Louise Frederick Wife of/and Steven Frederick Versus St. Charles Surgical Hospital, LLC

Opinion

LOUISE FREDERICK WIFE OF/AND STEVEN NO. 24-C-464 FREDERICK FIFTH CIRCUIT

VERSUS COURT OF APPEAL

ST. CHARLES SURGICAL HOSPITAL, LLC, ET AL STATE OF LOUISIANA

October 25, 2024

Linda Wiseman

First Deputy Clerk

IN RE ALEXIS WAGUESPACK, M.D.

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD A. ROWAN, JR., DIVISION "L", NUMBER 807-181

Panel composed of Judges Jude G. Gravois, John J. Molaison, Jr., and Timothy S. Marcel

WRIT GRANTED In the medical malpractice lawsuit, the relator, Alexis Waguespack, M.D., seeks a review of the trial court’s grant of the plaintiffs/respondents’ motion to compel her to appear for a second deposition. For the following reasons, we grant this writ application, reverse the judgment granting the motion to compel, and deny the motion to compel. PROCEDURAL HISTORY On March 16, 2017, the plaintiffs, Louise Frederick and Steven Frederick, filed a Medical Review Panel Complaint against Alexis Waguespack, M.D., and other healthcare providers, alleging they committed medical malpractice in the spine surgery performed on Steven Frederick on April 6, 2016. On January 25, 2019, the plaintiffs took the deposition of Dr. Waguespack. On March 2, 2020, the Medical Review Panel issued its expert opinion, finding that, after a review of the

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medical records and operative notes, there was no deviation from the standard of care by Dr. Waguespack. On June 9, 2020, the plaintiffs filed a petition for damages in the 24th Judicial District Court against Dr. Waguespack and others, alleging medical malpractice in the April 6, 2016 surgery.

On July 23, 2024, the plaintiffs filed a motion to compel the deposition of Dr. Waguespack to “discuss multiple developments post medical review panel” that include the affirmative defenses raised in Dr. Waguespack’s answer, “expert opinions,” “relationships to trial witnesses,” “licensure lapses,” false testimony after the January 2019 deposition, and cases involving the administration of the medication at issue in this case. Dr. Waguespack opposed the motion to compel, stating her previous deposition in the medical review panel proceeding entitles her to a protective order, and the plaintiffs have not identified any question that she has failed to answer. The plaintiffs filed a reply to the opposition elaborating that the dispute in this matter is whether Dr. Waguespack administered a local anesthetic, Bupivacaine, to Mr. Frederick. Following the hearing on the motion to compel, the trial court issued a judgment granting the plaintiffs’ motion to compel the deposition of Dr. Waguespack. This timely writ application followed. LAW AND DISCUSSION A trial court has broad discretion when ruling on pre-trial discovery matters, and its ruling will not be disturbed absent a clear showing of abuse of discretion. Hodges v. State Farm Bureau Cas. Ins. Co., 433 So.2d 125, 129 (La. 1983). It follows that a trial court’s ruling regarding whether to allow a second deposition of a deponent is subject to the same abuse of discretion standard. Guillory v. Bofinger’s Tree Service, 06-0086 (La. App. 1 Cir. 11/3/06), 950 So.2d 682, 686- 87. An abuse of discretion generally results from a conclusion reached capriciously or arbitrarily, which means there is no rational basis for the action.

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Boone Servs., LLC v. Clark Homes, Inc., 23-0299 (La. App. 1 Cir. 10/18/23), 377 So.3d 304, 311.

In this writ application, Dr. Waguespack argues that the trial court abused its discretion in granting the motion to compel because the plaintiffs seek to question Dr. Waguespack regarding alleged, unrelated incidents that occurred after Dr. Waguespack’s treatment of Mr. Frederick. Dr. Waguespack contends that these incidents have no bearing on the disputed fact over whether Dr. Waguespack administered Bupivacaine to Mr. Frederick during the back surgery.

The documents submitted in this writ application indicate that the plaintiffs have hired two experts who have opined that Dr. Waguespack injured Mr. Frederick by administering Bupivacaine to Mr. Frederick during the surgery. In the 2019 deposition, Dr. Waguespack was questioned extensively regarding the administration of Bupivacaine to Mr. Frederick, and she repeatedly denied administering this medication. Several other healthcare providers, some named as defendants in this matter, were deposed, including the anesthesiologist, the surgical techs, and the circulating nurse. All of these witnesses denied seeing Dr. Waguespack administer Bupivacaine to Mr. Frederick. Allegedly, the hospital bill charged Mr. Frederick for 50 mg of Bupivacaine. A nurse employed by the hospital, Ms. Nicole Johnson, testified the hospital places anticipated medications potentially needed during surgery in the operating room for the surgery; the patient can be charged for this medication whether or not they administer the drug to the patient.

