The State of Louisiana Court of Appeal, Third Circuit (“Louisiana Appellate Court”) earlier this month affirmed the trial court’s granting summary judgment to the defendant emergency room physician in a Louisiana medical malpractice case, finding that the plaintiff had failed to produce evidence from a medical expert to establish a breach of the standard of care sufficient to show the existence of a genuine issue of material fact or that the defendant was not entitled to judgment as a matter of law.
The Underlying Facts
A nearly 600-pound Louisiana man had gone to a local hospital’s emergency room on June 29, 2014, complaining of weakness and pain in his right lower extremity along with a history of diabetes, morbid obesity, and chronic low back pain. The man was examined by the defendant emergency room physician, who believed the man either had a blood clot, diabetic neuropathy, or back radiculopathy.
The defendant emergency room physician suggested that the man have either a venous ultrasound or CT scan of his right leg to rule out a blood clot, but the tests could not be completed at the local hospital due to the plaintiff’s size. The defendant contacted two other hospitals to conduct the medical tests but neither hospital agreed to do same. The defendant believed that the tests were not immediately necessary and therefore advised the man to see his primary care physician the next day to arrange for an ultrasound. The plaintiff was able to walk without pain at the time of his discharge from the hospital.
The man went to another hospital’s emergency room on June 30, 2014, with similar complaints, and was again discharged with instructions to follow up with his primary care physician. The man returned to that hospital on July 6, 2014, with pain in his right ankle after he fell, and he was discharged with instructions for an ankle sprain.
The man went to a third hospital on July 19, 2014, with complaints of worsening leg weakness, a fall two weeks prior, a broken ankle, and new onset right arm weakness that had begun two days prior. That hospital was able to accommodate the plaintiff in its CT scanner where a CT scan of his head found three separate but adjacent hyperdense and enhancing brain masses. The plaintiff died from these brain tumors nine months later, on April 24, 2015.
On December 15, 2014, the plaintiffs filed a request for a medical review panel (“MRP”), which rendered a unanimous opinion finding that the evidence did not support the conclusion that the first emergency room physician failed to meet the appropriate standard of care as charged in the complaint.
On July 5, 2016, the plaintiff, individually and on behalf of the decedent’s children, filed a Louisiana medical malpractice lawsuit against the first emergency room physician and others, alleging a lost chance of survival and related damages due to an incorrect diagnosis of diabetic neuropathy.
On October 19, 2016, the defendant emergency room physician filed a motion for summary judgment arguing that the plaintiff did not have an expert to establish breach of the standard of care, and filed a copy of the MRP opinion and reasons in support of his motion. The plaintiff responded that an expert was not necessary because the negligence was so obvious given that the decedent’s wife, a layperson with a fifth grade education, was able to find a hospital in one of the three cities capable of providing top quality medical care that could accommodate her husband’s size, with just a simple phone call. The trial court gave the plaintiff additional time to provide an expert report in support of the medical malpractice claims.
At the conclusion of the subsequent hearing on the defendant’s motion for summary judgment, the trial court stated, in part: “Because no expert is required as a matter of law, this Court finds that summary judgment is not appropriate. A genuine issue of material fact exists as to whether a 19-day delay in [the decedent’s] diagnosis and subsequent treatment may or may not have significantly contributed to his suffering, caused him further injury, and lowered his chances of survival. This Court finds that dismissing the claims of a widow and her two young children, depriving them of their day in court, is a particularly harsh remedy at this stage of the litigation, given the disputed facts that remain in question.” The defendant appealed.
The Louisiana Appellate Court stated that initially, the burden of producing evidence at the summary judgment motion hearing is on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. If it is determined that the moving party has met its burden, the burden then shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
The Louisiana Appellate Court stated that a causal nexus between delayed treatment and a patient’s death is not obvious and requires expert testimony, either from the plaintiff’s experts or the defendant’s experts, to establish that the health care provider breached the applicable standard of care and that this breach caused the patient’s death or loss of a chance of survival. The Louisiana Appellate Court stated that this case is not a case of obvious negligence, which would not require expert testimony to prove the elements of the plaintiff’s medical malpractice claim.
The Louisiana Appellate Court held: “we are presented with the issue of whether the trial court erred in denying summary judgment after [the defendant physician] presented prima facie proof, in the form of the MRP opinion, that he did not breach the applicable standard of care, and plaintiffs then failed to produce an expert, or any evidence, to contradict that expert medical evidence. We find the trial court erred in summarily concluding that expert testimony is not needed to establish either breach of the standard of care or causation.”
Source Ferguson v. Progressive Acute Care Avoyelles, LLC, 17-563.
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