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01/25/02 "See News Release 007 for any concurrences and/or dissents."

SUPREME COURT OF LOUISIANA
No. 01-C-1517 c/w 01-C-1519 c/w 01-C-1521 LOUIS COLEMAN, INDIVIDUALLY AND AS FATHER OF LOUIS FRANK COLEMAN Versus DR. RICHARD DENO, DR. IVAN SHERMAN AND JOELLEN SMITH HOSPITAL

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS LOBRANO, Justice Pro Tempore* We granted certiorari in this case primarily to determine whether the court of appeal erred in recognizing an intentional tort cause of action against an emergency room physician for improper transfer of a patient under general tort law, which is outside the scope of the limitations set forth in the Medical Malpractice Act, La. R.S. 40:1299.41, et seq. (MMA). After review of the evidence, we conclude that the plaintiff-patient's cause of action against the defendant-doctor is based solely on medical malpractice and thus the court of appeal's finding of an intentional tort of "patient dumping" is in error. With respect to the medical malpractice liability, we find no manifest error in the jury's finding of malpractice on the part of the defendant-doctor; however, we reallocate fault between the defendant-doctor and the non-party charity hospital. With respect to damages, we remand to the court of

Retired Judge Robert L. Lobrano, assigned as Justice Pro Tempore, participating in the decision.

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appeal for both a meaningful quantum review and a recasting of the ultimate judgment in accordance with the limitations of the MMA. Facts On June 11, 1988, Louis Coleman, then thirty-two years old, underwent surgery at Charity Hospital in New Orleans (CHNO). During that surgery, his left arm was amputated to save his life. Coleman initially sought emergency treatment at JoEllen Smith Hospital (JESH), where he presented twice within a forty-hour interval on June 7 and 8, 1988. On the second visit to JESH, the emergency room physician transferred Coleman to CHNO. Coleman first visited JESH at 1:44 a.m. on June 7, 1988. On that occasion, Coleman never complained of any problems with his arm. Rather, Coleman told the triage nurse that he had pulled something in his chest while lifting and that all movement hurts including deep breathing. With the exception of an elevated temperature (100.3E F), his vital signs were normal. Dr. Ivan Sherman, the emergency room physician who examined Coleman, found his chest was clear, but his chest wall was tender. Dr. Sherman ordered an EKG and a chest x-ray. Based on the negative results of those tests and the physical examination, Dr. Sherman diagnosed chest pain and costochondritis, which is an inflammation of the area between the ribs and sternum At 3:45 a.m., Coleman was discharged with instructions to take the prescribed medication, Naprosyn (an anti-inflamatory); to apply heat to his chest; and to follow-up with a named physician. Realizing that all area pharmacies were closed at that time of day, Dr. Sherman not only gave Coleman a prescription for Naprosyn, but also ordered that an initial double dose of Naprosyn be dispensed to him in the emergency room.

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At 8:10 p.m. on June 8, 1988, Coleman returned to JESH. Coleman told the triage nurse that at about 3:00 or 4:00 a.m. that day his left arm had started aching and swelling. Coleman testified that he attributed these symptoms to be side effects of the Naprosyn. The triage nurse noted that Coleman's arm was swollen with warm bullae in the left antecubital space. With the exception of an elevated temperature (102.8E F), and heart rate (120 beats per minute), his vital signs were normal. Dr. Richard Deno, the emergency room physician who examined Coleman, documented his findings by drawing a picture of Coleman's left arm on which he depicted: (1) small bullous lesions; (2) a hot, swollen area (which, using his engineering background, he depicted by using thrash marks); and (3) track marks (consistent with intravenous drug abuse). Dr. Deno initially believed that Coleman could be treated on an outpatient basis and thus wrote discharge instructions (similar to Dr. Sherman's) for outpatient treatment with oral antibiotics and follow-up with a named physician. However, upon receiving the laboratory results reflecting a markedly elevated white blood count (27.1), Dr. Deno diagnosed Coleman with left arm cellulitis,1 and determined that Coleman required inpatient intravenous antibiotic treatment. At that point, the treatment decision became where Coleman should receive such treatment. Ultimately, Dr. Deno determined that a transfer for inpatient admission at CHNO was appropriate for two reasons: (1) given Coleman's lack of insurance he would not be able to financially afford private hospitalization at JESH;2 and (2) given CHNO--a Level I Trauma Center with a full-scale, on-site laboratory--was better
Cellulitis is an "[i]nflammation of cellular or connective tissue." Steadman's Medical Dictionary 307 (26th ed. 1995). On both occasions that Coleman presented to JESH emergency room, he signed a "Conditions of Services" agreement personally obligating himself to pay for the medical services he received as an outpatient. 3
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equipped and more experienced than JESH--a Level II Trauma Center lacking such an in-house laboratory--at treating complicated infections of the type experienced by Coleman. An evidentiary ruling by the trial judge precluded the parties from informing the jury of the former, financial reason for the transfer to CHNO. The sole reason explored at trial was the latter, i.e., CHNO's superior resources. In that regard, Dr. Deno testified that although JESH rarely treats intravenous drug abuse cellulitis, CHNO (where Dr. Deno also practiced) routinely treats this type of complicated infection. To facilitate Coleman's transfer, Dr. Deno telephoned the CHNO Accident Room charge resident, who accepted Coleman for admission. Documenting this call in the medical record, Dr. Deno wrote "[t]ransfer to Charity, charge resident in accident room accepted,"3 and Coleman signed that record documenting the decision to transfer to CHNO.4 Once the charge resident accepted Coleman for admission, Dr. Deno testified that it was contraindicated for him to draw blood cultures or to do any further evaluation at JESH. Likewise, Dr. Deno explained that it was contraindicated for him to commence antibiotic treatment as that would distort the

