Khammash v. Clark

145 So. 3d 246, 2014 WL 1810019, 2014 La. LEXIS 1155
CourtSupreme Court of Louisiana
DecidedMay 7, 2014
DocketNos. 2013-C-1564, 2013-C-1736
StatusPublished
Cited by14 cases

This text of 145 So. 3d 246 (Khammash v. Clark) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Khammash v. Clark, 145 So. 3d 246, 2014 WL 1810019, 2014 La. LEXIS 1155 (La. 2014).

Opinions

KNOLL, Justice.

This medical malpractice action presents the issue of whether the Patient’s Compensation Fund (PCF) can be bound by summary judgment rendered solely against a defendant physician in the underlying malpractice proceeding on the issue of causation. Plaintiffs, Majdi Khammash and his wife and children, filed the instant suit against various defendants, including Dr. Gray Barrow. After approving plaintiffs settlement with Dr. Barrow for the $100,000 Medical Malpractice Act (MMA) cap,1 the District Court granted partial summary judgment, finding plaintiffs injuries were caused by the fault of Dr. Barrow. The case then proceeded to jury trial against the PCF for the remaining $400,000 MMA cap. The jury returned a verdict in the PCF’s favor, finding Dr. Barrow’s malpractice did not cause plaintiff damage. The Court of Appeal reversed, finding 12as a result of the partial summary judgment, the issue of causation was not properly before the jury, and remanded for a new trial on damages only. We granted these consolidated writs to address the extent, if any, the PCF is bound by the partial summary judgment on causation. Khammash v. Clark, 13-1564, 13-1736 (La.11/15/13), 125 So.3d 1096. For the following reasons, we find, in accordance with La.Rev.Stat. § 40:1299.44(C)(5)(a) and our holding in Graham v. Willis-Knighton Med. Ctr., 97-0188 (La.9/9/97), 699 So.2d 365, 372, the partial summary judgment against Dr. Barrow on the issue of causation is not binding on the PCF in plaintiffs claim for damages exceeding the $100,000 MMA cap. Further finding no manifest error in the jury’s factual findings on causation, we reverse the judgment of the Court of Appeal and reinstate the District Court’s judgment in its entirety.

FACTS

The facts underlying this litigation are essentially undisputed. On September 26, 2000, Majdi Khammash, while in the course and scope of his employment as a paramedic supervisor with Acadian Ambulance Service, injured his back. On October 3, 2000, he was treated by Dr. John E. Clark for this work-related injury. Dr. Clark diagnosed him with a soft disc protrusion in the right foramen at the L3-4 level and a large disc herniation in the right neural canal at the L4-5 level. Dr. Clark referred Mr. Khammash to physical therapy and, on October 31, 2000, released him to return to full duty work with no restrictions.

Almost three years later, on or about June 9, 2003, Mr. Khammash returned for treatment with Dr. Clark, reporting a return of his prior symptoms — recurrent lumbar pain — for a duration of approximately three weeks, not related to any recent event or injury. Dr. Clark performed a neurological exam, which was | ¡¡normal, but also ordered an MRI. His impression at that time was Mr. Kham-mash had a “fragile back” subject to a high risk of recurring pain.

Mr. Khammash returned to Dr. Clark on or about June 19, 2003, at which time he reported, in addition to the increase in pain, symptoms of pain radiation to his [250]*250right lower extremities. The MRI showed a L3^4 broad base disc bulge with encroachment of the right L3 nerve root in the foramen.2 Again, Dr. Clark referred Mr. Khammash to physical therapy, which Mr. Khammash began on or about July 1, 2003.

On that date, the physical therapist placed Mr. Khammash in mechanical lumbar traction for twenty minutes. Mr. Khammash informed the therapist that, during the traction, he felt an immediate onset of pain in his back, radiating down to his right leg. Mr. Khammash returned for scheduled therapy two days later, on July 3, 2003, at which time he was again placed in mechanical lumbar traction, and again, he felt and reported the immediate onset of pain in his back and legs. Mr. Kham-mash testified, even though he was in pain, he was able to walk unassisted from his car to the physical therapy office, but after the traction treatment, his pain and weakness were so severe he had to be taken by wheelchair to his car.

On July 5, 2003, a Saturday, unable to withstand the increasing pain in his lower right back and leg, Mr. Khammash went to the emergency room of Our Lady of the Lake Regional Medical Center (ER). He was treated with pain and steroid medications and was released, with instructions to return to see Dr. Clark first thing Monday morning.

On Monday, July 7, 2003, Mr. Kham-mash reported to his regularly scheduled physical therapy appointment and immediately advised the therapist he Chad been to the ER due to the sudden increase in the severity of the pain and significant weakness in his right leg. As the therapist was examining him, his symptoms of pain and weakness were so severe she immediately transported him in a wheelchair to Dr. Clark’s office, located in the same building. Dr. Clark, however, was out of town, and Mr. Khammash was placed in a room and prepared for an epidural injection. Shortly thereafter, Dr. Barrow entered the room, introduced himself as Dr. Clark’s associate, and explained he was there to administer an epidural injection to alleviate Mr. Khammash’s pain. Dr. Barrow did not perform a physical examination of Mr. Khammash, either before or after administering the injection, nor did he consult with Mr. Khammash after the injection was administered.

On July 15, 2003, Mr. Khammash returned to Dr. Clark and reported an increase in the pain in his right extremities as well as the significant loss of use of his right leg. Dr. Clark re-performed a neurological exam, which this time was positive for “absent right deep tendon reflex.” Dr. Clark also ordered a nerve conduction study and an EMG, which revealed serious nerve impingement. Based on these findings, Dr. Clark diagnosed an active and acute right L-4 radiculopathy. He further testified he believed Mr. Khammash needed a spine surgical consult and his increasingly worsening symptoms presented a “time sensitive condition.”

However, due to miscommunications with Dr. Clark’s office staff, Mr. Kham-mash was not seen for a surgical consult until August 8, 2003. On that date, Dr. Paul Waguespaek, a neurosurgeon, diagnosed Mr. Khammash as having a herniated disc fragment on the L3^1 right side and recommended a discectomy, which he performed on August 20, 2003. At a post-op visit on September 5, 2003, Dr. Wag-uespack noted a significant improvement in Mr. Khammash’s pain symptoms, but only some improvement in the numbness [251]*251and weakness in the right |5leg. He referred Mr. Khammash to physical therapy in hopes of his regaining some strength in the leg. However, when Mr. Khammash returned on November 20, 2003, his right leg had a “severely weakened” quadricep muscle, and Dr. Waguespack noted a visible sixty percent atrophy in the right leg as compared to the left.

On January 23, 2004, Dr. Waguespack performed a myelogram and post myelo-gram CT scan on Mr. Khammash and determined Mr. Khammash had nothing “going on in his back that required any kind of surgery.” Then on March 8, 2004, Dr. Waguespack reported to Mr. Kham-mash there was, unfortunately, nothing more he could do medically for his symptoms or condition.

On June 30, 2004, Mr. Khammash, together with his wife, and on behalf of their three minor children, filed a petition seeking damages from several defendants for alleged medical malpractice in failing to properly diagnose and treat Mr. Kham-mash’s spinal injury.3 Plaintiffs contended those acts of malpractice exacerbated Mr.

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Bluebook (online)
145 So. 3d 246, 2014 WL 1810019, 2014 La. LEXIS 1155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/khammash-v-clark-la-2014.