Marilyn D. White and Sylvia Sue White Individually and Obo Sylvia White Pevey (D) v. Rapides Healthcare System, LLC D/B/A Rapides Regional Medical Center

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-101

MARILYN D. WHITE AND SYLVIA SUE WHITE
INDIVIDUALLY AND ON BEHALF OF
SYLVIA WHITE PEVEY, DECEASED

VERSUS

RAPIDES HEALTHCARE SYSTEM, LLC
D/B/A RAPIDES REGIONAL MEDICAL CENTER, ET AL.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 259,964 A
HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Candyce G. Perret,
Judges.

REVERSED AND REMANDED.

David Abboud Thomas
Hayden A. Moore
Walters, Papillion, Thomas, Cullens, LLC
12345 Perkins Road, Building One
Baton Rouge, LA 70810
(225) 236-3636
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Sylvia Sue White individually and on behalf of Sylvia White Pevey,
Deceased
Marilyn D. White individually and on behalf of Sylvia White Pevey,
Deceased

David R. Sobel
Nathan W. Friedman
Faircloth, Melton, Sobel, & Bash, LLC
105 Yorktown Drive
Alexandria, LA 71303
(318) 619-7755
COUNSEL FOR DEFENDANT/APPELLEE:
Kristin Williams, N.P.

Kay Hilgerson Michiels
Randall M. Seeser
Gold, Weems, Bruser, Sues, & Rundell
P.O. Box 6118
2001 MacArthur Drive
Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR DEFENDANTS:
Rapides Healthcare System, LLC
d/b/a Rapides Regional Medical Center
Jonathan Augustine, R.N.

PERRET, Judge.

This is a medical malpractice suit brought by Marilyn D. White and Sylvia

Sue White, individually and on behalf of their deceased mother, Sylvia White

Pevey (“Plaintiffs”). The malpractice suit was brought after Ms. Pevey’s death

while a patient under the treatment and care of Johnathan Augustine, RN, (“Nurse

Augustine”) and Kristin Williams, NP, (“NP Williams”) at Rapides Regional

Medical Center. Plaintiffs appeal the summary judgment granted in favor of NP

Williams, dismissing her from the suit. On appeal we reverse the trial court’s grant

of summary judgment and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND:

Ms. Pevey, an eighty-eight-year-old woman, was admitted to Rapides

Regional Medical Center on March 18, 2014, with a right hip fracture which

required surgery. Dr. Joseph Landreneau was contacted for a consultation for

cardiac clearance prior to the surgery, which he granted. Ms. Pevey was a patient

of Dr. Landreneau for coronary artery disease. Her records indicate that she had

stents placed two years prior and had a pacemaker. Her medical records indicate

that Dr. William Bates was also contacted for consultation as Ms. Pevey also

suffered from diabetes and hypertension. On March 21, 2014, Dr. Daniel Oas, an

orthopedist, performed the open treatment of the right intertrochanteric femur

fracture with intramedullary nailing of Ms. Pevey’s right hip. Postoperatively, Ms.

Pevey progressed positively, and her medical records indicate that she was not at

risk for aspiration in the days following the surgery.

However, on March 24, 2014, around 9:16 a.m., Ms. Pevey’s Clinical

Documentation Record indicates her swallowing was impaired. It was about this

time that NP Williams, the cardiology Nurse Practitioner for Dr. Landreneau,

testified that she made her rounds to Ms. Pevey’s room. Nurse Augustine was

already present and administering Ms. Pevey’s medication by feeding Ms. Pevey

crushed pills with soft food. While Nurse Augustine was administering the

medication, Ms. Pevey began exhibiting signs of aspiration and had difficulty

swallowing. NP Williams spoke with Ms. Pevey’s family who informed NP

Williams that Ms. Pevey was lethargic and had “a flat affect, which is not really

responding as much as she had been responding to them.” NP Williams then

examined Ms. Pevey and noticed that she was short of breath and was not able to

cough. During the examination, NP Williams recalled that “everything sounded

okay except for her lungs” and noted that Ms. Pevey’s O2 saturations were

dropping. Thereafter, NP Williams ordered Nurse Augustine to titrate oxygen. NP

Williams testified in her deposition that after approximately fifteen minutes of

being in the room and upon concluding her examination, NP Williams left to

update Dr. Landreneau regarding Ms. Pevey’s change in condition. NP Williams’

progress notes include an entry for Ms. Pevey’s vital signs at 10:13 a.m. on March

24.

