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McDonald v. Paps Pathology Group, Inc.

Court of Appeals of Louisiana, Third Circuit

March 7, 2018

ELLEN MCDONALD
v.
PAPS PATHOLOGY GROUP, INC. ET AL

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DOCKET NO. 13-1098 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

          Sera H. Russell, III Attorney at Law Attorney for Plaintiff/Appellant: Ellen McDonald

          Peter E. Sperling, Nairda T. Colon, Halley S. Carter Attorneys for Defendant/Appellee: Skin Pathology Assoc., Inc.

          Court composed of Sylvia R. Cooks, Elizabeth Pickett, and Phyllis M. Keaty, Judges.

          SYLVIA R. COOKS JUDGE.

         FACTS AND PROOCEDURAL HISTORY

         Ellen 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[1] 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."

         At the 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 error:

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.

         LEGAL ANALYSIS

         Plaintiff 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 ...

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