Jacqueline Brenner v. Dr. Ronald M. Lewis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-585

JACQUELINE BRENNER, ET AL.

VERSUS

DR. RONALD M. LEWIS, ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2015-4144
HONORABLE RONALD F. WARE, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

Court composed of Sylvia R. Cooks, John D. Saunders, and Candyce G. Perret,
Judges.

AFFIRMED.

Cooks, J., dissents and assigns written reasons.

James E. Shields, Sr.
Shields & Shields, APLC
30 New England Court
Gretna, LA 70053
(504) 368-2404
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Jacqueline Brenner
Judith LeBlanc
Estate of Judith LeBlanc
Estate of Elwin C. LeBlanc

Benjamin J. Guilbeau, Jr.
Marcelynn Hartman
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
Post Office Box 2900
Lake Charles, LA 70602
(337) 436-9491
COUNSEL FOR DEFENDANTS/APPELLEES:
Ronald M. Lewis, M.D.
Louisiana Medical Mutual Ins. Co.

Brandon A. Sues
Sarah Couvillon
Gold, Weems, Bruser, Sues & Rundell
P. O. Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR DEFENDANT/APPELLEE:
Christus St. Patrick Hospital

SAUNDERS, Judge.

This is a case involving a medical malpractice action. Patient’s father and

sister (“Plaintiffs”) instituted this action on behalf of a family member against the

patient’s primary care physician and his insurance carrier, the hospital and its

insurance carrier, (collectively “Defendants”) and the Louisiana Patient’s

Compensation Fund, alleging various acts of negligence arising out of the failure to

treat an alleged diagnosis that resulted in the patient’s death shortly after her

discharge.

Defendants moved for summary judgment on the basis that there was no

genuine issue of material fact upon which Plaintiffs could meet the burden of proof

required in a medical malpractice case.

After oral arguments were heard, the trial court granted both Defendants’

summary judgments and issued written reasons for each.

Plaintiffs now appeal the trial court’s ruling. Their argument is that

Defendants breached the standard of care owed to the patient in (1) failing to

diagnose and treat sepsis, (2) failing to administer antibiotics, and (3) prematurely

discharging the patient from the hospital.

FACTS AND PROCEDURAL HISTORY:

On February 23, 2011, after experiencing two seizure-like episodes at her

home, forty-seven-year-old Judith LeBlanc (“Ms. LeBlanc”) was seen in the

emergency room of CHRISTUS Health Southwestern Louisiana d/b/a CHRISTUS

St. Patrick Hospital (“St. Patrick’s”) by her primary care physician, Ronald M.

Lewis, M.D., (“Dr. Lewis”) and was subsequently admitted. At that time, Ms.

LeBlanc was receiving treatment for a jaw infection and was scheduled for a tooth

extraction the following day.

Over the course of the next few days, Dr. Lewis ordered several tests to rule

out multiple potential underlying conditions that could have caused Ms. LeBlanc’s

seizure activity. All testing was negative. Ms. LeBlanc was alert and showed no

signs of distress, dehydration, or sepsis during admit, throughout her hospital stay,

or upon discharge. Likewise, she displayed no signs of seizure-like activity, no

fever, and no other signs of infection. Relying on test results and on his

observations of Ms. LeBlanc, Dr. Lewis made a differential diagnosis, which

included several possible diagnoses, one of which was sepsis. However, Dr. Lewis

did not treat Ms. LeBlanc for sepsis because her clinical examination was not

consistent with sepsis, and she displayed no signs of being septic. Rather, it was

Dr. Lewis’ opinion, which he discussed with Ms. LeBlanc and her family, that she

had possibly suffered a cataplexic event, either due to narcolepsy and/or

obstructive sleep apnea. Ms. LeBlanc’s family requested that she be discharged as

soon as possible because just a few weeks earlier, her mother had unexpectedly

passed away in a hospital following spinal surgery. Therefore, because all testing

for sleep disorders could be safely arranged at home, Dr. Lewis discharged Ms.

LeBlanc with instructions to follow-up in his office in two weeks to schedule the

proposed testing following her scheduled oral surgery.

Two days after her discharge from St. Patrick’s, Ms. LeBlanc was seen in

the Emergency room of Lake Charles Memorial Hospital where she was noted to

have difficulty breathing. Subsequently, Ms. LeBlanc developed seizure activity

and cardiopulmonary arrest. Cardiopulmonary resuscitation (“CPR”) was

administered; however, Ms. LeBlanc was unable to be resuscitated and was

pronounced dead.

