immobility for a period of time. Symptoms of
a DVT include swelling of the lower extremity, pain in the thigh or calf, and
redness or warmth in the lower extremity. Additional symptoms of a pulmonary
embolism include shortness of breath; difficulty breathing; gasping for air; chest
pain; and abnormal vital signs, including decreased blood pressure or " up and
down" blood pressure, an increased heart rate, an increased breathing or respiratory
rate, an increased body temperature, and a low oxygen saturation level measured
by a pulse oximeter.
Two doctors who served on the MRP reviewing Dr. St. Martin' s treatment
of Caleb on October 31St, Dr. Kevin Russ and Dr. James Tebbe, Jr., were accepted
by the trial court as experts in family practice medicine. They testified at trial and
explained that the MRP was unable to determine whether Dr. St. Martin breached
the standard of care in this case because there existed a material issue of fact
bearing on liability as to how Caleb presented to Dr. St. Martin during the October
31 sl visit due to a discrepancy between the parties regarding Caleb' s respiratory
status during the October 31St visit. According to the doctors, whether Dr. St.
Martin committed malpractice could only be determined by finding that Caleb was
in respiratory distress at the time of the visit, a determination that could only be
made depending on whose version of the October 31 st visit one believed.
At trial, Dr. Russ testified that taking vital signs is a standard of care for a
sick" visit, and if Dr. St. Martin was treating Caleb for an illness and did not take
his vital signs, that constituted a breach of the standard of care. He further opined
that the failure to take vital signs on Caleb was a breach of the standard of care if
The record reflects that Caleb weighed almost 300 pounds.
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Caleb presented that day complaining of shortness of breath. Dr. Russ stated that
if Caleb was not in any sort of respiratory distress during the examination, he
suspected Caleb' s vital signs probably would have been normal.
According to Dr. Russ, if a patient is short of breath and in respiratory
distress, a doctor should consider whether the patient has a DVT or a pulmonary
embolism. He noted that, once a pulmonary embolism is discovered, most patients
do well if treatment begins while they are stable; however, a pulmonary embolism
may occasionally present a sudden death situation. Dr. Russ agreed that most
patients who are diagnosed with the condition are likely to survive.
Dr. Russ stated that there are different patterns for the occurrence of a
pulmonary embolism; sometimes patients present with complaints of symptoms
such as shortness of breath for two or three days, some complain of shortness of
breath starting that day, and in some cases, the presentation is sudden death. Dr.
Russ acknowledged that sometimes there are absolutely no precipitating clinical
signs or symptoms of a pulmonary embolism, which can occur suddenly and
without warning. He agreed that the description of Caleb' s pulmonary embolism
in the autopsy, as one large clot extracted from both pulmonary arteries as well as
the heart, is consistent with an acute serious event. Dr. Russ further stated that
while not taking vital signs on a sick patient is a breach of the standard of care, he
was unable to say whether the failure to take vital signs in this case reduced the
likelihood of a good outcome for Caleb. He explained, " I' m just saying that had
Caleb' s vital signs] been abnormal there would have been a better chance to
continue evaluation." Dr. Russ testified that Caleb' s MRI revealed that Caleb had
a hemarthrosis in the knee. Dr. Russ stated that a hemarthrosis is bleeding into a
joint, which he acknowledged is similar to a bruise. He opined that the fact that
10
someone has a hemarthrosis is not in and of itself a risk factor for developing a
DVT.
Dr. Tebbe, on the other hand, admitted that Caleb was at risk for the
development of a DVT based on Caleb' s soft tissue injury above and below his
knee. He was unsure if the DVT was present on the October 31St visit, but he
surmised it might have been. Dr. Tebbe testified that if there was a complaint of
shortness of breath, Dr. St. Martin should have examined Caleb' s leg to rule out a
potential DVT. Dr. Tebbe acknowledged that if Caleb presented to Dr. St.
Martin' s office on October 31"
with a non- fatal pulmonary embolism, typically
one would expect him to have shortness of breath that continually worsened. Like
Dr. Russ,
Dr. Tebbe testified that if Caleb was not having problems breathing
during Dr. St. Martin' s examination, Caleb' s vital signs would have been normal;
however, if Caleb was having trouble breathing, there is a likelihood his vital signs
would have shown something different.
As was the case before the MRP, the jury was presented with conflicting
evidence as to whether Caleb exhibited signs of respiratory distress during Dr. St.
Martin' s October 31" examination of Caleb. P. J., who arrived at Dr. St. Martin' s
office prior to the October 31St examination of Caleb, testified that Caleb told him
he felt like he had water in the back of his throat and was experiencing shortness of
breath. Although P. J. reported that Caleb was " gasping for air" in an earlier
deposition, he testified at trial that he only saw Caleb gasp " a little" and he could
barely tell that Caleb was having breathing problems. P. J. also testified that Caleb,
who was generally light -skinned, had a noticeable change in color, which he
described as " darkish" or " gray."
According to P. J., while he and Caleb were sitting on a bench waiting to go
into Dr. St. Martin' s examination room, a nurse approached and asked Caleb what
11
was wrong. P. J. insisted that Caleb told the nurse that he had shortness of breath
and never mentioned the word " sinus." P. J. testified that, upon Dr. St. Martin' s
arrival in the examination room, Dr. St. Martin inquired what was wrong with
Caleb, and Caleb reported that he had shortness of breath and felt like he had water
in the back of his throat. P. J. stated that he repeated these symptoms to Dr. St.
Martin. He denied that Caleb ever said the word " sinus" to Dr. St. Martin. P. J.
claimed that Dr. St. Martin had Caleb open his mouth, told him to breathe in, and
commented that Caleb was likely suffering from a cold that was going around.
