SMITH v. NATIONAL HEALTHCARE OF LEESVILLE (2026)

In this medical malpractice survival and wrongful death claim, Plaintiffs appeal the trial court judgment dismissing their claims with prejudice following a jury verdict finding that the physician defendant, now deceased, did not breach the standard of care. For the reasons herein, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Homer Smith, individually and on behalf of the Estate of Linda Smith, Jared Ory, Tonya Ory, Katherine Champagne, and Amanda Smith, filed suit on July 16, 2020, against National Healthcare of Leesville, Inc. d/b/a/ Byrd Regional Hospital (“Byrd Regional”), Acadian Ambulance Service, Inc. (“Acadian”), and Dr. Gus Laskaris (“Defendant”), seeking survival and wrongful death damages arising from the death of their wife and mother, which they alleged was caused by the medical negligence of all defendants.¹ Prior to filing suit, the matter was reviewed by a Medical Review Panel pursuant to the Louisiana Medical Malpractice Act (“LMMA”). La.R.S. 40:1231.8. The petition alleged that the negligent medical care provided by the defendants to Mrs. Smith during her transportation to and treatment at Byrd Regional on April 19, 2017, resulted in her injury and ultimate death on April 29, 2017, at Rapides Regional Medical Center (“RRMC”) in Alexandria, Louisiana, where she had been transferred on April 19.

The evidence at trial reflects that Acadian transported Mrs. Smith by ambulance to Byrd Regional on April 19 due to her shortness of breath.² By history, she was a heavy smoker and had severe Chronic Obstructive Pulmonary Disease (“COPD”).³ Upon her arrival at Byrd Regional, Mrs. Smith was admitted under the care of Defendant, the attending emergency room physician, at approximately 5:45 p.m.⁴ While in the emergency room (“ER”), Mrs. Smith was also attended to by Gloria Grappe, RN, the triage nurse, and Dana Zimmerman, RN, her primary nurse. Complications arose during her treatment, which resulted in Mrs. Smith coding, being pronounced dead, and then resuming breathing before being stabilized and transferred to RRMC.

Plaintiffs’ claims against Acadian and Byrd Regional were dismissed with prejudice by consent judgments rendered on January 26, 2021, and October 23, 2024, respectively, after Plaintiffs indicated that they would not contest their summary judgment motions.

Defendant died several months prior to the trial of this case. Thereafter, Plaintiffs’ petition was amended to name Heather Laskaris as defendant, in her capacity as the executor of his unopened succession. Her answer was filed, and the matter proceeded to the November 2024 jury trial.

At the conclusion of the four-day trial, the jury answered “No” to the Jury Verdict Form question, “Do you find that by a preponderance of the evidence that Dr. Gus Laskaris, MD, breached the standard of care in connection his [sic] treatment of Linda Smith[.]” Judgment was signed on January 14, 2025, dismissing Plaintiffs’ suit with prejudice, as per the jury verdict. Thereafter, Plaintiffs filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial. Following a March 13, 2025 hearing, the trial court denied the motions by written reasons and judgment rendered on April 29, 2025. It is from this judgment and the January 14, 2025 judgment that the appeal at issue was perfected.

On appeal, Plaintiffs allege three assignments of error:

I.  The trial court errored [sic] in giving the jury an erroneous legal instruction which prevented the jury from making a fair and just finding of liability. The trial court, then, errored [sic] in rendering without clarification or explanation, a contradictory jury charge. Not only was the jury mis-instructed [sic] but then confused with the contradictory charge. The trial court interdicted the jury's fact-finding function.

II.  The jury's finding that Dr. Laskaris did not deviate from the standard of care is manifestly erroneous and clearly wrong because: Dr. Laskaris’ BiPap testimony could not be true; Nurse Dana's chart note, regarding BiPap, created at [12:27 a.m.] on April 20, 2017, and then designated for the record on April 19, 2017, at [6:00 p.m.], is untrustworthy; and the testimony of defendants wrongfully assume Linda was on BiPap.

III. The jury's finding that Dr. Laskaris did not deviate from the standard of care is manifestly erroneous and clearly wrong because Dr. Laskaris, by not giving Linda BiPap, breached the standard of care testified to by all treating physicians.

OPINION

Jury Instructions

Plaintiffs first argue that the trial court erred in initially giving the jury an erroneous jury instruction and that it then compounded that error by giving, without clarification or explanation, a contradictory jury charge. Plaintiffs argue that the contradictory jury charge caused the jury to become confused, which interdicted the jury's fact-finding function. They urge that as a result, the trial court erred in failing to grant their motion for a new trial. For the reasons discussed below, we disagree.

The backdrop of Plaintiffs’ argument stems from an objection during the reading of jury charges following closing arguments. The trial court initially gave the jury the following instruction (emphasis added):

In medical malpractice actions, opinions from medical experts are necessary to determine both the applicable standard of care and whether that standard was breached, and it is for you the jury to evaluate conflicting expert opinions in relation to all of the circumstances of the case.

The law does not require perfection in medical diagnoses and treatment. On the contrary, a doctor's professional judgment and conduct must be evaluated in terms of reasonableness under the then-existing circumstances, not in terms of results or in light of subsequent events. When the alleged negligence of a specialist is at issue, only those qualified in that specialty may offer expert testimony and evidence of the applicable standard of care. When the expert opinions contradict concerning compliance with the applicable standard of care, the trial court's conclusions on this issue will be granted great deference. It is the sole province of the factfinder to evaluate the credibility of such experts and their testimony.