Ms. Pevey’s Clinical Documentation Record indicates that at 9:16 a.m. her

swallowing was impaired and that at 9:29 a.m., her “Behavior” was “ASLEEP[.]”

At 10:13 a.m. Ms. Pevey’s pulse and oxygen levels were recorded. Her records

further indicate that around 10:24 a.m., Ms. Pevey coded and that she was

successfully intubated at 10:26 a.m. At 10:47 a.m. the record indicates “NG Tube”

“Settings: Low Intermittent Suction.” Once resuscitated, Ms. Pevey was moved to

the MICU, where she coded again at 10:47 a.m., according to the records, and

chest compressions were started. However, Ms. Pevey ultimately died. At 12:14

p.m., signed at 12:19 p.m., there is a “Post code blue note” noting that the reason a

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code was called was “PEA arrest” and that the patient was given CPR for twenty-

six minutes, which efforts were terminated at 11:13 a.m. There is also a note from

12:18 p.m. acknowledging a “Critical Event[,]” and at 12:22 p.m., a discharge note

that Ms. Pevey expired.

Later, Nurse Augustine entered a nurse note as follows:

PT sitting upright in bed. Assisting PT with medications by
mouth with pudding. PT exhibits difficulty swallowing while taking
medications. PT began choking and exhibiting signs of aspiration.
Choking stopped. But I could hear garling [sic] sounds while
breathing. Respirations increased to 28 per minute. O2 was applied
at [indecipherable] LPM per NC. Assessed O2 sat and it was noted to
be wide-ranging. Fluctuating from 80%-90%. Contacted RT to assist
with deep suctioning. Left room momentarily to retrieve suctioning
equipment and upon arrival along with RT. PT was noted to be blue in
the face with no chest rise. Assessed for carotid pulse and none was
present. Called for code team and immediately began chest
compressions. . . . . The above events occurred during morning
medication administration.

Dr. William Scott Cantwell noted that, after being resuscitated, Ms. Pevey

was moved to the MICU with “aspiration and respiratory arrest leading to cardiac

arrest[.]” Additionally, Dr. Daniel R. Oas notes, “I was called this morning by the

nurse, Johnathan, to notify me that she [Ms. Pevey] had a cardiac arrest due to

questionable aspiration.” Ms. Pevey’s medical records also indicate a discharge

diagnosis of “1. Cardiac arrest. 2. Open reduction and internal fixation, right hip

fracture. 3. Cardiac disease.”

As NP Williams is a qualified healthcare provider pursuant to La.R.S.

40:1231.8, Plaintiffs filed a request for a Medical Review Panel (“MRP”). The

MRP issued a unanimous opinion finding NP Williams did not breach the standard

of care.

Thereafter, Plaintiffs filed suit in district court against NP Williams, Nurse

Augustine, and Rapides Regional Medical Center. Plaintiffs alleged that NP

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Williams entered the room when Ms. Pevey was aspirating and did nothing to

assist Nurse Augustine, “did nothing reactive to the changes in Ms. Pevey’s

clinical status[,]” and did not perform “life saving measures on Ms. Pevey as she

was clearly aspirating and choking to death in her presence.” The Petition for

Damages alleges:

Rapides Regional Medical Center, Johnathan Augustin, Kristin
Williams and/or their employees and others for whom they are
responsible, were negligent, at fault, and breached the standard of care
in the following non-exclusive particulars:

a) Failing to provide proper medical treatment to Sylvia White
Pevey;

b) Failing to appropriately treat Sylvia White Pevey;

c) Failing to evaluate Sylvia White Pevey as a high risk for
aspiration, despite her exhibiting several of the risk factors;

d) Failing to timely administer lifesaving respiratory
procedures to Sylvia White Pevey; and

e) Administering pills orally causing Sylvia White Pevey to
choke and/or aspirate.

