STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-603
JASON KINCH
VERSUS
OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20133835 HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Marc T. Amy, Judges.
AFFIRMED.
Cooks, J., dissents and assigns written reasons.
Douglas K. Williams Druit G. Gremillion, Jr. Breazeale, Sachse & Wilson Post Office Box 3197 Baton Rouge, LA 70821-3197 (225) 387-4000 COUNSEL FOR DEFENDANTS/APPELLEES: Our Lady of Lourdes Regional Medical Center, Inc. Dr. Kenneth Godeaux Jeffery F. Speer George A. Wright Doucet-Speer, APLC Post Office Drawer 4303 Lafayette, LA 70502-4303 (337) 232-0405 COUNSEL FOR PLAINTIFF/APPELLANT: Jason Kinch AMY, Judge.
The plaintiff alleges that he suffered damages as a result of an emergency
department doctor‟s failure to diagnose an infection and prescribe antibiotics upon
his initial visit to the emergency room. The defendants filed a motion for summary
judgment, contending that the plaintiff did not have appropriate expert medical
testimony in support of his claim. The trial court granted the motion, and the
plaintiff now appeals. For the following reasons, we affirm.
Factual and Procedural Background
According to the record, on October 7, 2010, the plaintiff, Jason Kinch,
reported to the emergency department at Our Lady of Lourdes Regional Medical
Center, Inc. Mr. Kinch complained of fever, chills, nausea, vomiting, and
weakness. Mr. Kinch also alleges that he was experiencing pain in his lower right
leg, which started after he was bitten or scratched while in the woods the previous
evening. He was treated by Dr. Kenneth Godeaux, who reviewed Mr. Kinch‟s lab
work and examined his leg. According to Mr. Kinch, Dr. Godeaux squeezed Mr.
Kinch‟s leg and told him that he had a pulled muscle. Dr. Godeaux prescribed a
painkiller, an anti-nausea medication, and an anti-allergy medication and
discharged Mr. Kinch with instructions to follow up with a primary care provider
as needed and return to the emergency department if he became worse in any way.
On October 10, 2010, Mr. Kinch returned to the emergency department. His
medical records from that visit indicate that he had developed significant erythema,
pain, and swelling in his lower right extremity. Notes from Mr. Kinch‟s medical
records indicate that his lower right calf area was very swollen—approximately
three times the size of his other lower extremity. Mr. Kinch was admitted to the
hospital and ultimately diagnosed with cellulitis of the lower right extremity, compartment syndrome, and fasciitis. The treatment for these conditions
necessitated an eleven-day hospital stay and multiple surgeries, including skin
grafts.
Mr. Kinch contends that it was “highly likely” that his symptoms present at
his October 7 emergency department visit were manifestations of the cellulitis,
compartment syndrome, and fasciitis diagnosed three days later. Mr. Kinch alleges
that Dr. Godeaux failed to properly diagnose and treat his “obvious” infection
during that first visit. According to the record, Mr. Kinch sought review of his
claims by a medical review panel. However, the medical review panel expired
before it issued an opinion. Thereafter, Mr. Kinch filed suit against Dr. Godeaux
(through Kenneth B. Godeaux, M.D., LLC) and Our Lady of Lourdes. The
defendants filed a motion for summary judgment on the basis that Mr. Kinch did
not have sufficient expert medical testimony to establish that the defendants
breached the standard of care and caused injury to Mr. Kinch. The record indicates
that, at the time the defendants filed the motion for summary judgment, Mr. Kinch
did not have any expert testimony.
However, Mr. Kinch retained an expert, Dr. Shannon Stinson, before the
hearing on the motion for summary judgment. Mr. Kinch initially submitted an
unsigned letter report from Dr. Stinson, to which the defendants filed an objection
on the basis that it did not constitute competent evidence. At the hearing, Mr.