On February 10, 2012, Ms. LeBlanc’s father, Elwin LeBlanc, filed a

complaint with the Louisiana Patient’s Compensation Fund (PCF) requesting a
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review of the medical care provided to his daughter by Dr. Lewis during her

February, 2011 admission to St. Patrick’s.

The Medical Review Panel met and rendered a unanimous opinion in favor

Defendants, finding that neither St. Patrick’s, nor Dr. Lewis, had breached the

standard of appropriate care as charged in the Plaintiffs’ complaint.

On October 14, 2015, Jacqueline A. Brenner, Ms. LeBlanc’s sister, instituted

this lawsuit against Defendants, individually, and on behalf of decedent, Judith

LeBlanc, and the estate of Judith LeBlanc, and the estate of Elwin C. LeBlanc, on

behalf of decedent Judith LeBlanc. 1 In response, Defendants filed motions for

summary judgment seeking to have the Plaintiffs’ petition against them dismissed.

Their motions relied upon the favorable Medical Review Panel opinion rendered in

this matter, as well as the affidavit of James Jackson, M.D.

Plaintiffs opposed the motion, attaching to their opposition the unsigned

affidavit of Dr. Terry Shaneyfelt. Therein, Dr. Shaneyfelt noted that “Dr. Ronald

Lewis breached the standard of care by not providing antibiotics in a timely

fashion to a patient he diagnosed with sepsis.” Dr. Shaneyfelt further opined that

“[M]s. LeBlanc was not given appropriate antibiotics to cover infection of her jaw

which resulted in sepsis and death, a breach of the standard of care. This breach

led directly to her death.”

After oral arguments were had, the trial court granted summary judgment in

favor of Defendants.

Plaintiffs timely filed a motion for devolutive appeal. Pursuant to that

motion, Plaintiffs are presently before this court alleging seven assignments of

error.

1
Elwin Leblanc, Ms. Leblanc’s father, who initiated the claim against the
Louisiana Patient’s Compensation Fund, passed away on March 2, 2015.
3

ASSIGNMENTS OF ERROR:

1. The trial court erred in finding that Appellants malpractice
expert, Dr. Terrence Shaneyfelt’s, expert testimony was
insufficient to create a genuine issue of material fact as to
whether Appellee, Dr. Lewis, failed to treat the infection
[sepsis] that caused Decedent’s death.

2. The trial court erred in finding that Appellee, Dr. Lewis, never
diagnosed Decedent with sepsis on admit into Appellee, St.
Patrick’s, even though his “Treatment Plan” for Decedent was
to treat sepsis with antibiotics and monitor.

3. The trial court erred in finding that Appellee, Dr. Lewis and/or
Appellee, St. Patrick’s, did not violate Decedent’s “Patient’s
Discharge Rights and Medicare Discharge Rights,” when
Decedent was forced discharge from St. Patrick’s by Dr. Lewis.

4. The trial court erred in accepting the Medical Review Panel’s
impeached finding that Appellants never begged and pleaded
with Appellee, Dr. Lewis, not to force discharge Decedent.

5. The trial court erred in not finding that the Medical Review
Panel’s Opinion and Findings and Appellee, Dr. Lewis’
testimony, were not impeached by testimony of Dr. Jon Gray,
which created a genuine issue of material fact, pursuant to
La.C.C.P. Article 967.

6. The Trial court erred in not admitting Appellee, Dr. Lewis’,
signed and authenticated Death Summary (V2 P293) and Death
Certificate (V2 P294).

7. The trial court erred in finding that there were no genuine
material facts or evidence to show Decedent was diagnosed
with sepsis on admit from Appellee St. Patrick’s emergency
department into its hospital ward by Appellee, Dr. Lewis.

ASSIGNMENT OF ERROR NUMBER TWO:

We will address assignment of error number two because the crux of the

matter is whether Dr. Lewis “diagnosed” Ms. LeBlanc with sepsis during her

February, 2011, hospital stay at St. Patrick’s and as such, is outcome determinative.

Plaintiffs contend that the trial court erred in finding that Dr. Lewis never

diagnosed Ms. LeBlanc with sepsis on admit into St. Patrick’s, even though his

treatment plan for her was to treat sepsis with antibiotics and monitor. We disagree.