In his deposition, excerpts of which were proffered to document the financially-based reason for the transfer, Dr. Deno explained the meaning of the latter instruction: "It means I talked to Mr. Coleman about whether or not he could afford private hospitalization. [As the patient was without funds for private hospitalization,] . . . I called Charity Hospital, spoke to the charge resident in the accident room and said, `Do you have a bed to admit this gentleman.'" At trial, Dr. Deno testified that if no bed had been availabe at CHNO, he would have arranged for treatment at JESH. On the CHNO emergency room walk-in clinic sheet, which Coleman signed consenting to treatment, in a printed box designated "prior treatment" was written "Admission Approved," apparently confirming that Dr. Deno called and received advance approval for Coleman's transfer. 4
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blood cultures, and CHNO, as the receiving provider, would want to perform its own cultures. Still further, Dr. Deno explained that any of these treatments would have only delayed Coleman's arrival at CHNO, which is less than a half hour drive from JESH.5 Given that Coleman was stable, in good condition, ambulatory, and accompanied by his girlfriend, Dr. Deno saw no need to transfer by ambulance; instead, he found it wholly appropriate for Coleman to self-transport. While Coleman and his girlfriend both testified that Dr. Deno approved their request to first go home--a forty-five minute drive--and get pajamas and other personal belongings before going to CHNO, Dr. Deno testified that he would have never authorized such a detour and denied any such conversation took place. Moreover, Coleman signed the discharge sheet instructing that he was to go "directly" to CHNO and to bring with him the copies he was given of the JESH laboratory work. Although Coleman was discharged from JESH at 10:00 p.m. on June 8th, he did not arrive at CHNO until about 12:30 a.m. on June 9th. At 12:46 a.m., he was seen by the triage nurse. Coleman's chief complaint was left arm edema. In accordance with CHNO accident room protocol, Coleman was screened by a physician, who ordered blood work and cultures, which were taken at 1:30 a.m. and showed a white blood count of 29.9. Left arm x-rays were taken at 5:00 a.m. and showed a significant amount of soft tissue swelling in the left forearm and elbow consistent with a history of cellulitis; the x-rays, however, showed no sign of gas in the tissue. At CHNO, Coleman gave two different versions of the cause of his arm ailment. Initially, he gave the nurse a history of having a crushing type injury on
Various travel times are given in the record, ranging from ten minutes to a half hour. 5
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Sunday when he fell off a boat and was wedged between the wharf and the boat. Subsequently, he gave a history of someone holding him down in a car when he was intoxicated and injecting something in his left arm. The attending physician's note dated June 9th described Coleman as "alert, oriented and cooperative" and not in acute distress. The physician further noted that Coleman told him the following: (i) that he had swelling up to his elbow and by late in the evening it was extremely painful and the swelling extended up into his arm; (ii) that the only recent trauma to his arm occurred four days before his admission when some people injected something into his arm while holding him down; (iii) that his work involved unloading seafood in crates from a truck, but that he did not work directly with the fish or oysters and that he denied any recent cuts while working; and (iv) that he denied intravenous drug abuse. The physician still further noted that Coleman's left arm was "swollen and warm from the mid arm to lower forearm, with no fluctuant areas, no streaking, positive axillary node and positive track marks." The physician, apparently repeating the radiology results, noted the absence of any "gas in tissue" and the presence of "soft tissue swelling." The physician ordered that Coleman be admitted with a diagnosis of cellulitis of the left arm and forearm. The physician also ordered intravenous antibiotics (Nafcillin) treatment, which was initiated at 8:00 a.m. on June 9th, over seven hours after he arrived at CHNO. On June 10th, the attending physician noted that Coleman was aferile today (fever free), and enumerated the following three-part treatment plan: (1) surgery consult, (2) blood count (CBC), and (3) continue antibiotic (Nafcillin). On June 11th, the physician noted that Coleman reported his arm appeared to be improving, and the hospital records note that his arm appeared to be responding to