Kinch offered Dr. Stinson‟s affidavit which purported to verify the unsigned letter
report.1 Although Mr. Kinch did not offer a curriculum vitae for Dr. Stinson, her
1 The transcript of the hearing on the motion for summary judgment indicates that Mr. Kinch‟s attorney had a signed copy of Dr. Stinson‟s letter report. However, our review of the record only reveals the unsigned copy attached to Mr. Kinch‟s opposition to motion for summary judgment. See La.Code Civ.P. art. 966(F)(2).
2 affidavit indicated that she is dual Board-certified in emergency medicine and
clinical informatics. Dr. Stinson also opined that the care, or lack thereof, rendered
to Mr. Kinch represented a breach of the standard of care required of an emergency
room physician. In her attached letter report, Dr. Stinson also indicated that the
breach “certainly did cause increased morbidity, although the extent of which it
contributed to this is indeterminate.”
The defendants objected to both Dr. Stinson‟s letter report and late-filed
affidavit. The trial court admitted both into evidence, but found, however, that
they were not “sufficient to establish the proof needed.” Accordingly, the trial
court granted the motion for summary judgment and dismissed Mr. Kinch‟s claims
with prejudice.
Mr. Kinch appeals, asserting as error that:
1. The trial court erred in its application of the shifting summary judgment standard detailed in La.C.C.P. art 966.
2. The trial court erred in finding that there was no genuine issue of material fact generated by Dr. Stinson‟s report.
Discussion
Summary Judgment
The motion for summary judgment procedure is favored in our law and is
designed to secure the just, speedy, and inexpensive determination of actions.
La.Code Civ.P. art. 966(A)(2). The grant or denial of a motion for summary
judgment is reviewed de novo. Schultz v. Guoth, 10-343 (La. 1/19/11), 57 So.3d
1002. The appellate court uses the same criteria as the trial court when
determining whether summary judgment is appropriate, i.e., there is no genuine
issue as to material fact and the moving party is entitled to judgment as a matter of
3 law, the motion shall be granted. Id.; La.Code Civ.P. art. 966(C)(1). Further,
although the burden of proof remains with the movant,
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.
La.Code Civ.P. art. 966(C)(2).
Thus, although the moving party initially bears the burden of submitting
evidence at the hearing, he may meet that burden by pointing out the lack of
factual support for an essential element of his opponent‟s case. Schultz, 57 So.3d
1002. Thereafter, the party bearing the burden of proof at trial (usually the
plaintiff) must produce sufficient evidence to demonstrate that he will be able to
meet his burden of proof at trial. Id. Should he fail to do so, La.Code Civ.P. art.
966(C)(2) mandates the granting of the motion for summary judgment. Id.
In a medical malpractice action, the plaintiff must prove, by a preponderance
of the evidence: 1) the standard of care applicable to the defendant(s); 2) that the
defendant(s) breached that standard of care; and 3) that there is a causal connection
between the breach and the resulting injury. Schultz, 57 So.3d 1002; La.R.S.
9:2794. When causation is at issue, the medical malpractice plaintiff need not
prove that the defendant‟s conduct was the only cause of his harm, but must show
that, as a result of the defendant‟s negligence, it is more probable than not that he
suffered injuries because of the defendant‟s conduct. Bianchi v. Kufoy, 10-607
(La.App. 3 Cir. 12/8/10), 53 So.3d 530.
4 Generally, expert testimony is required to establish the applicable standard
of care and whether that standard was breached. Rogers v. Hilltop Ret. & Rehab.
Ctr., 13-867 (La.App. 3 Cir. 2/12/14), 153 So.3d 1053. However, in cases where
the negligence is so obvious that a lay person can infer negligence, e.g., where a
physician amputates the wrong arm or leaves a sponge inside a patient‟s body,
expert testimony is not required. Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.
10/17/94), 643 So.2d 1228.
Here, the defendants pointed out that Mr. Kinch had no expert testimony to
support his claims and provided Mr. Kinch‟s discovery responses to that effect.