Plaintiffs particularly argue that the highlighted language is an erroneous statement of law and that by giving the instruction, the trial court committed legal error, which interdicted the jury's deliberative process. However, Plaintiffs and Defendant agree that at the close of the bench conference, the trial court completed instructing the jury and ultimately gave, without objection, Plaintiffs’ requested instruction as to expert opinions concerning the applicable standard of care. The additional instruction given to the jury read: “A specialist in one field can give expert testimony regarding the standard of care applicable to those areas of practice that are common to both disciplines.” We agree that this instruction correctly reflects the current state of the law. Eggins v. Christus Health Cent. La., 21-339 (La.App. 3 Cir. 2/9/22), 333 So.3d 1270; Pertuit v. Jefferson Par. Hosp. Serv. Dist. No. 2, 14-752 (La.App. 5 Cir. 5/14/15), 170 So.3d 1106, writ denied, 15-1176 (La. 9/18/15), 178 So.3d 152; and Smith v. Clement, 01-87 (La. App. 3 Cir. 10/3/01), 797 So.2d 151, writs denied, 01-2878, 01-2982 (La. 1/25/02), 807 So.2d 249, 807 So.2d 843.

“After the trial of the case and the presentation of all the evidence and arguments, the court shall instruct the jurors on the law applicable to the cause submitted to them.” La.Code Civ.P. art. 1792(B).

Generally, “the giving of an allegedly erroneous jury instruction will not constitute grounds for reversal unless the instruction is erroneous and the complaining party has been injured or prejudiced thereby.” Rosell [v. ESCO], 549 So.2d [840,] 849 [(La. 1989)]. In fact, Louisiana jurisprudence is well established that a reviewing court must exercise great restraint before it reverses a jury verdict due to an erroneous jury instruction. Adams v. Rhodia, 2007-2110p. 6 (La. 5/21/08), 983 So.2d 798, 804; Nicholas v. Allstate Ins. Co., 1999-2522p. 8 (La. 8/31/00), 765 So.2d 1017, 1023․

In order to determine whether an erroneous jury instruction was given, reviewing courts must assess the targeted portion of the instruction in the context of the entire jury charge “to determine if the charges adequately provide the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its determination.” Adams, 2007-2110 p. 7, 983 So.2d at 804; Nicholas, 1999-2522 p. 8, 765 So.2d at 1023; Rosell, 549 So.2d at 849. The ultimate inquiry on appeal is whether the jury instructions misled the jury to such an extent that the jurors were prevented from dispensing justice. Adams, 2007-2110 p. 7, 983 So.2d at 804; Nicholas, 1999-2522 p. 8, 765 So.2d at 1023.

The law is clear the review function is not complete once error is found. Prejudice to the complaining party cannot automatically be assumed from the mere fact of an error. Instead, the reviewing court must then compare the degree of the error with the adequacy of the jury instructions as a whole and the circumstances of the case. As we found in Adams:

the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Thus, on appellate review of a jury trial the mere discovery of an error in the judge's instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case.

Id., 2007-2110p. 7-8, 983 So.2d at 805.

Wooley v. Lucksinger, 09-571, pp. 81-83 (La. 4/1/11), 61 So.3d 507, 574-75.

Here, we cannot conclude that the charges as initially given were per se erroneous given the context of the entire charge and the nature of the case. The complained of charge that “only those qualified in that specialty may offer expert testimony and evidence of the applicable standard of care[,]” must be read in pari materia with the rest of the instruction. The instruction given did not refer to the issue at hand as being solely in the realm of a singular specialty, and it likewise set forth correctly that when competing experts testify, it is for the trier of fact to assess credibility in deciding whether to accept or reject either. The instruction is further prefaced with the language therein that the “doctor's professional judgment and conduct must be evaluated in terms of reasonableness under the then-existing circumstances[.]” Thus, reviewing the instruction as a whole, we find that it fairly instructs the jury as to the “principles of law as applied to the issues framed in the pleadings and the evidence and” that the “charges adequately guided the jury in its determination.” Id. at 574. The additional charge that was given correctly set forth the law and clarified any discrepancy that may have occurred with the initial instruction.

Nor can the Plaintiffs establish any prejudice, particularly in light of the actions of the trial court in giving the requested charge that a specialist in one field can give expert testimony regarding the standard of care applicable to those areas of practice that are common or overlapping. Assuming arguendo that the initial instruction was wholly erroneous, the follow-up charge corrected any defect and adequately instructed the jury on the law to be applied. Plaintiffs point to no objective evidence of prejudice, arguing only speculation as to the effect of the charging sequence. Accordingly, we find no merit in the allegation of error regarding the trial court's jury instruction.

Breach of the Standard of Care

In their second and third assignments of error, Plaintiffs assert that the jury's finding that Defendant did not deviate from the standard of care is manifestly erroneous and clearly wrong. They first assert that Defendant's testimony regarding BiPAP “could not be true[,]” that Nurse Zimmerman's back-timed note at 6:00 p.m. regarding the “initiation of BIPAP/CPAP” “is untrustworthy,” and that his expert witnesses wrongly assumed that Mrs. Smith was on BiPAP. Plaintiffs further argue that the jury's conclusion that Defendant did not deviate from the standard of care is manifestly erroneous and clearly wrong because he breached the standard of care testified to by all medical experts by not putting Mrs. Smith on BiPAP. We will consider these two assignments together.

