First Circuit of Louisiana Allows Lost Chance of Survival Tort Case to Go Forward and Specifies Burden of Proof

In June 2010, the First Circuit of the State of Louisiana Court of Appeal reversed and remanded the case of Lena Hebert et al. v. Plaquemine Caring, L.L.C. due to a legal error committed by the Eighteenth Judicial District Court for Iberville Parish. This legal error proved to be a compelling element to the case and demonstrates why a competent attorney is highly important, especially in the case of a loss of a family member or other personal injury element.

The plaintiffs in this case are the survivors of the deceased, Mr. Morgan Hebert. He suffered a fractured hip from falling, but had a heart attack before he was able to undergo surgery. Upon leaving the hospital, Mr. Hebert was discharged to a long-term skilled nursing facility owned by the defendants, Plaquemine Caring, L.L.C. At the time Mr. Hebert was admitted to the nursing facility, he had been diagnosed with several serious conditions, which required him to be dependent upon a ventilator. On October 19, 2001, his family members found him cold and nonresponsive. They notified the staff at once and Mr. Hebert was pronounced dead from respiratory failure, cerebrovascular accident, and cervical neuropathy.

Mr. Hebert’s surviving spouse and children alleged that the defendants’ fault and negligence caused Mr. Hebert’s loss of a chance of survival. After a bench trial, the judge granted the defendant’s oral motion for involuntary dismissal, finding that plaintiffs had not established that a breach of the standard of care was a cause of Mr. Hebert’s death. The First Circuit Court of Appeal reversed and remanded because the trial court used the incorrect legal standard in granting defendant’s motion.

In a lost chance of survival case, the plaintiff does not have to prove that the patient would have lived had proper treatment been given. Rather, the plaintiff has to establish by a preponderance of the evidence that 1) a chance of survival existed in the first place and 2) the defendant’s negligent conduct denied the patient a chance of survival that he or she had before the defendant’s conduct. The defendant’s conduct does not need to be the only cause of death, but the conduct must have increased the risk of harm. The plaintiff can recover even when it is more likely than not that the patient would have died due to a pre-existing condition. In addition, the plaintiff does not have to show that the defendant’s actions led to Mr. Hebert’s death to a “medical degree of certainty.”

At trial, a plaintiffs’ expert testified that Mr. Hebert’s vital signs indicated that he was in distress in the hours leading up to his death. There had been inconsistencies in Mr. Hebert’s chart that were corroborated by sworn testimony by the nursing staff as well as a lack of proper recordkeeping, which meant that no problematic patterns were recorded that might have alerted staff. Another doctor, who was not qualified as an expert witness, testified that Mr. Hebert was in frail health at the time of admission to the nursing facility and that patients with Mr. Hebert’s symptoms commonly experience “sudden death episodes.”

The First Circuit acknowledged that the evidence was not strong, but because an involuntary dismissal in a bench trial is like a directed verdict in a jury trial, the plaintiff must have offered no evidence to support its claims and the facts presented so strongly supported the defendant’s position that no reasonable person could have reached a contrary verdict. Because that was not the case here, the First Circuit reversed and remanded for further proceedings.