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Piro v. Chandler2/28/2001
ON REHEARING
The plaintiff, Bernard Salvatore Piro, appealed the dismissal of his medical malpractice action against Bossier Medical Center ("BMC") after a jury concluded that BMC did not breach the standard of care in its treatment of his father, Mr. Salvatore Piro, who suffered a stroke and died while hospitalized at BMC. In an opinion rendered November 1, 2000, we found the jury's determination to be manifestly erroneous. Accordingly, we reversed the trial court's judgment of dismissal and remanded the matter for further proceedings to address the issues of causation and damages.
Within the delays allowed by law, BMC filed an application for rehearing which was granted. On rehearing, BMC argues that we exceeded the scope of appellate review by finding manifest error in the jury's determination that no breach occurred. BMC also argues that the record is sufficient for this court to determine the facts de novo and render judgment on the merits of the plaintiff's claim. BMC contends that if the record lacks sufficient evidence to make findings as to the plaintiff's claim of loss of a chance of survival, then the plaintiff failed to meet his burden at trial and judgment in its favor is appropriate. In response, the plaintiff argues both that this court correctly found manifest error in the jury's determination and that the record clearly establishes a causal link between the breach of the standard of care and Salvatore Piro's decreased chance of survival. After careful reconsideration of the record, and for the reasons set forth herein, we affirm the trial court's dismissal of the plaintiff's claim.
The facts pertaining to Salvatore Piro's hospitalization and treatment are set forth in our original opinion. We held that the failure of BMC's nursing staff to give Procardia to Mr. Piro until almost four hours after his blood pressure was found to be 173/100 was contrary to the orders of Dr. Morehouse, the treating physician, and a breach of the standard of care requiring the administration of medication as per the doctor's orders. Upon reconsideration of the record, we again conclude that it was manifest error for the jury to find otherwise. The trial testimony clearly established the standard of care and the breach thereof. Dr. Morehouse issued orders for BMC's nursing staff to monitor Mr. Piro's vital signs every four hours and to administer Procardia to him if his blood pressure rose above 160/95. These orders were recorded at 3:30 p.m., on July 13, 1995 on the "Physician Orders" sheet. At 4:00 p.m., Mr. Piro's blood pressure was taken and recorded as 173/100, but the medication was not given to him until almost four hours later when his blood pressure was again taken and found to be 170/100.
Having concluded that BMC breached the standard of care, we must now determine whether a causal connection exists between the breach and the injury sustained, which in this instance is alleged to be a loss of a chance of survival. See Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1276 (La. 1991). When appellate review reveals either reversible error of law or manifest error as to a material fact, the appellate court is permitted to determine facts de novo from the record and render a judgment on the merits, if possible. La. C.C.P. art. 2164; Rosell v. ESCO, 549 So.2d 840 (La. 1989); Gordon v. Willis Knighton Medical Center, 27,044 (La. App. 2d Cir. 6/21/95), 661 So.2d 991, writ denied, 95-2776 (La. 1/26/96), 666 So.2d 679. Both parties aver that the record is complete for purposes of a de novo determination of causation and damages.
The burden is on the plaintiff to prove causation in a medical malpractice action by a preponderance of the evidence. Mar
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