We note that in this appeal, Plaintiffs’ argument is primarily that the jury committed manifest error in failing to conclude that Defendant breached the standard of care by not placing Mrs. Smith on BiPAP. In argument in his brief, Plaintiffs’ counsel devotes little attention to the other alleged breaches of the standard of care regarding over oxygenation and failure to order an earlier arterial blood gas test (ABG), although these are briefly and generally mentioned. This is somewhat different from the primary allegations set forth in Plaintiffs’ initial petition, which revolved almost exclusively around the issue of Defendant's over oxygenation of Mrs. Smith being the breach of the standard of care and the cause of her death. An alleged breach of the standard of care concerning over oxygenation, and the failure to order an earlier ABG was, in fact, the main focus of Plaintiffs’ counsel in closing argument, giving little attention to the issue surrounding BiPAP. However, despite the cursory attention given to the alleged non-BiPAP breaches on appeal, and considering the overlapping nature of the medical issues, we will address all of the alleged breaches of the standard of care raised by Plaintiffs’ experts.

This action is governed by the LMMA as provided in La.R.S. 40:1231.1-1231.10. Therein, malpractice is defined, in pertinent part, as “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 but not limited to failure to render services timely and the handling of a patient[.]” La.R.S. 40:1231.1(A)(13).

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury.

Samaha v. Rau, 07-1726, p. 5 (La. 2/26/08), 977 So.2d 880, 883-84 (citing La.R.S. 9:2794).

On appellate review of a medical malpractice decision, we review “whether a plaintiff established the appropriate standard of care and a breach thereof ․ pursuant to the manifestly erroneous, clearly wrong, standard of review[,]” and we will “only reverse a trial court's conclusion that a plaintiff failed to establish the appropriate medical standard of care or whether the provider breached that standard of care if there is no reasonable basis for the finding.” Eggins, 333 So.3d at 1276.

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). This test dictates that a reviewing court must do more than simply review the record for some evidence that may controvert the trial court ruling. Rather, it requires a review of the entire record to determine whether manifest error has occurred. Thus, the issue before the court of appeal is not whether the trier of fact was right or wrong, but whether the fact-finder's conclusion was a reasonable one. Clay v. Our Lady of Lourdes Regional Medical Center, 11-1797 (La. 5/8/12), 93 So.3d 536, 543. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270, 278-79.

Snider v. La. Med. Mut. Ins. Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323.

However, as stated by the supreme court in Hanks v. Entergy Corp., 06-477, pp. 23-24 (La. 12/18/06), 944 So.2d 564, 580-81:

[W]here documents and objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the reviewing court may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell [v. ESCO], 549 So.2d [840,] 844-45 [(La. 1989)]. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id.

Moreover, the rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lasyone v. Kansas City Southern R.R., 00-2628, p. 13 (La. 4/3/01), 786 So.2d 682, 693; Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La. 1990). Credibility determinations, including the evaluation of and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact, which should not be disturbed on appeal in the absence of manifest error. Lasyone, 00-2628 at p. 13, 786 So.2d at 693.

At trial, Plaintiffs’ experts opined that Defendant breached multiple standards of care in his treatment of Mrs. Smith's COPD exacerbation: his failure to maintain her O2 SAT levels between 88-92%; his failure to manage her CO2 levels prior to and after intubation; and his failure to treat her underlying metabolic acidosis with antibiotics.⁵ On appeal, Plaintiffs’ focus is on Defendant's failure to manage Mrs. Smith's CO2 levels prior to intubation. Specifically, they argue that Defendant breached the standard of care by failing to place Mrs. Smith on BiPAP prior to intubation.

Clearly, the focus of the evidence and testimony presented to the jury was on whether the standard of care was breached and whether that breach caused Mrs. Smith's injury and death. As an understanding of the events related to Mrs. Smith's treatment is crucial, we find it helpful to set out a timeline of the pertinent events occurring from the time she arrived at Byrd Regional until she was transferred to RRMC, which we have extracted and combined from the medical chart and the audit trail:⁶

Byrd Regional

[Editor's Note: The preceding image contains the reference for footnote ⁷ ].

Nurse Grappe, the triage nurse, was the first witness to testify for Plaintiffs. When asked at the outset if she had any independent recollection of Mrs. Smith or the events of April 19, 2017, she replied, “No.” She said that in testifying, she was relying on the medical chart and audit trial.

Nurse Grappe testified that Defendant was present when Mrs. Smith arrived in the ER at 5:45 p.m.⁸ and that he ordered a chest X-ray, an EKG, and various lab tests at 5:47 p.m. but did not order an ABG. At 5:51 p.m., she noted that Mrs. Smith's blood pressure was 227/166, her pulse was 123 beats per minute, and her respirations were 30 breaths per minute. She testified that Nurse Zimmerman was Mrs. Smith's primary nurse from 6:00 p.m. until she was transferred by helicopter to RRMC at 9:41 p.m. She stated that BiPAP ⁹ was usually handled by a respiratory therapist, and she did not see any orders for BiPAP or any respiratory therapist's notes referring to BiPAP in Mrs. Smith's chart or audit trail.

Nurse Grappe agreed that the chart reflected that BiPAP was initiated at 6:00 p.m. and that it was mentioned again at 6:21 p.m. She explained the sequence, according to the chart: “it looks like she was placed on BiPAP at [6:00 p.m.] and at [6:21 p.m.] it was discontinued because she became unresponsive. So it looks like she was on BiPAP for about 20 minutes.” However, she acknowledged that the 6:00 p.m. note was actually entered into the chart by Nurse Zimmerman early the next morning at 12:30 a.m.

Concerning whether the standard of care requires that an ABG be ordered immediately or shortly after admission to the ER, the following colloquy took place, without objection, between Nurse Zimmerman and Defendant's counsel during cross examination:

Q. Do sometimes doctors before they order Arterial Blood Gas, do they first clinically assess the patient?

A. Yes, sir.

Q. And sometimes they'll order an ABG and sometimes they won't?

A. Yes, sir.

Q. That's a [clinical] judgment, right?

A. Correct.

Nurse Grappe also testified on cross examination, without objection, her opinion as to whether Defendant violated any standard of care when treating Mrs. Smith. When asked if there was “anything in this chart that jumps out at you from a nursing perspective, any red flags that tell you, ‘Oh my goodness Dr. Laskaris didn't treat this patient appropriately[,]’ ” she replied, “No, sir, not that I could see.”

