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Robicheaux v. Adly6/12/2002
nd that Judy was not injured as a result of of the Lahasky Nursing Home's failure to suction her during the twenty days prior to her death while she was a resident of the nursing home, the jury never reached the issue of survival damages. Thus, we now undertake a de novo review of that issue.
Damages for a victim's pain and suffering prior to his death are properly awarded in survival action, if there is even a scintilla of evidence of any suffering or pain on part of victim by his actions or otherwise. Prince v. Mattalino, 583 So.2d 541 (La.App. 3 Cir. 1991). "In assessing quantum for a decedent's pre-death pain and suffering, the Court must consider both the severity and duration of the injury preceding death." Easton v. Chevron Industries, Inc., 602 So.2d 1032, 1038 (La.App. 4 Cir.), writ denied, 604 So.2d 1315 (La.1992). Our research unveils no case law parallel to this case. There is no instance whereby a patient, with swallowing problems, was discharged to a nursing home with instructions that she be suctioned and where that nursing home failed to do so and where the patient died thereafter. Dr. Hales testified that a person with bulbar-ALS has problems swallowing as well as an inadequate cough reflex which would not allow that person to expectorate fluid from the mouth. He also testified that a bulbar-ALS patient's gag reflex is impaired. Dr. Hales further testified that a person suffering from ALS can not handle their own oral secretions by moving the fluid from the mouth down into the esophagus. Dr. Hales explained that the fluid will just pool in the mouth and ultimately drain into the person's lungs by the force of gravity. Dr. Hales further explained that all fluid in the mouth is contaminated with bacteria. He stated that a person like Judy, who cannot swallow, will gurgle and have drool coming out of their mouth that demands suctioning. In essence, for the twenty days that the staff at the Lahasky Nursing Home failed to suction Judy, she was choking on her own oral secretions. Furthermore, Dr. Hales testified a person in Judy's condition is alert and understands that they are choking and cannot swallow. Dr. Hales further testified that a choking person will do anything to survive such as bending over to let the fluid drain out in an attempt to prevent smothering. Dr. Hales explained that the purpose of suctioning is to prevent suffocation and aspiration of bacteria, fluid, and other materials into the lungs. In a case like this, where Judy essentially choked to near suffocation on her own oral secretions and was aware of her predicament for twenty days, we find that a survival action award in the amount of $100,000 is appropriate.
V. CONCLUSION
For the above reasons, the judgment of the trial court is affirmed insofar as it holds that the Pauline Faulk Centre and the Lahasky Nursing Home did not commit medical malpractice upon Judy Robicheaux and did not violate Judy Robicheaux's rights as a patient. The trial court judgment is reversed and set aside insofar as it holds that the Lahasky Nursing Home used reasonable care and diligence along with its best judgment in the application of its treatment of Judy, in that it failed to follow the hospital discharge instructions to suction Judy. Therefore, we amend the trial court judgment to award the amount of $100,000 to the plaintiffs on their survival action. All costs of this appeal are assessed to the Morris Lahasky Nursing Home.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.a
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