According to P. J., this was the extent of Dr. St. Martin' s examination of Caleb,
after which Dr. St. Martin gave Caleb a prescription and told him to eat frozen
pops. P.J. could not recall anyone giving Caleb a shot. P. J. also stated that Caleb
continued to make short gasping breaths after leaving Dr. St. Martin' s office, just
as he did in Dr. St. Martin' s office. P. J. testified that Caleb was still gasping
lightly the next morning when he picked up his mother and Caleb.
Dr. St. Martin, however, testified that Caleb visited his office on October
31St because he was having symptoms of a sinus condition and to review the results
of the MRI of his knee. Dr. St. Martin acknowledged that on the October 31St visit,
Caleb' s vital signs, including blood pressure, heart rate, and respiratory rate, were
not taken and no numbers were recorded in the medical records for these vital
signs. Dr. St. Martin could not explain why these vital signs were not taken that
day. Despite Caleb' s weight of nearly 300 pounds, Dr. St. Martin considered
Caleb to be generally healthy, muscular, and in good physical shape.
Dr. St. Martin testified that, on the afternoon of October 31St, he observed
Caleb as he was coining through the door from the waiting room into the hall. At
that time, Caleb had one crutch but was not using it. Dr. St. Martin testified that,
upon entering the examination room, he asked Caleb why he was there, and Caleb
12
told him he was having sinus -type symptoms, including sore throat, sinus pressure,
and post -nasal drip. Dr. St. Martin stated that these were Caleb' s only complaints
and that Caleb did not mention his leg being a problem. Because Caleb did not
complain about his leg, Dr. St. Martin did not examine Caleb' s lower extremity,
despite one of the purposes of the visit being to review the MRI of Caleb' s knee.
According to Dr. St. Martin, he conducted a physical examination of Caleb
in the fifteen to twenty minutes he spent with Caleb in the examination room. Dr.
St. Martin examined Caleb' s throat and ears, checked Caleb' s neck glands to see if
they were swollen, and listened to his heart and lungs with a stethoscope. The
examination revealed that Caleb' s throat was red and had drainage behind his,
tonsils, consistent with Caleb' s sinus complaints. Dr. St. Martin determined that
Caleb had a sinus infection and gave him a steroid injection, an antibiotic, and a
sinus decongestant medication. Following the examination, Dr. St. Martin went
over the MRI report with Caleb, which showed that Caleb had a patella tendon
injury, and an appointment was made for Caleb to see an orthopedist.
Dr. St. Martin testified that at no time during his entire encounter with Caleb
did either Caleb or P. J. tell him that Caleb was having problems breathing or that
Caleb was short of breath. According to Dr. St. Martin, Caleb did not exhibit any
signs of blood clotting or a DVT, such as leg pain, swelling, and redness to the
extremity, and if Caleb did have such signs, he would have brought him to the
hospital for appropriate tests and treatment. He also stated that Caleb did not
exhibit any signs that he was at risk for developing a pulmonary embolism.
Dr. St. Martin' s office staff corroborated Dr. St. Martin' s version of Caleb' s
31St.
presentation on the afternoon of October Tanya Fick, Dr. St. Martin' s
medical assistant, admitted that she did not take Caleb' s vital signs on October 31 St
13
except for his weight, that she should have taken his vital signs that day, and that
Dr. St. Martin told her she made a mistake not doing so.
The Allridges' expert, Dr. Keith Miller, who practiced family medicine for
approximately 30 years, reviewed the medical records, depositions, and the
coroner' s report in this case. Dr. Miller testified that the process of developing a
DVT and pulmonary embolus typically occurs over a period of time ranging from
24 to 36 hours. He also testified that the period between when the symptoms of
either a DVT or pulmonary embolus should be recognized and the time of death is
not instantaneous, but could take a number of hours up to a day or two. According
to Dr. Miller, treatment could have easily been given during that window of time in
this case. He agreed with the coroner' s finding that Caleb suffocated after the
DVT broke off and traveled to his lungs.
Dr. Miller also testified that Caleb had four risk factors for developing a
DVT: ( 1) he had a traumatic injury to his knee; ( 2) he was obese; ( 3) he was
immobile or sedentary due to his knee injury; and ( 4) he was African American
and therefore more prone to the development of a DVT and a pulmonary
embolism. Dr. Miller testified that these four risk factors should have caught Dr.
St. Martin' s attention.
Dr. Miller noted that the only vital sign taken on Caleb on October 31St was
his weight. Dr. Miller testified that while Dr. St. Martin' s records documented that
Dr. St. Martin listened to Caleb' s heart and lungs with a stethoscope, Dr. St. Martin
did not testify that he counted Caleb' s heart rate or respiratory rate when he
listened to Caleb' s heart and lungs. According to Dr. Miller, documenting a
regular heart rate does not establish that Caleb had a normal rate; it only indicates
that Caleb' s heart rate was regular as opposed to irregular. While Dr. Miller
acknowledged that a doctor can count the number of breaths a person is taking by
14
listening to their lungs long enough, Dr. St. Martin did not document an actual
respiratory rate for Caleb.
Dr. Miller further testified that the standard of care for a family physician
mandated that Dr. St. Martin or his staff take vital signs on Caleb during his
October 31St visit. He opined that Dr. St. Martin should have taken Caleb' s oxygen
saturation rate with a pulse oximeter for three reasons: ( 1) it is a vital sign that the
standard of care requires be taken on every patient; ( 2) it should be taken on any
person who complains of respiratory problems, even sinus; and ( 3) had Dr. St.
