Diamond Fields and Gerald Sanford Versus Ochsner Medical Center - Kenner, L.L.C.

DIAMOND FIELDS AND GERALD SANFORD NO. 22-C-64

VERSUS FIFTH CIRCUIT

OCHSNER MEDICAL CENTER - KENNER, COURT OF APPEAL

L.L.C., ET AL STATE OF LOUISIANA

May 11, 2022

Susan Buchholz
First Deputy Clerk

IN RE DIAMOND FIELDS AND GERALD SANFORD

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT
COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
JUNE B. DARENSBURG, DIVISION "C", NUMBER 813-278

Panel composed of Judges Robert A. Chaisson,
Stephen J. Windhorst, and John J. Molaison, Jr.

WRIT GRANTED

In this case arising from the alleged mishandling and mislocation of a

stillborn child’s remains, the child’s parents, Diamond Fields and Gerald Sanford,

seek supervisory review of the trial court’s denial of their Motion to Compel

Discovery, which seeks, inter alia, responses to interrogatories asking Ochsner

Medical Center - Kenner, L.L.C., to identify any known witnesses to the loss of the

child’s remains or the events leading up to or immediately after the loss. For the

following reasons, we grant this writ, vacate the decision of the trial court, and

remand with instructions.

In their petition for damages filed on February 19, 20191, relators allege the

following facts:

1
This petition was amended on July 26, 2021 to add as defendant Joel Alexander, a security officer employed by
Ochsner Medical Center - Kenner.

22-C-64

On or about April 26, 2018, Ms. Fields gave birth to her stillborn daughter,

Nalini Nahla Sanford, at Ochsner Medical Center. Postpartum, Ms. Fields and Mr.

Sanford were given the opportunity to spend the next 24 hours bonding with their

daughter and grieving her death. Ochsner provides parents in similar situations

with a complimentary funeral service to memorialize the death of their children.

Ms. Fields and Mr. Sanford decided to accept Ochsner’s services instead of

arranging their own memorial/funeral service on Nalini’s behalf. Ms. Fields was

eventually released from Ochsner’s care and returned home to Baton Rouge,

Louisiana. The memorial/funeral service was scheduled for May 30, 2018, which

was a little over a month after Ms. Fields had been released from the hospital.

Sometime during that period of time, Nalini’s stillborn body was misplaced by

Ochsner personnel and her remains were never located. On the morning of May 30,

2018, the day on which the parents and family of Nalini Nahla Sanford were to

attend the memorial/funeral service, Ms. Fields received a phone call from a

representative of Ochsner informing her that they had lost Nalini’s body and her

remains could not be located. To this date, the body has not been located and the

whereabouts of her remains are unknown.

Ochsner has not yet filed an answer to this petition, either admitting or

denying any of the relator’s allegations.2 It first filed a declinatory exception of

improper venue, which was granted and the case was transferred from the 19th

Judicial District Court in the Parish of East Baton Rouge to the 24th Judicial

District Court in the Parish of Jefferson. Ochsner then filed a dilatory exception of

prematurity arguing that relator’s claims fell under the Louisiana Medical

Malpractice Act and needed to be first reviewed by a Medical Review Panel for

decision prior to filing a lawsuit. The trial court granted this exception, however,

2
It is unclear whether the trial court has granted respondents additional time for answering pursuant to La. C.C.P.
art. 1001.
2

this Court, upon de novo review, determined that relator’s claims are not covered

by the LMMA. Fields v. Ochsner Med. Ctr. - Kenner, L.L.C., 21-481 (La. App. 5

Cir. 8/20/21), writ denied, 21-01408 (La. 11/23/21), 328 So.3d 85.

On December 13, 2021, relators filed a Motion to Compel Discovery

seeking complete responses to the First Set of Interrogatories and First Set of

Requests for Production of Documents, which were served on June 14, 2019. In

particular, relators argue that Ochsner has failed to provide complete responses to

interrogatories seeking the identity of witnesses to the incident, the identity of any

persons or companies who have conducted an investigation of the incident, and

more.

In opposition to the motion, Ochsner argues that it has provided sufficient

responses to the requests and interrogatories, that the information relators seek is

unavailable or protected by waivable attorney-client and work product privileges

or La. R.S. 13:3715.3.