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In Wofford v. Dunnick, M.D., 09-1309, pp. 6-7, (La.App. 3 Cir. 4/14/10), 36

So.3d 370,373-74 , this court discussed the standard of review to be employed by

an appellate court when reviewing a motion for summary judgment filed in a

medical malpractice case:

A motion for summary judgment is reviewed on appeal de novo, with
the appellate court using the same criteria as the trial court to
determine whether summary judgment is appropriate; whether there is
a genuine issue of material fact, and whether the movant is entitled to
judgment as a matter of law. La.Code Civ.P art. 966; Samaha v. Rau,
07-1726 (La. 2/26/08), 977 So.2d 880. A motion for summary
judgment shall be granted if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to material fact, and the
mover is entitled to judgment as a matter of law.” La.Code Civ.P. art.
966(B). Louisiana Code of Civil Procedure Article 966(C)(2) provides:

The burden of proof remains with the movant. However,
if the movant will not bear the burden of proof at trial on
the matter that is before the court on the motion for
summary judgment, the movant’s burden on the motion
does not require him to negate all essential elements of
the adverse party’s claim, action or defense, but rather to
point out to the court that there is an absence of factual
support for one or more elements essential to the adverse
party’s claim, action, or defense. Thereafter, if the
adverse party fails to produce factual support sufficient to
establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of
material fact.

Djorghi v. Glass, 09-461, p. 2 (La.App. 3 Cir. 11/4/09), 23 So.3d 996,
998, writ denied, 09-2614 (La. 2/5/10), 27 So.3d 306. In Djorghi, we
explained the burden of proof in a medical malpractice case,
particularly in the context of a motion for summary judgment filed by
a defendant, noting:

Louisiana Revised Statutes 9:2794(A) provides “that a
medical malpractice plaintiff must establish the following
elements by a preponderance of the evidence: (1) the
standard of care applicable to the defendant; (2) that the
defendant breached the standard of care; and (3) that
there was a causal connection between the breach and the
resulting injury.” See Brown v. Riverland Med. Ctr., 06-
1449, p. 4 (La.App. 3 Cir. 3/7/07), 952 So.2d 889, 892,
writ denied, 07-0740 (La. 6/1/07), 957 So.2d 177. Expert
testimony is generally required for a medical malpractice
plaintiff to establish the applicable standard of care and
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breach of that standard of care. Samaha, 977 So.2d 880.
Thus, the defendant is only required to point out that
there is an absence of factual support for one or more
elements essential to the plaintiff’s claim to support that
there is no genuine issue of material fact. Id.

In granting St. Patrick’s motion for summary judgment in the present case,

the trial court stated:

I cannot accept an unsigned affidavit. I cannot accept uncertified
medical records. Now, the -- there are some certified medical records,
but I think they all have to do with Dr. Lewis and what he did, didn’t
do, and things of that sort. I don’t see where St. Patrick’s -- I don’t
see any evidence that -- from the plaintiff that presents a genuine issue
of material fact as it relates to St. Patrick’s Hospital.

In so ruling, the trial court noted “[I] don’t have enough before me from the

plaintiffs to defeat St. Patrick’s motion for summary judgment.”

In granting Dr. Lewis’ motion for summary judgment in the present case, the

trial court stated:

When I looked at the record that now has been identified as the
differential diagnosis, that’s the first thing that came to my mind.
These are the list of possible problems, causes, and concerns. And
Mrs. [sic] LeBlanc, as I understand it, was alert when she got to the
hospital. I know she was alert upon discharge.

....

[I] think it’s significant that she was already on antibiotics. . . .

[I]’m going to grant the motion for summary judgment on behalf of
Dr. Lewis. . . . If this patient had been diagnosis [sic] with sepsis it
would be inconceivable how one could not have committed
malpractice by not treating it. The objective signs of sepsis was not
there. It was considered, entertained, and found not to be the case
upon the -- I don’t know, the admission and the discharge.

In so ruling, the trial court noted that. . . . “Shanafield’s [sic] affidavit is

insufficient to create an issue there, because she was not diagnosed with sepsis.”

Plaintiffs contend that Dr. Shaneyfelt’s affidavit proves that Defendants

breached the standard of care owed to Ms. LeBlanc when Dr. Lewis diagnosed her

with sepsis after admitting her to St. Patrick’s, subsequently failed to treat her, and
6

prematurely discharged her, which ultimately led to her death. The Plaintiffs’

argument is misplaced.