Plaintiffs’ expert, Dr. Lee Morrow,¹⁰ a board-certified physician in internal, pulmonology, and critical care medicine, testified that the standard of care when treating a patient with an acute exacerbation of COPD is the same for every physician, including pulmonologists and emergency medicine physicians.

Dr. Morrow thoroughly discussed the standard of care for patients with an acute exacerbation of COPD but did not specifically render an opinion regarding whether the need or use of BiPAP was a part of the standard of care. However, he testified that he saw no evidence in Mrs. Smith's chart that BiPAP was ever administered. He stated that by the time the first ABG was done, Mrs. Smith's CO2 level was 113, where it had been 50 when she arrived in the ER according to Acadian's records. He stated that the ABG also established that her pH level was 7.08, which is a panic level, as normal pH limits should be between 7.35 to 7.45.

On cross examination, when Dr. Morrow was asked about Nurse Zimmerman's 6:00 p.m. note regarding the initiation of BiPAP, the following colloquy occurred:

Q. You would agree that according to the hospital documentation at 18:00, which is 6PM, 15 minutes after presentation according to the chart even though there's no specific order that BiPAP was initiated?

A. I do not agree with that.

Q. You don't agree with that? Alright. Well the charts are in evidence and we'll get to that later.

Dr. Morrow's testimony as to the standard of care related almost exclusively to hyperoxygenation. Regarding the standard of care for treating COPD patients with acute exacerbation as set out in the Global Initiative for Chronic Obstructive Lung Disease (“GOLD”) guidelines, he stated, “That's not just the [GOLD] Guidelines it's every guideline that's out there says the same thing, which is you need to maintain the oxygen saturations to 88 to 92 percent[ ]” and that “when we were talking about that little pulse oximeter on your finger you want to keep that between 88 and 92 percent.” He further explained his opinion as to the medical reasoning for such:

Yeah, when you get above 92 percent we know that the CO2 starts to go up. It's a very complicated physiologic sequence, but nobody can test that to much oxygen increases CO2 levels. And there's probably a couple different physiologic ways that it happens that are probably beyond what we want to talk about today, but yeah, increasing the oxygen level above 92 percent in some COPD patients will make their CO2 levels go up, and as those CO2 levels go up we know that mortality rates go up. So there was a study with thousands of patients and they looked at what were their oxygen levels maintained at while they were in the emergency room and then admitted to the hospital, and if you were 92 to 96 percent your mortality rate was double what it was if you were in the group of patients that were 88 to 92. And if you were 97 to 100 percent where Linda Smith was kept your mortality rate is three times what it was if you were in the group of patients were [sic] it was 88 to 92 percent.

When asked if Defendant “deviated from the standard of care or breached the standard of care by not - - by hyper - - by giving Linda to (sic) much oxygen[,]” he replied, “Yes[,]” adding that “she had an elevated CO2 as evidence by that End-Tidal CO2 value that EMS reported[ ]” as 50, versus the 113 CO2 level she had at 6:12 p.m., as shown by the ABG. When asked if Mrs. Smith was hurt by that breach, Dr. Morrow stated:

Yes, I think that the excess oxygen drove the CO2 up even higher. Remember it was somewhere up [sic] 50 based on that End-Tidal CO2 and then 35 minutes later when the blood gas is done it's gone from 50 plus it's doubled to 113 due to excess oxygen administration. That excess CO2 jump lead [sic] to the PH [sic] of 7.08 that ultimately caused her cardiac arrest, required the code to be done and resulted in anoxic brain injury.

He further opined that Defendant's breach of the standard of care was at least a substantial factor in causing Mrs. Smith's death.

On cross examination, Dr. Morrow was asked if he had ever given an opinion in a prior legal matter involving the management of a COPD acute exacerbation, to which he replied, “I don't think I've ever done that before.” Finally, when asked if as a physician specializing in pulmonology, he had ever lost a patient due to an acute exacerbation of COPD, he responded, “Yes[,]” adding that despite the best care and best interventions there are “patients when you do everything right and who can still have a bad outcome including death.”

On redirect, Dr. Morrow discussed the potential use of BiPAP in hyperoxygenation cases:

Q. Okay. And the reason that she went down the tubes, we'll just call it down the tubes, the reason she went down the tubes was because her oxygen was completely mismanaged, right?

A. That is correct.

Q. Okay. And if that oxygen had been - again, if the oxygen down instead of turned up more likely than not she would have walked out of that hospital?

A. With the use of BiPAP if needed based on a blood gas.

Q. Right, but if the oxygen had been turned down, right, she would've been able to - and she would have been managed otherwise appropriately and she would have been able to walk out?

A. I believe that is more likely than not.

Q. Right. So she wasn't - she didn't have an illness which was dooming her before she got treated by Dr. Laskaris, right?

A. Correct.

Dr. Lucas Ainsworth, a board-certified emergency medicine physician, was called out of order by Defendant to accommodate his travel issues. He disagreed with Dr. Morrow's opinion that Mrs. Smith was given too much O2 and explained the rationale for his opinion:

So the issue is all these theories are correct, but we have to distinguish between COPD and CO2 retainers. About 15 percent of smokers are actually COPD patients. And about 10 percent of those COPD patients actually retain CO2. They're chronic retainers. So that means that roughly 10 percent of your COPD population would be at risk for these things to be detrimental to them. And, so, it's one of things where it's not necessary in a COPD patient or anybody it's not necessary to titrate them to 100 percent, however, it's not going to be harmful if you don't have these underlying blood gas disturbances, which Mrs. Smith did not. There's nothing that suggested that she did. The more hypoxemic someone is at baseline, meaning the lower their oxygen tension is at baseline the more at risk they are for these consequences. And, so, this would really be inconsequential to her as a patient, right and really 90 percent of COPD patient[s].