Martin taken other vital signs, some if not all of them would have been abnormal,
such as an elevated pulse rate, blood pressure up and down, and a respiratory rate
up. According to Dr. Miller, any person with abnormal vital signs should have
their pulse oximetry taken. He explained that a low oxygen saturation as measured
by a pulse oximeter is almost universally a symptom of a pulmonary embolism.
Dr. Miller opined that had Dr. St. Martin used a pulse oximeter to measure Caleb' s
oxygen saturation rate, more likely than not, that one test would have changed the
outcome of this case.
Dr. Miller opined that Dr. St. Martin breached the standard of care by failing
to take Caleb' s vital signs and that the breach caused the harm suffered by Caleb.
He opined that, more likely than not, had Caleb' s vital signs been properly taken,
they would have been abnormal and would have shown an increased heart rate and
an increased respiratory rate, which would have alerted a reasonable physician to
intervene and get Caleb appropriate care. Therefore, Dr. Miller suggested that Dr.
St. Martin should have ( 1) ordered further testing, such as a CT scan, which would
have shown the presence of a pulmonary embolus, and ( 2) referred or consulted
with the appropriate physicians and facility, most likely the nearest hospital, for the
definitive care and treatment of Caleb. Dr. Miller believed that, to a reasonable
15
degree of medical certainty, any treatment Caleb would have received within the
18 -hour period from the time he saw Dr. St. Martin until his death, including the
delivery of oxygen, treatment with anticoagulation medication, or surgery, would
have increased Caleb' s chance of survival and would have greatly altered the
outcome in this case.
Dr. Richard Abben, the defense' s expert witness, was accepted by the court
as an expert in the field of cardiovascular disease. He testified at length regarding
how a DVT occurs in a case such as Caleb' s and how it develops into a pulmonary
embolism. Dr. Abben agreed with the following opinions and conclusions
expressed by Dr. Miller: that the standard of care is to take vital signs on every
patient who comes to a doctor' s office for a sick visit; that neither Dr. St. Martin
nor his staff attempted to take all of Caleb' s vital signs on October 31St; and that it
was a breach of the standard of care for Dr. St. Martin or his staff to fail to take
Caleb' s vital signs during the October 31 St visit. However, Dr. Abben disagreed
with the remainder of Dr. Miller' s opinions and conclusions. He opined that Dr. St.
Martin' s failure to take Caleb' s vital signs was not a breach of the standard of care
in relation to the outcome in this case. According to Dr. Abben, had Caleb' s vital
signs been taken, they may not have revealed warning signs of a DVT or
pulmonary embolism. Dr. Abben further opined that, more likely than not, Caleb
was not experiencing a pulmonary embolism on that day, although Dr. Abben had
no doubt that the DVT existed at that time. According to Dr. Abben, the key issue
in determining whether the failure to take vital signs constituted malpractice is how
Caleb appeared at the time Dr. St. Martin examined him. According to Dr. Abben,
if Caleb exhibited the signs and symptoms that his family reported while Caleb
was in Dr. St. Martin' s office, specifically with respect to shortness of breath and a
change in color, it would have been a breach in the standard of care for Dr. St.
16
Martin to not follow-up and do further investigation. Dr. Abben did not agree with
Dr. Miller that if Dr. St. Martin had taken Caleb' s vital signs that he could have
potentially saved Caleb' s life. Instead, he opined that it was substantially more
likely than not that Caleb' s pulmonary embolism occurred without any clinical
precursor.
ANALYSIS
Considering the entire record, we must now determine whether the trial
court erred in failing to include a jury interrogatory as to whether Dr. St. Martin' s
actions caused Caleb the loss of a chance of survival. To establish a claim for
medical malpractice, a plaintiff must prove the following by a preponderance of
the evidence: ( 1) the standard of care applicable to the defendant; ( 2) that the
defendant breached the standard of care; and ( 3) that the breach caused the plaintiff
to suffer injuries. See La. R.S. 9: 2794( A). Under Louisiana law, it is not
necessary to prove that a patient would have survived if proper treatment had been
given, but only that there would have been a chance of survival. Alphonse v.
Acadian Ambulance Servs., Inc., 2002- 0773 ( La. App. 1st Cir. 3/ 28/ 03), 844
So. 2d 294, 300, writ denied, 2003- 1086 ( La. 6/ 20/ 03), 847 So. 2d 1240; Hastings
v. Baton Rouge Gen. Hosp., 498 So. 2d 713, 720 ( La. 1986); Martin v. East
Jefferson Gen. Hosp., 582 So. 2d 1272, 1278 ( La. 1991) ( holding that the loss of
chance of survival doctrine is intended to prevent medical malpractice plaintiffs
from bearing the " unreasonable burden" of proving that the patient would have
survived if properly treated).
In Smith v. State, Department of Health and Hospitals, 95- 0038 ( La.
6/ 25/ 96), 676 So. 2d 543, the Louisiana Supreme Court acknowledged the
conceptual problem" presented by a pre- existing condition. As such, the Smith
court stated that the " jury should focus on the damages that the defendant caused -
17
the loss of a chance of avoiding a death that might not have occurred if the health
care provider had performed properly." Id. at 547 n. 5. Therefore, the Smith court
declared the loss of a chance of survival is a distinct compensable injury caused by
the defendant' s negligence, to be distinguished from the loss of life in wrongful
death cases. 2 Id. at 547. The court acknowledged that full recovery for survival
and wrongful death damages is not available for deprivation of a chance of survival
of less than fifty percent and stated that to allow full recovery would ignore the
plaintiffs inability to prove by a preponderance of the evidence that the
malpractice victim would have survived but for the malpractice, which is a
requirement for full recovery. Id. Therefore, a lost chance of survival due to
medical malpractice caused by a defendant' s negligence was recognized as a
distinct compensable injury, valued as a lump sum based on all the evidence in the
record. Id.