What is crucial is that Dr. Lewis made a differential diagnosis, which

included several possible diagnoses, one of which was sepsis. A differential

diagnosis is essentially a list of symptoms/disorders that could be the cause of

symptoms an individual presents with. A differential diagnosis generally takes

into account, among other things, the patient’s gender, age, occupation, and

medical and family history. Dr. Lewis did not treat Ms. LeBlanc for sepsis

because her clinical exam was not consistent with sepsis, and she displayed no

signs of being septic during admit, throughout her hospital stay, or upon discharge.

Thus, Plaintiffs’ argument fails given that Dr. Lewis never diagnosed Ms. LeBlanc

with sepsis.

Contrary to the Plaintiffs’ argument, the trial court had a clear grasp of the

evidence, and/or lack thereof, and it was not under the mistaken belief that St.

Patrick’s and Dr. Lewis breached the standard of care owed to Ms. LeBlanc when

Dr. Lewis diagnosed Ms. LeBlanc with sepsis, and thereafter failed to treat her

accordingly. Rather, Plaintiffs failed to provide any evidence against St. Patrick’s,

and the evidence they did provide against Dr. Lewis simply confirmed that he

made a differential diagnosis in which sepsis was one of several possible diagnoses

that was subsequently ruled out.

Here, as in Djorghi, 23 So.3d at 999, we find that without sufficient

evidence produced by the Plaintiffs to establish that they will be able to prove their

claim at trial, no genuine issue of material facts exists, and the Defendants’ motion

for summary judgment was properly granted.

ASSIGNMENTS OF ERROR NUMBER ONE, THREE, FOUR, FIVE, SIX,
and SEVEN:

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Plaintiffs assert seven assignments of error as to why the trial court erred in

granting Defendants’ motions for summary judgment. Our finding in assignment

of error number two pretermits the other six assignments.

CONCLUSION:

For the foregoing reasons, the trial court’s grant of summary judgment in

favor of CHRISTUS Health Southwestern Louisiana d/b/a CHRISTUS St.

Patrick’s Hospital and Ronald M. Lewis, M.D., is affirmed. All costs of this

appeal are assessed to Plaintiffs.

AFFIRMED.

8

STATE OF LOUISIANA

THIRD CIRCUIT COURT OF APPEAL

17-585

JACQUELINE A. BRENNER, ET AL.

VERSUS

DR. RONALD A. LEWIS, ET AL.

Cooks, J., dissents.

The majority rests its decision on the same misplaced focus as did the trial

court, summing up its position as: “Dr. Lewis did not treat Ms. Leblanc for sepsis

because her clinical exam was not consistent with sepsis, and she displayed no

signs of being septic during admit, throughout her hospital stay, or upon discharge.

Thus, Plaintiffs’ argument fails given that Dr. Lewis never diagnosed Ms. Leblanc

with sepsis.” But this is not the issue here on summary judgment. The

determinative issue in this summary judgment proceeding, as in all summary

judgment proceedings, is whether or not Plaintiffs, as the non-moving party, have

shown that there are genuine issues of material fact that are unresolved at this stage

of the proceeding precluding summary judgment in favor of Defendants. At the

outset I concede that the Plaintiffs fail to meet this burden as regards St. Patrick

Hospital. However, I strongly disagree that the Plaintiffs fail in this regard

concerning Dr. Lewis.

Plaintiffs put forth expert medical evidence by Dr. Terry Shaneyfelt, M.D.

(Dr. Shaneyfelt) who states in his affidavit:

It is part of training and normal standard practice of internists,
family practitioners, and hospitalists to prescribe antibiotics for
possible infection.

1

The Medical Review Panel members say “The medical records do not

indicate a strict medical necessity for antibiotics during her stay or upon

discharge.” But Dr. Shaneyfelt and Dr. Gray say the standard of care is “to

prescribe antibiotics for possible infection” and “if there is any suspicion of serious

infection then give [a] broad spectrum antibiotic.” Dr. Shaneyfelt chronicles in his

affidavit the medical evidence of record that he says shows signs of possible

infection. My review of the record discloses much support for that position. The

history given when Judith was admitted to the emergency room indicates she had:

Fever, chills, sweaty, chest pain, breathing difficulty, short of
breath, headache, nausea, vomiting, shoulder/arm pain, weakness,
lightheaded, dizzy, headache, abdominal pain, recent illness, sore
throat, dental problems, cough, diarrhea, black/bloody stools,
problems urinating, joint pain, legs/ankles swelling, swollen
glands, and confusion.

