Kinch v. Our Lady of Lourdes Regional Medical Center

181 So. 3d 900, 2015 La. App. LEXIS 2495, 2015 WL 8331256
CourtLouisiana Court of Appeal
DecidedDecember 9, 2015
DocketNo. 15-603
StatusPublished
Cited by11 cases

This text of 181 So. 3d 900 (Kinch v. Our Lady of Lourdes Regional Medical Center) 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
Kinch v. Our Lady of Lourdes Regional Medical Center, 181 So. 3d 900, 2015 La. App. LEXIS 2495, 2015 WL 8331256 (La. Ct. App. 2015).

Opinions

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 [902]*902judgment, 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. Go-deaux 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 erythe-ma, 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 cel-lulitis of the lower right extremity, 12compartment 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 |saffidavit indicated that she is dual Board-certified in emergency medicine and clinical infor[903]*903matics. 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 [4law, 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 [904]*904that, 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.

Generally, expert testimony is required’ to establish the applicable standard of care and whether that standard was breached. Rogers v. Hilltop Ret.

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Cite This Page — Counsel Stack

Bluebook (online)
181 So. 3d 900, 2015 La. App. LEXIS 2495, 2015 WL 8331256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinch-v-our-lady-of-lourdes-regional-medical-center-lactapp-2015.