In Brand v. Woodland Village L.L.C., 2010- 0137 ( La. App. 4th Cir.
12/ 8/ 10), 54 So. 3d 745, writ denied, 2011- 0311 ( La. 4/ 1/ 11), 60 So. 3d 1254, the
Fourth Circuit addressed the trial court' s failure to include jury instructions or
interrogatories on the verdict form regarding lost chance of survival. In that case,
the decedent, Mr. Braud, was diagnosed with Alzheimer' s disease and Pick' s
Dementia. Mr. Braud' s family became unable to care for him, and he was
eventually moved to Woodland Village Nursing and Rehabilitation Center in New
Orleans (" Woodland"). Id. at 748. Nearly a year later, Mr. Braud' s wife notified
one of his doctors, Dr. Simonson, that Mr. Braud had become quite " zombie -like"
2 Where the evidence could support either a theory that the defendant' s conduct caused the
decedent' s death ( making full wrongful death damages appropriate) or a theory that the
defendant' s conduct caused the decedent a loss of a chance of survival, Louisiana law is clear
that only one kind of damages or the other may be awarded. A jury may find the defendant
liable either for causing the patient' s wrongful death or for causing the patient' s loss of a chance
to survive, but not for both. Coody v. Barraza, 47,732 ( La. App. 2d Cir. 3/ 6/ 13), 111 So. 3d
485, 489, citing Smith, 676 So. 2d 543; see also Alphonse, 844 So. 2d at 301.
18
after a change in medications; in response, Dr. Simonson ordered the nurses at
Woodland to perform checkups on Mr. Braud every 15 minutes to check for signs
of distress of discomfort. Id. On the night of Mr. Braud' s death, he was found
unresponsive. The evidence established that either the checks were not performed
or that Mr. Braud suffered a heart attack before the nurses realized. Id.
After submitting a complaint to the MRP, the plaintiffs filed a medical
malpractice/ wrongful death action against Dr. Simonson, Woodland, and the
Louisiana Patient' s Compensation Fund, in which they alleged negligence in
failure to formulate an appropriate plan of care, improper administration of
chemical restraints, and failure to attempt to immediately resuscitate, among other
alleged acts of negligence. Id. at 749. Following a six-day jury trial, the jury
found Woodland negligent in its care for Mr. Braud; Dr. Simonson was not found
liable. Id.
Woodland appealed and asserted that the jury erred in finding
Woodland liable for wrongful death. It argued that the plaintiffs presented no
evidence that would establish by a preponderance of the evidence that Woodland
caused or contributed to Mr. Braud' s fatal heart attack; at best, the plaintiffs only
established a loss of chance of survival, which was not addressed in the jury
interrogatories or final verdict form with no objection from the plaintiffs. Id. at
749- 50.
The court, citing Smith, noted that the loss of a chance of survival is a
distinct compensable injury caused by a defendant' s negligence, distinguishable
from the loss of life in wrongful death cases. Id. at 751. The Braud court found
that " the inherent failure of the district court to provide proper jury instructions as
to lost chance of survival led to a finding not supported by a reasonable factual
basis." Id. at 751. The court noted that there was no evidence presented to the
jury that showed any actions of Woodland caused Mr. Braud' s fatal heart attack,
19
and therefore, there is no injury that Mr. Braud suffered that he would not have
otherwise suffered. Id. at 751- 52. Accordingly, the Braud court determined that
the evidence could, at best, only establish a claim for a loss of chance of survival.
Id. at 752.
The court then found that the plaintiffs presented credible testimony at
trial that the actions of Woodland' s staff fell below the standard of care and that
their failure to timely perform CPR on Mr. Braud denied him a chance of survival
from his heart attack. Id. After summarizing the trial testimony, the court stated,
It is from the testimony of these individuals that we can surmise that the plaintiffs
presented reasonable evidence to establish that [ Woodland' s] negligence prevented
Mr. Braud from the opportunity to survive his heart attack. But it is equally clear
that no actions or inactions of [Woodland] caused his fatal [ heart attack]." Id. at
753. Therefore, the court found that the district court committed legal error in not
presenting jury instructions and correct law as to " the separate and distinguishable
claim for the loss of chance of survival" and concluded that " the district court
committed legal error in failing to allow the jury to consider what clearly seems to
be a case concerning the loss of chance of survival." Id. As a result, the Fourth
Circuit remanded the matter to the trial court for a new trial with an instruction to
include in its jury interrogatories the opportunity to consider a loss of chance of
survival claim " as envisioned by the Louisiana Supreme Court in Smith." Id.
In this case, the jury concluded that Dr. St. Martin breached the standard of
care,
which is reasonably supported by the evidence. Although there was
conflicting evidence as to whether Dr. St. Martin' s breach of the standard of care
caused Caleb' s death, the Allridges' case was also based on their contention that
that the medical evidence overwhelmingly established that the breach denied Caleb
20
a chance of survival.3 As in Braud, the jury was presented with evidence both
supporting and controverting the Allridges' theory that Dr. St. Martin' s negligence
deprived Caleb the opportunity to survive the fatal pulmonary embolism. Such
presentation of contradictory facts and expert testimony provides a basis for the
inclusion of a jury interrogatory relative to the claim for loss of chance of survival.
