JACQUELINE BRENNER, ET AL.
DR. RONALD M. LEWIS, ET AL.
FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 2015-4144 HONORABLE RONALD F. WARE, DISTRICT
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.
composed of Sylvia R. Cooks, John D. Saunders, and Candyce G.
D. SAUNDERS, JUDGE
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
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
oral arguments were heard, the trial court granted both
Defendants' summary judgments and issued written reasons
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.
AND PROCEDURAL HISTORY:
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.
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.
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.
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.
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.
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. 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.
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."
oral arguments were had, the trial court granted summary
judgment in favor of Defendants.
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
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
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.
OF ERROR NUMBER TWO:
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
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 ...