BROWN v. OCHSNER CLINIC FOUNDATION (2026)

In this case arising from alleged medical malpractice, Melba and John Brown, the surviving wife and son of decedent Crichton Brown, appeal a May 2, 2025 judgment of the trial court denying their motion for a judgment notwithstanding the verdict (JNOV) and motion for a new trial filed following a February 11, 2025 final judgment reflecting a jury verdict in favor of the defendants, Ochsner Clinic Foundation (“Ochsner”), Dr. Michael E. Cash, and Dr. Heather Paige Kahn. For the following reasons, we affirm the judgment of the trial court.

BACKGROUND

On December 6, 2013, Mr. Brown presented to the emergency room at East Jefferson General Hospital with complaints of swollen ankles. Following admission, he was diagnosed with superficial vein thrombosis, pulmonary emboli, polysubstance abuse and atrial flutter. Following cardioversion therapy treatment, Mr. Brown's treating doctor, cardiologist Dr. Arshaud Malik, devised a plan for his treatment that included a long-term prescription for rivaroxaban or Xarelto, an anticoagulant or blood thinner medication. At a follow up appointment with Dr. Malik on December 26, 2013, Mr. Brown admitted that he had stopped taking the Xarelto against his doctor's advice. Dr. Malik wrote another prescription for Xarelto for Mr. Brown that included instructions to take one 20 mg tablet by mouth once daily. The prescription allowed for up to three refills of 90 tablets prior to December 26, 2014. Dr. Malik stressed the importance of taking the blood thinner medication daily in order to prevent blood clots and stroke, and also advised Mr. Brown not to drink alcohol while taking the medication.

On February 11, 2015, the Wednesday before Mardi Gras, Mr. Brown drove himself to the Ochsner Medical Center - New Orleans emergency room where he presented with complaints of abdominal pain and sensations of heart racing and anxiety. Following admission, Mr. Brown was diagnosed with pancreatitis and atrial flutter, and treated with heparin drip for anticoagulation. At the time of his admission, Mr. Brown's blood alcohol level was .129, well over the legal standard of intoxication. During his stay at Ochsner, Mr. Brown was treated by Dr. Heather Khan, a newly licensed medical doctor and first year intern, and Dr. Michael Cash, a board certified cardiologist and supervisor to Dr. Khan. Physical examination of Mr. Brown showed no signs of pulmonary embolism or deep vein thrombosis (DVT). Mr. Brown declined a recommended ablation procedure to cure his atrial flutter and instead elected for additional cardioversion treatment, which was performed on February 13, 2015.

Upon making rounds, Dr. Cash spoke with Mr. Brown and stressed the importance of taking the blood thinner medication every day in order to prevent blood clots and stroke, and also warned of the dangers of consuming alcohol while taking the medication. Prior to discharge on the afternoon of February 13, Mr. Brown was given one pill of Xarelto and a written prescription for Xarelto from defendant Dr. Kahn that stated, “take one tablet once”. At discharge, the nurse, Kiara Isaac, sat down with Mr. Brown and orally reviewed his After Visit Summary, which he acknowledged by signing, that included written instructions for Mr. Brown to obtain Xarelto from his pharmacy and included the name and phone number of the physician for him to call if there were any questions about the prescription.

Mr. Brown did not take this prescription to the pharmacy to be filled that evening or the next day. On the morning of Sunday, February 15, two days after his Ochsner discharge, he handed the written prescription to his wife who then took it to the nearby Walgreens pharmacy. The pharmacist, after reviewing the written prescription, phoned Dr. Cash, who reordered the Xarelto prescription electronically for Mr. Brown to accurately reflect the frequency of the dosage and instructions to take one 20 mg tablet once a day. Upon returning home shortly thereafter with the medication, Mrs. Brown gave Mr. Brown one Xarelto pill which he took with a glass of water.

The next morning, on February 16, 2015, Mr. Brown went to visit with friends in his carnival organization. He returned home sometime later that day. That evening, while at home, Mr. Brown collapsed and was transported by EMS to the emergency room at East Jefferson General Hospital. He died later that evening of bilateral pulmonary emboli due to deep vein thrombosis. Mr. Brown had not taken his prescribed dose of Xarelto that day.

