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Brenner v. Lewis

Court of Appeals of Louisiana, Third Circuit

January 18, 2018



          James E. Shields, Sr. Shields & Shields, APLC COUNSEL FOR PLAINTIFFS/APPELLANTS: Jacqueline Brenner, Judith LeBlanc, Estate of Judith LeBlanc, Estate of Elwin C. LeBlanc

          Benjamin J. Guilbeau, Jr., Marcelynn Hartman, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P. COUNSEL FOR DEFENDANTS/APPELLEES: Ronald M. Lewis, M.D., Louisiana Medical Mutual Ins. Co.

          Brandon A. Sues Sarah Couvillon, Gold, Weems, Bruser, Sues & Rundell COUNSEL FOR DEFENDANT/APPELLEE: Christus St. Patrick Hospital

          Court composed of Sylvia R. Cooks, John D. Saunders, and Candyce G. Perret, Judges.


         This is a case involving a medical malpractice action. Patient's father and sister ("Plaintiffs") instituted this action on behalf of a family member against the patient's primary care physician and his insurance carrier, the hospital and its insurance carrier, (collectively "Defendants") and the Louisiana Patient's Compensation Fund, alleging various acts of negligence arising out of the failure to treat an alleged diagnosis that resulted in the patient's death shortly after her discharge.

         Defendants moved for summary judgment on the basis that there was no genuine issue of material fact upon which Plaintiffs could meet the burden of proof required in a medical malpractice case.

         After oral arguments were heard, the trial court granted both Defendants' summary judgments and issued written reasons for each.

         Plaintiffs now appeal the trial court's ruling. Their argument is that Defendants breached the standard of care owed to the patient in (1) failing to diagnose and treat sepsis, (2) failing to administer antibiotics, and (3) prematurely discharging the patient from the hospital.


         On February 23, 2011, after experiencing two seizure-like episodes at her home, forty-seven-year-old Judith LeBlanc ("Ms. LeBlanc") was seen in the emergency room of CHRISTUS Health Southwestern Louisiana d/b/a CHRISTUS St. Patrick Hospital ("St. Patrick's") by her primary care physician, Ronald M. Lewis, M.D., ("Dr. Lewis") and was subsequently admitted. At that time, Ms. LeBlanc was receiving treatment for a jaw infection and was scheduled for a tooth extraction the following day.

         Over the course of the next few days, Dr. Lewis ordered several tests to rule out multiple potential underlying conditions that could have caused Ms. LeBlanc's seizure activity. All testing was negative. Ms. LeBlanc was alert and showed no signs of distress, dehydration, or sepsis during admit, throughout her hospital stay, or upon discharge. Likewise, she displayed no signs of seizure-like activity, no fever, and no other signs of infection. Relying on test results and on his observations of Ms. LeBlanc, Dr. Lewis made a differential diagnosis, which included several possible diagnoses, one of which was sepsis. However, Dr. Lewis did not treat Ms. LeBlanc for sepsis because her clinical examination was not consistent with sepsis, and she displayed no signs of being septic. Rather, it was Dr. Lewis' opinion, which he discussed with Ms. LeBlanc and her family, that she had possibly suffered a cataplexic event, either due to narcolepsy and/or obstructive sleep apnea. Ms. LeBlanc's family requested that she be discharged as soon as possible because just a few weeks earlier, her mother had unexpectedly passed away in a hospital following spinal surgery. Therefore, because all testing for sleep disorders could be safely arranged at home, Dr. Lewis discharged Ms. LeBlanc with instructions to follow-up in his office in two weeks to schedule the proposed testing following her scheduled oral surgery.

         Two days after her discharge from St. Patrick's, Ms. LeBlanc was seen in the Emergency room of Lake Charles Memorial Hospital where she was noted to have difficulty breathing. Subsequently, Ms. LeBlanc developed seizure activity and cardiopulmonary arrest. Cardiopulmonary resuscitation ("CPR") was administered; however, Ms. LeBlanc was unable to be resuscitated and was pronounced dead.

         On February 10, 2012, Ms. LeBlanc's father, Elwin LeBlanc, filed a complaint with the Louisiana Patient's Compensation Fund (PCF) requesting a review of the medical care provided to his daughter by Dr. Lewis during her February, 2011 admission to St. Patrick's.

