 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Robicheaux v. Adly6/12/2002
Laga's examination revealed that there were no signs of pneumonia. Dr. Laga testified as follows:
Basically what we saw is an injured lung. It's not an infected lung - a lung that had the membranes intact, but functionally they were not intact.
They were injured because of lack of oxygen like all the other organs in the body were partially injured because of lack of oxygen.
So we see not an infected lung, not a pneumonia-type of a lung, but a lung that has been chemically injured and lets the fluid that is building up inside the little air sacs and the membrane material that's leaking out into the air sacs through because the membrane, the barrier between the blood and the air sac, has been injured.
Dr. Laga also testified that the injury to the lung is consistent with someone who suffered from bulbar-ALS.
It is clear that the jury chose to believe the opinion of defendants' experts as opposed to the plaintiffs' experts. We do not find clear error in their choice; however, with respect to plaintiffs' survival action against defendant Lahasky Nursing Home, we find that the jury erred. Lahasky Nursing Home admitted that for Judy's last twenty days as a resident at the nursing home, it failed to provide suctioning services as required by her Pauline Faulk Centre discharge documents.
Although it is questionable as to whether Judy eventually succumbed as a result of the progression of her bulbar-ALS, there is no question that suctioning, while she was a resident of the nursing home, was required, and it was not done. This court's decision in Atkinson v. Celotex Corp., 93-924 (La.App. 3 Cir. 3/2/94); 633 So.2d 383 involving the survival/wrongful death actions of several persons affected by asbestos, provides for the award of survival damages even though a defendant may not have been ultimately responsible for a decedent's death. In Atkinson, several heirs of persons exposed to asbestos asserted survival and wrongful death actions. The heirs' decedent relatives died of various types of lung diseases, the cause of which was disputed. On the plaintiffs' side, the experts stated that the causes of the deaths were cancer and asbestosis. However, defendants' experts opined that the causes of the deaths were emphysema and smoking. In plaintiff Clodile Romero's case, this court stated with respect to the jury's finding that his heirs were entitled to survival damages in the amount of $40,000 as follows:
In making its award of survival damages, the jury could have reasonably concluded that Mr. Romero sustained an asbestos related injury to his lungs, but that he died from the effects of cigarette smoking. Id. at 391.
In the present case, we find that the jury committed clear error in failing to find that Judy did not suffer injury during the twenty days prior to her death while she was a resident at the Lahasky Nursing Home and was not suctioned in accordance with the Pauline Faulk Centre's discharge instructions even though there is dispute as to the cause of her death. In Craven v. Universal Life Ins. Co., 95-1168, pp. 16-17 (La.App. 3 Cir. 3/6/96); 670 So.2d 1358, 1367, writ denied, 96-1332 (La. 9/27/96); 679 So.2d 1355, this court stated:
Where a fact finder does not reach an issue because of an "earlier" finding which disposes of the case, the appellate court, in reversing the earlier finding, must make a de novo determination of the undecided issues from the facts in the record. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993); Austin v. Fibrebond Corp., 25,565 (La.App. 2 Cir. 2/23/94), 638 So.2d 1110, writ denied, 94-1326 (La. 9/2/94), 643 So.2d 149.
Since we find that the jury erroneously fou
Page 1 2 3 4 5 6 7 8 9 10 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|