NP Williams filed a motion for summary judgment contending that Plaintiffs

could not carry their burden in proving either that NP Williams breached the

standard of care, or, if it was breached, that Ms. Pevey’s injuries were caused by

NP Williams’ alleged negligence. In support of her motion, NP Williams attached

the MRP’s opinion and alleged that Plaintiffs have not produced any

countervailing affidavits to rebut the panel’s opinion.1

In opposition to summary judgment, Plaintiffs attached the affidavit of

Helen Neil, RN, MSN-HCSM, CLNC, FCN, a nursing expert. Therein, Neil

opined regarding the standard of care applicable, and set forth what she believed

1
Williams also included Plaintiffs’ MRP complaint, the affidavit of panel member Dr.
Thomas James Gullatt, Plaintiffs’ petition, and Williams’ answer to the petition.

4

were several failings on the part of NP Williams that caused Ms. Pevey’s ultimate

demise. Plaintiffs also attached excerpts of NP Williams’ deposition and excerpts

from Ms. Pevey’s medical records. Plaintiffs asserted that, because they have

submitted the affidavit of Neil, summary judgment must be denied.

In reply, Defendant argued that a Registered Nurse cannot attest to the

standard of care required of a Nurse Practitioner like NP Williams, let alone to

causation. Plaintiffs’ filed a surreply addressing these issues, arguing that basic

nursing care standards apply to this event, which Neil can attest to.

At the summary judgment hearing, the trial court concluded that according

to statute, a Registered Nurse cannot opine regarding the standard of care

applicable to a cardiologist Nurse Practitioner. Therefore, the trial court granted

Defendant’s summary judgment. The judgment at issue on this appeal specifically

states, “the Court specifically finds based on the evidence presented that defendant,

KRISTIN WILLIAMS, NP, was not at fault, did not cause plaintiffs’ injuries[.]”

Plaintiffs filed a timely writ application with this court. This court denied

the writ, finding the judgment was an appealable judgment and considered the writ

application a timely filed motion for appeal. Now, Plaintiffs appeal the summary

judgment dismissing NP Williams and assert one assignment of error, that “[t]he

trial court erred in granting Defendant’s Motion for Summary Judgment by failing

to allow a nurse to offer an opinion as to medical care within her specialty, when

she clearly exhibited knowledge of the requisite care at issue.”

STANDARD OF REVIEW:

On appeal, the grant of summary judgment is reviewed de novo, “using the

same criteria that govern the trial court’s consideration of whether summary

judgment is appropriate, i.e., whether a genuine issue of material fact exists and

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whether the mover is entitled to judgment as a matter of law.” Supreme Servs. and

Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d

634, 638. Louisiana Code of Civil Procedure article 966(D)(1) provides that when

“the mover will not bear the burden of proof on the issue before the court on the

motion for summary judgment[,]” then the mover need only point to “the absence

of factual support for one or more elements essential to the adverse party’s

claim[.]” Thereafter, it is the adverse party’s burden to “present evidence

sufficient to show a genuine issue of material fact.” Blood v. Sw. Med. Ctr., 12-

450, p. 2 (La.App. 3 Cir. 11/7/12), 102 So.3d 1053, 1055. If the adverse party

“fails to produce factual support sufficient to establish that he will be able to

satisfy his evidentiary burden of proof at trial, there is no genuine issue of material

fact[,]” and summary judgment should be granted. Samaha v. Rau, 07-1726, p. 5

(La. 2/26/08), 977 So.2d 880, 883 Summary judgment is appropriate only if the

“motion, memorandum, and supporting documents show that there is no genuine

issue as to material fact, and that the mover is entitled to judgment as a matter of

law.” La.Code Civ.P. art. 966(A)(3).

