Bobby Abshire v. Continental Casualty Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-655

BOBBY ABSHIRE, ET AL.

VERSUS

CONTINENTAL CASUALTY COMPANY, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 84,656
HONORABLE DURWOOD CONQUE, DISTRICT JUDGE

**********

OSWALD A. DECUIR
JUDGE

**********

Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Nicholas J. Sigur
Attorney at Law
106 Beau Coteau Parkway
Broussard, LA 70518
(337) 837-9700
Counsel for Defendant/Appellee:
American Legion Hospital

C. Wm. Bradley, Jr.
Richard S. Crisler
Natalie J. Dekaris
Bradley, Murchison, Kelly & Shea, LLC
1100 Poydras Street, Suite 2700
New Orleans, LA 70163-2700
(504) 596-6300
Counsel for Defendant/Appellee:
Roger D. Hector, M.D.

R. Scott Iles
Attorney at Law
P. O. Box 3385
Lafayette, LA 70502
(337) 234-8800
Counsel for Plaintiffs/Appellants:
Bobby Abshire
Danny Abshire
Janet Abshire
Hubert Abshire, Jr.
Billy Abshire

DECUIR, Judge.

Bobby Abshire and his siblings, Janet A. Richard, Hubert Abshire, Billy

Abshire, and Danny Abshire, filed this wrongful death and survival action against

Dr. Roger Hector, Continental Casualty Company, and American Legion Hospital,

alleging medical malpractice which resulted in the death of their mother, Jeanette

Abshire. After a jury trial, judgment was rendered in favor of the defendants, and

the Abshires’ suit was dismissed. The Abshire family has appealed, alleging trial

court error in granting a directed verdict in favor of the hospital and in failing to

grant a judgment notwithstanding the verdict or a new trial in favor of the plaintiffs.

The Abshire family also contends the jury erred in finding no liability on the part

of Dr. Hector. For the following reasons, we affirm.

The record before us shows that in May of 2004, Jeanette Abshire was sixty-

nine years old, had previously suffered a stroke which affected her speech and her

gait, weighed ninety-three pounds, and was hypertensive. Mrs. Abshire was

brought to the Crowley American Legion Hospital on May 16, 2004 with

symptoms of vomiting and recent weight loss of ten to fifteen pounds. After

diagnosis of an abdominal obstruction, Mrs. Abshire was admitted into the hospital

and scheduled for surgery. Dr. Roger Hector, an anesthesiologist, was asked to

place a central line in the subclavian vein to be used for the intravenous

administration of fluids. After the central line was in place, Dr. Hector ordered an

x-ray to check for proper placement of the line, which was confirmed. Also, Dr.

Hector did not note anything unusual about the pulsatile flow or the blood color

which would have alerted him to an improper placement of the line. Other medical

personnel then used the central line several hours later for the administration of

fluids prior to surgery.

When Mrs. Abshire was brought into the surgical suite on the evening of

May 18, 2004, the surgeon discovered the central line had been placed in an artery

rather than a vein. Mrs. Abshire showed signs of decreased pulse and blood

pressure in the right arm, and the medical records indicate she may have had some

mental deterioration just prior to surgery. The surgeon, Dr. Ben Sabbaghian,

started a new central line in the correct location and proceeded with the planned

abdominal surgery to correct the blocked intestine. Following the surgery, Mrs.

Abshire did not regain consciousness. She was transferred to Our Lady of Lourdes

Hospital in Lafayette for removal of the arterial central line and repair of the artery.

Neurological and cardiovascular assessments showed that Mrs. Abshire had

probably suffered a stroke. A gastroenterologist inserted a feeding tube, and in the

course of his treatment, he discovered that she had a mass in the esophagus which

was later diagnosed as advanced esophageal cancer. She also had an ulcer and a

mass in one kidney.

Even with artificial life support and nutritional assistance, Mrs. Abshire

continued to deteriorate. She died on May 29, 2004. Multiple causes of death

were listed in the medical record and include: cerebrovascular accident, right

brachial artery thrombosis, gastric ulcer, hypertension, cerebrovascular disease,

intrahepatic cholestasis, and seizures.

Mrs. Abshire’s children filed suit against Dr. Hector, alleging that Dr.

Hector’s failure to immediately discover that the central line was improperly

placed in an artery rather than a vein was a violation of the standard of care and

ultimately caused Mrs. Abshire’s death. Their claim against American Legion

Hospital states that the nursing staff also violated the applicable standard of care

when the nurses did not discover the incorrect line placement.

2

Following lengthy pretrial proceedings, the case was tried by a jury in July

of 2009. At the close of the plaintiffs’ case, the trial court directed a verdict in

favor of American Legion Hospital and explained to the jury simply that ―you will

not be called upon to decide anything involving American Legion Hospital.‖ The

jury deliberated only on the fault of Dr. Hector and concluded he was not liable for

Mrs. Abshire’s death. The trial court refused to grant a judgment notwithstanding

the verdict.

The evidence in the record before us depicts Mrs. Abshire as a very sick

patient at the time of her hospital admission. Although she had been living

independently, she arrived at the hospital dehydrated, nauseated, unable to

communicate easily, and having recently experienced significant unexplained

weight loss. The central line was to be used primarily for nourishment purposes.

It is undisputed by the medical expert witnesses, including the plaintiffs’ expert

witnesses, that the misplacement of a central venous catheter in an artery is not a

breach of the standard of care. The alleged malpractice in this case is the failure to

timely detect the misplacement. Mrs. Abshire, however, may have had certain

symptoms which hid the misplacement from the medical personnel involved in her

care.

