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Ferguson v. Progressive Acute Care Avoyelles, LLC

Court of Appeals of Louisiana, Third Circuit

January 4, 2018

APRIL FERGUSON, ET AL.
v.
PROGRESSIVE ACUTE CARE AVOYELLES, LLC, ET AL.

         ON APPLICATION FOR SUPERVISORY WRITS FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2016-3243 HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE

          Nicholas Gachassin, III Holly McKay Descant Gachassin Law Firm LLC COUNSEL FOR DEFENDANT/RELATOR: Dr. Christopher Ritter

          Mark A. Jeansonne Attorney at Law COUNSEL FOR PLAINTIFFS: April Ferguson April Furguson on behalf of Avery Ferguson April Ferguson on behalf of Sidney Ferguson

          Chad P. Guillot Attorney at Law COUNSEL FOR PLAINTIFFS: April Ferguson April Furguson on behalf of Avery Ferguson April Ferguson on behalf of Sidney Ferguson

          Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.

          SHANNON J. GREMILLION JUDGE

         Defendant, Dr. Christopher L. Ritter, seeks supervisory writs from the trial court's denial of his motion for summary judgment. For the following reasons, we grant the writ and render summary judgment in favor of Dr. Ritter.

         FACTUAL AND PROCEDURAL BACKGROUND

         This medical malpractice suit arises from the treatment provided to Joseph Ferguson (Ferguson) by Dr. Ritter, an emergency room (ER) physician, on June 29, 2014, when Ferguson presented at the Avoyelles Hospital ER complaining of weakness and pain in his right lower extremity and a history of diabetes, morbid obesity, and chronic low back pain. Based upon the patient's complaints, Dr. Ritter believed Ferguson either had a blood clot, diabetic neuropathy, or back radiculopathy. Dr. Ritter suggested Ferguson have a venous ultrasound or CT scan of his right leg to rule out a blood clot. However, this could not be done at the Avoyelles Hospital because of the patient's size, nearly 600 pounds. Dr. Ritter then called Rapides Regional in Alexandria and Our Lady of Lourdes in Lafayette, but neither hospital could accommodate the patient and refused to transfer. As he did not feel the ultrasound was immediately necessary, Dr. Ritter advised Ferguson to see his primary care provider the next day to arrange for an ultrasound, and, with the diagnosis of diabetic neuropathy, discharged the patient, who, according to the nursing records, was able to walk without pain at discharge.

         On June 30, 2014, Ferguson presented at the Rapides Regional ER with similar complaints and was again discharged with instructions to follow up with his primary care physician. After a fall at home, Ferguson returned to the Rapides Regional ER on July 6, 2014, with pain in his right ankle and was discharged with instructions given for ankle sprain. Through her own initiative, Ferguson's wife, April Ferguson (plaintiff), contacted the Cardiovascular Institute in Lafayette on July 17, 2014, and was referred to Our Lady of the Lake in Baton Rouge, which could accommodate her husband's size. Ferguson then went to the Our Lady of the Lake ER on July 19, 2014-19 days after his visit with Dr. Ritter-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. A CT scan of Ferguson's head performed at Our Lady of the Lake found three separate but adjacent hyperdense and enhancing brain masses. Ferguson eventually died from these brain tumors nine months later on April 24, 2015.

         On December 15, 2014, plaintiffs filed a request for medical review panel (MRP), which rendered a unanimous opinion finding that "[t]he evidence does not support the conclusion that [Dr. Ritter] failed to meet with the appropriate standard of care as charged in the complaint." On July 5, 2016, plaintiff, individually and on behalf of Ferguson's children, Avery and Sidney Ferguson, filed the instant suit against Dr. Ritter and other defendants, alleging a lost chance of survival and related damages due to an incorrect diagnosis of diabetic neuropathy.

         On October 19, 2016, Dr. Ritter filed a motion for summary judgment on the ground that plaintiffs did not have an expert to establish breach of the standard of care. In support, Dr. Ritter filed a copy of the MRP opinion and reasons, as well as the petition and answer thereto. The hearing was originally set for December 5, 2016. After plaintiffs faxed their opposition to the court and Dr. Ritter's counsel on December 4, 2016, the trial court allowed the opposition, deferred ruling on the motion, re-set the hearing for February 17, 2017, and ordered that "Plaintiffs obtain an expert and provide an expert report or affidavit, if any they can, 15 days prior the hearing." No expert report was produced prior to the hearing. Instead, plaintiffs filed a motion for extension of time, at the hearing of which plaintiffs filed their opposition to Dr. Ritter's motion for summary judgment. Therein, plaintiffs argued that an expert was not necessary because the negligence was so obvious given that Ferguson'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-Shreveport, New Orleans, and Baton Rouge-that could accommodate Ferguson's size, with just a simple phone call. At the conclusion of that hearing, the trial court, very conscious of plaintiffs' indigent status, granted the extension to produce an expert until April 17, 2017. The summary judgment hearing was again re-set to April 28, 2017.

         After hearing arguments and taking the matter under advisement, the trial court denied Dr. Ritter's motion, reasoning:

The record reflects that [Dr. Ritter] suspected that Mr. Ferguson may have been suffering from diabetic neuropathy or potential blood clots. [Dr. Ritter] recommended an ultrasound of Mr. Ferguson's leg, but due to his size, was unable to accommodate him at Avoyelles Hospital where Mr. Ferguson sought treatment. After calling two hospitals in the area, both of which could not accommodate Mr. Ferguson's size, [Dr. Ritter] diagnosed Mr. Ferguson with diabetic neuropathy, and released him from care. This Court considered not only the potentially deadly nature of blood clots, but also that during the 19-day lapse between Mr. Ferguson's release from ...

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