DISCUSSION:

In the context of a medical malpractice claim against a nurse, the plaintiff is

required under La.R.S. 9:2794 to establish, by a preponderance of the evidence:

(1) . . . the degree of skill ordinarily employed, under similar
circumstances, by the members of the nursing or health care
profession in good standing in the same community or locality; (2)
she either lacked this degree of knowledge or skill or failed to use
reasonable care and diligence, along with her best judgment in the
application of that skill; and (3) as a proximate result of this
knowledge or skill or the failure to exercise this degree of care, the
plaintiff suffered injuries that would not, otherwise, have occurred.

6

Odom v. State ex rel. Dep’t of Health and Hosps., 98-1590, pp. 7-8 (La.App. 3 Cir.

3/24/99), 733 So.2d 91, 96-97; see also Blood, 102 So.3d 1053.

“Expert testimony is generally required to establish the applicable standard

of care and whether or not that standard was breached, except where the

negligence is so obvious that a lay person can infer negligence without the

guidance of expert testimony.” Samaha, 977 So.2d at 884.

In support of summary judgment, NP Williams submitted into evidence the

MRP’s unanimous opinion, and an affidavit from Dr. Thomas James Gullatt, one

of the panel members. Based on this evidence, NP Williams asserts, “there is no

evidence to support the allegations that: 1) KRISTIN WILLIAMS, NP, deviated

from the appropriate standard of care or 2) caused this patient harm.” This court

has considered MRP opinions when ruling on a summary judgment motion. See

Reinke v. Kordisch, 13-1093 (La.App. 3 Cir. 3/5/14), 134 So.3d 176; Palombo v.

Bacque, 06–218 (La.App. 3 Cir. 5/31/06), 931 So.2d 1226, writ denied, 06–1698

(La. 10/6/06), 938 So.2d 82.

In this case, the MRP opinion stated:

The panel finds the evidence does not support the conclusion
that Kristin Williams, Nurse Practitioner, failed to comply with [the]
acceptable standard of care of Ms. Sylvia Pevey. When NP Williams
presented to Ms. Pevey’s room, she recognized the distress Ms. Pevey
was in and moved expeditiously by performing a physical assessment,
increasing the oxygen to stabilize the patient and ordering suction, all
of which were appropriate interventions. As a cardiology Nurse
Practitioner, she recognized the issues [sic] was a lung issue, not
cardiac, as Ms. Pevey’s heart was functioning and the patient had no
chest pain. NP Williams talked to the family and the RN regarding
Ms. Pevey’s condition. The [panel] finds no deviation of care by
Kristin Williams, N.P.

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Dr. Gullatt, further attested that “the evidence did not support the conclusion that

[NP Williams] deviated from the applicable standard of care . . . and that no

conduct by [NP Williams] was causative of any harm to the patient herein.”

Because NP Williams pointed to a lack of factual support for two elements

essential to Plaintiffs’ claim, Plaintiffs were required to “present evidence

sufficient to show a genuine issue of material fact.” Blood, 102 So.3d at 1055. In

opposition, Plaintiffs presented the affidavit of Neil, which they assert is enough to

overcome their summary judgment burden. Although Plaintiffs specifically argue

that the trial court erred in finding that Neil could not opine as to the deviation of

the standard of care of NP Williams, we must review the record de novo and

decide whether Plaintiffs carried their burden in presenting evidence sufficient to

show a genuine issue of material fact regarding both deviation from the standard of

care and causation.

It is well settled that nurses are subject to the same standard as physicians.

Odom, 733 So.2d 91. Louisiana Revised Statutes 40:1231.1(A) provides that the

standard of care of health care providers “shall be to exercise that degree of skill

ordinarily employed, under similar circumstances, by the members of his

profession in good standing in the same community or locality, and to use

reasonable care and diligence, along with his best judgment, in the application of

his skill.”2 “Where the defendant physician practices in a particular specialty and

the alleged acts of medical negligence raise issues peculiar to the particular

medical specialty involved, the plaintiff has the burden of proving the degree of

care ordinarily practiced by physicians within that specialty.” Domingue v. La.

2
Louisiana Revised Statutes 40:1231.1 was redesignated from La.R.S. 40:1299.41,
effective August 1, 2015. The new statute did not change the cited language.

