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Lee v. McGovern

Court of Appeal of Louisiana, Second Circuit

July 1, 2015

SHARON LEE, ET AL., Plaintiff-Appellants
v.
PATRICIA McGOVERN, ET AL., Defendant-Appellees

Appealed from the Second Judicial District Court for the Parish of Claiborne, Louisiana. Trial Court No. 39,628. Honorable Glenn Fallin, Judge.

AFFIRMED.

THE SINGLETON LAW FIRM, By: Christopher L. Sices, W. James Singleton, Counsel for Appellants.

WATSON, BLANCHE, WILSON & POSNER, By: Craig J. Sabottke, Adrien Busekist, Counsel for Appellees.

Before STEWART, CARAWAY and MOORE, JJ. CARAWAY, J., dissenting.

OPINION

MOORE, J.

[49,953 La.App. 2 Cir. 1] The plaintiffs, the children of Donald Fields Sr., appeal a summary judgment that dismissed their medical malpractice

Page 815

claim against two defendants, Nurse Practitioner Patricia McGovern and Dr. John Smith III. For the reasons expressed, we affirm.

Factual and Procedural Background

Fields was a 56-year-old man with, according to the plaintiffs, " a significant past medical history," including hypertension and a kidney transplant. On November 12, 2008, he came to the Willis Knighton Claiborne Regional Health Center complaining of diarrhea for the last two weeks. Although his appointment was to see Dr. John Smith III, he actually saw the doctor's nurse practitioner, Patricia McGovern. Nurse McGovern consulted with the doctor and gave Fields a prescription for an antibacterial, Metronidazole (generic for the brand name Flagyl). The plaintiffs alleged that Fields took the medicine as directed.

Nine days later, Fields phoned Dr. Smith's office to say the medicine was making him feel worse; the plaintiffs alleged that he " was instructed" to continue using it as directed, and no appointment was set or other medical care advised.

The following day, November 22, Fields collapsed at home. EMS carried him to a hospital in Magnolia, Arkansas, where he later died. No autopsy was performed, but the Arkansas death certificate listed the cause of death as " acute cardiovascular event" and other causes as " hypertension, post operative kidney transplant."

Fields's children -- Sharon Lee, Mary Fields and Donald Fields Jr. -- [49,953 La.App. 2 Cir. 2] convened a medical review panel (" MRP" ) against Willis Knighton Claiborne, Nurse McGovern and Dr. Smith. In February 2012, the MRP ruled that " although unfortunate," there was " no breach in the standard of care by any of the defendants." Specifically, it found that the treatment, including Flagyl, was within the standard of care, and Fields " never showed for a follow up." Because Fields " did not report within 48 hours as instructed," the panel also found no causation to the asserted resultant damages.

The plaintiffs filed this suit in the Second JDC in June 2012. In addition to the facts outlined above, they alleged that despite the kidney transplant and the complaints of diarrhea, the defendants prescribed Flagyl, a common side effect of which is diarrhea. They later amended their petition to allege that Dr. Smith and Nurse McGovern were employees of Willis Knighton Claiborne.

Willis Knighton Claiborne filed a motion for summary judgment urging that the MRP found no breach of the ...


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