Prior to the hearing on the motion to compel, Ochsner filed a “Stipulation of

Responsibility” that states in its entirety, “NOW INTO COURT, through

undersigned counsel, comes Ochsner Medical Center-Kenner, LLC (“Ochsner”),

for the purpose of stipulating that it is solely responsible for the inability to locate

the deceased body of Nalini Nahla Sanford.” Ochsner argues that, because of this

stipulation, information sought by relators is no longer relevant because the

stipulation has the effect of rendering moot all factual questions as to how the

child’s remains were lost, who was involved, and what or when Ochsner knew

about the incident, thereby making the only relevant information the quantum of

damages suffered by the parents.3

3
In their response to this writ application, Ochsner maintains that any pain and suffering experienced by the parents
has been caused by their child being stillborn, rather than Ochsner’s alleged loss of her remains.
3

At the hearing on the Motion to Compel, the trial court accepted Ochsner’s

stipulation and denied relators’ motion. The trial court did not at that time consider

the arguments concerning privilege or the application of La. R.S. 13:3715.3. This

timely writ application followed.

DISCUSSION

In ruling on discovery matters, the trial court is vested with broad discretion

and, upon review, an appellate court should not disturb such rulings absent a clear

abuse of discretion. Khoobehi Props., LLC v. Baronne Dev. No. 2, L.L.C., 16-506

(La. App. 5 Cir. 03/29/17), 216 So.3d 287, 303. However, if the trial court’s

decision was based on its erroneous interpretation or application of law rather than

a valid exercise of discretion, such an incorrect decision is not entitled to

deference. Lagraize v. Basler, 20-39 (La. App. 5 Cir. 9/9/20), 304 So.3d 102, 113,

writ denied, 20-01257 (La. 12/22/20), 307 So.3d 1038 (citing Kem Search, Inc. v.

Sheffield, 434 So.2d 1067 (La.1983)).

The primary legal question before us in this writ application is the legal

effect of Ochsner’s “Stipulation of Responsibility.” A stipulation is an agreement

between the parties that establishes the existence or non-existence of facts relevant

to the litigation between them. Nizzo v. Wallace, 11-467 (La. App. 5 Cir.

12/28/11), 83 So.3d 161, 165, writ denied, 12-0042 (La. 3/9/12), 84 So.3d 556.4

As made clear by relators, the adverse parties here have not entered into any kind

of voluntary agreement concerning the facts alleged in their petition. The pleading

was filed unilaterally, without knowledge of relators’ council shortly before the

hearing on the motion to compel. To call it a “stipulation” is incorrect, caption

notwithstanding, and, to the extent this pleading is represented as having the same

legal effect as one of the ubiquitous genuine voluntary agreements made by parties

4
A “stipulation” is a voluntary agreement between opposing parties concerning some relevant point or an agreement
relating to a proceeding made by attorneys representing adverse parties. STIPULATION, Black’s Law Dictionary
(11th ed. 2019).
4

in courts as a matter of common practice, misleading. See Jackson v. Underwriters

at Lloyd’s of London, 21-15 (La. App. 5 Cir. 9/29/21), 329 So.3d 1029, 1044, writ

denied, 21-01591 (La. 1/12/22), 330 So.3d 617.

This pleading should instead be understood as an attempted “judicial

admission” or “judicial confession.” Under La. C.C. art. 1853, a judicial

confession is a declaration made by a party in a judicial proceeding. The

confession constitutes full proof against the party who made it. Id. A judicial

confession is a party’s explicit admission of an adverse factual element; it has the

effect of waiving evidence as to the subject of the admission or to withdraw the

matter from issue. Crawford v. Deshotels, 359 So.2d 118, 122 (La. 1978) For

these effects to be imposed, however, the other party must have been led to believe

the fact was not at issue or he must have relied on the statement to his detriment,

otherwise the party making the admission can withdraw the statement. Colbert v.

B.F. Carvin Const. Co., 600 So.2d 719, 727 (La. Ct. App. 1992), (citing Jones v.

Gillen, 564 So.2d 1274, 1279 (La. App. 5th Cir.1990)). To constitute a judicial

confession, the statement must be the express acknowledgment of an adverse fact.

Hayes v. Air & Liquid Sys. Corp., 54,017 (La. App. 2 Cir. 8/11/21), writ denied,

21-01387 (La. 11/23/21), 328 So.3d 83.

Ochsner’s purported judicial confession does not expressly or explicitly

acknowledge the adverse factual elements set forth in relators’ petition. As

worded, to claim to be responsible for the inability to locate the child’s remains is

not even an admission that they are responsible for losing them. “We cannot find

the child’s body” and “we lost the child’s body” are not equivalent, and it is

understandable why the parents would refuse to rely on this statement to their

detriment. Defendant’s pleading therefore fails to meet the standard for a judicial

confession set forth in La. C.C. art. 1853, and has none of the legal effects that

5

come from those confessions which expressly acknowledge adverse factual

elements set forth in relators’ petition.