8

Guest House, LLC, 17-633, p. 6 (La.App. 3 Cir. 12/6/17), 258 So.3d 3, 6, writ

denied, 18-14 (La. 2/23/18), 237 So. 3d 517 (quoting Vanner v. Lakewood

Quarters Ret. Cmty., 12-1828, p. 6 (La.App. 1 Cir. 6/7/13), 120 So.3d 752, 755-

56).

NP Williams is a cardiology Nurse Practitioner, whereas Neil, Plaintiffs’

expert, is a Registered Nurse. NP Williams asserts Neil cannot testify regarding

the standard of care applicable to a Nurse Practitioner. However, our courts have

recognized that it is the training and knowledge of the requisite subject matter,

rather than the specialty, that is ultimately determinative of whether an expert may

testify as to the degree of care that should be exercised. See La.R.S. 9:2794;

Hebert v. Podiatry Ins. Co. of Am., 96-567 (La.App. 3 Cir. 10/9/96), 688 So.2d

1107; McGregor v. Hospice Care of Louisiana in Baton Rouge, LLC, 13-1970, p. 5

(La.App. 1 Cir. 10/24/14) (unpublished opinion).

A person may qualify as an expert to testify regarding standard of care if the

witness meets those requirements in La.R.S. 9:2794, including that the witness

“has knowledge of accepted standards of medical care for the diagnosis, care, or

treatment of the illness, injury, or condition involved in the claim” and “is qualified

on the basis of training or experience to offer an expert opinion regarding those

accepted standards of care.” (emphasis added). The first circuit in Ricker v.

Hebert, 94-1743, p. 4 (La.App. 1 Cir. 5/5/95), 655 So.2d 493, 495 (citations

omitted), further explained:

In determining whether testimony regarding the standard of
care will be limited under Revised Statute 9:2794(A) to a specialist
who practices the same specialty as the defendant, the operative
statutory phrase is “where the alleged acts of medical negligence raise
issues peculiar to the particular medical specialty involved.” Where
the procedure alleged to be negligently performed is one that is not
limited to a particular specialty, and where there is no showing that

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the standard of care is different for different medical disciplines, an
expert with knowledge of the requisite procedure should be allowed to
testify regarding the standard of care for performing that procedure.

“[O]ur jurisprudence has recognized that where medical disciplines overlap,

it is appropriate to allow a specialist in one field to give expert testimony as to the

standard of care applicable to areas of the practice of medicine common to both

disciplines.” Pertuit v. Jefferson Par. Hosp. Serv. Dist. No. 2, 14-752, p. 6

(La.App. 5 Cir. 5/14/15), 170 So.3d 1106, 1110, writ denied, 15-1176 (La.

9/18/15), 178 So.3d 152. See also, Benson v. Rapides Healthcare Sys. L.L.C., 15-

1083 (La.App. 3 Cir. 4/6/16), 188 So.3d 1139, writ denied, 16-1144 (La.

10/10/16), 207 So.3d 404; Smith v. Clement, 01-87 (La.App. 3 Cir. 10/3/01), 797

So.2d 151, writs denied, 01-2878 (La. 1/25/02), 807 So.2d 249 and 01-2982 (La.

1/25/02), 807 So.2d 843.

Additionally, our courts look to La.Code Evid. art. 702 in qualifying medical

experts, which similarly focuses on an expert’s knowledge and training:

A. A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:

(1) The expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and
methods; and

(4) The expert has reliably applied the principles and methods
to the facts of the case.

Although the areas of Nurse Practitioner and Registered Nurse differ, it is

Plaintiffs’ argument that Neil can attest to the standard of care applicable in this

case because, at the time NP Williams was observing Ms. Pevey, she was not

10

present in her Nurse Practitioner capacity, but instead was providing general

nursing care. Neil attests that:

8. The standards applicable to the care of Kristen Williams,
NP during her treatment of Mrs. Pevey are standards for basic nursing
care. It is these standards that Kristen [sic] Williams breached. The
standards of care for nurses are applicable to Kristen [sic] Williams
and the care she provided to Sylvia Pevey.[3]

A Nurse Practitioner is defined by La.R.S. 37:913(1)(d) as

an advanced practice registered nurse educated in a specified area of
care and certified according to the requirements of a nationally
recognized accrediting agency . . . or as approved by the board and
who is authorized to provide primary, acute, or chronic care . . . acting
within his scope of practice[.]