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the antibiotic treatment. The nurse's notes, however, indicate that at 6:00 p.m. on June 10th his arm had "visibl[bly] increase[d] in size," and at 6:00 a.m. on June 11th his arm was emanating an extremely foul odor. Although on June 10th the attending physician recognized the need for a surgical consult, such consult was not requested until the following day. At 1:00 p.m. on June 11th, Dr. Clyde Redmond, then a surgical resident at CHNO, first saw Coleman. Dr. Redmond testified that, although over a decade elapsed between the treatment at issue and the trial of this matter, he specifically recalled Coleman's case having occurred during the week before his wedding. Specifically, Dr. Redmond stated that he recalled June 11, 1988 was a Saturday, and he was leaving the hospital to go shopping for clothes for his honeymoon that day when he spotted in the surgical consult box the request regarding Coleman's case. That request, which had just been placed in the box, described Coleman's case as an admission on June 9th for left arm cellulitis with a white blood count of 29 and a temperature of 39E C. Dr. Redmond decided to delay his shopping trip to check on this case. Upon examining Coleman's arm, Dr. Redmond found a much more advanced infectious process than cellulitis. Moreover, he noted that Coleman's arm was draining an extremely foul smelling pus. Dr. Redmond also found crepitus, which is a tactile finding of gas in the tissue; he described crepitus as similar in feeling to the bubble packing material used to ship fragile things. X-rays taken at 2:00 p.m. of Coleman's forearm confirmed that Coleman had "soft tissue swelling and some air within the soft tissues, apparently secondary to cellulitis." Hence, at 4:10 p.m., Coleman was taken to surgery. Upon opening Coleman's arm, Dr. Redmond discovered that the skin, fat

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and bulk of the muscles in the arm were dead and determined that it was necessary to perform an open left shoulder disartiulation, i.e., to amputate the left arm at the shoulder. Before performing such a drastic procedure, however, Dr. Redmond obtained an orthopedic consult. The orthopedic surgeon who performed the consultation confirmed that an amputation was necessary as a life saving measure. The orthopedic surgeon's note states that Coleman's arm was emanating a foul smelling pus and that although upon admission his diagnosis was cellulitis he subsequently had developed a necrotizing fascitis. Although the initial operative diagnosis was a clostridium or gas gangrene infection, the final laboratory results did not confirm that diagnosis. The final laboratory reports indicated that the cultures from surgery showed Coleman's arm was infected with peptostreptococcus, a common infection among intravenous drug abusers, and with alpha and beta streptococcus. Based on that final laboratory results, Dr. Redmond testified at trial that Coleman developed a compartment syndrome at some point between 4:00 p.m. on June 10th and 4:00 a.m. on June 11th, which resulted in the loss of his arm.6 After several subsequent surgical procedures, Coleman was discharged from CHNO on June 28, 1988.

Procedural background On April 17, 1989, Coleman requested a medical review panel under the Medical Malpractice Act, La. R.S. 40:1299.41, et seq., seeking review of his claim
Coleman contends that Dr. Redmond's trial testimony was inconsistent with his earlier perpetuation deposition testimony. That deposition was videotaped and played to the jury at trial. Our review of that deposition reveals that on at least four occasions in the deposition Dr. Redmond expressly states that the CHNO medical record he was provided was incomplete in that it did not contain certain pathology reports. 8
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that three qualified private providers--Dr. Sherman, Dr. Deno and JESH--negligently treated (or failed to treat) him on June 7 and 8, 1988. Simultaneously, Coleman filed a request for a medical review under the Medical Liability for State Services Act, La. R.S. 40:1299.39, et seq, seeking review of his claim that CHNO negligently treated (or failed to treat) him from June 9 to 12, 1988. Coleman settled with CHNO pre-trial for $25,000. Nonetheless, the issue of CHNO's fault was put before the jury by way of special interrogatory. On May 1, 1990, the medical review panel found that none of the private providers breached the standard of care and that the conduct Coleman complained of was not a factor in the resultant damages. Given that adverse panel decision,7 on July 27, 1990, Coleman filed the instant suit naming as defendants the three qualified private providers. On March 27, 1991, Coleman filed a supplemental and amending petition alleging that defendants violated the federal anti-dumping provisions.8 Thereafter, Coleman settled his claim against JESH for $10,000, and dismissed JESH pre-trial. The jury was not requested to consider JESH's fault. In March 1999, this matter was tried before a jury. On the second day of the trial in this matter, Dr. Deno filed a peremptory exception of no cause of action and prescription to Coleman's federal dumping claim on the basis that the applicable statutory provision, the federal Emergency Medical Treatment and Active Labor

While the parties in their arguments refer to an adverse panel decision in the medical review proceeding against CHNO, no evidence of that panel decision is in the record before us. Plaintiff's supplemental and amending petition cites as the federal "anti-dumping" provision the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The court of appeal, however, points out that "COBRA currently is known as the Emergency Medical Treatment and Active Labor Act (`EMTALA')." 99-2998 at p. 6, n. 1 (La. App. 4th Cir. 4/25/01), 787 So. 2d 446, 456. Likewise, the parties at trial and in arguments refer to the applicable federal provision as EMTALA.
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Act, 42 U.S.C.

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