The loss of a chance of survival doctrine is relevant in cases involving the
following factual elements: ( 1) the death of the patient as the probable result of a
pre- existing condition ( i. e., a condition of the patient in existence at the time of the
alleged malpractice of the defendant, which condition is unrelated to any conduct
of the defendant); ( 2)
some chance of the patient surviving the pre- existing
condition, although a less -than -even chance, at the time of the defendant' s alleged
malpractice; and ( 3) the loss of all or a part of that chance of survival caused by the
defendant' s negligent action or inaction. Deykin v. Ochsner Clinic Found.,
2016- 488 ( La. App. 5th Cir. 4/ 26/ 17), 219 So. 3d 1234, 1240- 41, citing Smith, 676
So. 2d at 547. Here, all of the medical experts agreed that, at the time of the
October 31St visit, Caleb likely had a DVT that later broke loose and traveled to his
lungs. Based on the evidence, particularly the testimony of Dr. Miller, Dr. St.
Martin' s negligence may have prevented Caleb from the opportunity to survive his
fatal pulmonary embolism. Dr. Miller surmised that the taking of Caleb' s vital
signs would have revealed abnormalities such as increased heart and respiratory
rate, thus alerting a reasonable physician to further investigate Caleb' s condition.
He further testified that any treatment given to Caleb within the 18 -hour period
between Dr. St. Martin' s examination and his death would have increased his
3 Although the Allridges' petition does not explicitly seek recovery for Caleb' s loss of a chance
of survival, no such specification is required. Louisiana is a fact -pleading state. Accordingly, a
plaintiff in Louisiana is entitled to recover any relief to which he or she is entitled under the
pleadings and the evidence. See Miller v. Thibeaux, 2014- 1107 ( La. 1/ 28/ 15), 159 So. 3d 426,
432- 33; La. C. C. P. art. 1154.
21
chance of survival.
If the jury accepted this expert testimony and rejected the
contradictory testimony of other experts, the jury could have found that Dr. St.
Martin' s negligence reduced Caleb' s chance to survive the fatal pulmonary
embolism.
On appeal, the Allridges argue that the jury interrogatories were defective
due to the trial court' s failure to include a causation interrogatory as to lost chance
of survival.
Question one on the jury verdict form asked whether the jury found
that Dr. St. Martin breached the applicable standard of care regarding his treatment
of Caleb, to which the jury answered in the affirmative. The next interrogatory
asked whether the jury found that any breach of the standard of care by Dr. St.
Martin caused Caleb' s death. The jury answered this interrogatory in the negative.
The jury' s negative response to the second interrogatory concluded the jury' s
deliberations because the jury verdict form instructed that damages were to be
awarded only if the jury answered the second interrogatory in the affirmative.
Further, the only categories provided for damages were survival damages for
Caleb' s conscious pain and suffering, wrongful death damages for each of Caleb' s
parents, and special damages.
After the jury found Dr. St. Martin breached the standard of care, the jury
interrogatories only provided an opportunity for the jury to consider whether there
was a causal connection between Dr. St. Martin' s breach and Caleb' s death. They
did not permit a finding as to whether Dr. St. Martin' s breach of the standard of
care denied Caleb a chance of survival, a separate compensable injury
distinguishable from loss of life, despite the presentation of evidence to support
this theory of recovery. As such, the jury interrogatories were so inadequate that
the jury was precluded from reaching a verdict based on the correct law and facts.
Further, the jury instructions failed to cure the inadequacy of the jury
22
interrogatories.' Accordingly, we find the trial court abused its discretion in failing
to include a jury interrogatory as to lost chance of survival, and its judgment in
accordance with the jury verdict should be reversed and this matter remanded for a
new trial. See Braud, 54 So. 3d at 754.
CONCLUSION
For the foregoing reasons, the judgment appealed from is reversed, and the
matter is remanded to the trial court for a new trial consistent with this opinion.
All costs of this appeal are assessed to appellee, William H. St. Martin, MD,
REVERSED AND REMANDED FOR NEW TRIAL.
4 The jury instructions provided that the Allridges were entitled to compensation for the damages
sustained if they found ( 1) Dr. St. Martin breached his duty; and ( 2) that duty caused Caleb' s
death. As to lost chance of survival, the instructions merely noted that "[ d] amages from
wrongful death may include compensation for a loss of chance of survival." However, lost
chance of survival is a separate compensable injury. Therefore, if anything, the charge related to
loss of chance of survival may have further confused the jury. See footnote 2, supra.
23
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 1043
WILFRED ALLRIDGE AND JUANIKA ALLRIDGE
VERSUS
WILLIAM H. ST. MARTIN
In order to find reversible error in a jury' s verdict based on an inadequate
jury form, this court must find that the form is so inadequate that the jury is
precluded from reaching a verdict based on correct law and facts. Abney v.
Smith, 2009- 0794 ( La. App. 1St Cir. 2/ 8/ 10), 35 So. 3d 279, 283, writ denied, 2010-
0547 ( La. 5/ 7/ 10), 34 So. 3d 864. I disagree with the majority' s conclusion that the
absence of a special jury interrogatory on the loss of a chance of survival rendered
the verdict form so inadequate that it precluded the jury from reaching a causation
finding that is not supported by the evidence under all of the circumstances of this
case.
