Amy Tepper v. Red River Academy, LLC

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-1028
CONSOLIDATED WITH 14-1029

AMY TEPPER

VERSUS

RED RIVER ACADEMY, L.L.C.

CONSOLIDATED WITH

AMY TEPPER, ERIC TEPPER,
AND LENI TEPPER

VERSUS

RED RIVER ACADEMY, L.L.C.,
ALICIA DAVENPORT HALL, AND
456 INSURANCE COMPANY

************

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 243,378 C/W 243,384 DIV. “B”
HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE

************

JAMES T. GENOVESE
JUDGE

************

Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and D. Kent Savoie, Judges.

REVERSED.

Joshua M. Palmintier
Jennifer Prescott
deGravelles, Palmintier, Holthaus, & Fruge, L.L.P.
618 Main Street
Baton Rouge, Louisiana 70801-1910
(225) 344-3735
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Amy Tepper, Eric Tepper, and Leni Tepper

R. Scott Iles
Post Office Box 3385
1200 West University Avenue
Lafayette, Louisiana 70506
(337) 234-8800
COUNSEL FOR PLAINTIFF/APPELLANT:
Amy Tepper

David F. Bienvenu
Shannon H. Huber
Allison D. Tassin
Simon, Peragine, Smith & Redfearn, L.L.P.
30th Floor - Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70163
(504) 569-2030
COUNSEL FOR DEFENDANT/APPELLEE:
Red River Academy, L.L.C.

GENOVESE, Judge.

In this negligence case, Plaintiffs, Amy Tepper, Eric Tepper, and Leni

Tepper, appeal the judgment of the trial court granting summary judgment in favor

of Defendant, Red River Academy, L.L.C. (RRA). For the reasons that follow, we

reverse.

FACTS AND PROCEDURAL HISTORY

Eric Tepper and Leni Tepper were the legal guardians of Amy Tepper who,

beginning July 2008, was a student at RRA, a boarding school in Lecompte,

Louisiana. During her residency at RRA, in October 2010, Amy developed an

ingrown toenail. She reported her condition to Alicia Davenport Hall, the medical

station attendant employed by RRA, who was responsible for tending to the

medical needs of the students. Ms. Hall telephoned Woodworth Family Medicine

(Woodworth), and Kimberly Bostick-Field, a nurse practitioner, prescribed

Cleocin, an antibiotic, for Amy on November 4, 2010.

After taking the antibiotic, Amy began having diarrhea. When Amy’s

diarrhea continued, Ms. Hall again called Woodworth and spoke to the nurse

practitioner’s assistant. In response thereto, on December 14, 2010, Ms. Bostick-

Field prescribed Lomotil for Amy, to alleviate her diarrhea.

Thereafter, Amy continued to experience diarrhea and also began vomiting.

On December 20, 2010, Ms. Hall brought Amy to Woodworth, where she was

examined by Ms. Bostick-Field. Amy was then prescribed Phenergan for the

nausea and vomiting. On the night of December 20, 2010, Ms. Hall took Amy to

the emergency room at Rapides Regional Medical Center (Rapides Regional).

Amy was diagnosed with clostridium-difficile colitis and toxic mega-colon, a side

effect caused by an allergic reaction to the antibiotic she had taken. After her

admission to Rapides Regional, Amy underwent surgery, including a total

colectomy1 and the creation of an ileostomy.2 Amy required two additional

surgeries before being released from Rapides Regional.

Amy, Eric, and Leni Tepper filed suit against RRA, alleging that its

negligence caused Amy’s illness and resultant condition.3 A separate negligence

action was instituted by Amy against RRA. The two suits were subsequently

consolidated in the trial court. RRA filed a Motion for Summary Judgment on the

issue of liability. Following a hearing, the trial court granted RRA’s Motion for

Summary Judgment and dismissed all claims of Amy, Eric, and Leni Tepper. The

Teppers appeal.

ASSIGNMENTS OF ERROR

The Teppers present the following for our review:4

1. The lower court erroneously held that the standard of care that
applies to a boarding school[—]who has constant custody over
students twenty-four (4) [sic] hours a day, seven (7) days a
week[—]is the same as the standard of care that applies to a
public school, that only has custody over its students for eight
(8) hours a day and five (5) days a week.

