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Dufour v. The Schumacher Group of Louisiana, Inc.

Court of Appeals of Louisiana, Third Circuit

August 1, 2018



          Christopher J. Roy, Jr., COUNSEL FOR PLAINTIFFS/APPELLANTS: Beth Dufour, Drew Dufour.

          Brandon A. Sues Sarah Spruill Couvillon Gold, Weems, Bruser, Sues & Rundell P.O., COUNSEL FOR DEFENDANT/APPELLEE: Rapides Healthcare System, L.L.C. D/B/A Rapides Regional Medical Center

          Gary J. Delahoussaye Gachassin Law Firm, COUNSEL FOR DEFENDANTS/APPELLEES: The Schumacher Group of Louisiana, Inc. Ross J. Fremin, M.D.

          Court composed of Sylvia R. Cooks, Phyllis M. Keaty, and Van H. Kyzar, Judges.

          VAN H. KYZAR JUDGE.

         Plaintiffs, Beth and Drew Dufour, wife and husband, filed a petition for damages for alleged medical malpractice against defendants: Rapides Regional Medical Center (RMC); Dr. Ross Fremin, an emergency room physician working at RMC on the day of the alleged incident giving rise to the claim; and Schumacher Group of Louisiana, LLC, the alleged direct employer of Dr. Fremin. The Dufours appeal the trial court's granting of summary judgment in favor of defendant, RMC, dismissing plaintiffs' claims against the hospital with prejudice, as well as the trial court's denial of plaintiffs' motion for a new trial thereafter. For the reasons assigned, we reverse; vacate; and remand.


         On October 5, 2012, Beth Dufour was approximately six weeks pregnant when she presented herself to the emergency room at RMC suffering from sharp pains on her right side and heavy vaginal bleeding. The Dufours state that the ER was very busy that day and that they were required to wait for a significant period of time in the waiting area of the ER. After four hours, Beth was discharged from the ER, having never been examined directly by the ER on-call physician, Dr. Fremin, although blood was drawn by a Nurse Practitioner for testing and an ultrasound was performed. The Dufours were eventually told by Dr. Fremin that Beth had suffered a miscarriage and were given discharge instructions for such. No other potential diagnosis was offered.

         During the events leading to her diagnosis and ultimate discharge from the hospital, Beth requested to see an obstetrician/gynecologist (OB/GYN) but was purportedly told by Dr. Fremin that such a consultation was not necessary. RMC responded to plaintiffs' petition, citing its correct legal name as Rapides Healthcare System, L.L.C., d/b/a Rapides Regional Medical Center. However, after being discharged from the hospital, Beth began to experience increased pain and bleeding, fever, and further complications. Beth scheduled an appointment with her personal OB/GYN, who diagnosed her as having an ectopic pregnancy. The complications that arose from her ectopic pregnancy required immediate surgery and the removal of Beth's right fallopian tube.

         On October 20, 2015, the Dufours filed a Petition for Damages, naming RMC, Dr. Fremin, and Dr. Fremin's employer as defendants. The Dufours' petition alleged that RMC breached the required medical standard of care, which resulted in Beth's damages including the loss of her fallopian tube. The claim had been previously submitted to a medical review panel on August 16, 2013, as required by the Louisiana Medical Malpractice Act (MMA) pursuant to La.R.S. 40:1231.1 - La.R.S. 40:1240. The medical review panel rendered a decision that neither RMC nor Dr. Fremin violated the applicable standard of care. It is noted that the Dufours oppose the decision of the panel, contending that it was based solely on disputed facts and hospital medical records that are inconsistent, incomplete, and inaccurate.

         Eight months after filing answers to the lawsuit, RMC filed a motion for summary judgment based primarily on the conclusion of the medical review panel that RMC did not violate the applicable standard of care in the diagnosis and treatment of Beth Dufour. On May 26, 2017, the Dufours filed an opposition to RMC's motion for summary judgment, attaching the affidavits of Dr. Thomas Arnold, a board-certified emergency room physician, and Beth Dufour. After two previous continuances, the motion for summary judgment was set for hearing on June 12, 2017, along with a motion to continue filed by the Dufours. The trial court granted the Dufours' motion to continue the hearing and permitted them to engage in additional discovery for the purpose of adequately defending against RMC's summary judgment motion. On June 27, 2017, the Dufours filed discovery requests, including requests for records and the setting of depositions of corporate representatives of the defendants. After issuing no objection at the hearing granting the Dufours additional discovery, RMC filed a motion to quash the additional discovery requests and a motion for a protective order on June 29, 2017. Despite having previously granted the Dufours the right to continue discovery efforts at the June 12, 2017 hearing, the trial court granted RMC's motion to quash the discovery requests and granted the motion for a protective order on August 1, 2017.

         In preparation for the original summary judgment hearing, the Dufours initially filed an opposition to the motion for summary judgment, which included an affidavit by Beth and an affidavit of Dr. Arnold, limited to the issue of informed consent. After being granted a continuance for the purposes of conducting additional discovery, the Dufours filed a supplemental opposition to the motion for summary judgment on August 4, 2017, in preparation for the rescheduled hearing on August 21, 2017. The supplemental opposition included a supplemental affidavit of Dr. Arnold as well as the affidavit of Dr. Christina Lord, a board-certified OB/GYN physician. RMC moved to strike the supplemental response, including the expert witness affidavits. At the hearing, the trial court orally denied the motion to strike the supplemental opposition and the attached affidavits. However, in written reasons signed on August 30, 2017, the trial court recanted its oral judgment and granted RMC's motion to strike. It also granted RMC's motion for summary judgment and later signed a formal judgment to that effect, stating that it specifically found that "based on the evidence presented that Rapides Healthcare System, L.L.C. d/b/a Rapides Regional Medical Center was not at fault[.]" The trial court then dismissed the Dufours' claims against RMC, with prejudice.

         On September 26, 2017, the Dufours filed a motion for a new trial, which was denied by the trial court, and this appeal followed. On appeal, ...

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