A Registered Nurse is defined as “any individual licensed under this Part to

engage in the practice of nursing as defined in Paragraph (14) of this Section.”

La.R.S. 37:913(15). Section 14 describes “registered nursing” and states:

“Registered nursing” means the practice of the scope of nursing
which is appropriate to the individual’s educational level, knowledge,
skills, and abilities, including:

(a) Assessing the health status of an individual or group of
individuals.

(b) Establishing a nursing diagnosis and identifying health care
needs, or both.

(c) Establishing goals to meet identified health care needs.

(d) Planning nursing care measures.

(e) Implementing nursing care through such services as case
finding, health instruction, health counseling, providing care
supportive to or restorative of life and well-being, and executing
health care regimens as prescribed by licensed physicians, dentists, or
other authorized prescribers.

3
However, we note that Neil also attests to the standard of care and actions NP Williams
should have taken as an advanced practice nurse, though Neil was not argued to be an advanced
practice nurse.

11

(f) Delegating nursing interventions to qualified nursing
personnel in accordance with criteria established by the board.

(g) Maintaining nursing care rendered directly or indirectly.

(h) Evaluating human responses to interventions.

(i) Teaching the theory and practice of nursing.

(j) Managing and supervising the practice of nursing.

(k) Collaborating with licensed physicians, dentists, and other
health care providers in the management of health care.

(l) Performing additional acts which are recognized within
standards of nursing practice and which are authorized by the board.

“Despite the legislative mandate that summary judgments are now favored,

factual inferences reasonably drawn from the evidence must be construed in favor

of the party opposing the motion, and all doubt must be resolved in the opponent’s

favor.” Domingue, 258 So.3d at 6 (quoting Vanner, 120 So.3d at 755). Upon

review, we find that Plaintiffs have raised a genuine issue of material fact—that if

there is overlap between the duties of NP Williams and a Registered Nurse, Neil

could give an expert opinion regarding that overlap. Further, determining whether

NP Williams was operating in any area of overlap between her Nurse Practitioner

expertise and general nursing care requires a factual determination. Therefore,

summary judgment is not appropriate on this issue.

Despite the outcome on the standard of care issue, Plaintiffs must also

demonstrate by a preponderance of the evidence that a causal nexus exists between

NP Williams’ alleged breach of the standard of care and Ms. Pevey’s death. “The

defendant/physician’s conduct ‘must increase the risk of a patient’s harm to the

extent of being a substantial factor in causing the result but need not be the only

cause.” Pfiffner, 643 So. 2d at 1230, fn. 1. Although causation is usually an issue

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left for the factfinder’s determination, causation may be determined on summary

judgment “if reasonable minds could not differ.” Rogers v. Hilltop Ret. & Rehab.

Ctr., 13-867, pp. 8-9 (La.App. 3 Cir. 2/12/14), 153 So.3d 1053, 1060 (quoting

Henderson v. Homer Mem’l Hosp., 40, 585, p. 11 (La.App. 2 Cir. 1/27/06), 920

So.2d 988, 995, writ denied, 06-491 (La. 5/5/06), 927 So.2d 316).

Plaintiffs’ submitted Neil’s affidavit as well as Ms. Pevey’s medical records

to meet this burden. Plaintiffs argue that Ms. Pevey’s medical records, specifically

the physician notes, document the causal connection between NP Williams’

substandard care and Ms. Pevey’s harm. We note that in cases involving patients

with complicated medical histories or conditions, expert testimony regarding

causation is necessary. See Rogers, 153 So.3d 1053; See also Juge v. Springfield

Wellness, L.L.C., 18-736 (La.App. 1 Cir. 2/28/19), 274 So.3d 1, writ denied, 19-

513 (La.5/28/19), 273 So.3d 309 (finding that expert testimony was required, not

merely medical records, to prove plaintiff would be able to satisfy her burden of

proof at trial). Therefore, if the alleged negligence is not an obviously careless act,

Plaintiffs were required to produce an expert witness to meet their burden on

causation.