2. The lower court failed to hold that a breach of the duty of care
occurred when an employee of a boarding school failed to
obtain medical treatment for a student who has been
experiencing negative health symptoms for approximately two
(2) weeks.

3. The lower court erroneously determined that there was no
genuine issue of material fact even though medical records,
pertaining to the same patient, indicated different dates of the
onset of negative health symptoms.

1
A colectomy is generally defined as the “excision of a portion of the colon . . . or of the
whole colon.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, pg. 389 (31st ed.
2007).
2
An ileostomy is generally defined as the “surgical creation of an opening into the
ileum[.]” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, pg. 926 (31st ed. 2007).
3
Eric and Leni Tepper sought damages for loss of consortium, society, and service.
4
Amy Tepper’s individual counsel also filed a brief on her behalf. The assignment of
error presented therein is worded differently; however, it is encompassed in the Teppers’
assignment of error number two.
2

4. The lower court misapplied the law set out in Louisiana Code
of Civil Procedure [A]rticle 966 by granting dismissal of all
claims against all parties pursuant to a motion for summary
judgment from a single party.

LAW AND DISCUSSION

Our Louisiana Supreme Court has set forth the governing
jurisprudence relative to a motion for summary judgment and our
appellate standard of review thereof as follows:

Appellate review of the granting of a motion for
summary judgment is de novo, using the identical criteria
that govern the trial court’s consideration of whether
summary judgment is appropriate. Bonin v. Westport Ins.
Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910;
Schroeder v. Bd. of Supervisors of La. State Univ., 591
So.2d 342, 345 (La.1991). A motion for summary
judgment is properly granted only if the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show there is
no genuine issue of material fact, and the mover is
entitled to judgment as a matter of law. La. C.C.P. art.
966; Duncan v. USAA Ins. Co., 06-0363, p. 4
(La.11/29/06), 950 So.2d 544, 546-547. A fact is
material if it potentially insures or precludes recovery,
affects a litigant’s ultimate success, or determines the
outcome of the legal dispute. Hines v. Garrett, 04-0806,
p. 1 (La.6/25/04), 876 So.2d 764, 765 (per curiam)(citing
Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27
(La.7/5/94), 639 So.2d 730, 751). A genuine issue of
material fact is one as to which reasonable persons could
disagree; if reasonable persons could reach only one
conclusion, there is no need for trial on that issue and
summary judgment is appropriate. Hines, 876 So.2d at
765-66.

Smitko v. Gulf South Shrimp, Inc., 11-2566, pp. 7-8 (La.7/2/12), 94
So.3d 750, 755.

Hunt v. Golden Corral Corp., 13-06, pp. 3-4 (La.App. 3 Cir. 7/3/13), 116 So.3d

1035, 1037. Moreover, “[i]n determining whether an issue is ‘genuine,’ courts

cannot consider the merits, make credibility determinations, evaluate testimony or

weigh evidence.” Phillips v. City of Crowley, 12-1306, p. 5 (La.App. 3 Cir.

6/19/13), 115 So.3d 1240, 1244, writ denied, 13-1718 (La. 11/1/13), 125 So.3d 432

3

(citing Smith, 639 So.2d 730; Simon v. Fasig-Tipton Co. of New York, 524 So.2d

788 (La.App. 3 Cir.), writs denied, 525 So.2d 1048, 1049 (La.1988)).

In the instant case, considering the assignments of error as presented for our

review, we shall begin by addressing assignment of error number three. For the

reasons that follow, we find that genuine issues of material fact remain which

precluded the grant of summary judgment. This finding mandates a reversal of the

trial court’s grant of summary judgment in favor of RRA and renders the

remaining assignments of error moot.