According to Dr. Shaneyfelt and Dr. Jon Gray (Dr. Gray), Judith’s treating

physician at Lake Charles Memorial Hospital (Memorial), these are classic signs

and symptoms of possible infection and additionally indicate the possibility of

sepsis. Dr. Lewis likewise testified in his deposition that “Sepsis is a criterion by

which you classify people with infection. They are to meet the criteria of

fever, elevated white count, elevated heart rate, bacteremia in the

bloodstream, some sign of infection causing illness.” Despite the fact that Dr.

Lewis documented all but one of these criteria he maintains he saw no symptoms

or evidence in lab reports that Judith had an infection when she was admitted to St.

Patrick Hospital or when he discharged her. As relates to her discharge, the

evidence shows Judith’s lab reports including blood work were not ready on the

day of her discharge until many hours after Dr. Lewis discharged her, thus he

could not have known the results nor considered them. He testified that he would

2

not discharge a patient without seeing all the results of testing yet he discharged

Judith many hours before the last round of her Hematology and Blood Chemistry

test results were available. He says he did this because her family was pressuring

him to release her from the hospital. But Plaintiffs maintain they begged him not

to release her because she was too ill. When pressed in his deposition on this

question Dr. Lewis responded that he could not say Plaintiffs were wrong in this

regard, in other words, he admits that Plaintiffs did not want Judith released from

the hospital yet he continues to maintain he released her before her final blood

work was complete in deference to her family’s wishes. That blood work showed

abnormal results in every category according to the reference on the reports.1

Dr. Lewis’ testimony that he saw no symptoms or evidence in lab reports

that Judith had an infection when she was admitted to St. Patrick’s Hospital or

when he discharged her is at odds with Dr. Shaneyfelt’s affidavit and according to

Dr. Shaneyfelt, is at odds with the medical record. This presents a major genuine

issue of material fact which cannot be resolved on summary judgment. Summary

judgment is not a substitute for a trial on the merits and the court cannot engage in

1
Hematology
WBC 10.6 H (4.5-10.0)
HCT 47.1 H (37.0-47.0)
PLT 126 L (130-400)
MCH 32.7 H (27-32)
NEUT 7.4 H (1.4-7.0)
MON 0.9 H (0.1-0.8) (H=high; L=low)
Chemistry
Sodium 132 L
Chloride 95 L
BUN 28.0 H
Calcium 8.4 L
Bili Total 2.2 H
AST/SGOT 61 H
ALT/SGPT 175 H
LD 405 H
Albumin 3.4 L
ALKP 141 H (H=high; L =low)

3

weighing evidence or making credibility determinations between adverse expert

witnesses. The medical record shows Dr. Lewis did in fact recognize that Judith

was being treated for an infection related to her jaw and molars when admitted to

St. Patrick, and according to his own notes he included in his plan of treatment the

administration of antibiotics. Likewise, the record clearly shows, and Dr.

Shaneyfelt testifies, that no antibiotics were given during Judith’s hospital stay or

upon her discharge from the hospital. Dr. Gray testified that a doctor can make a

presumptive diagnosis of sepsis based on symptomology and according to Dr.

Shaneyfelt such symptomology was present when Judith presented at St. Patrick

Emergency Room (ER). Dr. Gray also testified that “if there is any suspicion that

the person has some serious infection then he would use a broad-spectrum

antibiotic to cover all of our bases.” And that is precisely what he did when Judith

was admitted to the ER at Memorial and it is what Dr. Shaneyfelt opines should

have been done at St. Patrick by Dr. Lewis but was not done. It is for the trier of

fact to determine if such failure in these circumstances falls below the standard of

care and such unresolved issue precludes summary judgment.

The record further contradicts Dr. Lewis’ assertion that he did not diagnose

sepsis and did not see the need to administer antibiotics because he “saw no

evidence to support either.” In Dr. Lewis’ Plan of Treatment, based on the initial

information concerning Judith’s condition and the possible causes of the syncope

episode which caused her to go to the ER at St. Patrick, Dr. Lewis notes his plan of

treatment includes “antibiotics and monitoring for osteomyelitis and/or cellulitis of

the right angle of the jaw.” Osteomyelitis is defined in Webster’s Dictionary as an

“inflammation of the bone or bone marrow, usually due to infection” and as “an

infectious usually painful inflammatory disease of the bone often of bacterial

4

origin that may result in the death of bone tissue.” The Free Dictionary by Farlex

defines cellulitis as “an acute, spreading, bacterial infection of the skin and

subcutaneous tissues. Cellulitis often originates from an infected wound and can

lead to serious illness in the elderly or those with compromised immune systems.”