Having reviewed the record, we conclude that the facts of this case are such that
the alleged negligent acts are not so obvious that causation can be inferred, and that
expert testimony is required to establish the standard of care, breach, and
causation. Accordingly, we find that the defendants successfully pointed out a lack
of factual support for the elements of Mr. Kinch‟s medical malpractice claim.
Thus, we find no error in the trial court‟s application of the burden of proof
as described in La.Code Civ.P. art. 966(C)(2). Accordingly, in order to survive the
defendants‟ motion for summary judgment, Mr. Kinch is required to “produce
factual support sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial.” Id. The record indicates that, after the defendants filed
their motion for summary judgment, Mr. Kinch retained Dr. Stinson and submitted
her affidavit and expert report into evidence.2
2 Finding that Dr. Stinson‟s affidavit and expert report are insufficient to defeat summary judgment in this instance, we do not reach the question of whether her affidavit and the unsigned letter report contained in the record constitute competent summary judgment evidence. See, e.g., La.Code Civ.P. art. 967; Lejeune v. Louisiana Med. Mut. Ins. Co., 13-845 (La.App. 3 Cir. 2/12/14), 153 So.3d 1021, writ denied, 14-519 (La. 4/25/14), 138 So.3d 646; Albers v. Vina Family Med. Clinic, 12-1484 (La.App. 4 Cir. 5/22/13), 116 So.3d 940.
5 Dr. Stinson‟s affidavit indicated that she is dual Board-certified in
emergency medicine and clinical informatics and that the letter report was her
opinion in Mr. Kinch‟s case. Dr. Stinson opined therein that “the care, or lack of
care, rendered to Mr. Jason Kinch represents a breach of the standard of care
required of an Emergency Medicine physician.” The letter report, which was
attached to Mr. Kinch‟s opposition to the defendant‟s motion for summary
judgment, indicated that Dr. Stinson reviewed Mr. Kinch‟s medical records. Dr.
Stinson noted that at his initial emergency department visit on October 7, Mr.
Kinch reported complaints of “chills, fever, n/v [nausea and vomiting], generalized
weakness, [and] also injured right leg last night at work.” Dr. Stinson also stated:
While in the Emergency Department on 10/7/2010, Mr. Kinch‟s complaints of fevers, chills, and right leg pain were undocumented by Dr. Godeaux in either the HPI or ROS sections (although were pulled in as “additional information” from the triage record), and, other than the abnormal vital signs from triage, “slight dry oral mucosa”, and tachycardia, a normal physical exam was also documented. Of note, the ROS section was documented as “all other systems reviewed and otherwise negative”, thereby leaving out any mention of fevers, chills, or leg pain. 1 mg Dilaudid, a strong pain medication, was ordered, but it is unclear if this was for the abdominal cramping mentioned in the HPI (although no abdominal pain on exam) or for leg pain that was documented only in the triage record.
Mr. Kinch had several objective signs of infection, including tachycardia (heart rate of 117), fever (temperature 100.4F), tachypnea (respiratory rate 24), and leukocytosis (WBC 14.2). In many cases, antibiotics would be given either in the Emergency Department or upon discharge for these signs despite no clear, documented reason for their cause. Upon discharge, patient was given instructions for nausea and vomiting as well as a prescription for Phenergan (for nausea) and Zyrtec (normally for allergies, but it is unclear why it was prescribed in this setting), but there was again no mention or treatment of the leg pain, fever, or leukocytosis and their cause.
Dr. Stinson concluded in her letter report that:
An emergency medicine physician has a duty to medically screen and treat (as necessary) a patient‟s complaints. It is highly likely that the presenting signs and symptoms on 10/7/2010 were early
6 manifestations of the cellulitis, compartment syndrome, and abscess that were subsequently treated and operated on during the admission from 10/10/2010 through 10/21/2010. It is more likely than not that a three-day delay in treatment will increase morbidity. The failure of the emergency room physician to treat the patient‟s infection with antibiotics was a breach of the standard of care for a reasonable emergency room physician. The breach certainly did cause increased morbidity, although the extent of which it contributed to this is indeterminate.