The trial court in this case provided Written Reasons on Motion for

Summary Judgment. Therein, it is stated, “[b]ased upon the evidence submitted at

the [s]ummary [j]udgment hearing, the Court makes the following findings of

fact[.]” (emphasis added). The trial court’s written reasons proceed to specifically

list thirteen of these factual findings. Admittedly, not all of these facts were

disputed by the parties. However, it is clear from the record that certain facts were

in dispute and were contradicted by the testimony and medical evidence which

required the trial court to evaluate the evidence. As set forth above, making

findings of fact requires a weighing of the evidence by the trier of fact, which is

impermissible at the summary judgment stage of any legal proceeding. Phillips,

115 So.3d 1240.

Critical to a determination of any potential liability herein is the relevant

time frame of the events as they transpired: namely, the date Amy’s complaint

originated; the date RRA responded to her original complaint; the date the course

of antibiotic was begun and completed; the date of onset of Amy’s additional

complaint of diarrhea; when her additional complaint was made known to RRA;

the timing and manner in which RRA responded to the new complaint; the date of

onset of nausea and vomiting; the date RRA became aware of the nausea and
4

vomiting; and the timing and manner in which RRA responded to these additional

complaints.

Amy’s initial complaint of an ingrown toenail was made to Ms. Hall on

October 27, 2010. However, much of what occurred and what was done by RRA

between October 27, 2010 and December 20, 2010, when she was ultimately seen

by a doctor at Rapides Regional and underwent surgery, has not been established

with certainty and is in dispute. Although an antibiotic was prescribed by

Ms. Bostick-Field on November 4, 2010, it was not administered by RRA until

November 8, 2010. According to Amy, when the she began taking the antibiotic,

she “had really bad diarrhea” and “started throwing up really bad.” Amy was

taken to Woodworth on November 16, 2010, but its records are void of any

documentation of an antibiotic being prescribed for her, and the records do not

contain any complaints of diarrhea and nausea. The medical record for November

16, 2010, simply documents that Amy was still suffering from the ingrown toenail.

According to RRA’s medication administration log, Amy took her last dose of the

antibiotic the next day, November 17, 2010.

Exactly what subsequent information RRA had about Amy’s symptoms and

when they had it is also unclear and uncertain. Ms. Hall testified that she was

made aware “in late November” that Amy had “a complaint” of diarrhea.

However, Ms. Hall testified that when she checked with Amy a couple of days

later, Amy told her that “[s]he felt fine.” Ms. Hall was certainly aware by

December 14, 2010, that Amy was having diarrhea, because she called Woodworth

and obtained the prescription for Lomotil. Notably, RRA’s medication

administration log does not document that the Lomotil was actually given to Amy,

and Amy herself denied being given medication for diarrhea.

5

Two shift supervisors at RRA, who were responsible for seeing that the

medication was administered, documented that Amy continued to complain of

diarrhea. According to one shift supervisor who gave Amy the Lomotil on

December 15 and 16, 2010, despite the prescription medication, Amy “let [him]

know throughout the day she was still having diarrhea.” Yet, Ms. Hall testified

that Amy reported to her on December 16, 2010, that her diarrhea was a little

better. A second shift supervisor noted that Amy was still not feeling well on

December 19, 2010. Amy told this shift supervisor that her stomach hurt and that

she had vomited after dinner. Ms. Hall was then told, on December 19, 2010, that

Amy had also begun vomiting, which resulted in Ms. Hall taking her to

Woodworth on December 20, 2010, where she was seen by Ms. Bostick-Field and

prescribed medication for nausea. Later that same evening, Ms. Hall took Amy to

the emergency room at Rapides Regional.

In addition to the discrepancies found in the testimony of Amy and Ms. Hall,

the RRA’s medication administration log, and the notes of the shift supervisors, the

medical records of Woodworth and Rapides Regional are also inconsistent and in

dispute. Woodworth’s records of Amy’s December 20, 2010 visit document that

Amy had begun vomiting the day prior and that she had diarrhea for one week that

was “severe.” The record also notes that a prescription for Lomotil had been called

in, but that Amy still had diarrhea as well as nausea and five episodes of vomiting

since then. Further notations indicate that Amy had begun having diarrhea on and

off for one month and that it had been “[i]ncreasing in severity [the] past ten days,”