As to whether Defendant breached the standard of care for failing to order an ABG immediately or shortly after her arrival to the ER, Dr. Ainsworth testified that “not everybody needs a blood gas, and if you have to get a blood gas before administrating somebody oxygen no one should have oxygen in the field because you're not going to get a blood gas in the field[,]” explaining that EMTs regularly administer O2 to patients before and during transport as part of the standard of care applicable to that field. He agreed that Mrs. Smith was not “in a chronic state of respiratory or metabolic acidosis[,]” stating, “everybody agreed with that yesterday that there's no evidence that she is a chronic retainer and she never qualified for home oxygen[.]”

Dr. Ainsworth further disagreed with Dr. Morrow's opinion that Defendant breached the standard of care by failing to order and obtain the results of an ABG before starting BiPAP, stating, “Nowhere and I've worked in 15 different hospitals in some capacity whether that's moonlighting and training or something, but I have never seen a hospital where a patient is required a blood gas to be put on BiPAP to establish the initial settings.” He went on to explain in detail the reason for his opinion and the difference he had with Dr. Morrow's contrary opinion, stating, “We're going to put her in BiPAP and give her nebulizers because that's the standard of care.” He went on to add that “[y]ou don't need a blood gas to make that determination. And, to say that the blood gas would help you get her on BiPAP sooner I would wholeheartedly disagree.”

When asked if after reviewing all of the records, it was his opinion that Defendant breached the standard of care in his treatment of Mrs. Smith, he replied unequivocally, “there's absolutely no breach. They did everything correctly.” He added that “Mrs. Smith was not “a patient that the oxygen is going to harm her any way [sic][.]”

Dr. Ainsworth was cross examined extensively about discrepancies in the medical chart and the audit trail as to whether and when BiPAP was ordered and whether it was actually initiated. He replied, “I was asked to render an opinion from a medical stand point [sic] as a medical expert not a IT [sic] in charting discrepancy issue[s][,]” “so, I really - my opinions are based on I'm assuming that what is in the chart is factual, and that's what I was asked to render an opinion based on.” He went on to state that whether there was an order documented in the chart regarding BiPAP was debatable because there was evidence of a verbal order in the chart by virtue of Nurse Zimmerman's note. However, he admitted that he saw no physician order for such, saying that this was a “charting deficiency.” When asked by Plaintiffs’ counsel's if the administered oxygen contributed to Mrs. Smith's death, he responded, “No, I don't think hyperoxygenation” caused her death.

Nurse Zimmerman, Plaintiffs’ next witness, testified that she had no independent recollection of the events concerning Mrs. Smith's care and that she was testifying based on the information contained in the medical chart and audit trial. She stated that based on the chart, Mrs. Smith arrived at the ER at 5:46 p.m., and she assumed duty as her primary nurse at 5:59 p.m. According to the audit trail, her first note was at 6:03 p.m. when she entered the results from her assessment of Mrs. Smith for abuse, fall risk, Tuberculosis, and sepsis. She stated that the sepsis assessment was negative. Nurse Zimmerman's next assessment at 6:12 p.m. revealed that Mrs. Smith denied pain, was anxious, and short of breath. She further noted that Mrs. Smith had a productive cough, air hunger, and that she reported improvements from the interventions done by Acadian. She stated that the next entry in the chart was by the respiratory therapist, who documented that the ABG draw was done at 6:15 p.m. When asked if she knew when the note was written, she stated that the respiratory therapist “wrote it at [6:15 p.m.], but I don't know if she wrote it then or if she back charted.”

When asked what she defined as “back charted[,]” Nurse Zimmerman testified that as it is impossible to do interventions and chart at the same time, “you do your interventions and then you go back and chart what time they're done.” She stated that her next note at 6:20 p.m. was that Mrs. Smith “was no longer responding to nurse, skin is diaphoretic, respirations remain labored, Dr. Laskaris notified of patient condition and patient to be intubated.” The following colloquy then appears in the record:

Q. And that's the next thing you wrote?

A. Yes, sir, but we had attempted BiPAP briefly.

Q. You had? And did you write that down at all?

A. I did at [6:21 p.m.]

Q. Okay. And when you say briefly what do you mean?

A. That she couldn't tolerate it. She wasn't on it very long.

Q. Okay. And does it say or do you remember why she couldn't tolerate it?

A. I do not. She became unresponsive.

Q. Oh, unresponsive?

A. Yes, sir.

Q. Right. So just for the sake of the jury it's true that you can't place an unresponsive patient on BiPAP, correct?

A. No, sir, you can not [sic].

Q. Okay. And you say you tried BiPAP? Had she been on BiPAP the whole time?

A. No, sir. She had been on a face mask getting breathing treatments.

Q. Okay. And did you have to take her off the face mask getting breathing treatments in order to put her on BiPAP or to try the BiPAP?

A. Yes, sir.

Q. So she must have still been awake at the time you tried it, but then not immediately [sic] after sort of wasn't awake?

A. Yes, sir.

Nurse Zimmerman was again questioned about the use of BiPAP, after stating that according to the chart, she had taken off the DuoNeb breathing-treatment mask to put Mrs. Smith on BiPAP:

Q. At [6:20 p.m.]?

A. Yes, sir.

Q. That was referred back to [6:20 p.m.]?

A. Yes, sir. So with back charting I may have gotten the time wrong on the BiPAP, but she was placed on BiPAP after appropriate interventions.