Having reviewed this evidence, we must conclude that it is insufficient to
produce factual support sufficient to establish that Mr. Kinch will be able to satisfy
his evidentiary burden of proof at trial. Dr. Stinson‟s affidavit is conclusory in that
it merely states that Dr. Godeaux breached the standard of care and fails to
specifically address causation. See Tillman v. Eldridge, 44,460, p. 15 (La.App. 2
Cir. 7/15/09), 17 So.3d 69, 79 (“[An] affidavit that is merely conclusory is
insufficient to serve as evidence; affidavits that are devoid of specific underlying
facts to support a conclusion of ultimate „fact‟ are not considered legally sufficient
to defeat summary judgment.”).
In her letter report, Dr. Stinson notes that Dr. Godeaux failed to document
any examination of Mr. Kinch‟s leg. However, we observe that Mr. Kinch‟s
deposition testimony, which was part of the evidence submitted in support of the
motion for summary judgment, indicates that Dr. Godeaux did examine Mr.
Kinch‟s leg. Further, Dr. Stinson does not associate any failure to document with
any damages to Mr. Kinch.
Further, we find that Dr. Stinson‟s report is speculative such that it is
insufficient to satisfy Mr. Kinch‟s burden of proof. See Foster v. Patwardhan,
48,575, 48,712 (La.App. 2 Cir. 1/22/14), 132 So.3d 495, writ denied, 14-614 (La.
4/25/14), 138 So.3d 1233. Mere speculation will not defeat a motion for summary
judgment, and conclusory allegations, improbable inferences, and unsupported
7 speculation are insufficient to support a finding that a genuine issue of material fact
exists. Scott v. City of Shreveport, 49,944 (La.App. 2 Cir. 6/24/15), 169 So.3d 770.
Dr. Stinson concludes in her letter report that it was a breach of the standard of
care for an emergency room physician to fail to treat the patient‟s infection with
antibiotics. However, she previously stated that it would be appropriate to
prescribe antibiotics “in many cases” (emphasis added) and does not address
whether those cases in which antibiotics would not be prescribed apply to the facts
of this case. Finally, Dr. Stinson asserts that Dr. Godeaux‟s failure to prescribe
antibiotics “certainly did cause increased morbidity, although the extent of which it
contributed to this is indeterminate.” We observe that Dr. Stinson offers no
objective basis for this opinion, especially given her earlier qualification of the
emergency department‟s duty to prescribe antibiotics, and she is unable to
determine how much that failure caused an increase in Mr. Kinch‟s damages.
Given these ambiguities, we find that Dr. Stinson‟s expert report is insufficient to
defeat summary judgment.
Accordingly, we find no merit to Mr. Kinch‟s assignments of error.
DECREE
For the foregoing reasons, we affirm the judgment of the trial court granting
the motion for summary judgment filed by the defendants, Our Lady of Lourdes
Regional Medical Center, Inc., and Kenneth B. Godeaux, M.D., LLC. All costs of
this proceeding are assessed to the plaintiff, Jason Kinch.
8 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
COOKS, J., dissenting.
