Court: Louisiana Court of Appeal; December 10, 1996; Louisiana; State Appellate Court
In a wrongful death action, the seven surviving children of Sylvia Vick MeKellar appeal a judgment favoring defendants, including Dr. Robert Treuting, the Coroner for Jefferson Parish, the Estate of Bennie Verdun, and the State of Louisiana, which dismissed their lawsuit. The case stems from Mrs. MeKellar’s death on November 27, 1972, after she was found unconscious by her husband and stepdaughters. Despite efforts to summon help, including calls to the police and an ambulance, there were complications regarding the transport to a hospital.
Ambulance driver Bennie Verdun, following the coroner’s policy, initially refused to take Mrs. MeKellar directly to the hospital, insisting on transporting her to Dr. Luker’s office first. This policy, established due to the distance to the nearest hospital, was contested by family members, particularly Marty Lee, who ultimately decided to transport Mrs. MeKellar himself after the ambulance left. She was pronounced dead shortly after arrival at the hospital.
The plaintiffs argue that the delay caused by Verdun's refusal to transport Mrs. MeKellar directly to the hospital led to her death. A prior declaratory judgment established that the Coroner’s office is a state agency, making the State of Louisiana responsible for its actions. The court affirmed the dismissal of the plaintiffs' suit.
On January 22, 1996, a five-day trial concluded with a judgment on March 19, 1996, in favor of the defendants, dismissing the plaintiffs’ case at their costs. The trial court determined that the delay in bringing Mrs. MeKellar to the hospital did not contribute to her death, emphasizing the credibility of expert witness Dr. Lauro's testimony. The court did not find it necessary to address potential negligence by the defendants since their actions were deemed not to have caused or contributed to her death. The plaintiffs appealed, asserting four errors: (1) the trial court incorrectly concluded that the defendants did not deprive Mrs. MeKellar of a chance for survival; (2) it failed to address the negligence of the ambulance driver; (3) it did not award damages to the plaintiffs; and (4) it made determinations of costs without hearing evidence. In their appeal, the plaintiffs highlighted conflicting expert testimonies regarding the cause of death, with Dr. Robiehaux indicating a heart attack and Dr. Van Meter suggesting a high survival chance after a drug overdose, while Dr. Butcher noted cardiorespiratory arrest as the primary cause on the death certificate. Conversely, Dr. Lauro attributed the death to a pulmonary embolism, asserting that a 30-minute delay would not have changed the outcome. Defendants argued that toxicology results negated the overdose theory. The standard of appellate review emphasizes deference to the trial court's factual findings unless manifestly erroneous, recognizing that conflicts in testimony and reasonable inferences should not be disturbed unless clearly wrong. The appellate court's role is to evaluate the reasonableness of the fact finder’s conclusions rather than determine their correctness.
Findings based on witness credibility require significant deference to the trier of fact, as they perceive nuances in demeanor and tone that affect understanding and belief. The trial judge determined that Mrs. MeKellar's chance of survival was not diminished by the defendants' actions and that these actions did not contribute to her death. This conclusion was supported by the record and not deemed manifestly erroneous. The legal standard for lost chance of survival cases, articulated in Smith v. State Dept. of Health, emphasizes that the plaintiff must demonstrate, by a preponderance of the evidence, that the defendant's negligence caused the loss of a chance of survival and quantify that loss. In this case, for the plaintiffs to prevail against Bennie Verdun for a lost chance of survival, they needed to show that Mrs. MeKellar had a chance of survival at the time of the alleged negligence, specifically during a 30-minute delay in her hospital transport, and establish a causal link between that delay and her death. However, the plaintiffs failed to provide sufficient proof, and expert testimony indicated that Mrs. MeKellar died from a pulmonary embolism, contradicting their claims.
Dr. Lauro ruled out a drug overdose as the cause of Mrs. MeKellar's death based on a negative toxicology report. He attributed her death to a pulmonary embolism resulting from a recent hysterectomy, which carries a risk of blood clots that can travel to the lungs. His examination revealed an enlarged right side of the heart and lung congestion, supporting this theory. He stated that by the time the family was informed of Mrs. MeKellar's condition in 1972, she had no chance of survival, partly due to the lack of intensive care equipment at the hospital at that time. He asserted that even an ambulance driver could not have saved her, and a 30-minute earlier arrival at the hospital would not have changed her terminal condition.
Dr. Van Meter, an expert in emergency medicine, corroborated Dr. Lauro's conclusion about the pulmonary embolism but noted that if Mrs. MeKellar had died from an overdose, immediate intervention could have provided an 80-90% survival chance. He initially expressed uncertainty about the impact of arrival time on survival but later suggested that arriving sooner could have increased her 'chance' of survival. He believed Mrs. MeKellar was not breathing upon arrival at the hospital.
The trial court found Dr. Lauro's testimony compelling, concluding that even if Mrs. MeKellar had been transported immediately, she would have died regardless. The court determined that no evidence contradicted Dr. Lauro's findings. The plaintiffs contended that the court erred by not addressing the defendants' alleged negligence, particularly concerning Bennie Verdun's failure to transport Mrs. MeKellar to the hospital. However, Verdun had acted according to the coroner's emergency protocol, which was deemed reasonable. Consequently, the court concluded that the issue of defendants' negligence was moot since Mrs. MeKellar had no lost chance of survival due to the delay.
To succeed in a lost chance of survival claim, plaintiffs must demonstrate that the victim had a chance of survival at the time of the alleged negligence, that the defendant was negligent, and that this negligence deprived the victim of that chance. In this case, plaintiffs failed to prove the victim's chance of survival, leading to the dismissal of their action by the trial court. The plaintiffs sought damages equivalent to wrongful death recovery, but full recovery for wrongful death is not applicable in lost chance cases, especially since the court found no lost chance of survival.
Regarding costs, plaintiffs contested the trial court's decision to tax them with excessive costs based on a prior judgment. However, they did not appeal the specific judgment fixing the costs, which is a separately appealable matter. The court found plaintiffs' arguments unsupported by the record, noting that the issue of costs had been properly before the trial court. Consequently, the judgment from March 19, 1996, holding plaintiffs liable for costs was affirmed. Additionally, materials submitted by plaintiffs on appeal concerning pulmonary embolism survival rates were not considered as they were not part of the trial record.
