Catherine McCoy Versus Dr. Fidel F. Sendra

CATHERINE MCCOY, ET AL NO. 21-C-91

VERSUS FIFTH CIRCUIT

DR. FIDEL F. SENDRA, ET AL COURT OF APPEAL

STATE OF LOUISIANA

May 11, 2021

Susan Buchholz
First Deputy Clerk

IN RE ELLIOT MCCOY, HENRY MCCOY, KARL MCCOY, MELDALYN MCCOY, ROSLYNN MCCOY,
TIMOTHY MCCOY, AND TODD MCCOY ON THEIR OWN BEHALF AND ON BEHALF OF THE LATE
CATHERINE MCCOY

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE STEPHEN D.
ENRIGHT, JR., DIVISION "N", NUMBER 715-642

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Stephen J. Windhorst

WRIT GRANTED

Plaintiffs, the children of the late Catherine McCoy, seek review of the trial
court’s evidentiary ruling granting the motion in limine to exclude the Medical
Review Panel opinion at trial filed by defendants, Louisiana Compensation Fund
and Louisiana Patient’s Compensation Fund Oversight Board. The trial court
concluded that the Medical Review Panel exceeded the scope of its statutory
authority under La. R.S. 40:1231.8 G by making a finding of fact in its opinion,
specifically finding that the administration of clindamycin resulted in Ms. McCoy
developing Steven-Johnson Syndrome.

La. R.S. 40:1231.8 G provides as follows:

The panel shall have the sole duty to express its expert opinion as to
whether or not the evidence supports the conclusion that the defendant
or defendants acted or failed to act within the appropriate standards of
care. After reviewing all evidence and after any examination of the
panel by counsel representing either party, the panel shall, within thirty
days, render one or more of the following expert opinions, which shall
be in writing and signed by the panelists, together with written reasons
for their conclusions:
(1) The evidence supports the conclusion that the defendant or
defendants failed to comply with the appropriate standard of care
as charged in the complaint.

21-C-91

(2) The evidence does not support the conclusion that the defendant or
defendants failed to meet the applicable standard of care as charged
in the complaint.
(3) That there is a material issue of fact, not requiring expert opinion,
bearing on liability for consideration by the court.
(4) When Paragraph (1) of this Subsection is answered in the
affirmative, that the conduct complained of was or was not a factor
of the resultant damages. If such conduct was a factor, whether the
plaintiff suffered: (a) any disability and the extent and duration of
the disability, and (b) any permanent impairment and the
percentage of the impairment.

Under this provision, the Panel’s duty is to express its expert opinion as to
whether or not the evidence supports the conclusion that the defendants acted or
failed to act within the appropriate standards of care and to what degree that
substandard care contributed to the resultant damages. La. R.S. 40:1231.8 G;
McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La. 07/01/11), 65 So.3d 1218,
1229. Matranga v. Par. Anesthesia of Jefferson, LLC, 14-448 (La. App. 5 Cir.
5/14/15), 170 So.3d 1077, 1090-91, writ denied, 15-1143 (La. 9/18/15), 178 So.3d
148, and writ denied, 15-1168 (La. 9/18/15), 178 So.3d 152. In performing its duty,
the Panel is not permitted to render an opinion on any disputed issue of material fact
that does not require their medical expertise. McGlothlin, 65 So.3d at 1229. In
addition, La. R.S. 40:1231.8 H provides that any report of the expert opinion of the
medical review panel shall be admissible as evidence in any action subsequently
brought by the claimant in a court of law.

Plaintiffs assert that resolution of whether the administration of clindamycin
caused Ms. McCoy to develop Steven-Johnson Syndrome requires an expert opinion
because medical causation is generally not a matter of common knowledge. In
support of their argument, plaintiffs cite Louisiana jurisprudence finding that expert
testimony is required where the alleged malpractice relates to the prescribing and
administering of medication. Jordan v. Cmty. Care Hosp., 19-39 (La. App. 4 Cir.
7/24/19), 276 So.3d 564, 579; Guillory v. Dr. X, 96-85 (La. App. 3 Cir. 8/28/96),
679 So.2d 1004, 1009. The reasoning of this conclusion is that the uses and
contraindications of medicine, and the appropriateness of the administration of
medicine to a particular patient, are generally not within the average lay person’s
knowledge. Jordan, supra; Guillory, supra.

We agree with plaintiffs that the determination of whether the clindamycin
caused Ms. McCoy to develop Steven-Johnson Syndrome requires an expert
opinion. The uses and contraindications of clindamycin and the benefits and risks
of administering this drug to Ms. McCoy require expert knowledge. In order to
prove their case, plaintiffs must provide expert testimony to show that an allergic
reaction or side effect to clindamycin could include developing Steven-Johnson
Syndrome. Accordingly, we find that the trial court erred in ruling that the
administration of clindamycin resulted in the development of Steven-Johnson
Syndrome is a material issue of fact not requiring expert opinion. We therefore find
that the trial court erred in granting the motion in limine to exclude the Medical
Review Panel opinion.

2

In light of the foregoing, we grant this writ, reverse the trial court’s judgment
which granted the motion in limine to exclude the Medical Review Panel opinion,
and we deny that motion.

Gretna, Louisiana, this 11th day of May, 2021.

SJW
MEJ
RAC

3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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21-C-91
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24th Judicial District Court (Clerk)
Honorable Stephen D. Enright, Jr. (DISTRICT JUDGE)
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