McClendon v. Williams

110 So. 3d 216, 2013 WL 692458, 2013 La. App. LEXIS 331
CourtLouisiana Court of Appeal
DecidedFebruary 27, 2013
DocketNo. 47,577-CW
StatusPublished

This text of 110 So. 3d 216 (McClendon v. Williams) 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
McClendon v. Williams, 110 So. 3d 216, 2013 WL 692458, 2013 La. App. LEXIS 331 (La. Ct. App. 2013).

Opinion

STEWART, J.

_JjP & S Surgery Center, L.L.C. (“P & S”), a defendant in this medical malpractice action, sought supervisory review of the trial court’s denial of a motion for summary judgment. We granted the writ and ordered the matter briefed and docketed. Because the plaintiffs will be unable to meet the burden of proving causation, an essential element of their claim, we find that summary judgment dismissing the plaintiffs’ claims as to P & S is appropriate.

FACTS

Shelly McClendon (“McClendon”) was scheduled to have a hysterectomy and sal-pingo-oophorectomy at P & S on June 6, 2003. McClendon’s OB/GYN, Dr. Ardri-enne Williams (“Dr. Williams”), was to perform surgery with Dr. Rosemary Stage (“Dr. Stage”), an anesthesiologist. On June 4, 2003, McClendon underwent radiology and laboratory procedures, including a pregnancy test, in preparation for surgery. On the day of the surgery, McClendon was given various medications, including Versed (also referred to as mi-dazolam) and Decadron, on Dr. Stage’s orders. Some time after the administration of these medications but before McClendon underwent surgery, it was learned that her pregnancy test was positive. Dr. Williams canceled the surgery.

On June 9, 2003, McClendon saw Dr. Williams for an ultrasound, which showed an early intrauterine pregnancy. McClen-don miscarried on June 16, 2003. About one month later, McClendon had the hysterectomy. Dr. Williams operated, and Dr. Stage provided anesthesia.

I {.On May 26, 2006, McClendon and her husband, Johnny McClendon, filed a medical malpractice suit against P & S, Dr. Williams, and Dr. Stage. They alleged that the defendants breached the standard of care in failing to properly interpret the laboratory diagnostics indicating a positive pregnancy test, in referring a pregnant patient to radiology, and in administering medications contraindicated for pregnant patients. They alleged that the defendants’ negligence caused the miscarriage as well as physical and emotional suffering by McClendon.

On April 30, 2007, P & S filed a motion for summary judgment on the grounds that McClendon had not identified any medical expert who would testify that P & S caused the damages alleged, specifically, the miscarriage. In support of its motion, P & S offered the Medical Review Panel opinion. The panel, comprising specialists in obstetrics and gynecology, concluded that P & S failed to comply with the standard of care by not properly charting the results of the pregnancy test and notifying Dr. Williams that it was positive so that she could have canceled the surgery earlier. However, the panel also concluded that P & S’s failure to comply with the standard of care was not a factor in the alleged damages. The opinion stated, “The pre-operative [sic] x-ray and the anesthesia administered did not cause the miscarriage.”

P & S also offered a report by a legal nurse consultant, Nancy McNamara (“McNamara”), who opined that McClen-don’s pregnancy should have been discov[218]*218ered before she was given medications pri- or to surgery on June 6, 2003. However, in her research of medical literature, |3McNamara could find no connection between the medications administered to McClendon and the risk of a miscarriage.

McClendon opposed P & S’s motion, asserting that there are genuine issues of material fact as to whether P & S breached the standard of care and whether the medications administered prior to surgery caused the miscarriage. McClendon offered the affidavit of William C. Coney, M.D., a general practitioner who had been her primary physician. Like the medical review panel, Coney concluded that P & S failed to meet the standard of care by not charting or reporting the positive pregnancy test prior to the scheduled surgery. However, Coney also concluded that the administration of Versed caused the miscarriage.

On October 7, 2009, P & S filed a motion in limine to prohibit Dr. Coney from testifying as an expert concerning any causal relationship between the medications administered to McClendon and miscarriages. P & S argued that as a family practitioner, Dr. Coney was not qualified to testify about anesthetics and that there were no studies to substantiate his opinion that Versed caused McClen-don’s miscarriage.

In the meantime, plaintiffs obtained another expert, Dr, Karl Haydel (“Dr. Haydel”), an anesthesiologist, and filed his affidavit in opposition to a motion for summary judgment by Dr. Stage, who like P & S was also seeking summary judgment based on the lack of evidence as to causation. Dr. Haydel’s affidavit relates that Versed is a benzodiazepine and is considered a Class D drug by the Food and Drug Administration, meaning that it poses a demonstrated risk to a fetus. The affidavit notes that there Chave been few studies concerning the use of benzodiazepines during human pregnancies and that the data is inconclusive. The affidavit states that it is standard practice among anesthesiologists not to use Versed on pregnant patients, particularly during the first trimester.

Dr. Haydel’s affidavit refers to Decadron as a steroid and a Class C drug that also poses some risks to a fetus. His affidavit states that both drugs can increase the stress of a pregnant patient and that stress can increase the risk of a miscarriage. The affidavit concludes with Dr. Haydel’s opinion that the “administration of one or both of the drugs contributed to the altering of Mrs. McClendon’s physical and chemical make-up that ultimately led to the destruction of her fetus.”

On January 14, 2011, P & S filed a motion in limine to prohibit Dr. Haydel from testifying as to causation. The motion was básed on Dr. Haydel’s deposition in which he admitted that it cannot be proven or known whether the administration of Versed and the other drugs caused the miscarriage. He also admitted that his opinion regarding causation was based on his subjective belief, not any scientific data or research.

At the hearing on the motions in limine on March 29, 2011, counsel for McClendon conceded that Dr. Coney is not qualified to testify as an expert in this matter. After hearing arguments, the trial court granted the motion in limine as to Dr. Haydel to prohibit him from testifying as to causation, specifically that Versed or Decadron caused or contributed to the alleged harm. The trial court did permit Dr. Haydel to testify as to the | .¡standard of care and breach, such as that the administration of Versed during the first trimester of pregnancy is a breach of the standard of care.

[219]*219On September 29, 2011, P & S reurged its motion for summary judgment, asserting that McClendon would be unable to produce any admissible evidence to prove causation. McClendon again opposed the motion and offered a new affidavit by Dr. Haydel. This second affidavit states that current medical literature supports his opinion that Versed is “strongly contraindicated for use during pregnancy.” He notes that fetal toxicity had been observed with other benzodiazepines. He opines that the absence of data on the use of Versed during the first two trimesters of pregnancy “cannot be taken to mean ... that Versed is not harmful or causative of harm to a first trimester fetus, if in fact, one is spontaneously aborted following the administration of the drug!”

On September 20, 2012, P & S’s motion for summary judgment was argued by the parties and denied by the trial court without any explanation for its ruling.

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Bluebook (online)
110 So. 3d 216, 2013 WL 692458, 2013 La. App. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclendon-v-williams-lactapp-2013.