Jason Kinch (Plaintiff), a thirty-four year old Lafayette Parish Deputy
Sheriff, was injured while on duty. On October 7, 2010, he sought medical
attention at the Emergency Room (ER) of Our Lady of Lourdes Regional Medical
Center (Lourdes) in Lafayette, Louisiana. Medical records indicate when he
arrived at the ER he had, “nausea/vomiting; chills, fever, N/V[nausea/vomiting],
generalized weakness, also injured RT leg last night at work.” This information
appears in the “ED Physician Notes” of Dr. Godeau who examined Plaintiff in the
ER. Plaintiff’s medical records from Lourdes regarding his first visit to the ER
also indicate additional symptoms which included CBC (Complete Blood Count)
results showing a “high” white blood cell count, “pain in his right leg”, elevated
blood pressure, elevated respiratory rate, and a temperature of 100.4°F. After
examining Plaintiff, Dr. Godeau gave orders for: “CBC with differential, CMP
[comprehensive metabolic panel], Ua [urinalysis], Dilaudid 1 mg IV’ Zofran 8 mg
IV, and 1 liter NS.” Dr. Godeau discharged Plaintiff with a “diagnosis” of nausea
and vomiting, a prescription for Zyrtec 10 mg (a sinus medication) and Phenergan
1 25 mg (for nausea) with instructions to follow up with his regular primary care
physician and “return to the ER if worse in any way.” On October 10, 2010,
Plaintiff returned to Lourdes’ ER and was admitted to the hospital with cellulitis in
his right lower extremity. He was placed on IV antibiotics, and scheduled for
surgery consult. He then underwent a “fasciotomy, debridment, I&D, and skin
grafting” as a result of an infection in his right leg.
The majority finds Plaintiff’s expert, Dr. Shannon Stinson (Dr. Stinson),
does not present sufficient proof in her affidavit and/or letter attached thereto for
Plaintiff to establish there is any genuine issue of material fact precluding
summary judgment. Defendants objected to the introduction of Dr. Stinson’s
unsigned and unverified letter and her subsequent affidavit attesting to the letter’s
authenticity and accuracy. In the letter, the doctor recites her expert opinion
regarding Plaintiff’s medical care by Lourdes and Dr. Godeau. The trial court
admitted both the letter and affidavit in evidence at the hearing on the motion.
Defendants did not challenge that ruling. Nevertheless, the majority states in a
footnote that it does not address the question of whether Dr. Stinson’s affidavit and
unsigned, unverified letter are competent summary judgment evidence because it
finds, even if considered, Dr. Stinson’s affidavit and report are insufficient to
defeat summary judgment in this case. I disagree.
The majority sets forth Plaintiff’s burden of proof at a trial on the
merits in this malpractice case, i.e., Plaintiff must prove the standard of care; a
breach of that standard; and a causal connection between the breach of care and
Plaintiff’s injury, all by a preponderance of evidence. Relying on this court’s
holding in Bianchi v. Kufoy, 10-607 (La.App. 3 Cir. 12/8/10), 53 So.3d 530, the
majority further finds Plaintiff “need not prove that the defendant’s conduct was
2 the only cause of his harm, but must show that, as a result of the defendant’s
negligence, it is more probable than not that he suffered injuries because of the
defendant’s conduct.” I agree that these are correct legal precepts applicable at the
trial on the merits.
The majority, like many appellate panels, misconstrues Plaintiff’s burden of
proof on summary judgment.1 In Willis v. Medders, 00-2507, p. 3, (La. 12/8/00),
775 So.2d 1049, 1051 (emphasis added), the supreme court explained this burden
of proof in clearer terms than the language used in the code of civil procedure and
more clearly pointed out how the non-moving party may meet its burden on
summary judgment:
[W]hen the party opposing the summary judgment motion submits expert opinion evidence that would be admissible and that is sufficient to allow a reasonable juror to conclude the expert’s opinion on a material fact more likely than not is true, the court should deny the summary judgment motion. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.
That is precisely what Plaintiff did in this case. Defendants did not file any
pretrial motion seeking to prevent Dr. Stinson from testifying as an expert at trial
or from rendering her opinion on the basis that it was based on some flawed
methodology or other scientific error. Defendant’s only objection to the doctor’s
expert opinion was that it was not submitted in proper form. That objection was
cured by the subsequent filing of the affidavit prior to the hearing of the summary
judgment motion. For now, the doctor’s report is supported by 524 pages of
Plaintiff’s medical records, professional publications, and a detailed account of the
doctor’s expertise in emergency room medical care. Her opinion is sufficiently
1 Stated generically, once Defendant, as the moving party, has met its burden of proof on summary judgment, the Plaintiff as non-moving party must “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” La. CodeCiv.P. art. 966(C)(2). Darryl Samaha v. David J. Rau, M.D. 07-1726 (La. 2/26/08), 977 So.2d 880.
