Hamilton et al v. Ochsner Health Systems, Inc.

Filing 29

ORDER & REASONS re dft's 14 Motion in Limine: for the reasons stated, IT IS HEREBY ORDERED that Defendants Motion in Limine is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that any evidence or reference to Hamilton's decubit us ulcers is excluded, unless Plaintiffs can later show the relevance of this evidence to their claims, and so Defendant's motion is granted on that issue. IT IS FURTHER ORDERED that any evidence of the X-ray and the alleged failure of the radiologist to diagnose a fracture may be presented to the jury at trial, and therefore Defendant's motion is denied on that issue. Signed by Judge Nannette Jolivette Brown on 12/10/2012. (rll, ) Modified on 12/10/2012 to edit doc type (rll, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CURTIS HAMILTON, et al.

CIVIL ACTION

VERSUS

NO. 12-1398

OCHSNER HEALTH SYSTEMS, INC., et al.

SECTION: “G”(1)

ORDER AND REASONS
Before the Court is Defendant Oschner Health Clinic Foundation’s (“Oschner” or
“Defendant”) Motion in Limine,1 wherein it seeks to exclude any evidence or discussion of (1) a
spinal fracture allegedly shown on a July 17, 2009 X-ray, the day before the alleged incident, and
whether the radiologist properly read the X-ray; and (2) the treatment of Plaintiff Curtis Hamilton’s
decubitus ulcers. After reviewing the pending motion, the memorandum in support, the opposition,
the record, and the applicable law, the Court will grant in part and deny in part the motion.
I. Background
A. Factual Background
During relevant times pertinent to this lawsuit, Plaintiff Curtis Hamilton (“Hamilton”) was
under the care of staff of Ochsner following a liver transplant.2 Plaintiffs Curtis Hamilton and Rosa
Hamilton, spouse of Curtis Hamilton, (collectively “Plaintiffs”) allege that on July 18, 2009,
Hamilton was “left in a recliner for seven to eight hours. On this date, when it was time for Mr.
Hamilton to [be moved] from his recliner [to his bed], approximately five to six employees of
Ochsner used [bed] sheets to lift Mr. Hamilton to his bed.”3 Plaintiffs contend that “[t]he manner in

1

Rec. Doc. 14.

2

Rec. Doc. 1 at ¶ 3.

3

Id. at ¶ 4.

which this lift was done under the circumstances was not proper under the applicable standards of
care.”4
Plaintiffs further allege that during this move, “[Hamilton] heard and felt something in his
back pop. He immediately reported this to the Ochsner employees, but they did not correct the
manner in which Mr. Hamilton was being moved nor did they report or have Mr. Hamilton’s
complaints evaluated.”5 Moreover, Plaintiffs claim that prior to this incident, there was already a
documented incident where a popping sound had come from Hamilton’s back “and/or that he [was]
dropped by emergency transport personnel,” but that none of these incidents were reported to
Hamilton’s treating physicians “nor properly evaluated or treated by Ochsner.”6 Plaintiffs claim that
following the latest incident, an MRI revealed “an acute fracture of the spine and that the fracture
was causing a compressed spinal cord,” which has now left Hamilton paralyzed from the waist
down.7 Plaintiffs seek damages from Defendant upon the theories that the manner in which it
provided care to Hamilton fell below the applicable standard of care, it is vicariously liable for the
actions of its employees, and it is responsible for its own direct negligence.8 Rosa Hamilton also
seeks recovery in this action for emotional distress as a result of her husband’s alleged injury and
paralysis.9

4

Id.

5

Id. at ¶ 5.

6

Id. at ¶ 6.

7

Id. at ¶ 8.

8

Id. at ¶¶ 9-10.

9

Id. at ¶ 11.