Q. Okay. You gave BiPAP a run after the other stuff wasn't working, right?

A. Yes, sir.

Nurse Zimmerman testified that she saw no orders for BiPAP in Mrs. Smith's chart and that BiPAP would be administered by a respiratory therapist after “consultation with” Defendant. She further testified that under the “ED course,” she entered that Mrs. Smith was started on BiPAP at 6:00 p.m. When asked if that note was accurate, she stated, “As accurate as I know it to be.” She admitted that there was “a check box” next to the “initiation of BiPAP/CPAP” entry and that Mrs. Smith was not placed on CPAP. When she was asked a third time if the chart contained an order for BiPAP, counsel for Defendant objected to the question as being repetitive and then stated, “I will concede that there's no physician order for BiPAP, so we don't have to keep going over and over and over.”

Nurse Zimmerman testified that Mrs. Smith coded after she was placed on the ventilator, becoming unresponsive and her cardiac rhythm changing to V-tach.¹¹ At that time, CPR was initiated. She stated that the code started at 6:33 p.m. and ended at 7:40 p.m. She said that Defendant pronounced Mrs. Smith dead at 7:13 p.m. but that after the ventilator was turned off, Mrs. Smith “made some agonal spontaneous respirations[ ]” at 7:15 p.m., after which they resumed CPR. At some point, Mrs. Smith grabbed her arm causing her to stop CPR. She said that once Mrs. Smith was stabilized, she was transferred to RRMC.

Plaintiffs’ expert, Dr. Kevin Barlotta,¹² a board-certified emergency medicine and emergency medicine services physician, opined concerning the issues addressed by Plaintiffs, in brief, that Defendant deviated from the standard of care by failing “to recognize the harm of administering too much oxygen” to a patient with COPD, and by failing “to appropriately address ventilation ․ before intubation.” He further opined that these failures harmed Mrs. Smith.

As to the use of BiPAP, Dr. Barlotta testified that despite Defendant's testimony and Nurse Zimmerman's 6:00 p.m. note, the chart contained “fairly significant indicators” that Mrs. Smith was not placed on BiPAP. Regarding Defendant's testimony, he stated:

He said his shift started at 18:00 or 6:00 p.m. and he would've arrived at that time. And these – you know, I think there's some inconsistencies again with the time frame. I know that medical records can, you know, be kind of an estimate and have some area there [sic]. But when he's – its his signature that signs up for the patient at [5:45 p.m.] in two places. So unless someone has logged in under his computer system, I don't think that that audit or that entry, excuse me, entry could've been placed by anyone other than Dr. Laskaris.

He further stated:

One, just the idea of walking in the room and seeing BiPAP on. We kind of ․ those times don't really align. They're not really consistent. Signing for a patient, medically screening a patient at quarter to 6:00 doesn't really align with BiPAP already being on before [he] arrived.

As a nurse is not authorized to order BiPAP, Dr. Barlotta described Nurse Zimmerman's 6:00 p.m. note as “a nursing order[,]” which says “we need a nurse at the bedside with a plan[ ]” for the initiation of BiPAP. However, he stated that her further documentation indicates that BiPAP was not started:

So what does it actually say at [6:00 p.m.]? It says, one on one care. So that's kind of like the category. And there's like a little colon. And it says, at bedside with patient for critical conditions. So this is like where she's going to have a different ratio. Intervention, initiation of BiPAP or CPAP for respiratory distress. So that does not say it was started. It does not say it was placed. It does not say that it was put on her. It says the intervention is going to be the initiation. It does not give that.

So I looked at that line item and I said, well, what else is contributing to my understanding of when BiPAP took place? Because - and that's why I came up - I came with that list of all the other documentation that clearly states that that was not the case. Including putting a Foley catheter in which is typically done in the lying down position is not something you would do on BiPAP. So there's a lot to that. And I tried to be as descriptive as I can giving page numbers and what is actually documented. But we've got face mask, ten liters per minute. We have we are removing a face mask DuoNeb to put the patient on BiPAP. One does not – Dr. Laskaris said, no, no, there's one through the BiPAP machine. Dr. [Beran] and others have stated, you can do that. And I'm like, no I understand that, but then you don't document that I took the DuoNeb and stopped the DuoNeb to put the patient on BiPAP if BiPAP was already on. So I understand, but I would not say that that says patient was placed on BiPAP. You will also note – you will also notice that every time that there's a ventilator kind of initiated or otherwise, there's a correlating respiratory therapy note. These are the settings, this is what's going on, there's documentation of that.

We don't see that here, and I have an idea, but I don't want to be speculative. But like it's because it was so short. We got these results. We went in there; we tried to put it on; she's unresponsive, and now we need to intubate; which is what Zimmerman describes, which is what the medical records states and what that ABG basically is consistent with.

Dr. Barlotta said that further indications that BiPAP was not initiated, included Nurse Zimmerman's notes that Mrs. Smith was administered O2 via face mask at 10 LPM and three continuous DuoNeb treatments at 6:00 p.m.; O2 at 10 LPM via face mask at 6:03 p.m.; and O2 via face mask and DuoNeb treatments per Defendant at 6:04 p.m. He emphasized that liters per minute describes how O2 is delivered via a face mask whereas with BiPAP, O2 is dialed in as a percentage. He explained that “there is a very big difference between a face mask, a non-rebreather mask, a rebreather mask, a VentiMask, and a BiPAP mask. Those are not interchangeable terms.”

