EMAIL TO A FRIEND COMMENT

 

Alleged Failure to Treat Fasciitis; Expert Testimony Speculative


A man presented to the emergency room (ER) complaining of fever, chills, nausea, vomiting, and weakness as well as pain in his lower right leg, which started after he was bitten or scratched while in the woods the previous evening. An ER doctor review his lab work, examined his leg, prescribed a painkiller, an anti-nausea medication, and an anti-allergy medication and discharged the man 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.

 

Three days later the man returned to the ER. He had developed significant erythema, pain, and swelling in his lower right extremity. His lower right calf area was very swollen—approximately three times the size of his other lower extremity. The man was admitted to the hospital and ultimately diagnosed with cellulitis of the lower right extremity, compartment syndrome, and fasciitis. The treatment for these conditions necessitated an eleven-day hospital stay and multiple surgeries, including skin grafts.

 

The man sued the hospital and ER doctor. The complaint contended that the symptoms present at his first ER visit were manifestations of the cellulitis, compartment syndrome, and fasciitis diagnosed three days later and the ER doctor’s failure to failure to diagnose an infection and prescribe antibiotics during the first visit resulted in an eleven-day hospital stay and multiple surgeries, including skin grafts.

 

The hospital and ER doctor filed a motion for summary judgment, contending that the man did not have appropriate expert medical testimony to establish that the hospital and ER doctor breached the standard of care and caused his injuries. At the time the hospital and ER doctor filed the motion for summary judgment, the man did not have any expert testimony.

 

At the hearing on the motion, the man offered an affidavit of doctor board certified in emergency medicine and clinical informatics. The man’s expert opined that the care, or lack thereof, rendered to the man represented a breach of the standard of care required of an emergency room physician. She also indicated that the breach caused increased morbidity, although the extent of which it contributed to this was indeterminate.

 

The Fifteenth Judicial District Court, Parish of Lafayette, admitted the expert’s testimony into evidence. The trial court found it was not sufficient to establish the proof needed. The trial court granted the hospital and ER doctor’s motion for summary judgment and dismissed the claims with prejudice.

 

The Court of Appeal of Louisiana, Third Circuit, affirmed. The court held that the trial court did not err in applying the shifting summary judgment standard and finding that there was no genuine issue of material fact generated by the man’s expert.

 

The trial court did not err in applying the shifting summary judgment standard. Although the moving party initially bears the burden of submitting evidence in support of a motion for summary judgment, the movant may meet that burden by pointing out the lack of factual support for an essential element of the nonmovant’s case. The court determined that the facts of this case were such that the alleged negligent acts were not so obvious that causation could be inferred, and that expert testimony was required to establish the standard of care, breach, and causation. The court found that the hospital and ER doctor successfully pointed out a lack of factual support for the elements of the man’s medical malpractice claim given that at the time the motion was made, the man had no expert testimony.

 

The trial court did not err in finding that there was no genuine issue of material fact generated by the man’s expert. The man’s expert’s affidavit was conclusory in that it merely stated that the ER doctor breached the standard of care and failed to specifically address causation. The court also found the affidavit insufficient because it was speculative. The expert concluded that it was a breach of the standard of care for an ER physician to fail to treat the patient’s infection with antibiotics. However, she previously stated that it would not be appropriate to prescribe antibiotics in many cases. The affidavit did not address whether those cases in which antibiotics would not be prescribed applied to the facts of this case. The man’s expert asserted that the ER doctor’s failure to prescribe antibiotics certainly did cause increased morbidity, although the extent of which it contributed to this was indeterminate. The expert offered no objective basis for this opinion, especially given her earlier qualification of the emergency department’s duty to prescribe antibiotics, and she was unable to determine how much that failure caused an increase in the man’s damages.

 

The Court of Appeal of Louisiana, Third Circuit, affirmed the trial court’s grant of the hospital and ER doctor’s motion for summary judgment on the ground that the expert’s testimony was insufficient to establish the proof needed.

 

See: Kinch v. Our Lady of Lourdes Regional Medical Center, 2015 WL 8331256 (La.App. 3 Cir., December 9, 2015) (not designated for publication).

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care 

 

 

REPRINTS & PERMISSIONS COMMENT