As Ochsner pointed out in their opposition, there are many ways a party may

resolve factual disputes prior to trial: the defendant filing an answer to the petition

(La. C.C.P. art. 1003), admissions in response to discovery requests (La. C.C.P.

arts. 1467-68), or by making an offer of judgment (La. C.C.P. art. 970). Ochsner

has availed itself of none of these.

Ochsner also argues that the evidence sought by relators should be excluded

pursuant to La. C.E. art. 403, which provides that relevant evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay or waste of time. This is a remarkable argument to make considering

that Ochsner, which has conducted two internal investigations into the incident, is

the only participant in this suit to have seen the evidence in question, and has yet to

file an answer to relators’ petition filed more than three years ago.

Concerning the admissibility of evidence under La. C.E. art. 403, an offer by

counsel to stipulate to the facts sought to be proven by contested evidence does not

necessarily preclude the opponent from offering evidence to establish such facts.

For example, offering to stipulate that the decedent was dead and how he came to

his demise has been held not to preclude the prosecution from introducing

photographs of the dead victim. State v. Perry, 502 So.2d 543, 559 (La. 1986).

The Louisiana Supreme Court has held that forcing the prosecution to accept a

defendant’s stipulation frustrates the general rule that the prosecution is entitled to

prove its case by evidence of its own choice. State v. Ball, 99-0428 (La. 11/30/99),

756 So.2d 275, 280 (citing Old Chief v. United States, 519 U.S. 172, 189, 117 S.Ct.

644, 654, 136 L.Ed.2d 574 (1997)). We recognize here too relators’ rights to prove

their case to the jury by evidence of their own choosing.

6

Finally, Ochsner also characterizes relators’ motion to compel as an abuse of

the discovery process. As the Louisiana Supreme Court has recently stated:

A basic premise of our system of justice is that both sides to a dispute
stand on equal footing in gathering evidence and preparing for trial.
The discovery rules are not ends in themselves, but are meant to aid in
the search for the truth. … To that end, this Court has previously
summarized the objectives of the Louisiana discovery process as
affording all parties a fair opportunity to obtain facts pertinent to the
litigation, discovering the true facts and compelling disclosure of
these facts wherever they may be found, and assisting litigants in
preparing their cases for trial. Discovery statutes are to be liberally
and broadly construed to achieve their intended objectives.

Hicks v. USAA Gen. Indem. Co., 21-0840 (La. 3/25/22) (citations omitted).

We find that relators’ motion to compel, filed by parents seeking something

as simple as the identity of any witnesses who have knowledge about what

happened to the loss of their child’s remains, is not an abuse of the discovery

process.

La. R.S. 13:3715

Ochsner has claimed that the documents requested by the plaintiffs are

protected by the Louisiana Peer Review Statute, La. R.S. 13:3715.3 and that the

Louisiana Supreme Court’s decision in Smith v. Lincoln General Hospital, 605

So.2d 1347 (La. 1992) has been legislatively overruled by the subsequent

amendment of La. R.S. 13:3715.3.

In Smith, the Louisiana Supreme Court stated:

[La. R.S. 13:3715 and 44:7] are intended to provide confidentiality to
the records and proceedings of hospital committees, not to insulate
from discovery certain facts merely because they have come under the
review of any particular committee. Such an interpretation could
cause any fact which a hospital chooses to unilaterally characterize as
involving information relied upon by one of the sundry committees
formed to regulate and operate the hospital to be barred from an
opposing litigant’s discovery regardless of the nature of that
information. Such could not have been the intent of the legislature,
especially in light of broad scope given to discovery in general. La.
C.C.P. art. 1422. Further, privileges, which are in derogation of such
broad exchange of facts, are to be strictly interpreted.
…

7

[W]hen a plaintiff seeks information relevant to his case that is not
information regarding the action taken by a committee or its exchange
of honest self-critical study but merely factual accountings of
otherwise discoverable facts, such information is not protected by any
privilege as it does not come within the scope of information entitled
to that privilege.

This does not mean that the plaintiff is entitled to the entire study, as
such study may contain evidence of policy making, remedial action,
proposed courses of conduct, and self-critical analysis which the
privilege seeks to protect in order to foster the ability of hospitals to
regulate themselves unhindered by outside scrutiny and unconcerned
about the possible liability ramifications their discussions might bring
about. As such, the trial court must make an in camera inspection of
such records and determine to what extent they may be discoverable.

