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Cupit v. Twin City Fire Insurance Co.

Court of Appeals of Louisiana, Third Circuit

March 14, 2018

SHAWN M. CUPIT, INDIVIDUALLY AND O/B/O JAMES D. CUPIT (DECEASED)
v.
TWIN CITY FIRE INSURANCE CO., ET AL.

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2015-3680, DIVISION "B" HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

          James Huey Gibson Charles Martin Kreamer, Sr. Allen & Gooch COUNSEL FOR: Defendants/Appellees - Roger G. Burgess and Baggett, McCall, Burgess, Watson & Gaughan, LLC

          W. Evan Plauche' Michael Leon Cohen Hailey, McNamara, Hall, Larmann & Papale, L.L.P. COUNSEL FOR: Defendant/Appellee - Joseph B. Moffett

          Seth Andrew Schmeeckle Shaundra Schudmak Lugenbuhl, Wheaton, Peck, Rankin & Hubbard Pan-American Life Center COUNSEL FOR: Defendant/Appellee - Twin City Fire Insurance Company

          Scott Webre Webre & Associates COUNSEL FOR: Plaintiff/Appellant - Shawn M. Cupit, Individually and o/b/o James Cupit (Deceased)

          Michael G. Johnston, II 2901 Johnston Street - Suite 307 Lafayette, LA 70503 Telephone: (337) 237-5051 COUNSEL FOR: Plaintiff/Appellant - Shawn M. Cupit, Individually and o/b/o James Cupit (Deceased)

          Jacques F. Bezou, Jr. The Bezou Law Firm 534 E. Boston Street Covington, LA 70433 Telephone: (985) 892-2111 COUNSEL FOR: Plaintiff/Appellant - Shawn M. Cupit, Individually and o/b/o James Cupit (Deceased)

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Elizabeth A. Pickett, Judges.

         

          ULYSSES GENE THIBODEAUX CHIEF JUDGE.

         In this legal malpractice case, the plaintiff, Shawn M. Cupit, appeals the trial court's granting of summary judgment in favor of the defendants, Roger G. Burgess and Baggett, McCall, Burgess, Watson & Gaughan, LLC (Baggett McCall), Joseph B. Moffett, and his insurer, Twin City Fire Insurance Company. After a de novo review, finding no genuine issue of material fact and no error in the trial court's judgment, we affirm the judgment in all respects.

         I.

         ISSUES

         We must decide whether the trial court erred in granting the defendants' motion for summary judgment.

         II.

         FACTS AND PROCEDURAL HISTORY

         Shawn Cupit retained Joseph Moffett of Mississippi to represent him and his father[1] in wrongful death and survival actions following the death of Shawn's mother, Martha Cupit. Ms. Cupit was a 50-year-old patient at Professional Rehabilitation Hospital, LLC (PRH) in Concordia Parish for wound care of a burned foot that had become gangrenous. She suffered from many physical health problems and was on medication for schizophrenia. During the night, Ms. Cupit climbed out of a window in the rehab facility and was struck and killed by a drunk driver operating a vehicle on the highway.

         Mr. Moffett associated Roger Burgess and Baggett McCall as local counsel for the Louisiana claims. Suit was filed against the driver who struck and killed Ms. Cupit, his insurer, and PRH. The claim against PRH was based upon a negligent failure to observe the patient and to provide a safe environment. PRH was dismissed without prejudice to allow completion of a Medical Review Panel.

         Mr. Burgess submitted a request for a Medical Review Panel pursuant to the Medical Malpractice Act. The Medical Review Panel rendered a decision on December 17, 2009, finding that the evidence did "not support the conclusion that the defendant, Professional Rehabilitation Hospital, failed to comply with the appropriate standard of care as charged in the complaint." The Panel's written reasons provided:

It is common practice to admit patients to a medical facility who have known psychiatric problems and who are on psychiatric medications, unless there are specific indicators to the contrary, which we did not find in this case. The records, including the notes of the nurses, therapists, and physicians, did not indicate any reasons for psychiatric hospitalization of this patient. The patient was on psychiatric medications, including Cogentin, however the dosage of Cogentin was only .25mg daily. Additionally, this drug has a very short half-life, which would not require any increased monitoring of the patient. The records further indicate that the patient was being adequately observed, and due to her history, there was not sufficient reason to fit her with an Ambu alarm.

         The Medical Review Panel members were Dr. Gerald Mouton, a family medicine practitioner; Dr. Gerry Hebert, an internal medicine practitioner; and Dr. Kashinath Yadalam, a psychiatric medicine practitioner.

         Burgess and Baggett McCall next obtained the expert opinion of Dr. Richard W. Williams, a forensic specialist in psychiatric and addiction medicine in Shreveport, Louisiana. Dr. Williams authored an opinion letter after studying all of the claims, reports, and medical records from three separate hospitals, one of which was in Mississippi. He concluded that there was no medical malpractice on the part of PRH.

         Dr. Williams's letter stated that he had reviewed Mr. Cupit's petitions for damages, as well as Mr. Burgess's letter stating those claims; that he had reviewed the entire medical records of PRH, including history and physical, progress notes, consults and nursing notes, medical records of two previous hospitals, and the crash reports. Dr. Williams's letter of September 10, 2010, then stated as follows:

It is clear from the record that Ms. Martha Cupit was suffering from peripheral vascular disease with gangrene to her right foot, and had been admitted to Natchez Regional Medical Center for stabilization and then long-term stabilization care at [PRH], attempting to minimalize any amputation that was needed. She was not admitted for any psychiatric illness, and it was well-documented that she had a long history of Schizophrenia.
It is clear throughout the record that Ms. Cupit was not floridly psychotic, and she was maintained on all of the antipsychotic medications, antidepressants, and other medications which were prescribed prior to her admission to [PRH]. It is clear in the record that, when Ms. Cupit's husband indicated his opinion that she had some increase in psychotic thinking, it was reported to her physician and this immediately resulted in a consult for psychiatric opinion and care. In addition, Ms. Cupit had seen a psychiatric nurse practitioner in the past, and this also was ordered and carried out. The medications that Ms. Cupit were prescribed were appropriate for her condition. Specifically, the dose of Cogentin was a very small dose, and a fraction of the typical amount of Cogentin prescribed for the EPS symptoms secondary to antipsychotic medication. There was no evidence that she was a danger to herself or others, and there was no evidence that she was an elopement risk.
In summary, it is my opinion that the care offered by [PRH] was appropriate and seemed to be adequate in nature, and there seems to be no deviation of the standard of care in any regard. The care at [PRH] did not lead to the death of Ms. Cupit. It is very unfortunate that this tragic accident did occur, however, this seems to be totally a reflection of the negligent driving on the part of the plaintiff, Eric L. Guillot, who received a DWI at the time.

         The written opinion of Dr. Williams was facilitated through medical malpractice attorneys, John Hammons and Cornell Flournoy, whose investigation led them to suggest dismissal based upon insufficient evidence to support a claim for ...


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