In the motion to compel, the plaintiffs contend that they are entitled to depose Dr. Waguespack for a second time regarding affirmative defenses raised by Dr. Waguespack. In the answer filed by Dr. Waguespack, she alleged that the cause of the plaintiffs’ damages were pre-existing conditions, plaintiffs’

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negligence, third parties’ negligence, and that plaintiffs failed to mitigate their damages. According to the writ application, the court dismissed all other healthcare providers through summary judgment. In her 2019 deposition, the plaintiffs’ questioned Dr. Waguespack about her opinion regarding the care rendered by other defendants. Dr. Waguespack testified that, in hindsight, it appeared that Mr. Frederick “had an oxygenation problem” and a hypoxic brain injury. Dr. Waguespack testified that she was not made aware that Mr. Frederick was hypoxic. Dr. Waguespack also answered interrogatories and requests to produce documents in November 2022. The plaintiffs do not identify which affirmative defense they seek to question Dr. Waguespack. Still, it is clear that in her January 2019 deposition, Dr. Waguespack answered the plaintiffs’ questions regarding her opinion of the fault of others in their care of Mr. Frederick.

The plaintiffs claim they are entitled to take a second deposition of Dr.

Waguespack because of expert opinions obtained after the January 2019 deposition. In their reply to the opposition to the motion to compel, the plaintiffs explain that the factual issue in this case is whether Dr. Waguespack administered Bupivacaine to Mr. Frederick. The plaintiffs were aware that the administration of Bupivacaine could cause the symptoms exhibited by Mr. Frederick at the time they deposed Dr. Waguespack in January 2019. Dr. Waguespack was questioned extensively regarding the side effects of Bupivacaine and symptoms exhibited by a patient given excess Bupivacaine. Dr. Waguespack repeatedly testified that she did not administer Bupivacaine to Mr. Frederick. The plaintiffs do not identify what they contend is “objective medical evidence” that Dr. Waguespack administered Bupivacaine to Mr. Frederick. In the deposition, Dr. Waguespack answered all questions regarding the administration and side effects of

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Bupivacaine. Thus, the plaintiffs are not entitled to question Dr. Waguespack again regarding the administration of Bupivacaine.

The plaintiffs argue that Dr. Waguespack’s “relationship to trial witnesses”

entitles them to depose her a second time. The plaintiffs do not state which witnesses they are referring to. In addition, the plaintiffs had access to all of Mr. Frederick's medical records before the first deposition of Dr. Waguespack. Further, there is no trial date or witness list.

The plaintiffs argue they are entitled to take a second deposition of Dr.

Waguespack because there was a lapse in Dr. Waguespack’s certification by the American Board of Orthopedic Surgery. According to the documents submitted with this writ application, Dr. Waguespack’s board certification lapsed in 2021, and recertification occurred in 2023. The plaintiffs have attached excerpts from a deposition of Dr. Waguespack in an unrelated matter, in which Dr. Waguespack stated that the COVID-19 pandemic delayed oral board examinations. Dr. Waguespack treated Mr. Frederick in 2016. The deposition of Dr. Waguespack occurred in January of 2019. Thus, any lapse in Dr. Waguespack’s board certification in 2021 or beyond is not relevant as to whether Dr. Waguespack violated the standard of care in her treatment of Mr. Frederick in 2016.

The plaintiffs allege Dr. Waguespack provided false testimony after her 2019 deposition. According to the plaintiffs, this false testimony occurred in an unrelated matter in which Dr. Waguespack answered questions regarding an alleged incident in 2018 in which the airline discovered her laptop in an airplane bathroom. When passengers did not claim the computer in response to questioning by the flight crew, the pilots diverted the flight and landed to examine the laptop to determine if it presented a threat to the passengers. According to the plaintiffs, Dr. Waguespack admitted that she owned the computer after the airplane landed. The

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documents submitted to support this allegation indicate that “IP Waguespack” was intoxicated and was not allowed to reboard the aircraft. Plaintiffs argue that they are entitled to depose Dr. Waguespack for a second time in this case because when questioned regarding this incident in an unrelated matter, she denied knowledge of it. This alleged incident is not relevant as to whether or not Dr. Waguespack violated the standard of care in her treatment of Mr. Frederick in 2016.