A thorough review of the record reveals that from its inception, this case
simply was not tried as a loss of chance of survival case. The Allridges' medical
malpractice case was filed and prosecuted as a survival action and wrongful death
lawsuit. The only damages the Allridges sought in the petition were survival and
wrongful death damages. The record shows that prior to trial, on August 18, 2018,
the Allridges submitted proposed jury instructions and interrogatories to the trial
court. The first question asked whether Dr. St. Martin' s actions or failure to act
fell below the applicable standard of care in his treatment of Caleb. The second
question asked whether Dr. St. Martin' s actions or inactions caused damages to
Caleb. The proposed form then listed ten items of traditional survival and
wrongful death damages, with a corresponding blank for a dollar amount. The
Allridges did not assert a separate claim for loss of chance of survival until the
presentation of evidence had been nearly concluded.'
In order to determine whether the jury interrogatory on causation was so
inadequate that it precluded the jury from reaching a correct verdict on the law and
facts in this case, all of the evidence must be reviewed. In addition to the evidence
set forth in the majority opinion, the jury heard the testimony of Dr. Victor
Tedesco, I1I, accepted by the court as an expert in the field of general surgery with
a subspecialty in vascular surgery, who performed an autopsy on Caleb. Dr.
Tedesco determined that Caleb died from a massive pulmonary embolism post -
knee injury. He testified at length regarding the process by which a pulmonary
embolism occurs. According to Dr. Tedesco, what usually happens and what
happened in this case is that a blood clot, or DVT, formed in the veins in the lower
extremity, which grew and propagated in the direction of blood flow. At some
point, the clot broke loose and travelled in the vein, back to the heart, where it was
pumped in the lungs and obstructed blood flow to the lungs. Effectively, the blood
clot shut off the ability of the lungs to oxygenate blood. Dr. Tedesco explained
that while it can happen sooner, it usually takes a week for a DVT to form, and he
opined that Caleb probably had DVT more than a day or two before his death.
However, he stated that the fatal embolus experienced by Caleb occurred
instantaneously." He later explained that when the clot did break loose, it would
have been a matter of seconds until it reached the heart and embolized in both
1 It is apparent that the prosecution of this malpractice claim as a wrongful death lawsuit was a
tactical decision. Louisiana law is clear that whether a lawsuit is prosecuted as a wrongful death
case or a loss of a chance of survival, only one kind of damages may be awarded. Traditional
wrongful death damages may not be awarded in a loss of chance of survival case. Coody v.
Barraza, 47, 732 ( La. App. 2d Cir. 3/ 6/ 13), 111 So. 3d 485, 489. In a loss of chance of survival
case, the only damages that can be awarded are the value of the lost chance, which must be
proved by a preponderance of the evidence. Smith v. State, Department of Health and
Hospitals, 95- 0038 ( La. 6/ 25/ 96), 676 So. 2d 543, 547.
2
lungs,
causing Caleb' s death almost instantaneously. When asked whether it
would have been useful to take proper vital signs within the day leading up to the
fatal event, Dr. Tedesco stated that he did not know if that would have made any
difference given that the clots he removed from Caleb' s body were all part of the
same event.
The testimony of numerous medical experts established that the standard of
care is to take vital signs on every patient who comes into a doctor' s office for a
sick visit, that neither Dr. St. Martin nor his staff took all of Caleb' s vital signs on
October 31St, and it was a breach in the standard of care for Dr. St. Martin or his
staff to fail to take Caleb' s vital signs on the October 31St visit. However, the
evidence was conflicting as to whether, in this case, if Dr. St. Martin had in fact
taken Caleb' s vital signs, he could potentially have saved Caleb' s life. In order to
determine whether Dr. St. Martin' s failure to take Caleb' s vital signs caused or
contributed to Caleb' s death or deprived Caleb of the chance to survive the
pulmonary embolism that took Caleb' s life, the jury had to first decide which
version of the conflicting evidence regarding Caleb' s presentation to Dr. St. Martin
during the October 31 st examination it believed.
Dr. St. Martin testified at length regarding his examination of Caleb.
According to Dr. St. Martin, Caleb walked easily into his office and got up and
moved around a few times during the visit. Dr. St. Martin emphasized that if a
person of Caleb' s size was having breathing problems, he would have noticed it.
Dr. St. Martin testified that he examined Caleb' s heart and lungs during the office
visit. He explained that during a heart and lung examination, he observes how a
patient is breathing and the patient' s posture and listens to the heart with a
stethoscope to assess the heart rate and rhythm. During the lung examination, Dr.
St. Martin listens to the lungs with a stethoscope, has the patient breathe in and out,
3
and listens for signs of wheezing or fluid overload. Dr. St. Martin found that
during his examination of Caleb' s heart, Caleb had a regular heart rate and rhythm,
and documented " RRR" to denote such in his notes on Caleb' s cardiovascular
examination. Although Dr. St. Martin was unable to provide an exact number for
Caleb' s heart rate, Dr. St. Martin testified that Caleb' s heart rate was normal that
day, stressing that if Caleb did have a fast heart rate, he would have uncovered that
during his examination. While listening to Caleb' s lungs, Dr. St. Martin found
they were clear to auscultation and recorded that in the medical records. Dr. St.
Martin testified that he did not hear any wheezing during the examination, nor did
he detect any evidence of a rapid respiratory rate during the physical examination.
Although Dr. St. Martin did not determine an actual number for Caleb' s respiratory
rate, he did conclude from his examination that Caleb had a normal respiratory
rate.
Dr. St. Martin testified that during his examination of Caleb, there were no
signs that Caleb was at risk for developing a pulmonary embolism, noting that
there was no evidence Caleb was having respiratory problems or was short- winded
at the time of the examination.