Dr. Lewis testified in his deposition that he was aware Judith was taking the

medication Embrel for her rheumatoid arthritis and that it “inhibits the immune

system” and “can accelerate an infection.” All of this, says Dr. Shaneyfelt, shows

Dr. Lewis was at the very least aware of a possible infection for which he

should have started giving antibiotics and he was aware Judith was taking a

medication that weakened her immune system and could accelerate an infection.

In his testimony Dr. Lewis says he “notes she had been treated for right molar

infection for about a week with antibiotics and says he initially considered sepsis

as a possible cause of her problem because “[y]ou know she had a molar

infection.” In response to the direct question “Did she have a right molar infection

when you examined her in ER?” he equivocally responded:

Well, I stated that her face was swollen. Let me see. She does have
some swelling in her right face at the angle of her mandible. Some
slight erythema and slightly indurated. I mean she had some swelling
at the angle of her jaw.

Erythema is defined as a redness of the skin caused by dilation and congestion of

the capillaries, often a sign of inflammation or infection. Indurated refers to a soft

tissue that is abnormally firm due to an influx of fibrous tissue elements. See

American Heritage Dictionary, Fifth Ed., 2016 Houghton Miffler Harcourt Pub.

Co. When asked if the blood test he had run on Judith showed any sign of

infection Dr. Lewis responded “no” and maintained that the lab report showed her

white blood count was “normal.” But Dr. Shaneyfelt disputes that representation

5

pointing out the lab report shows on its face an elevated white blood cell count

which the report lists as “High,” not in normal range. Further, the medical record

shows Judith had an elevated liver function, among other abnormal findings, all of

which Dr. Shaneyfelt opines also pointed to the need to administer antibiotics.

This presents yet another significant genuine issue of material fact as to the breach

of standard of care.

The trial court and the majority place much emphasis on the notion that Dr.

Lewis made a proper “differential diagnosis” which considered multiple

possibilities as causes of Judith’s syncope episode and then ruled out a number of

possible causes leaving him to conclude that her syncope was caused by syncope.

That is meaningless and nonsensical. It is not a diagnosis. Syncope means nothing

more than passing out, and a person does not pass out without a reason. It is the

cause of the passing out episode that is the riddle to be solved. Dr. Lewis failed to

resolve this riddle but released Judith from the hospital without giving her any

antibiotics as he planned to do and as two medical experts state he should have

done.

Dr. Lewis testified regarding his hospital admit dictation when he first saw

Judith at St. Patrick as follows:

“Forty-seven-year-old white female complained of syncope with
possible seizure activity. Patient appears being postictal following an
episode of loss of consciousness.

Q. What did you make of that?

A. Well, I have to go by what I was told, and it appeared that she may
have had a seizure. And when you have a seizure, oftentimes you’re
sleepy afterwards. It’s called postictal state.

Q. You didn’t think it was anything to be concerned about?

A. Well, yeah-

6

Q. What was your concern?

A. Well, I mean, she might have had a seizure, and the question is:
Number one, is she going to have another one? Number Two is:
What caused it? (emphasis added)

Thus, according to Dr. Lewis’ own statement, his number one immediate

concern for Judith was her experiencing another seizure and it was part of his plan

to avoid that possibility by administering antibiotics and watching for worsening

signs of infection. Despite that this part of his treatment plan was readily available

to do, and according to Dr. Shaneyfelt and Dr. Gray was the prudent and

“normal standard practice,” he did not give Judith any antibiotics for possible

infection. It is important to note that Dr. Lewis explained he initially had reason to

suspect sepsis and he acknowledges that an “infection causing illness,” such as

Judith’s jaw infection, is a criterion for classifying a person as septic. His plan to

determine what was wrong with Judith was to administer a number of tests relating

to “seizure disorder; cardiac arrhythmia; vasovagal response; pulmonary

embolism; sepsis; cardiac-related arrhythmia; and narcolepsy and/or obstructive

sleep apnea” and to give her antibiotics and monitor her for signs of worsening

infection of her jaw and molar (osteomyelitis and cellulitis). Dr. Lewis

implemented all of his plan save and except for what turned out to be the most

important item, giving Judith antibiotics. According to Dr. Shaneyfelt “Had

appropriate antibiotics been given to Ms. Leblanc in a timely fashion she more

likely than not would have survived this [possible]infection.” He further states

Judith “lost her chance of survival by failing to administer appropriate antibiotics.”