2

B. Procedural Background
Plaintiffs filed this action on June 1, 2012, invoking this Court’s diversity jurisdiction under
28 U.S.C. § 1332.10 Defendant filed an answer wherein it denies liability.11 On October 25, 2012,
Defendant filed the pending motion in limine, seeking to prohibit from trial any mention of evidence
of (1) a spinal fracture allegedly shown on a July 17, 2009 X-ray, the day before the alleged incident,
and whether the radiologist properly read the X-ray; and (2) any reference to the treatment of
Hamilton’s decubitus ulcers.12 On November 27, 2012, Plaintiff filed an opposition to the pending
motion.13

II. The Parties’ Arguments
Defendant seeks the exclusion of certain evidence based upon Federal Rule of Evidence 403,
claiming that its inclusion would be more prejudicial than probative. Defendant first argues that any
evidence of the radiologist’s failure to diagnose the spinal fracture from the X-ray is “highly
prejudicial.”14 Defendant claims that the proposed expert testimony of Dr. Mellman “improperly
expands what Plaintiffs plead in their Complaint, to include the allegations that an Ochsner
radiologist deviated from the standard of care by misreading an X-ray.”15 Defendant further explains
that the claims pertaining to the radiologist’s alleged failure to diagnose have never been alleged

10

Id.

11

Rec. Doc. 4.

12

Rec. Doc. 14.

13

Rec. Doc. 23.

14

Rec. Doc. 14-1 at p. 3.

15

Id.

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previously, and therefore, have never been reviewed by the Medical Review Panel, as is required
under Louisiana law.16
Defendant avers that Plaintiffs attempt to “present a new theory of medical malpractice to
the jury,” would impermissibly expand Plaintiffs’ causes of action, because the time to amend
pleadings has long passed.17 In addition, Defendant asserts that any cause of action against the
radiologist for misreading the X-ray has prescribed.18 Defendant argues that this claim would have
had a one year prescriptive period from the date of incident or discovery, or three years in the case
of malpractice, in which it could have been filed; Defendant cites Warren v. Louisiana Medical
Mutual Insurance, Co.,19 to argue that adding a claim against the radiologist will not allow that claim
to “relate back” to Plaintiffs’ initial filing in this matter.20 Defendant maintains that allowing this
evidence to be presented before the jury would greatly prejudice Defendant and mislead the jury
“into considering other allegations of deviations of the standard of care that were not plead and are
not before this Court.”21 Defendant frames Plaintiffs’ claims as arising from the allegation that
Defendant, through its employees, knew or should have known that Plaintiff had Ankylosing
Spondylitis and that he subsequently became paralyzed though an improper transfer technique.

16

Id. at pp. 3-4 (citing La. R.S. 40:1299.41).

17

Id. at p. 4.

18

Id. at pp. 4-5.

19

2007-0492 (La. 06/26/09); 21 So.3d 186.

20

Rec. Doc. 14-1 at p. 5 n.1.

21

Id. at p. 5.

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Defendant asserts that evidence of the X-ray attempts to put on evidence of “other wrongs” in order
to convince the jury to believe that Defendant has provided “substandard care” in general.22
In addition, Defendant also seeks the exclusion of testimony or evidence concerning the
existence of “decubitus ulcers” on Hamilton’s buttocks during his stay at Ochsner, claiming that the
evidence is prejudicial.23 Defendant argues that this is a “skin care” issue, and not relevant to
Plaintiffs’ claims concerning Hamilton’s paralysis.24 Therefore, Defendant seeks the exclusion of
this evidence.
In opposition, Plaintiffs first address Defendant’s argument that the complaint does not
contain a separate allegation of the allegedly improperly read X-ray.25 Plaintiffs argue that their
claim accuses Defendant of negligently lifting him and causing his paralysis under the
circumstances; therefore, Plaintiffs aver that what Ochner knew or should have known, though its
employees, is relevant to his claim.26 As the radiologist was an employee of Defendant, what he
knew or should of know is also relevant. If he misread the X-ray, Plaintiff argues that this is relevant
to a finding of negligence.27
Plaintiffs also claim that though several allegations in their complaint, “there are sufficient
allegations to allow the plaintiffs to make a direct claim that Ochsner was negligent in failing to

22

Id. at pp. 5-6.

23

Id.

24

Id. at pp. 6-7.

25

Rec. Doc. 23 at pp. 1-2.

26

Id. at p. 2.

27

Id.