Prior to the filing of this malpractice suit, the matter came before a medical review panel which determined that none of the defendants had deviated from the applicable standard of medical care in their treatment of Mr. Brown. Following the decision of the medical review panel, on February 14, 2020, Mrs. Brown and John Brown filed a petition for survival and wrongful death damages pursuant to the Louisiana Medical Malpractice Act for alleged negligence and departures from the standards of medical care of the physician defendants and Ochsner. In particular, plaintiffs alleged that defendants were negligent in failing to timely provide Mr. Brown with a valid prescription for Xarelto, a medication which could have prevented Mr. Brown's pulmonary emboli as a consequence of deep vein thrombosis.

Defendants filed a motion for summary judgment seeking to have plaintiffs’ claims dismissed. This motion was denied. A previous panel of this Court upheld the trial court's decision to deny the motion for summary judgment on the basis that the medical records and the testimony of plaintiff's expert were sufficient to create genuine issues of material fact as to whether Mr. Brown was provided with a prescription for Xarelto at discharge and whether such a prescription, if provided, adequately and sufficiently instructed Mr. Brown as to the appropriate dosage schedule. (See 22-C-557, unpublished writ disposition). Subsequently, the parties entered into a consent judgment whereby all of the named defendants were dismissed except for Dr. Kahn, Dr. Cash, and Ochsner.

The case proceeded to a three-day jury trial from January 28 to 30, 2025. Following deliberations, the jury returned a unanimous verdict in favor of the defendants. According to the interrogatories, the jury determined that plaintiffs had proven the standards of care applicable to Dr. Kahn and Dr. Cash, but had failed to prove that defendants breached those standards. On February 11, 2025, the trial court signed a written judgment reflecting the jury verdict and dismissing the claims against defendants with prejudice.

Plaintiffs’ filed a motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a motion for a new trial in which they argued that the jury ignored the court's charges relating to the physician's duty to prescribe medications correctly, ignored undisputed facts that favored plaintiffs, and filled out the jury interrogatories in an inconsistent manner leading to an improper verdict. Following a hearing, the trial court entered a judgment denying plaintiffs’ motion. Plaintiffs’ timely appeal followed.

On appeal, plaintiffs raise two assignments of error:

(1) The trial court erred in failing to grant plaintiffs’ motion for JNOV or motion for a new trial; and

(2) The trial court erred in finding that the actions of Dr. Kahn and Dr. Cash did not constitute malpractice, or that Ochsner was liable for their malpractice under the doctrine of respondeat superior.

We consider these assignments of error in our discussion below.

DISCUSSION

We begin our discussion with a review of the applicable law and standards of review for motions for JNOV and a new trial.

Claims for medical malpractice are governed by the Louisiana Medical Malpractice Act. Aguilar v. Work, 20-58, p. 5 (La. App. 5 Cir. 12/30/20), 308 So.3d 1278, 1281. Under the LMMA, malpractice means “any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely ․ and also includes all legal responsibility of a health care provider arising from acts or omissions ․ in the training or supervision of health care providers ․” La. R.S. 40:1231.1(A)(13). In a malpractice action based on the negligence of a physician, the plaintiff has the burden of proving, by a preponderance of the evidence: 1) the degree of care ordinarily exercised by physicians licensed to practice in Louisiana and actively practicing under similar circumstances; 2) that the defendant failed to use reasonable care or diligence; and 3) that as a proximate result of the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have occurred. La. R.S. 9:2794; Banister v. Day, 08-835, p. 7 (La. App. 5 Cir. 5/26/09), 13 So.3d 229, 233, writ denied, 09-1529 (La. 10/9/09), 18 So.3d 1286. Generally, the prescribing physician has the duty to specify the manner in which the drug is to be administered. Gassen v. E. Jefferson Gen. Hosp., 628 So.2d 256, 257 (La. Ct. App. 1993) (citing Norton v. Argonaut Ins. Co., 144 So.2d 249 (La. App. 1st Cir. 1962)).

