Appeal from the 19th Judicial District Court, In and for the
Parish of East Baton Rouge, State of Louisiana. Trial Court
No. C606417. Honorable Timothy Kelley, Judge Presiding.
R. Jackson, Jeffery F. Speer, Lafayette, LA, for
Plaintiff-Appellant, Danny Penn.
K. Williams, Jordan L. Faircloth, Cullen J. Dupuy, Thomas R.
Temple, Jr., Baton Rouge, LA, for Defendant-Appellee, Our
Lady of the Lake Regional Medical Center.
McCLENDON, HIGGINBOTHAM, AND THERIOT, JJ. McClendon, J.
concurs with the result reached by the majority.
1621 La.App. 1 Cir. 2] HIGGINBOTHAM, J.
medical malpractice action, plaintiff, Danny Penn, appeals
the district court's grant of a motion to strike and
motion for summary judgment in favor of the defendant, Our
Lady of the Lake Regional Medical Center (" OLOL"
AND PROCEDURAL HISTORY
October 28, 2010, plaintiff consulted Dr. Carl Luikart due to
fever and night sweats after a colonoscopy performed on
September 30, 2010. Plaintiff was admitted to OLOL on October
29, 2010, and treated for possible Enterococcal Endocarditis.
Plaintiff was treated with antibiotics, including Gentamicin,
and he was discharged on November 1, 2010. After discharge,
CarePoint Partners of Louisiana, L.L.C. ("
CarePoint" ) administered plaintiff's home infusion
treatments of Gentamicin.
Plaintiff complained of dizziness, nausea, and symptoms of
vertigo from November 17, 2010, through December 3, 2010. Dr.
Luikart and CarePoint were notified of plaintiff's
complaints, and his Gentamicin was discontinued on December
3, 2010. On December 20, 2010, plaintiff was readmitted to
OLOL and observed by Drs. John McLachlan and William Gladney.
After his discharge on December 23, 2010, he began treatment
with Dr. Moises Arriaga and was diagnosed with Dandy's
2011, plaintiff filed a medical malpractice complaint with
the Patient Compensation Fund alleging malpractice and
contending that his injuries would not have occurred but for
the negligence of Dr. Luikart, OLOL, and CarePoint and that
there were " serious deviations in the standards of care
relating [to] the prescribing, administering, and monitoring
of Gentamicin, which were done by Dr. Luikart as well as
[CarePoint], the dispensing pharmacists."
1621 La.App. 1 Cir. 3] On October 31, 2011, plaintiff filed a
petition for damages against CarePoint and/or The Infusion
Network of Louisiana, Inc. d/b/a CarePoint to recover damages
sustained while he was under its care. In January 2013, a
medical review panel found that the evidence did not support
the conclusion that Dr. Luikart and OLOL failed to meet the
applicable standard of care as charged in plaintiff's
complaint. As to OLOL, the panel found no fault with the care
rendered by the nurses nor any other employees of the
hospital. On April 11, 2013, plaintiff filed a supplemental
and amending petition adding as defendants Dr. Luikart and
OLOL and alleging that Dr. Luikart was at fault for, among
other things, treating plaintiff with an excessive dose of
Gentamicin. The supplemental petition further alleged:
The sole and proximate cause of the above-described injuries
is the grossly negligent acts and/or inactions of Defendant,
OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER, is specifically
but not exclusively, averred to be as follows:
1.) Failure of [OLOL], and [its] staff and employees, through
its administration, to properly monitor the actions and
abilities of its staff and employees;
2.) Failure to have adequate written policy and implemented
it, in order to insure coordination of the care of the