FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, DOCKET NO. 13-1098 HONORABLE THOMAS R. DUPLANTIER,
H. Russell, III Attorney at Law Attorney for
Plaintiff/Appellant: Ellen McDonald
E. Sperling, Nairda T. Colon, Halley S. Carter Attorneys for
Defendant/Appellee: Skin Pathology Assoc., Inc.
composed of Sylvia R. Cooks, Elizabeth Pickett, and Phyllis
M. Keaty, Judges.
R. COOKS JUDGE.
AND PROOCEDURAL HISTORY
McDonald's (Plaintiff's) dermatologist, Dr.
Christopher Hubbell (Dr. Hubbell) removed suspicious moles
from Plaintiff's skin and sent them to be tested by Skin
Pathology Associates, Inc. (Defendant) in July of 2010. The
original report on these samples, rendered by
dermato-pathologist, Dr. James Elder, M.D. (Dr. Elder),
concluded the samples did not indicate melanoma. Over the
course of two years Plaintiff became concerned with the
reappearance of the moles. Plaintiff visited Dr. Hubbell
again in 2012 for further testing. Once again he sent samples
to Defendant and upon reviewing the new samples in 2012,
Defendant's dermato-pathologist, Dr. Michael K. Jacobs,
M.D. (Dr. Jacobs), determined they indicated melanoma. In
accordance with Defendant's normal protocol Dr. Jacobs
automatically re-evaluated the samples from 2010. Based upon
the new information he determined that the 2010 samples
indicated melanoma. Defendant alerted Plaintiff's doctor
and informed him of the new findings including Dr.
Elder's and Dr. Jacob's conclusion that based upon
their reviewing the 2012 samples, they both agreed the 2010
samples also revealed signs of melanoma.
Plaintiff filed suit against Defendant
asserting a claim for medical malpractice based upon an
allegation of misdiagnosis of melanoma. Plaintiff deposed
Defendant's two dermato-pathologists. Defendant
propounded discovery seeking the name of any expert witnesses
Plaintiff would be using at trial. Plaintiff responded that
she had not chosen any expert at that time. She consulted
with and deposed medical experts in the field of oncology but
none in the specialty of dermato-pathology. More than a year
after receiving Plaintiff's response to discovery
Defendants moved for summary judgment and supported their
motion with an affidavit from a dermato-pathologist, Dr. Clay
J. Cockerell, M.D. (Dr. Cockerell), who stated that, in his
professional opinion, after reviewing the samples taken in
2010, he "agree[ed] with the original diagnosis made by
Dr. James Elder of Skin Pathology Associates, Inc. of
'Clark's nevus, compound (dysplastic nevus).'
Additionally, based upon [his] review of these slides, [he]
saw no evidence of melanoma and would not have recommended
excision." He further stated, "At all pertinent
times thereto, the treatment and care rendered by Dr. James
Elder and Skin Pathology Associates, Inc. met the applicable
Standard of Care for Dermatopathologists."
close of the hearing on Defendant's motion for summary
judgment Plaintiff was given thirty days to retain the
services of a dermato-pathologist as her expert witness,
failing which, her case would be dismissed with prejudice.
The trial court explained that the thirty-day period was for
the purpose of obtaining the services of an expert witness
and identifying that witness to the court. It further
explained that the expert witness would not have to be ready
at that time to offer testimony. Plaintiff made no attempt to
engage the services of such an expert witness within the time
limit imposed by the trial court. In both her memorandum in
opposition to Defendant's motion for summary judgment,
and in brief to this court, Plaintiff indicates she does not
believe it necessary to retain the services of a
dermato-pathologist. After the passage of the thirty-day time
period Defendant moved ex-parte for a judgment granting
summary judgment. The trial court granted Defendants'
motion for summary judgment dismissing Plaintiff's claims
with prejudice. Plaintiff appeals assigning one assignment of
The District Court erred in granting summary judgment to
defendant, Skin Pathology Associates, Inc. in the face of
vigorous opposition by the plaintiffs (sic), including
affidavit and depositions which created a serious question of
fact that could only be decided by a jury.
asserts she has met her burden on summary judgment by
submitting the affidavits of Dr. Hubbell and his
Physician's Assistant, Thomas A. Briscoe, (PA Briscoe)
both of whom attest to the fact that Dr. Elder told them his
original diagnosis of "no melanoma" was in error.
Dr. Hubbell states in his affidavit:
6. Subsequent to the April 2012 biopsy disclosing frank
melanoma pathology report from the biopsy tissue of the right
lateral buttocks, the pathologist Dr. Michael K. Jacobs,
called and spoke to my PA, Thomas Briscoe, who informed me
that Dr. Jacobs had indicated to PA Briscoe that upon review
of the original biopsy specimen taken in July 2010 of the
right lateral buttocks that, in fact, there was Melanoma
present and that the diagnosis given originally in July 2010
was erroneous; said diagnosis in July 2010 being a reading of
the specimen by Dr. James Elder, which he reported in 2010 as
being minimally dysplastic (Clark's) nevus.
7. Upon being informed by PA Briscoe of said call by Dr.
Jacobs, I, Dr. Christopher Hubbell, called Dr. Jacobs and
spoke to Dr. Jacobs. During my telephone conversation with
Dr. Jacobs, Dr. Jacobs confirmed that there had been an error
in the original reading performed in July of ...