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detect the fracture and communicate it to staff members.”28 While Plaintiffs acknowledge that the
radiologist is not specifically referenced in the complaint, they argue that the notice pleading
standard in federal court does not require this, and that paragraphs nine and ten of their complaint
are sufficient to implicate the radiologist’s alleged negligence.29
Plaintiffs reject Defendant’s reliance on Warren, claiming that the “pleadings are sufficient
to include a claim that the radiologist failed to properly read the x-ray.”30 “Since the failure of the
radiologist to note the fracture on the x-ray arose out of the same hospital [stay] as the lift and there
is substantial interrelationship between the propriety of the lift and the previous fracture, the claim
certainly ‘arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth
in the original pleading.’”31 For these reasons, Plaintiffs contend that the evidence of the X-ray
should not be excluded.
III. Law and Analysis
Federal Rule of Evidence 403 states that:
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.
A district court’s ruling on evidentiary issues is reviewed by a court of appeals for an abuse
of discretion.32 When “the district court has conducted, on the record, a carefully detailed analysis

28

Id. at p. 3.

29

Id. at pp. 3-5.

30

Id. at p. 5.

31

Id. at p. 6 (citing La. C.C.P. art. 1153). Plaintiffs also note that Federal Rule of Civil Procedure 15,
applicable here, applies a nearly identical standard. See id. n. 8.
32

Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 356 (5th Cir. 1995).

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of the evidentiary issues and the court's own ruling, appellate courts are [wary] about finding an
abuse of discretion.”33 “A trial court’s ruling on admissibility under Rule 403's balancing test will
not be overturned on appeal absent a clear abuse of discretion.”34
Concerning the X-ray evidence and the radiologist’s alleged failure to properly diagnose a
fracture, the Court finds Plaintiffs’ arguments convincing. Plaintiffs’ complaint contains the
allegation that the technique used to lift Hamilton was negligent under the circumstances, based
upon the knowledge Defendant and its employees had or should have had. If Plaintiff had a preexisting fracture, and Defendant should have had knowledge of this through a recent X-ray, then that
evidence is relevant. It is reasonable that a hospital would employ a different lift procedure for a
patient with a spinal fracture. Despite Defendant’s argument that this evidence seeks to litigate a
new and previously unpled claim, the complaint clearly alleges liability on the part of Defendant
in a manner that is broad enough to cover the alleged failure to detect the spinal fracture from the
X-ray. Plaintiffs seek recovery from Defendant for “[f]ailing to disseminate and consider relevant
medical information of which they were aware or should have been aware that might affect the
manner in which Mr. Hamilton was treated an/or whether his treating physicians were contacted for
additional instruction.”35 Therefore, this Court finds that this evidence is relevant to Plaintiffs’
claims and should not be excluded.
Defendant also seeks exclusion of any discussion or reference to the existence of Hamilton’s
decubitus ulcers. In opposition to the pending motion, Plaintiffs do not address or refute Defendant’s

33

Id.

34

Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1153 (5 th Cir. Unit A Sept. 1981) (internal citations omitted).

35

Rec. Doc. 1 at ¶ 9(h).

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claim that this evidence would be highly prejudicial. Plaintiffs’ failure to address this evidentiary
issue prevents the Court from fully analyzing the relevance of this evidence. In the absence of any
opposition to the exclusion of evidence of decubitus ulcers, the Court will grant Defendant’s request
concerning this issue. However, if Plaintiffs can demonstrate its relevance to their claims for relief,
and that the evidence is more probative than prejudicial, the Court may reconsider its exclusion.

IV. Conclusion
For the aforementioned reasons, the Court will grant in part and deny in part the motion. Any
evidence or reference to Hamilton’s decubitus ulcers will be excluded, however, the Court may
reconsider this aspect of its ruling if later Plaintiffs are able to demonstrate the relevance of this
evidence to their claims. However, evidence of the X-ray and the radiologist’s alleged failure to
diagnosis a spinal fracture are relevant to Plaintiffs’ claims made in the complaint, and therefore this
evidence may be presented to the jury. Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion in Limine36 is GRANTED IN PART
and DENIED IN PART.
IT IS FURTHER ORDERED that any evidence or reference to Hamilton’s decubitus ulcers
is excluded, unless Plaintiffs can later show the relevance of this evidence to their claims, and so
Defendant’s motion is granted on that issue.

36

Rec. Doc. 14.

8

IT IS FURTHER ORDERED that any evidence of the X-ray and the alleged failure of the
radiologist to diagnose a fracture may be presented to the jury at trial, and therefore Defendant’s
motion is denied on that issue.
NEW ORLEANS, LOUISIANA, this ____ day of December, 2012.
10th

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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