In response to Neil’s affidavit as expert testimony regarding causation, NP

Williams argues that a Registered Nurse cannot make determinations regarding

medical diagnoses. See La.R.S. 37:913(13) (“the practice of nursing or registered

nursing shall not be deemed to include acts of medical diagnosis[.]”). See also

Dade v. Clayton, 2012 WL 5288005 (W.D. La. 2012) (not reported) (“[I]n

Louisiana, the license to practice nursing does not include the authority to render

medical diagnoses. . . . Under similar circumstances, courts in other states have

held that nurses are not qualified to render opinions on medical causation.”).

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However, in Browning v. West Calcasieu Cameron Hospital, 03-332, p. 14

(La.App. 3 Cir. 11/12/03), 865 So.2d 795, 807, writ denied, 03-3354 (La. 2/13/04),

867 So.2d 691, this court determined causation was “an inappropriate question at

the summary judgment stage.” In Browning, the plaintiffs alleged that the delay in

transporting the decedent to the hospital caused or contributed to her death from a

heart attack. The responding paramedics admitted that they should have

transported the decedent the first time they were called (they were called twice)

and that she would have been placed on a cardiac monitor at the hospital to

immediately detect a heart condition. Although no expert evidence was presented

regarding causation, the court considered the testimony of the responding

paramedics and the facts of the case in light of Estate of Adams v. Home Health

Care of Louisiana, 00-2494 (La. 12/15/00), 775 So.2d 1064 (finding expert

testimony unnecessary in a delayed treatment case that resulted in amputation).

Thereafter, the Browning Court concluded:

We find the Brownings’ failure to proffer expert evidence to
prove causation unimportant at this stage in the proceedings, even
though, ultimately, its absence may weaken their case, since the delay
in diagnosing and treating Mrs. Browning’s heart condition was surely
a factor in bringing about her eventual demise. . . .

Thus, we find that the Brownings did not need to present expert
testimony to prove the existence of a causal connection between
WCCH’s alleged negligence and Mrs. Browning’s death.

Id. at 807.

On the contrary, in Jackson v. Suazo-Vasquez, 12-1377 (La.App. 1 Cir.

4/26/13), 116 So.3d 773, the court determined that cause of death or loss of chance

was beyond the expertise of a Registered Nurse. The plaintiffs asserted the case

was one of obvious negligence where a lay person could determine the relationship

between elevated blood pressure and stroke. However, the first circuit noted the

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deceased’s complicated medical history, which included hypertension, diabetes,

and end-stage renal disease, concluding that “the issue is inextricably bound to the

complex medical determination of the cause of Ms. Johnson’s death. Such a

determination requires an assessment of her complicated medical history, the

multitude of serious medical conditions from which she suffered, and the effect the

defendants’ acts and/or omissions had upon her.” Id. at 778.

The record in the current case indicates NP Williams was present in the

room while Ms. Pevey was aspirating. She examined Ms. Pevey and ordered

Nurse Augustine to titrate oxygen and suction, then left. Nurse Augustine went to

retrieve suctioning equipment and, upon his return, found Ms. Pevey to be “blue in

the face with no chest rise.” Nurse Augustine then called for a code. Although

resuscitated, Ms. Pevey coded again at 10:47 and all efforts to save her life were

terminated at 11:13. Considering the progression of events (aspiration, blue in the

face with no chest rise, code), we find this case more like Browning and Estate of

Adams. Because causation is usually an issue left for the factfinder’s

determination, causation in this case is more appropriately decided by a trial on the

merits.

Therefore, we find that Plaintiffs presented evidence sufficient to show a

genuine issue of material fact and that NP Williams is not entitled to judgment as a

matter of law. Thus, we reverse the trial court’s grant of summary judgment and

remand for further proceedings.

REVERSED AND REMANDED.

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

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