Smith, 605 So.2d at 1348.

At the time the Smith decision was rendered, La. R.S. 13:3715.3 protected

“the records and proceedings” of peer review committees from disclosure. In

1993, subsequent to the Smith decision, the Louisiana Legislature amended the

statute to read “… all records, notes, data, studies, analyses, exhibits, and

proceedings,” are protected from disclosure. It is this language that respondents

rely upon in arguing that the Court’s holding in Smith has been legislatively

overruled and that no information contained within peer review records is

discoverable.

However, subsequent to the amendment of La. R.S. 13:3715.3, the Louisiana

Supreme Court rendered decisions in Gauthreaux v. Frank, 95-1033 (La. 6/16/95),

656 So.2d 634 and Sepulvado v. Bauman, 99-3326 (La. 12/17/99), 753 So.2d 207.

In Gauthreaux, the Court stated, “[i]n the present case, the trial court interpreted

La. R.S. 13:3715.3 as protecting from discovery any information passing before a

hospital committee or otherwise discussed in a committee meeting. Such a reading

of the peer review committee privilege is clearly too expansive in light of our

decision in Smith …” and proceeded to then instruct the trial court to re-examine,

in camera if necessary, the discovery requests made by the plaintiff to determine

whether or not each item of information sought from the medical center defendant

8

is protected by the privilege created by the statute. The Court repeated these

instructions in Sepulvado, a similar discovery dispute case, where the Court, citing

Smith, remanded the case to the trial court with instructions to conduct an in

camera inspection of all materials requested by the plaintiffs which the defendants

claimed were protected under the statutory privilege.

The peer review privilege is not a blanket protection for all documents

included in an internal peer review. The in camera review process necessarily

ensures that the hospital/healthcare provider has not claimed as privileged,

documents and factual information that, for whatever reason, is unavailable

through the ordinary process of discovery. That the legislature intended for the

same factual information and documentation used by the peer review committee

for its own internal analysis to be available to a litigant in the normal course of

discovery is indicated by the exception stated in the statute:

[N]o original record or document, which is otherwise discoverable,
prepared by any person, other than a member of the peer review
committee or the staff of the peer review committee, may be held
confidential solely because it is the only copy and is in the possession
of a peer review committee.

La. R.S. 13:3715.3(A)(2).

Such an interpretation is additionally consistent with our rules of evidence

which allow for broad discovery and require the narrow construction of statutes

granting privilege. Because it is clear from the hearing transcript that the trial

court did not conduct an in camera review of the peer review documentation, we

remand this matter with instructions that the trial court conduct an in camera

review of the peer review documentation, according to law, utilizing the following

procedure.

Respondents shall produce to the trial court, for in camera review, the peer

review documentation responsive to the discovery requests in its entirety, with

proposed redactions of the analysis and conclusions of the peer review panel

9

claimed to be privileged. As to any purely factual information available to relators

through other means of discovery, respondents shall provide a statement indicating

where and how such information is otherwise available to relators. After

conducting an in camera review of the peer review documentation, the trial court

should render judgment either denying the motion to compel and clearly stating

that the documents and information sought are protected by the statutory privilege

under La. R.S. 13:3715.3 and contain no factual accountings or documentation

otherwise unavailable through ordinary discovery, or it should render judgment

granting the motion to compel and clearly indicating which documents are to be

produced, either in their entirety or with redactions, and providing respondents the

opportunity to seek supervisory review of that determination prior to production of

those documents to relators.

CONCLUSION

Upon de novo review, we find that the trial court legally erred in

acknowledging and giving legal effect to defendant’s so-called “Stipulation of

Liability.” We find this pleading is neither a stipulation voluntarily entered into by

the parties nor a judicial confession that explicitly acknowledges adverse facts set

forth in relators’ petition. We therefore vacate the ruling of the trial court. We

remand this matter to the trial court with instructions to reconsider relators’ Motion

to Compel and to review those documents that Ochsner claims are protected by La.

R.S. 13:3715 in accordance with the procedure for in camera review set forth

herein.

Gretna, Louisiana, this 11th day of May, 2022.

RAC
SJW
JJM

10

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 05/11/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

22-C-64
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable June B. Darensburg (DISTRICT JUDGE)
David L. Bateman (Relator)
Nadia M. de la Houssaye (Respondent)

MAILED
J. Michael McDonald (Relator)
Attorney at Law
6700 Jefferson Highway
Building 3
Baton Rouge, LA 70806