In addition to a number of routine blood tests and lab work Dr. Lewis

ordered in his “plan of treatment” the following based on Judith’s history of

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“lying in bed ill for the past week” with an infection and suffering a syncope

episode and/or a seizure (emphasis added) severe enough to send her to the

ER at St. Patrick:

1. A syncopal workup, to include a workup for PE, with right
bundle branch on her EKG and right ventricular hypertrophy as
well, and tachycardia, and substernal chest pain, and a history
of lying in bed ill for the past week,[with an infection] and
edema in her lower extremity.

2. Get a tilt-table test.

3. EEG to rule out seizure activity.

4. Signal averaged ECG.

5. Echocardiogram to evaluate LVH and pulmonary hypertense.

6. Antibiotics and monitoring for osteomyelitis and/or cellulitis of the right
angle of the jaw.

The record shows the tilt-table test was negative. When questioned about

his decision to have the signal average ECG test—an electrical tracing of the heart

averaging EKG results to test for cardiac arrythmia—Dr. Lewis says there were no

signs or symptoms of cardiac arrhythmia “but given her history of having fainted

and a seizure” he thought it best to check this out as a possible cause of her

fainting/seizure. But the tests, he concluded, did not indicate this as the cause.

The next test was “negative for late potentials” in the ultrasound of the bilateral

lower extremities. This was done “to rule out DVT’s,” deep vein thrombosis,

caused by pulmonary embolism as a possible cause of her fainting or syncope.

Again, he stated that nothing he was aware of in her past medical history caused

him to consider this possibility yet he had it checked out. The test showed no

evidence of lower extremity DVT’s. Dr. Lewis says he concluded from these tests

“She doesn’t suffer from a cardiac arrhythmia that caused her to be faint, she

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doesn’t have neurocardiogenic syncope, and she doesn’t have a blood clot in her

leg that might have gone to her lung to cause her to lose consciousness.” The next

test was an echocardiogram to evaluate left ventricular and right ventricular

functions and valvular disorder which he says he tested due to her “history of

syncope.” He stated “Well, anytime anybody has a history of possible fainting,

aortic stenosis comes to mind. Now she’s a little young for aortic stenosis, but

she’s not totally out of the realm of having it - - ” (emphasis added) Although this

test showed some cause for concern which led to additional testing, Dr. Lewis

concluded “her heart was not a concern” but he ordered an echocardiogram just to

be safe.2

According to Dr. Gray and Dr. Shaneyfelt, Dr. Lewis should have exercised

the same cautionary judgment regarding a possible infection based on Judith’s

current history of infection in her jaw and signs and symptoms that the infection

was present and probably getting worse. I repeat again, Dr. Lewis implemented

his plan in every respect except one, he did not give Judith any antibiotics to

combat a possible infection (or continued infection) despite his stated plan to

do so. Dr. Shaneyfelt chronicles in his affidavit medical evidence that he says

indicated Judith had an infection and established a basis for administering

antibiotics to her and he does not limit the need for antibiotics to a diagnosis of

sepsis. The failure to give her antibiotics, says Dr. Shaneyfelt, was

malpractice in these circumstances. Dr. Gray’s testimony indicates the same.

Dr. Lewis admits he was made fully aware that Judith had been lying in bed ill for

2
Two other tests were performed on Judith but these were not ordered by Dr. Lewis. One
was a chest x-ray done in the ER when she first arrived, it was negative. There was also a CAT
scan of the brain done in the ER and it was negative.

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a week before coming to the ER with an infection for which she had been on

antibiotics. In Dr. Gray’s words, Dr. Lewis should have covered his bases with

administration of a broad spectrum antibiotic for the same rationale that Dr. Lewis

says he performed all of the tests listed in his plan of treatment, i.e. it was prudent

to do so and is was indicated by Judith’s current medical history, her physical

exam upon admit to the ER at St. Patrick, and her initial blood work. Dr.

Shaneyfelt’s affidavit, Judith’s medical record, and Dr. Lewis’ own testimony

indicate Dr. Lewis had more reason to follow his own plan of treatment to

administer antibiotics and monitor the infection site than he did to perform several

of the tests he thought best to do for good measure.