Dr. Barlotta testified that when Defendant learned of the ABG results at 6:20 p.m., Mrs. Smith's 7.08 pH was at a near life-threatening level, and based on her 113 CO2 level, she was markedly acidic. He opined that these results were not consistent with her having been on BiPAP for thirty minutes:

So at this moment at [6:20 p.m.], we get this call back of these panic levels where CO2 is 113. The pH is 7.08. She is markedly acid. We call it acidotic. She has got a lot of acid build up in her system. Put - say that somebody had been on anywhere from 30 to 18 minutes of BiPAP, that's just not consistent. What the level is consistent with [is] that someone comes in exceeding the oxygen levels recommended and we dial that up, and we see the effect that we all know that oxygen could potentially be harmful in this patient population of altering your mental status or making you unresponsive and stopping you from breathing. In Dr. Laskaris’ own words he says, she is unresponsive and she is apneic meaning she's not responding and she is not breathing. So I don't see a lot before that time point where BiPAP was in play.

Defendant's testimony was introduced via a video deposition that was taken pursuant to a motion to perpetuate his testimony as he was suffering from terminal cancer and, in fact, died a few months prior to trial. Defendant testified that he recalled the basics of Mrs. Smith's case because it was very complicated and because he saw fewer critically ill patients at Byrd Regional than at his other hospitals. It was his opinion that the treatment he rendered Mrs. Smith was within the standard of care based upon her presentation in the ER and his training and experience.

He testified that BiPAP, which is part of the standard of care for treating a patient with COPD, can only be ordered by a physician, either verbally or in writing, and that it is handled by respiratory therapist. He further testified that based on Mrs. Smith's clinical presentation, the standard of care required that she be placed on BiPAP upon arrival at the ER.

Defendant stated he was working the night shift on April 19, 2017, which ran from 6:00 p.m. to 6:00 a.m. He stated that when he arrived at Byrd Regional, Mrs. Smith had been there for approximately thirty minutes and that BiPAP had already been initiated.¹³ Although he did not recall who she was seen by, he assumed that she was seen by a physician upon arrival, stating, “Well, somebody put in the order for the initial - an initial BiPAP order. So I believe so.” When asked if he placed the order for BiPAP, Defendant testified, “I don't believe I did. I think she was on BiPAP when I walked in.” He also claimed that the DuoNeb treatment administered to Mrs. Smith was ordered prior to his arrival.¹⁴

Defendant explained that when Mrs. Smith was placed on BiPAP, he set the O2 at 60%:

[R]ight when we put her on – on the BiPAP. Those were the settings. You know, I'll – of course I always ask respiratory what they think because they're the experts in that, but, you know, the final decision on the settings are mine and they seemed reasonable. I said, “Okay. That's good. Let's go with that.”

Q. All right. So you did consult with a respiratory therapist?

A. Yeah.

Q. And they concurred –

A. Yeah.

Q. – on the amount of FiO2 oxygen?

A. Yeah. That's sort of what we start with.

Q. So do you remember had her vital signs improved or worsened?

A. Improved considerably.

Q. Once you put her on BiPAP?

A. Once I put her on BiPAP.

He stated that Mrs. Smith's condition improved such that she was able to respond to his questions with short sentences. However, he admitted that communicating while wearing a BiPAP mask is hard “because it's very loud.”

Defendant claimed that Mrs. Smith was on BiPAP continuously until 6:20 p.m., when he made the decision to intubate based on the report that she was becoming unresponsive. He stated that by then, she had been on BiPAP for approximately thirty minutes.

Defendant's expert, Dr. David Beran,¹⁵ a board-certified emergency medicine physician, testified that his opinion that Defendant did not breach the standard of care was based, in part, on Defendant's testimony that Mrs. Smith was placed on BiPAP when she arrived at the ER. He found that this was established through Nurse Zimmerman's 6:00 p.m. note regarding the initiation of BiPAP/CPAP. He also pointed to Defendant's 6:15 p.m. note stating that at that time, Mrs. Smith's condition had improved based on her being able to “speak[ ] in short sentences[,]” whereas she had been unable to speak upon arrival. However, he admitted that Mrs. Smith's chart did not contain an order for BiPAP and that speaking is not easy while wearing a BiPAP mask.

While Dr. Beran admitted that Nurse Zimmerman's 6:21 p.m. note stated that Mrs. Smith became unresponsive after being briefly placed on BiPAP, he claimed that it did not indicate that BiPAP was initiated at that time. Rather, he stated, the note “says that they're making a decision because the patient didn't respond to the BiPAP that she had already been placed on” at 6:00 p.m. He further disagreed that Defendant allowed Mrs. Smith's inspired FiO2 “to go unchecked for 32 minutes[,]” stating:

It's reflected in the medical record and it's reflected in the audit and in the depositions that the patient arrived just before 6:00 o'clock. Ms. Smith, I think at 5:46 she arrived, 5:45.

․

And Dr. Laskaris was at bedside with BiPAP started by 6:00 o'clock. And so that's reflected in the audits; that's reflected in the nursing notes; it's reflected in his deposition, where he even states that he thinks BiPAP was started before he walked in the room.

So that assessment that they're making sounds as though she was just left with a non-rebreather on for 32 minutes, when, in fact, she was being placed on BiPAP, she was being given nebulized medications, so albuterol and atrovent, through the BiPAP, and was undergoing multiple assessments between those two periods of time. So I don't agree with their conclusion.

The opinion of the medical review panel was introduced into evidence. The panel unanimously agreed that Defendant did not violate the standard of care applicable to him in his treatment of Mrs. Smith.