3 grounded to allow a reasonable juror to conclude 1) what was the standard of care
in this case; 2) that Defendant breached the standard of care; and 3) Defendant’s
breach caused injury to Plaintiff. Defendant offered no countervailing evidence
but merely supported its Motion for Summary Judgment on the assertion that
because Plaintiff had not disclosed an expert witness in his response to discovery
pleadings he would not be able to carry his burden of proof at trial. But this was
not the posture of the case by the time the motion was heard. As noted, Plaintiff,
by that date, secured an expert whose opinion was accepted as evidence in the
record. Defendant could no longer stand mute. Defendant did not attack the
expert’s qualifications2 nor did Defendant present any expert of its own to give an
opinion as to what the standard of care is in this case other than that articulated by
Plaintiff’s expert. If the standard of care is as Dr. Stinson correctly set forth, a fact
which we must accept as the uncontroverted truth at this point, then there is no
dispute Defendant breached this standard by not prescribing antibiotic to Plaintiff
and there is enough evidence to conclude harm was caused to the Plaintiff, albeit a
genuine issue still exists as to the “degree or extent of the harm” caused to him as a
result of the breach. Arguments in briefs are not evidence and can never satisfy the
evidentiary burden of parties on summary judgment. Defendant has the burden, as
the mover on summary judgment, to “show that there is no genuine issue as to
material fact, and that mover is entitled to judgment as a matter of law.” La. Code
Civ.P. art. 966(B)(2). The Code of Civil Procedure further provides: “The burden
of proof remains with the movant.” La.Code Civ.P. art. 966 (C)(2). The movant
must successfully “point out to the court that there is an absence of factual support
2 Defendant did not file a motion in limine seeking to exclude Dr. Stinson’s report or testimony.
4 for one or more elements essential to the adverse party’s claim, action, or defense.”
Id. It is only after the mover succeeds in making this showing that the opposing
party must “produce factual support sufficient to establish that he will be able to
satisfy his evidentiary burden of proof at trial.” Id. The majority in this case falls
into the same error as did the Fourth Circuit in Willis. In that case, the appellate
court “chastised the expert’s affidavit as being ‘very vague’ and containing
‘general statements’ from which it refused to infer the specifics needed to defeat
the defendant-manufacturer’s summary judgment motion.” Willis, 775 So.2d at
1050. As the supreme court explained in Willis, Id. (emphasis added):
The court of appeal erred in several respects. First, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 at pp. 16-17 (La.2/29/00), 755 So.2d 226, 236 (noting the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion”); See also Hebert v. St. Paul Fire and Marine Ins. Co., 99-0333 (La.App. 4th Cir.2/23/00), 757 So.2d 814, cert. denied, 00-0861 (La.5/5/00), 761 So.2d 550. Under that standard, the lower courts erred in failing to find a genuine issue of material fact created by the inferences reasonably drawn from the expert's affidavit.
Likewise, in this case, the majority engages in the same flawed rationale and
errs in concluding that summary judgment is appropriate. The majority accepts for
purposes of its treatment of Plaintiff’s evidence on summary judgment that Dr.
Stinson is Board Certified in emergency medicine and clinical informatics and
accepts her letter report, accompanied by her affidavit, as her expert opinion.