The parties agree that the standard of care for a physician who places a

central line in the subclavian vessel requires that he check for pulsatile blood flow,

observe the color of the patient’s blood, and confirm proper placement with an x-

ray. The expert testimony explained these steps as follows: Blood flow helps to

determine proper catheter placement because of the difference in arterial versus

venous blood pressure. Ordinarily, when a needle is inserted in an artery near the

heart, blood is expelled with a strong pressure. There are situations, however,

when pulsatile blood flow from an artery may be weak, such as when the patient

3

has low blood pressure or when the catheter needle is inserted in the vessel wall.

The color of the blood also helps determine proper placement because arterial

blood is freshly oxygenated and is bright red; venous blood returning to the heart is

depleted of oxygen and is darker than arterial blood. Nevertheless, a patient whose

oxygenation level is low will not have bright red arterial blood. Finally, the expert

testimony indicated that x-ray films can confirm that a catheter was properly

placed in a blood vessel, but the x-ray cannot show whether that vessel is an artery

or a vein.

Dr. Hector testified on his own behalf. He stated that he checked Mrs.

Abshire’s blood color and pulsatile blood flow and saw no signs of improper

placement of the catheter. He also ordered an x-ray which was reviewed by both

the emergency room physician and a radiologist. Neither doctor noted any signs of

improper placement. Dr. Hector thought Mrs. Abshire’s physical condition may

have been affected by dehydration, renal insufficiency, low or varying blood

pressures throughout the day, or even her history of smoking ten years prior to this

hospitalization. Dr. Hector and the other experts who testified in this case

explained that Mrs. Abshire’s various physical ailments may have concealed the

signs of catheter misplacement. After hearing this evidence, the jury determined

that Dr. Hector looked for the signs of misplacement, detected none, and hence did

not violate the applicable standard of care. Regarding the liability of the hospital,

the trial court heard no evidence indicating the nursing staff acted in violation of

the standard of care and granted a directed verdict in its favor.

Louisiana law provides for the manifest error standard of review of factual

determinations in medical malpractice cases:

An appellate court, in reviewing a jury’s factual conclusions,
must satisfy a two-step process based on the record as a whole: there
must be no reasonable factual basis for the trial court’s conclusion,

4

and the finding must be clearly wrong. Kaiser v. Hardin, 06-2092, pp.
11-12 (La.4/11/07), 953 So.2d 802, 810; Guillory v. Insurance Co. of
North America, 96-1084, p. 5 (La.4/8/97), 692 So.2d 1029, 1032.
This test requires a reviewing court to do more than simply review the
record for some evidence, which supports or controverts the trial
court’s findings. The court must review the entire record to determine
whether the trial court’s finding was clearly wrong or manifestly
erroneous. Guillory, 09-0075 at p. 16, 16 So.3d at 1118; Kaiser, 06-
2092 at p. 12, 953 So.2d at 810. The issue to be resolved on review is
not whether the jury was right or wrong, but whether the jury’s fact
finding conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d
840, 844 (La.1989); Canter v. Koehring Co., 283 So.2d 716, 724
(La.1973).

McGolthlin v. Christus St. Patrick Hosp., 10-2775, pp.16-17 (La. 7/1/11), 65 So.3d

1218, 1231.

Furthermore, upon review, the appellate court must consider whether the

plaintiff has met his three-prong burden of proof:

In a medical malpractice case, the plaintiff has the burden of
proving:

(1) The degree of knowledge or skill possessed or
the degree of care ordinarily exercised by physicians,
dentists, optometrists, or chiropractic physicians licensed
to practice in the state of Louisiana and actively
practicing in a similar community or locale and under
similar circumstances; and where the defendant practices
in a particular specialty and where the alleged acts of
medical negligence raise issues peculiar to the particular
medical specialty involved, then the plaintiff has the
burden of proving the degree of care ordinarily practiced
by physicians, dentists, optometrists, or chiropractic
physicians within the involved medical specialty.

(2) That the defendant either lacked this degree of
knowledge or skill or failed to use reasonable care and
diligence, along with his best judgment in the application
of that skill.

(3) That as a proximate result of this lack of
knowledge or skill or the failure to exercise this degree of
care the plaintiff suffered injuries that would not
otherwise have been incurred.

La. R.S. 9:2794(A).

5

Implicit in the trial court’s judgment in favor of defendants is
that plaintiffs did not prove that any of the defendants breached the
applicable standard of care or that any breach of the standard of care
by the defendants caused the injury. Thus, the issue is whether a
reasonable factual basis exists in the record for either of these findings.

Salvant v. State, 05-2126, p. 6 (La. 7/6/06) 935 So.2d 646, 651.

After reviewing the record before us, we find no manifest error in the verdict

reached by the jury. The explanations offered by the expert witnesses as to why Dr.

Hector did not detect signs of a misplaced catheter are reasonably supported by the

evidence, and the jury was not clearly wrong in finding no breach of the standard

of care. We also conclude the trial court appropriately granted American Legion

Hospital’s motion for directed verdict, as we find the plaintiffs failed to meet their

burden of proving malpractice on the part of the hospital nursing staff. The

plaintiffs did not object at trial to the language used by the court to inform the jury

of this action, and we find no error in the brief explanatory comment made by the

trial court, stating simply that the jury will not be called upon to decide anything

with regard to the hospital. Likewise, the trial court did not err in denying the

plaintiffs’ motion for judgment notwithstanding the verdict and/or new trial.

For the above and foregoing reasons, the judgment of the trial court is

affirmed. Costs of this appeal are assessed to the plaintiffs.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of
Appeal, Rule 2–16.3.

6