A JNOV is a procedural device authorized by La. C.C.P. art. 1811, by which the trial court may modify a jury's findings to correct an erroneous jury verdict. Lawson v. Starr Indem. & Liab. Co., 24-379, p. 3 (La. App. 5 Cir. 4/30/25), 411 So.3d 890, 894, reh'g denied, 24-379 (La. App. 5 Cir. 6/3/25). The Louisiana Supreme Court has articulated the following standard for granting a JNOV:

[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that “[w]hen there is a jury, the jury is the trier of fact.”1

Pitts v. Louisiana Med. Mut. Ins. Co., 16-1232, p. 7 (La. 3/15/17), 218 So.3d 58, 64. On appellate review of a JNOV, the court reviews the trial court's determination to grant or deny the motion using these same criteria. Id.

Under La. C.C.P. art. 1972, the motion for a new trial must be granted when the verdict appears clearly contrary to the law and the evidence. Because a motion for a new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury's factual determinations, the jury's verdict cannot be set aside on that ground if it is supportable by any fair interpretation of the evidence. Id. at 66. The applicable standard of review in ruling on a motion for a trial is whether the district court abused its discretion. Id. With this law in mind, we turn our attention the evidence presented to the jury.

At trial, Dr. Khan, Dr. Cash, and Nurse Isaac all testified that they provided Mr. Brown with oral instructions that he was to take the blood thinner medication daily in order to prevent blood clots and stroke. This testimony is corroborated by the written records. The discharge summary prepared by Dr. Khan on February 13, 2015 states, “[b]ecause patient was on Xarelto in the past, he will be restarted on Xarelto for 1 month. He was informed that being on Xarelto will put him at increased risk of bleeding if he were to fall and hit his head. He was advised to abstain from drinking while on this medication.” The discharge summary was reviewed and signed by Dr. Cash. Additionally, in his note in the record attesting that he had interviewed and examined the patient, Dr. Cash wrote, “[w]arned re dangers of excessive alcohol consumption on coagulants.” The medical records also contain a progress note authored by Nurse Isaac which states, “[p]atient given home medication regimen and discharge instructions. Patient verbalizes understanding of home medication regimen. Patient informed of followup appts [sic] and given a copy of discharge instructions with follow up appts [sic] listed.”

Dr. Malik testified that he had treated Mr. Brown in December 2013, and at that time had prescribed Mr. Brown Xarelto and informed him of the importance of taking the medication daily. His written notes from Mr. Brown's December 26, 2013 visit also indicate that Mr. Brown had voluntarily stopped taking the medication on his own, contrary to the advice of his doctors. Dr. Malik's note also reflected a faxed request from January 6, 2014 requesting that Mr. Brown discontinue the Xarelto in order to undergo a dental procedure. Dr. Malik advised that any such discontinuation should be for the shortest period possible, again emphasizing the importance of daily continuation of the medication.

Plaintiffs’ theory of the case is that the error in Dr. Kahn's February 13 prescription of the Xarelto medication to “take one tablet once” prevented Mr. Brown from filling this prescription and obtaining the prophylactic medication that may have prevented the deep vein thrombosis and pulmonary emboli that caused his death. This theory is unsupported by the documentary and testimonial evidence presented to the jury.

The evidence indicates that Mr. Brown was told by multiple medical professionals about the need for the blood thinner medication and the why and how he was supposed to take it. The record of this case reflects Mr. Brown having a history of not taking the medication as instructed and not following his doctor's advice. It is unclear why Mr. Brown did not attempt to have the written Xarelto prescription filled until two days after his Ochsner discharge, but the evidence shows that when the pharmacist was presented with the written prescription by Mrs. Brown, the error was immediately corrected and Mrs. Brown returned home from Walgreens with the amended Xarelto prescription. Unfortunately, Mr. Brown did not take that medication as instructed on its container label.

Upon review, we find no error in the trial court's denial of the JNOV or the motion for a new trial. The evidence presented reasonably supports the jury's verdict, and we decline to set aside that verdict in light of evidence and arguments made. The judgment of the trial court is affirmed.

AFFIRMED

FOOTNOTES

1.   Citations omitted.

MARCEL, J.