Kieffer v. Plunkett-Kuspa

138 So. 3d 682, 13 La.App. 5 Cir. 499, 2014 WL 1238564, 2014 La. App. LEXIS 818
CourtLouisiana Court of Appeal
DecidedMarch 26, 2014
DocketNo. 13-CA-499
StatusPublished
Cited by1 cases

This text of 138 So. 3d 682 (Kieffer v. Plunkett-Kuspa) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kieffer v. Plunkett-Kuspa, 138 So. 3d 682, 13 La.App. 5 Cir. 499, 2014 WL 1238564, 2014 La. App. LEXIS 818 (La. Ct. App. 2014).

Opinions

SUSAN M. CHEHARDY, Chief Judge.

| ^Plaintiffs appeal the trial court’s grant of defendants’ motion for summary judgment and dismissal of their medical malpractice claims with prejudice. For the following reasons, we reverse that ruling and remand for further proceedings.

[683]*683 Facts and Procedural History

On April 27, 1998, Jeana Kieffer presented to Ochsner Clinic in Metairie with complaints of “headache, inner cranial pressure, fever, heightened sensitivity to odors, ... congestion,” nausea and vomiting. Dr. Jo Ellen Plunkett, a physician at Ochsner Clinic, diagnosed Mrs. Kieffer with a sinus infection and prescribed medication.

On April 29, 1998, Mrs. Kieffer awoke with no memory of herself or her husband. Her husband, Louis, immediately brought her to Ochsner Hospital. When they arrived, she was having trouble breathing on her own so she was placed on a ventilator. The emergency room physician diagnosed her with viral meningitis/encephalopathy and transferred Mrs. Kieffer to the Intensive Care Unit at Ochsner. Further medical testing revealed that Mrs. Kieffer had herpetic encephalitis, LE venous insufficiency, and hypertension. Eventually, Mrs. Kieffer was stabilized, treated, and released from the hospital, but, for almost a year, Mrs. [oKieffer complained of frequent severe headaches and increased sensitivity to odors, and regularly experienced fever, seizures, and amnesia.

On April 16, 1999, the Kieffers filed a Petition for Medical Review Panel alleging that Dr. Plunkett committed medical malpractice by failing to properly diagnose and treat her. The review panel, which convened on August 29, 2002, found that “[t]he evidence does not support the conclusion that the defendant ... failed to meet the applicable standard of care as charged!.]” In support of its conclusion, the panel stated, “There were no mental status changes or physical findings (inelud-ing stiff neck or focal neurological deficits) that would have indicated to a reasonable primary care physician that the primary care physician should have taken further action, such as a lumbar puncture or admission of the patient to the hospital for evaluation.”

On October 15, 2002, Mr. and Mrs. Kief-fer filed this lawsuit against Dr. Plunkett and her employer, Ochsner Clinic, L.L.C.,1 alleging that Dr. Plunkett’s medical treatment of Mrs. Kieffer was below the acceptable standard of care, causing Mrs. Kieffer to suffer mental and physical damage, permanent injury, medical expenses, and loss of earnings. The plaintiffs also sought Lejeune2, damages and loss of consortium damages for Mr. Kieffer.

On November 16, 2012, defendants filed their motion for summary judgment, alleging that plaintiffs “could not offer expert testimony to meet their burden of proof.” Specifically, defendants argued that plaintiffs had failed to identify a qualified medical expert to bear their burden of proof. In support of their motion for summary judgment, defendants attached the medical review panel’s “Expert Opinion and Written Reasons;” interrogatories; and request for production 14of documents. That same day, defendants also filed their Statement of Undisputed Facts.

On December 11, 2012, plaintiffs filed their opposition to the motion for summary judgment, asserting that there existed a genuine issue of material fact because their expert, Daniel Trahant, M.D., would testify regarding the standard of care and causation in this ease. In support of their opposition, plaintiffs attached Dr. Tra-hant’s deposition.

[684]*684On January 28, 2013, the trial court granted defendants’ motion for summary judgment and dismissed plaintiffs’ suit. This timely appeal follows.

Standard of Review

Summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to matei’ial fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id.

On appeal, our review of summary judgments is de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. The decision as to the propriety of a grant of a motion for | ¡¡summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp., 07-770 (La.App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

Law and Argument

In a medical malpractice action against a physician, the plaintiff has the burden of proving (1) the degree of care ordinarily practiced by physicians in the defendant physician’s specialty, (2) that the defendant either lacked this degree of skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and (3) that as a proximate result of the breach the plaintiff suffered injuries that would not otherwise have been incurred. La. R.S. 9:2794(A); Fischer v. Megison, 07-1023 (La.App. 5 Cir. 5/27/08), 986 So.2d 95, 101.

In determining the degree of care ordinarily practiced by physicians, La. R.S. 9:2794(A)(1) sets forth the applicable standard of care:

The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.

Essentially, La. R.S. 9:2794(A)(1) provides two standards — one for specialists and one for general practitioners. Specialists are subject to a common standard to be discerned from within their specialty (generally referred to as “the national standard”), while general practitioners are held to the standards prevailing in the community or locale in which they practice and under similar circumstances (generally referred to as “the local standard”). See Leyva v. Iberia General Hospital, 94-0795 (La.10/17/94), 643 So.2d 1236, 1238-1239; Ardoin v. Hartford Ace. & Indem. [685]*685Co., 360 So.2d 1331, 1340 (La.1978). A specialist with knowledge of the requisite subject matter may be qualified to testify regarding the standard of care in a general practitioner’s locale. Leyva, supra; McLean v. Hunter,

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Bluebook (online)
138 So. 3d 682, 13 La.App. 5 Cir. 499, 2014 WL 1238564, 2014 La. App. LEXIS 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kieffer-v-plunkett-kuspa-lactapp-2014.