         The Medical Review Panel met and rendered a unanimous opinion in favor Defendants, finding that neither St. Patrick's, nor Dr. Lewis, had breached the standard of appropriate care as charged in the Plaintiffs' complaint.

         On October 14, 2015, Jacqueline A. Brenner, Ms. LeBlanc's sister, instituted this lawsuit against Defendants, individually, and on behalf of decedent, Judith LeBlanc, and the estate of Judith LeBlanc, and the estate of Elwin C. LeBlanc, on behalf of decedent Judith LeBlanc.[1] In response, Defendants filed motions for summary judgment seeking to have the Plaintiffs' petition against them dismissed. Their motions relied upon the favorable Medical Review Panel opinion rendered in this matter, as well as the affidavit of James Jackson, M.D.

         Plaintiffs opposed the motion, attaching to their opposition the unsigned affidavit of Dr. Terry Shaneyfelt. Therein, Dr. Shaneyfelt noted that "Dr. Ronald Lewis breached the standard of care by not providing antibiotics in a timely fashion to a patient he diagnosed with sepsis." Dr. Shaneyfelt further opined that "[M]s. LeBlanc was not given appropriate antibiotics to cover infection of her jaw which resulted in sepsis and death, a breach of the standard of care. This breach led directly to her death."

         After oral arguments were had, the trial court granted summary judgment in favor of Defendants.

         Plaintiffs timely filed a motion for devolutive appeal. Pursuant to that motion, Plaintiffs are presently before this court alleging seven assignments of error.


1. The trial court erred in finding that Appellants malpractice expert, Dr. Terrence Shaneyfelt's, expert testimony was insufficient to create a genuine issue of material fact as to whether Appellee, Dr. Lewis, failed to treat the infection [sepsis] that caused Decedent's death.
2. The trial court erred in finding that Appellee, Dr. Lewis, never diagnosed Decedent with sepsis on admit into Appellee, St. Patrick's, even though his "Treatment Plan" for Decedent was to treat sepsis with antibiotics and monitor.
3. The trial court erred in finding that Appellee, Dr. Lewis and/or Appellee, St. Patrick's, did not violate Decedent's "Patient's Discharge Rights and Medicare Discharge Rights, " when Decedent was forced discharge from St. Patrick's by Dr. Lewis.
4. The trial court erred in accepting the Medical Review Panel's impeached finding that Appellants never begged and pleaded with Appellee, Dr. Lewis, not to force discharge Decedent.
5. The trial court erred in not finding that the Medical Review Panel's Opinion and Findings and Appellee, Dr. Lewis' testimony, were not impeached by testimony of Dr. Jon Gray, which created a genuine issue of material fact, pursuant to La.C.C.P. Article 967.
6. The Trial court erred in not admitting Appellee, Dr. Lewis', signed and authenticated Death Summary (V2 P293) and Death Certificate (V2 P294).
7. The trial court erred in finding that there were no genuine material facts or evidence to show Decedent was diagnosed with sepsis on admit from Appellee St. Patrick's emergency department into its hospital ward by Appellee, Dr. Lewis.


         We will address assignment of error number two because the crux of the matter is whether Dr. Lewis "diagnosed" Ms. LeBlanc with sepsis during her February, 2011, hospital stay at St. Patrick's and as such, is outcome determinative. Plaintiffs contend that the trial court erred in finding that Dr. Lewis never diagnosed Ms. LeBlanc with sepsis on admit into St. Patrick's, even though his treatment plan for her was to treat sepsis with antibiotics and monitor. We disagree.

         In Wofford v. Dunnick, M.D., 09-1309, pp. 6-7, (La.App. 3 Cir. 4/14/10), 36 So.3d 370, 373-74, this court discussed the standard of review to be employed by an appellate court when reviewing a motion for summary judgment filed in a medical malpractice case:

A motion for summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria as the trial court to determine whether summary judgment is appropriate; whether there is a genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P art. 966; Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. A motion for summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(B). Louisiana Code of Civil Procedure Article 966(C)(2) provides:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
Djorghi v. Glass, 09-461, p. 2 (La.App. 3 Cir. 11/4/09), 23 So.3d 996, 998, writ denied, 09-2614 (La. 2/5/10), 27 So.3d 306. In Djorghi, we explained the burden of proof in a medical malpractice case, particularly in the context of a motion ...

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