Plaintiffs further argue that during discovery in a second, unrelated matter, Dr. Waguespack denied that other malpractice claims had been asserted against her. She then admitted to approximately ten malpractice claims against her over the past twenty years. The plaintiffs contend that Dr. Waguespack has “mischaracterized the very nature of the Fredericks’ allegations against her.” In support of this contention, the plaintiffs point to Dr. Waguespack’s deposition testimony in an unrelated matter in which she referred to a patient who had “postoperative airway issues during the perioperative anesthesia period.” The plaintiffs argue that this referred to the instant case and contend that Fredericks’ malpractice case is based on Bupivacaine toxicity. The plaintiffs argue that they should be able to question Dr. Waguespack regarding her description of the allegations in the Fredericks’ lawsuit as made when obtaining her recertification. As stated above, Dr. Waguespack admitted that her board certification lapsed in 2021, after her treatment of Mr. Frederick and her deposition. The responses by members of the medical review panel in this matter indicate that there are conditions other than alleged Bupivacaine toxicity that could have caused the symptoms exhibited by Mr. Frederick.

La. C.C.P. art. 1469 governs motions to compel. Concerning the oral deposition of a party-person, it provides that “if a deponent fails to answer a question propounded or submitted under Articles 1437 . . . the discovering party

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may move for an order compelling an answer. If the court denies the motion in whole or in part, it may make such protective orders as it would have been empowered to make on motion made pursuant to Article 1426.” La. C.C.P. art. 1469(2). La. C.C.P. art. 1426 permits a court to issue an order that discovery not be had for good cause shown upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent.

In this case, Dr. Waguespack is entitled to a protective order, as provided in article 1426, regarding the plaintiffs’ request to depose her a second time because she has already been deposed in this matter and has answered all questions posed to her. The additional topics that the plaintiffs claim entitle them to a second deposition of Dr. Waguespack are so irrelevant to the issues of this case that they are not discoverable and not reasonably calculated to lead to the discovery of admissible evidence.

The plaintiffs strenuously argue that they took the January 2019 deposition during the medical review panel proceeding and are entitled to a second unrestricted deposition of Dr. Waguespack in preparation for trial. The notice of deposition propounded by the plaintiffs to Dr. Waguespack for the January 25, 2019 deposition states that “the undersigned will take the oral testimony of Dr. Waguespack pursuant to the Louisiana Code of Civil Procedure for all purposes, including perpetuation.” The first page of Dr. Waguespack’s deposition states that the deposition was taken “under the Louisiana Code of Civil Procedure, Article 14212, et seq., for all purposes, in accordance with law.” While there may be some instances in which a plaintiff may conduct a second deposition of a defendant doctor in a medical malpractice case, given the specific facts and circumstances

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presented in this writ application, the trial court abused its discretion in granting the plaintiffs’ motion to compel. CONCLUSION After a thorough review of the writ application, the opposition to the writ application, and applicable law, we grant this application and reverse the trial court’s grant of the plaintiffs’ motion to compel the deposition of Dr. Waguespack. We deny the plaintiffs’ motion to compel the second deposition of Dr. Waguespack.

Gretna, Louisiana, this 25th day of October, 2024.

JJM

JGG

TSM

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ

FREDERICKA H. WICKER CHIEF DEPUTY CLERK

JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR.

FIRST DEPUTY CLERK

SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET

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NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 10/25/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

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E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Donald A. Rowan, Jr. (DISTRICT JUDGE) Mark E. Kaufman (Relator) Bryan J. Knight (Relator) Melissa M. Lessell (Respondent) T. Carey Wicker, III (Respondent)

Michael S. Sepcich (Respondent)

Vincent E. Odom (Respondent)

Thomas C. Wicker, IV (Respondent)

MAILED Sean M. Casey (Respondent) Davida F. Packer (Respondent) Casey B. Wendling (Respondent) Attorney at Law Attorney at Law Attorney at Law 1 Sanctuary Bouelvard 1100 Poydras Street 755 Magazine Street Suite 202 Suite 2950 New Orleans, LA 70130 Mandeville, LA 70471 New Orleans, LA 70163