Nevertheless, the majority finds Dr. Stinson’s affidavit contains merely conclusory
statements made without stating specific underlying facts to support her
conclusions. The majority further finds her report “speculative,” and based on
“improbable inferences.” This, says the majority, is insufficient to defeat
5 Defendants’ motion for summary judgment. First, I suggest that all experts are
retained to make conclusions based on their expertise. Secondly, the record on
summary judgment does not support the majority’s conclusions. Dr. Stinson’s
opinion is not merely conclusory nor is it speculative and it is certainly not based
on “improbable inferences.” The medical record introduced at the hearing, and
relied on by Dr. Stinson, established Dr. Godeau examined Plaintiff’s injured leg in
the first ER visit and knew Plaintiff had “several objective signs of infection.” As
noted by Dr. Stinson in her report, the hospital records show these signs included
“tachycardia (heart rate of 117), fever (temperature of 100.4F), tachypnea
(respiratory rate 24), and leukocytosis (WBC 14.2).” Dr. Stinson states: “In many
cases, antibiotics would be given either in the Emergency Department or upon
discharge for these signs despite no clear, documented reason for their cause.” The
majority finds her use of the phrase “in many cases” to be merely speculative
because Dr. Stinson “does not address whether those cases in which antibiotics
would not be prescribed apply to the facts of this case.” I take her statement to
mean something very different, especially when one considers her entire thought
process, i.e. that in many cases even without clear, documented reason to suspect
an infection, an antibiotic would be prescribed when a patient presents with the
symptoms exhibited by Plaintiff. Plaintiff did have clear, documented reasons
to treat for an infection. Yet, Dr. Godeau failed to do so. This, says Dr.
Stinson, falls below the standard of care. The standard of care does not mean “all
or 100%” of the doctors must or do follow it. It is simply the “best practice.” It
stands to reason in “some” instances, for whatever reason, doctors may elect not to
follow the standard generally followed by “many” doctors in the given field.
Those who elect not to follow the accepted standard of care have the added burden
6 of explaining their decision to deviate from it. So that in “some” instances, for
example, a doctor may find the use of antibiotics would present a greater danger to
the patient’s health or the patient’s history suggest causes, other than an infection,
for his elevated white blood cell count and high temperature readings. This was the
Defendants’ burden to prove not the Plaintiff’s burden to disprove. Defendant
merely asserted his actions did not fall below the standard of care. He offered no
expert opinion or other evidence in support of his position.
Further, the majority’s hypertechnical interpretation of Dr. Stinson’s use of
the phrase “in many instances” is clear error. It is obvious from reading the whole
of the doctor’s report that in her opinion, in this case, that doctor’s failure to
prescribe antibiotics deviated from the standard of care practiced in “many cases.”
I reiterate the supreme court’s admonition to the appellate courts: “the court must
draw [ ] inferences from the undisputed facts which are most favorable to the
party opposing the motion [for summary judgment].” Willis, 775 So.2d at 1050
(emphasis added). Moreover, the majority, like the appellate court in Willis
(emphasis added):
[errs] in assessing the persuasiveness of plaintiff’s expert’s views on summary judgment. See Independent Fire, 755 So.2d at 236 (noting that ‘the court must not attempt to evaluate the persuasiveness of competing scientific studies’ on summary judgment in performing its gate keeping function). The court of appeal’s focus on how the plaintiff’s expert could have been ‘more persuasive’ and on what his expert ‘did not say’ was misplaced. Properly viewed, plaintiff’s expert stated that the proposed alternative design was being used, and one could reasonably infer from his statement that such alternative was economical, i.e. satisfied the risk- duty analysis.
The majority here engages in the same misplaced focus. As noted, the
question here is a simple one: Does the evidence put forth by Plaintiff provide a
reasonable basis for finding it is a general practice among physicians in the
7 medical community to administer antibiotics to patients with clinical findings such
as presented by the Plaintiff, even though the underlying cause of the infection was
unknown. If so, Plaintiff certainly presented sufficient evidence for a jury to find
Defendant breached the standard by not prescribing antibiotics, and Plaintiff
suffered harm. The majority is not free to assess the persuasiveness of the doctor’s
opinion or to ferret out what she “did not say.”
The majority also takes issue with Dr. Stinson’s statement that “Dr.
Godeau’s failure to prescribe antibiotics ‘certainly did cause increased morbidity,
although the extent of which it contributed to this is indeterminate,” finding again
that Dr. Stinson “offers no objective basis for this opinion, especially given her
earlier qualification of the emergency department’s duty to prescribe antibiotics,
and she is unable to determine how much that failure caused an increase in Mr.
