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Henry v. Weishaupt

Court of Appeals of Louisiana, Fifth Circuit

May 31, 2017

DEIANCA JONES HENRY, WIFE OF/AND GLEN EDWARD HENRY, INDIVIDUALLY, AND ON BEHALF OF THEIR MINOR CHILDREN DAJAENE JONES AND ADEJA HENRY
v.
KYLE DEREK WEISHAUPT, MIRANDA LEAH ROMERO MCGOFFIN, OCHSNER FOUNDATION HOSPITAL AND CLINIC A.K.A. OCHSNER HEALTH SYSTEM, INC., D/B/A OCHSNER HOSPITAL-ELMWOOD AND XYZ INSURANCE COMPANY

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 719-891, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, DEIANCA JONES HENRY, WIFE OF/AND GLEN EDWARD HENRY, INDIVIDUALLY, AND ON BEHALF OF THEIR MINOR CHILDREN DAJAENE JONES AND ADEJA HENRY Nelson W. Wagar, III, Sarah W. Hickman.

          COUNSEL FOR DEFENDANT/APPELLEE, KYLE D. WEISHAUPT AND WAYNE STATE UNIVERSITY Lisa A. McLachlan.

          Panel composed of Jude G. Gravois, Robert A. Chaisson, and Robert M. Murphy.

         AFFIRMED

         RMM

         JGG

         RAC

          ROBERT M. MURPHY JUDGE.

         Plaintiffs, Deianca Henry, wife of/and Glen Henry, individually and on behalf of their minor children, Dajaene Jones and Adeja Henry, have appealed the trial court's grant of summary judgment in favor of defendants, Kyle Weishaupt and Wayne State University. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         This medical malpractice lawsuit stems from a tragic series of events that left Deianca Henry paralyzed. In September of 2011, Ms. Henry entered Ochsner Medical Center ("Ochsner") to undergo elective spinal surgery to address her congenital scoliosis and kyphosis. The surgery involved fusion of her spine from the second thoracic vertebra to the fourth lumbar vertebra and the placement of various types of hardware into her spine. Following a difficult post-operative course, she was transferred to an in-patient rehabilitation facility at Ochsner. While at this facility, she attended daily physical therapy and occupational therapy. On October 13, 2011, she developed pain and weakness in her legs. On October 14, 2011, Ms. Henry was transferred to the emergency department of Ochsner for evaluation of the increasing weakness and numbness in her legs. Diagnostic testing revealed that Ms. Henry had compression of her spinal cord. By the time Ms. Henry was taken to surgery to address the spinal cord compression, she was unable to move her legs and had lost bowel and bladder control. Following surgery, Ms. Henry did not regain use of her legs or control of her bowel or bladder.

         In October 2012, plaintiffs filed suit against Ochsner, its employee, supervising physical therapist, Miranda Romero McGoffin, and Kyle Weishaupt, ("Weishaupt"), a physical therapy student performing a clinical rotation at Ochsner. The petition alleged that "[o]n or about October 14, 2011, Defendant Kyle Weishaupt, while acting within the course and scope of his employment by Defendant Ochsner, and then in the presence of his superior, Defendant Miranda Leah Romero McGoffin, also then acting within the course and scope of her employment by Defendant Ochsner, improperly and unskillfully executed a manual wheelchair transfer technique to move Deianca Jones Henry from her wheelchair to an exercise mat." The petition alleges that due to Kyle Weishaupt's negligence, Ms. Henry sustained "severe spinal injuries which were the sole, proximate and direct cause of her damages." On October 15, 2012, plaintiffs filed a First Supplemental and Amending Petition naming Wayne State University ("Wayne State") as an additional defendant. This petition alleged that at the time of this incident, Weishaupt was a student at Wayne State, which had "failed to competently, adequately or reasonably train and/or educate" Weishaupt, and as such was "independently and/or vicariously liable" for plaintiffs' damages.

         On January 13, 2016, the trial court approved a settlement between Ochsner and plaintiffs pursuant to La. R.S. 40:1299.44(C), with a reservation of rights against the Louisiana Compensation Fund. This judgment also reserved plaintiffs' rights against Weishaupt and any entity "other than any Ochsner entity for any ...


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