now with nausea and vomiting. Notably, Ms. Bostick-Field testified that she was

unaware of the issues of diarrhea prior to December 14, 2010, when the Lomotil

6

prescription was called in, and she never actually examined Amy between

November 16, 2010, and December 20, 2010.5

The Rapides Regional records contain a history of diarrhea and nausea for

two weeks as well as “diffuse abdominal pain.” Additional records of Rapides

Regional note the ten day course of antibiotic which had been completed by Amy

two weeks prior, “and then [she] began having diarrhea.” Rapides Regional

records described her symptoms as being “somewhat intermittent” and indicated

that Amy’s condition had “become more persistent over the last week[,]” and was

accompanied with vomiting.

In addition to the genuine issues of material fact that remain relative to when

Amy’s symptoms began, when they became known to RRA, what action was taken

by RRA, and when action was taken, we further find that genuine issues of

material fact remain concerning RRA’s alleged lack of reasonable supervision and

failure to timely obtain medical treatment. The Woodworth doctor, Dr. Guillot,

testified that when side effects of the antibiotic developed, the prescribing health

care provider “should have been notified[;]” and, a timely notification of Amy’s

condition to the health care provider “could have potentially” avoided the

unfortunate progression that occurred in this case. Although Amy’s initial

complaints began in October 2010, she was not actually seen by a doctor until her

condition was diagnosed as emergent on December 20, 2010.

Further, given the evidence in the record, genuine issues of fact remain as to

whether or not the appropriate medical protocol was adhered to by RRA.

Undisputedly, Ms. Hall was not a nurse during the relevant time period. If a

student at RRA had a medical complaint, Ms. Hall, acting as a liaison, was

5
We note that the record contains a lab report of Omega Diagnostics, L.L.C., apparently
for the results of blood work drawn at Woodworth on December 1, 2010, for purposes of
monitoring Amy’s routine medication levels.
7

responsible for ensuring that their needs were attended to. The student was first

required to complete a nurse request form. RRA’s arrangement with Woodworth

was for Ms. Bostick-Field to then examine the students at RRA in order to avoid

having to transport them to the clinic. However, Dr. Guillot testified that he should

have been on location at all times when Ms. Bostick-Field was treating patients,

and this was not done. Additionally, because of the number of students that

complained of ingrown toenails, RRA had established a standard treatment regime.

According to Ms. Hall, RRA had a “general protocol from doctor’s orders” that the

affected toe was to be soaked for two to four days, and an antibiotic ointment was

to be applied. If there was no improvement, the student was then supposed to be

taken to Woodworth to be seen by Dr. Guillot in case a procedure needed to be

performed.

Yet, when Amy was taken to Woodworth on November 16, 2010, she was

seen by Ms. Bostick-Field. Despite documentation in Woodworth’s records that

her ingrown toenail was unresolved at that time, Amy was not seen by Dr. Guillot.

Thereafter, with continuing complaints of diarrhea, Amy still was not seen by a

doctor, nor was she seen by the nurse practitioner before being prescribed Lomotil

on December 14, 2010. Finally, although Ms. Hall testified that, according to

protocol, an unresolved toenail warranted a student being taken to Woodworth to

see Dr. Guillot, Amy was not actually seen and evaluated by a doctor until

December 20, 2010.

Based upon our de novo review of the record, for the reasons set forth

above, we find that genuine issues of material fact remain which preclude the grant

of summary judgment. Considering the negligence claims asserted herein against

RRA, these facts certainly “insure[] or preclude[] recovery, affect[] a litigant’s

ultimate success, or determine[] the outcome of the legal dispute.” Hines, 876
8

So.2d at 765. Thus, the trial court’s grant of RRA’s Motion for Summary

Judgment dismissing all claims, with prejudice, is hereby reversed.

DECREE

For the reasons assigned, the judgment of the trial court granting the Motion

for Summary Judgment in favor of Red River Academy L.L.C., and dismissing all

of the claims of Amy Tepper, Eric Tepper, and Leni Tepper, is reversed. Costs of

this appeal are assessed to Red River Academy, L.L.C.

REVERSED.

9