Dr. St. Martin' s office staff corroborated Dr. St. Martin' s version of Caleb' s
presentation on the afternoon of October 31St. Monique Melum, Dr. St. Martin' s
receptionist, took the call for Caleb' s appointment on October 31St and was told
that Caleb had sinus, which she recorded. She testified that if the caller had
reported Caleb was having breathing problems or chest pain, she would have
instructed they go to the emergency room. Ms. Melum recalled seeing Caleb on
October 31 st and remembered that he was tall and " bulky." She stated that Caleb
was not having problems moving around and was not having breathing problems
that day. Following Caleb' s visit, Ms. Melum took Caleb' s co -payment. She
testified that she was face- to-face with Caleb and that if he had any breathing
problems, she would have noticed it. She further stated that no one complained of
Caleb having shortness of breath on that visit.
Tanya Fick, Dr. St. Martin' s medical assistant, testified that during the entire
time she saw Caleb at the office, no one told her Caleb was having trouble
breathing and had they done so, she would have done a pulse oxygen test or would
have gone to get Dr. St. Martin to see if Caleb should be at the emergency room.
She further stated that something as severe as shortness of breath would have been
documented in the medical records.
Caleb' s brother, P. J., on whose testimony the Allridges relied to establish
that Caleb was in respiratory distress at the time of the visit, gave significantly
different accounts of his brother' s condition and the extent of Dr. St. Martin' s
examination of Caleb on October 31St in a pre-trial deposition and in his trial
testimony. The jury was presented with evidence that in a pre-trial deposition, P.J.
testified that his brother was " gasping for air" in Dr. St. Martin' s office on October
31 st; however, at the trial, P.J. testified that he only saw Caleb gasp " a little" and
could barely tell that he was having breathing problems. P. J. also gave conflicting
testimony regarding whether Dr. St. Martin used a stethoscope during the
examination.
As to whether Dr. St. Martin' s failure to take Caleb' s vital signs played any
role in lessening Caleb' s chance of surviving the fatal pulmonary embolism, the
evidence presented to the jury was conflicting. Even the Allridges' expert, Dr.
Miller, acknowledged that in the process of developing a pulmonary embolism, a
person could show changes in vital signs or could show no changes in vital signs.
Dr. Abben, who treated people with venous diseases on a daily basis and has
treated people with pulmonary embolism conditions a few times a month, opined
that Dr. St. Martin' s failure to take Caleb' s vital signs was not a breach in the
5
standard of care in relation to the outcome in this case. According to Dr. Abben,
had Caleb' s vital signs been taken, they may not have revealed what happened to
Caleb the following day. Dr. Abben testified that a DVT does not affect a person' s
heart rate, blood pressure, respiratory rate, or oxygen saturation rate. He testified
that the only signs or symptoms of a DVT in the leg is complaints of pain in the
calf or thigh, swelling, and a warm feeling. Dr. Abben noted that Dr. St. Martin' s
medical records referenced knee pain, but not specifically pain in the calf or thigh.
He further testified that symptoms of a pulmonary embolism are skin molting due
to oxygen desaturation, altered consciousness resulting from a profoundly low
blood pressure, coughing up blood, and pleuritic chest pain, which he described as
similar to " a knife in your side." Dr. Abben stated that there was no indication in
the medical records to suggest that Caleb was experiencing those types of
symptoms. Dr. Abben agreed that based on Dr. St. Martin' s actual physical
examination of Caleb' s lungs and heart with a stethoscope and Dr. St. Martin' s
recordation of Caleb' s heart rate as regular and Caleb' s lungs as clear, more likely
than not, Caleb' s vital signs would have been normal had they been taken on
October 31 St. Dr. Abben disagreed with Dr. Miller' s opinion that if Dr. St. Martin
had taken Caleb' s vital signs, Dr. St. Martin could have potentially saved Caleb' s
life. Dr. Abben opined that it was unlikely that the failure to take vital signs
contributed to the incredibly rare event that occurred in this case. He stressed that
according to a world- renowned expert on DVT and pulmonary embolism
conditions,
a massive pulmonary embolism rarely occurs in young adults, and
when it does, it is a tragic and unpredictable event, for which there are no good
predictive measures.
Dr. Tedesco and Dr. Tebbe opined that Caleb' s death was instantaneous,
with the fatal event occurring very quickly and shortly. Dr. Tebbe testified that
0
even if Caleb had been in a hospital with people there to work on him when this
event occurred, Caleb probably would not have survived. He opined that if Caleb
was experiencing a non-fatal pulmonary embolism during the October 31s' visit,
Caleb would have had shortness of breath that continually increased after the visit,
which the evidence presented to the MRP and did not show.'
One manner in which malpractice can contribute to a death is by lessening
the chance of survival. Benefield v. Sibley, 43- 317 ( La. App. 2nd Cir. 7/ 9/ 08), 988
So.2d 279, 289, writs denied, 2008- 2162, 2008- 2210, 2008- 2247 ( La. 11/ 21/ 08),
996 So. 2d 1107, 1108. In a loss of chance of survival case, a plaintiff does not
have to prove that the patient would have lived had treatment been timely given;
however, the plaintiff must establish that the defendant' s conduct denied the
patient a chance of survival. Id. Whether the malpractice contributed to the death
is a question of fact for the jury. Id.In a wrongful death action and an action predicated on the loss of a chance
of survival, the plaintiff has the burden of proving causation by a preponderance of
the evidence. To recover under either a wrongful death or loss of chance of
survival theory, the Allridges were required to demonstrate that there was some
action or inaction on Dr. St. Martin' s part that caused harm to Caleb. In this case,
the causation inquiry was the same under either theory of recovery: did Caleb
31St
exhibit signs of respiratory distress during the October visit, such that Dr. St.