Kinch’s damages.” The majority reasons that “given these ambiguities” it cannot
find the report sufficient to defeat summary judgment. The majority reaches this
conclusion despite acknowledging that “[w]hen causation is at issue, the medical
malpractice plaintiff need not prove that the defendant’s conduct was the only
cause of his harm, but must show that, as a result of the defendant’s negligence, it
is more probable than not that he suffered injuries because of the defendant’s
conduct,” (emphasis added) citing Bianchi v. Kufoy. Plaintiff has presented
evidence on summary judgment sufficient to show he will prevail at trial in
showing Defendant’s conduct caused him some degree of harm. It is not necessary
on summary judgment that Plaintiff show the exact degree of harm. I read Dr.
Stinson’s expert opinion to say “it is more likely than not” that the “three-day
delay in treatment” caused increased morbidity. That she is unable to say just to
“what exact degree or extent” it increased morbidity is of no moment on summary
8 judgment. Again, as the supreme court instructs us, we “must draw those
inferences from the undisputed facts which are most favorable to the party
opposing” summary judgment. Willis, 775 So.2d at 1050 (emphasis added).
I also disagree with the majority’s finding that Dr. Stinson “offer[ed] no
objective basis for this opinion.” At the close of her report Dr. Stinson lists
“Information Considered in Formulating the Above Opinion” which she details as:
1. Extensive hospital records totaling 524 pages, specifically including the triage assessment, Dr. Godeau’s documentation, orders, and discharge summary from 10/7/2010 as well as the admission History and Physical (documented on 10/11/10), consultation from Dr. Odinet (consult date 10/11/10). Operative reports from Dr. Odinet (operations performed on 10/11/10 and 10/20/10), and the discharge summary authored on 10/22/2010.
2. A reference for defining SIRS, Sepsis, and Septic Shock(citation omitted)
3. Duties of an Emergency Medicine Physician (citation omitted)
4. Training and experience as an Emergency Medicine physician.
She also states in her affidavit she relied on (1) her personal knowledge; (2)
Kinch’s medical records, and (3) physician references. In her affidavit Dr. Stinson
specifically states (emphasis added):
I am the same SHANNON STINSON that prepared a report dated January 21, 2015, styled ‘Re: Jason Kinch v. Our Lady of Lourdes regional Medical Center, Inc. And Dr. Kenneth B. Godeaux.’ I verify that the report represents my opinion on the medical care, or lack thereof, rendered to Mr. Jason Kinch on October 7, 2010 at Our Lady of Lourdes Regional Medical Center, based upon my personal knowledge and education, Mr. Kinch’s medical records, and various physician’s references.
As noted in my report, the care, or lack of care, rendered to Mr. Jason Kinch representes a breach of the standard of care required of an Emergency Medicine physician.
9 I am dual Board-certified in Emergency Medicine and Clinical Informatics.”
In her written report, Dr. Stinson refers in detail to the evidence in Kinch’s
medical records from his first ER visit at Lourdes upon which she bases her expert
opinion that Dr. Godeau’s treatment of Kinch fell below the standard of care. She
states “it is more likely than not” that Godeau’s failure to treat with antibiotics
resulted in some degree of harm to Plaintiff, to be determined on a full trial of the
merits considering all evidence. It is not necessary that she use the magic legal
incantation “it is more probable than not” as it seems clear to me that her use of
“more likely than not” means the same. The supreme court’s instruction in Willis
makes it clear that this is especially so on summary judgment. Further, this matter
was not the trial. This summary judgment proceeding should not be used to
supplant Plaintiff’s right to a full trial on the merits. He needed only to make a
showing at this preliminary stage that he has a reasonable shot at presenting
enough evidence at trial to satisfy his burden of proof. In my view he succeeded in
making this showing and more. This case is not ripe for summary judgment in
favor of Defendant. For the reasons as stated I respectfully dissent.