As can be readily seen from the review of the relevant testimony of the healthcare providers and experts, the opinions as to whether Defendant breached the required standard of care were varied and, in some cases, polar opposites. The jury saw and heard the witnesses and heard the very arguments made here concerning the accuracy, credibility, and truthfulness of the medical record and the testimony. During closing arguments, Plaintiffs’ counsel, although acknowledging that Defendant was undergoing chemotherapy for cancer at the time of his deposition, argued that neither his testimony nor the charting and audit trial could be believed. Despite this, the jury decided in favor of Defendant, believing the testimony and evidence presented on his behalf and rejecting the opinions of Plaintiffs’ experts.

In Thibodeaux v. Jurgelsky, 04-2004, p. 28 (La. 3/11/05), 898 So.2d 299, 316, a medical malpractice case, the supreme court concluded that another panel of this court committed legal error by improperly substituting “its own factual findings for that of the district court, thereby misapplying the manifest error standard of review.” The supreme court went on to state that “[t]he court of appeal's failure to abide by the manifest error standard of review was contrary to the established jurisprudence of the third circuit and this court.” Id. Additionally, “[w]hen there are conflicting expert opinions concerning compliance with the standard of [care], the reviewing court will give great deference to the conclusions of the trier of fact.” Price v. Erbe USA, Inc., 09-1076, p. 15 (La.App. 3 Cir. 6/9/10), 42 So.3d 985, 996, writ denied, 10-1628 (La. 10/8/10), 46 So.3d 1271.

Applying this rationale, we find no manifest error in the finding of the jury that Defendant did not breach the standard of care. There were conflicting expert opinions and differing views of the medical evidence and potential charting discrepancies. Some of the experts placed reliance on the records, others stated that they were unreliable and did not support the finding that Defendant used or attempted to use BiPAP in treating Mrs. Smith. Reliance on the records is in line with our supreme court's recognition that hospital records are generally considered to be “inherently reliable.” Judd v. State, Dep't of Transp. & Dev., 95-1052, p. 6 (La. 11/27/95), 663 So.2d 690, 694; see also Richardson v. Kansas City S. Ry. Co., 31,735, p. 6 (La.App. 2 Cir. 4/1/99), 731 So.2d 1017, 1021, writ denied, 99-1267 (La. 6/18/99), 745 So.2d 607, wherein the second circuit reversed a trial court judgment, stating, “Medical records are generally considered to be inherently reliable because medical personnel rely on the information in those records in making life and death decisions[,]” despite significant evidence that the records were incorrect and where the trial court refused to rely on those records.

Here, there were conflicting opinions on the applicable standard of care and any breaches thereof. Some were positive, some were negative. The jury chose to follow Defendant's experts in finding no breach of the required standard of care. While we may have decided otherwise had we been the factfinders, that is not our role here on appellate review. Thus, we affirm the decision of the jury and the judgement of the trial court thereon.

DECREE

The judgment of the trial court is affirmed. Costs of the appeal are assessed to Homer Smith, individually and on behalf of the Estate of Linda Smith, Jared Ory, Tonya Ory, Katherine Champagne, and Amanda Smith.

AFFIRMED.

FOOTNOTES

1.   Plaintiffs’ petition states that Mrs. Smith was transported to Byrd Regional on April 18, 2017. However, the medical records establish that she was actually transported there on April 19, 2017.

2.   A detailed discussion of the facts, testimony, and arguments is set out below in our analysis of Plaintiffs’ second and third assignments of error.

3.   “COPD, or chronic obstructive pulmonary disease, is a condition caused by damage to the airways or other parts of the lung[,]” which “leads to inflammation and other problems that block airflow and make it hard to breathe.” The National Heart, Lung, and Blood Institute, What Is COPD? National Institutes of Health, https://www.nhlbi.nih.gov/health/copd (last visited August 22, 2026).

4.   The times listed in the medical records are stated in military time. For the purposes of this opinion, we have converted the times to civilian time.

5.   In this opinion, oxygen is referred to as both “oxygen” and “O2,” and carbon dioxide is referred to as both “carbon dioxide” and “CO2.”

6.   “An audit trail in healthcare is a chronological, detailed record of time-stamped system activities, including data access, additions and deletions, queries, views, and changes made to patient electronic health records (EHRs).” Moreover, “[a]udit trails provide a thorough history of who accessed data, the time they accessed it, any actions they took, and the documents and data they viewed. This information is required for HIPAA compliance.” Kimberly Houston, What is an audit trail in healthcare? Jotform, HIPPA (July 27, 2026), https://www.jotform.com/blog/what-is-an-audit-trail-in-healthcare/.

7.   Shawn Fletcher was the respiratory therapist.

8.   Ms. Grappe testified that Defendant was working the day-shift, which for physicians ran from 7:00 a.m. to 7:00 p.m.

9.   BiPAP stands for Biphasic Positive Airway Pressure.

10.   Dr. Morrow is a Professor of Medicine and a Professor of Clinical Research at the Crighton University School of Medicine. He is also a Professor of Pharmacy at the Crighton University School of Pharmacy and Health Professions.

11.   “Ventricular tachycardia (VT or V-tach) is a fast, irregular heart rhythm caused by abnormal electrical signals in the ventricles, the heart's lower chambers. The rapid heartbeat may prevent the ventricles from filling up with blood, making it difficult to pump enough blood to the body.” New York Presbyterian, Ventricular Tachycardia (V-tach), https://www.nyp.org/heart/ arrhythmias/ventricular-tachycardia-v-tach (last visited September 22, 2026).

12.   Dr. Barlotta is also a professor in the Department of Emergency Medicine at the University of Alabama at Birmingham.

13.   According to the medical chart she actually arrived at 5:45 p.m. and Nurse Grappe took over her triage nursing care at 5:47 p.m.

14.   The records indicate that the patient was being administered a DuoNeb treatment by the ambulance EMT's.

15.   Dr. Beran was a member of the medical review panel that considered this matter.

KYZAR, Judge.