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In re Med. Review Panel Proceedings for Claim of Johnson

Court of Appeals of Louisiana, Fourth Circuit

July 1, 2015

IN RE: MEDICAL REVIEW PANEL PROCEEDINGS FOR THE CLAIM OF JACQUELYN JOHNSON
v.
TULANE UNIVERSITY HOSPITAL AND CLINIC

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2003-04416, DIVISION " I-14" . HONORABLE PIPER D. GRIFFIN, JUDGE.

BRADFORD R. ROBERTS, II, ROBERTS & DYE, Metairie, Louisiana -and- GAYLE A. REYNOLDS, New Orleans, Louisiana, Counsel for Plaintiff/Appellant.

JAMES P. WALDRON, PETER E. SPERLING, FRILOT L.L.C., New Orleans, Louisiana, Counsel for Defendant/Appellee.

Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Rosemary Ledet.

OPINION

JAMES F. MCKAY III, J.

Page 92

[2014-1410 La.App. 4 Cir. 1] In this medical malpractice case, Jacqueline Johnson (" plaintiff" ) seeks appellate review of the trial court's December 9, 2013 judgment granting summary judgment in favor of defendant, University Healthcare System, L.C. d/b/a Tulane University Hospital and Clinic (" TUHC" ). Plaintiff also appeals the August 11, 2014 judgment denying her motion for new trial. For the reasons set forth below, we reverse and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On February 8, 2002, plaintiff presented at the TUHC emergency room complaining of severe headache pain and double vision. After being admitted into the hospital, plaintiff developed an infection in her left hand at the site of an IV catheter. Some days later, plaintiff was discharged with antibiotic medication for the infection, and instructions to follow up with her primary physician. Plaintiff alleges that the infection worsened, requiring intensive IV antibiotic treatment and subsequent surgeries.

[2014-1410 La.App. 4 Cir. 2] A medical review panel determined that TUHC did not breach the standard of care in the treatment of plaintiff. Thereafter, plaintiff filed suit against TUHC, the Tulane entity that employed the nursing staff.[1]

Page 93

On September 21, 2010, the trial court granted a partial summary judgment in favor of TUHC dismissing, without prejudice, five of the negligence allegations made against the nursing staff. However, based on an affidavit of plaintiff's treating physician Dr. Edward Campbell, the trial court did not dismiss the one allegation that plaintiff was given an improper dosage of antibiotic medication upon her discharge from the hospital. Thus, the action proceeded against TUHC on that one remaining claim.

On October 7, 2013, TUHC filed a motion to re-urge summary judgment on the basis that plaintiff had no evidence to support the remaining improper dosage claim. The matter was heard on October 25, 2013. At that time, plaintiff's counsel conceded that the improper dosage claim was no longer an issue, but presented the affidavit of plaintiff's nursing expert Michelle Midkiff, wherein she opined that TUHC breached the standard of care on the five claims previously dismissed by summary judgment on September 21, 2010. In light of this assertion, counsel for plaintiff orally moved to be allowed to amend the petition to conform to the evidence. The trial court instructed plaintiff's counsel to file a written motion to amend by October 28, 2013, and the matter would be set for contradictory hearing.

[2014-1410 La.App. 4 Cir. 3] In connection with the October 25, 2013 hearing on TUHC's re-urged motion for summary judgment, and pursuant to the trial court's instructions, TUHC circulated a proposed judgment granting the motion. Plaintiff objected to the wording of the proposed judgment, which dismissed TUHC with prejudice, noting that the trial court had given her time to file a written motion to amend the petition. The judgment, as proposed by TUHC, was ultimately signed on December 9, 2013. However, in the interim, plaintiff's motion for leave to amend was timely filed on October 28, 2013, and the contradictory hearing was held on November 6, 2013. At that hearing, the trial court orally granted plaintiff's motion to amend and motion to continue the trial, stating: " I'm going to allow the amendment and as a result of the amendment I'm going to continue the ...


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