Martin should have recognized the possibility that Caleb was in danger of
developing a pulmonary embolism, and if so, did Dr. St. Martin' s failure to
intervene and order additional testing or further medical treatment to confirm that
The evidence presented to the jury also did not show that Caleb was having increased shortness
of breath following the visit to Dr. St. Martin. P.J. testified that he asked Caleb later that evening
if he was having trouble breathing because it was not noticeable.
7
condition cause or contribute to Caleb' s death by decreasing his chance of
surviving the fatal pulmonary embolism?
The jury was presented with evidence that Dr. St. Martin breached the
standard of care by failing to take Caleb' s vital signs because taking vital signs is
the standard of care on every patient who presents complaining of illness,
including sinus issues. However, whether that failure caused or contributed to the
fatal pulmonary embolism that took Caleb' s life was highly contested at trial. The
Allridges' theory of the case, supported by their lay and medical testimony, was
that: ( 1) Caleb was having difficulty breathing at the time of the visit and Caleb
told Dr. St. Martin and his staff that he was experiencing shortness of breath; ( 2)
Caleb' s respiratory condition should have prompted Dr. St. Martin to take certain
vital signs, and if those vital signs had been taken, they would have shown a low
oxygen saturation rate, increased heart rate, and an increased respiratory rate; ( 3)
those abnormal vital signs should have alerted a reasonable physician to intervene
and get Caleb appropriate medical care, and ( 4) that medical care would have
increased Caleb' s chance of surviving the pulmonary embolism.
The defense' s theory of the case, supported by its lay and medical testimony,
was that: ( 1) Caleb did not exhibit any signs of respiratory distress during the
October 31st visit; ( 2) based on Dr. St. Martin' s actual physical examination of
Caleb' s lungs and heart with a stethoscope and his recordation of Caleb' s heart rate
as regular and Caleb' s lungs as being clear, more likely than not, had Caleb' s vital
signs had been taken and recorded, they would have been normal; ( 3) there was
nothing in Caleb' s presentation to Dr. St. Martin during the October 31 st office
visit that would have prompted a reasonable physician to suspect Caleb had a DVT
or was in the process of developing a pulmonary embolism and order additional
medical intervention; and ( 4) it was highly unlikely that Dr. St. Martin' s failure to
N
take and record Caleb' s vital signs contributed to the incredibly rare and
unpredictable event that occurred in this case, as the type of massive pulmonary
embolism Caleb experienced is exceeding rare in young adults, was an
instantaneous event for which there were no good predictive measures, and there
was nothing a reasonable physician could have done to predict or prevent the fatal
embolism that took Caleb' s life.
The jury' s causation determination in the wrongful death action
demonstrates that it repudiated the Allridges' theory of the case and accepted the
defense' s theory of the case. In reaching this decision, the jury obviously found
that as a fact that Caleb did not did not exhibit signs of respiratory distress during
the October 31 st visit; if Dr. St. Martin had taken and recorded Caleb' s vital signs
they would have been normal; there was nothing in Dr. St. Martin' s examination of
Caleb or in Caleb' s presentation that should have alerted Dr. St. Martin to suspect
Caleb had a DVT or pulmonary embolism such that additional testing would have
been required; and no medical professional under these circumstances could have
prevented Caleb' s death or gave him a better chance to survive the fatal pulmonary
embolism. In finding Dr. St. Martin did not commit malpractice in his treatment of
Caleb, the jury simply chose to accept Dr. St. Martin' s and his staff' s testimony, as
well as the testimony of the coroner and the opinions of three medical doctors, over
that of Caleb' s family members and the opinion of Dr. Miller. The jury verdict
form and answers to the jury questions confirm the choice made by the jury based
on the facts presented to them.
Once the jury rejected the Allridges' theory of the case in the wrongful
death action, it would have been inconsistent and legal error for the jury to then
render a different causation ruling on a loss of a chance of survival claim. Both
malpractice theories in this case are based on the same operative facts. Upon
rejecting the factual scenario advanced by the Allridges in the wrongful death
action, the jury could not have reasonably found that Dr. St. Martin' s action or
inaction deprived Caleb of any chance of surviving the fatal pulmonary embolism.
Yet, the majority concludes that if the jury accepted Dr. Miller' s testimony
and rejected the contradictory testimony of the other experts, the jury could have
found that Dr. St. Martin' s breach of the standard of care reduced Caleb' s chance
to survive the fatal pulmonary event. The problem with this conclusion is that the
verdict rendered in the wrongful death lawsuit demonstrates that jury did not
accept the testimony offered by the Allridges. At the second trial Dr. St. Martin
will have to defend, one can expect that all of the same evidence will be adduced,
and the jury in the loss of chance of survival case will be required to make the
same credibility determinations on the causation issue as the jury in this wrongful
death lawsuit was required to do. The new jury will have to choose between
conflicting evidence as to whether Caleb in fact exhibited signs of respiratory
st
distress during the October 31 visits before it can find that anything Dr. St. Martin
failed to do during that examination deprived Caleb of the chance of surviving the
fatal pulmonary embolism.
For these reasons, I am convinced that the trial court' s failure to present the
jury with an additional instruction regarding the loss of a chance of survival did not
lead the jury to render a causation finding that is not reasonably supported by the
record. The jury' s verdict did not result from a defective verdict form, but from its
choice between the conflicting factual testimony and expert medical opinions.
Where there are two permissible versions of the evidence, the jury' s decision to
accept one over the other cannot be legally erroneous. See Stobart v. State,
Department of Transportation and Development, 617 So. 2d 880, 883 ( La.
1993).
10