Dr. Lewis testified he would not have released Judith before knowing the

result of all of these tests. Good medicine indeed. But, I repeat here, the record

shows that Dr. Lewis released Judith many hours before the results of her last

Hematology and other lab work were ready and the record shows that every

category on her Hematology report was abnormally high or low and every category

on her Blood Chemistry work was abnormally high or low. Thus, despite the fact

that the litany of tests laid out in Dr. Lewis’ plan of treatment offered no

explanation for Judith’s condition Dr. Lewis released Judith having never given

her any antibiotics as planned and without giving her any to take at home.

According to Dr. Lewis, after he reviewed all of these test results, he concluded

that the cause of her syncope or fainting episode and possible seizure was

“syncope.” But syncope is not a diagnosis for syncope! Dr. Lewis says he

discharged Judith suspecting sleep apnea might be at the root of her problem but

she would have to go for more testing to determine that at a later date. Thus, Dr.

Lewis released Judith from the hospital without finding any answer to what he says

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were his two chief concerns, (1) would she suffer another seizure and (2) what

caused the syncope/seizure. Dr. Lewis says he would not have released Judith

before looking at all of the results of the tests ordered but he also admits he is

unable to produce proof that he looked at those results before discharging Judith

and says there is no indication in his progress notes to show he looked at the

results prior to discharge.

Q. I’m looking for your progress notes with—showing that you
looked at these test results before you discharged her-

A. They may not demonstrate that.

Q. Do any exist?

A. Not that I’m aware of.

Q. Did you write any?

A. No.

In his deposition he also says he “might have” looked at her test results at

12:50 “on the morning of the 25th,” her date of discharge. He further testified that

his discharge summary is the only document in the record that indicates he looked

at the test results prior to discharge but Dr. Shaneyfelt disputes whether the

document is actually a discharge summary. Dr. Lewis says that the document

titled “Discharge summary” is in fact his discharge summary and that the date on it

is a mistake. But Dr. Shaneyfelt says, as an expert witness, that he believes this to

be a history and physical because it was dictated on the day of her admission to St.

Patrick. Additionally, when asked in his deposition “When you discharged

[Judith] what made you believe she didn’t have sepsis?” Dr. Lewis answered

“Because of her echocardiogram and her other tests I was convinced she had sleep

apnea” But Dr. Lewis’ alleged reliance on the various tests results as well as the

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final blood work is called into serious question by his own testimony to the effect

that he can point to no charting or progress notes to show he looked at the test

results before discharging Judith and the record shows her final Blood Chemistry

and Hematology tests were not available until many hours after her discharge. All

of this raises genuine issues of fact regarding the propriety of Dr. Lewis’ care of

Judith and relates to his credibility.

Contrary to the trial court’s and majority’s assertions Dr. Shaneyfelt’s

affidavit as a whole does not solely rely on the notion that Dr. Lewis diagnosed

sepsis and failed to treat septicemia. A fair reading of the affidavit paints the

picture that Dr. Lewis recognized Judith had an infection of the jaw, failed to treat

that infection with antibiotics, and his failure to administer antibiotics “to cover the

infection of her jaw,” (which Dr. Lewis made part of his plan for treatment)

“resulted in sepsis and death.” According to Dr. Shaneyfelt this is a breach of

the standard of care. His opinion is bolstered by Dr. Gray. This does not equate

to the simple proposition that the trial judge and the majority rely on in granting

summary judgment, i.e. that Shaneyfelt relied on the mistaken belief that Dr. Lewis

diagnosed sepsis and failed to give antibiotics under such diagnosis. Shaneyfelt

relies on the medical records to state his expert opinion that: (1) significant signs

of infection of the jaw were present and noted by Dr. Lewis; (2) Dr. Lewis

acknowledged these signs and the infection of the jaw which Dr. Lewis said at that

time likely resulted from infection of the molar; (3) Dr. Lewis failed to follow his

own stated plan of treatment to prescribe antibiotics; (4) the failure to prescribe any

antibiotics to address the infection of the jaw “resulted in sepsis and death.” Thus,

Dr. Shaneyfelt’s affidavit and the medical records relied on by him establish many

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genuine issues of material fact precluding summary judgment. Dr. Shaneyfelt

states in his affidavit:

Dr. Lewis notes in the review of systems he documented in his
“Discharge Summary” (though I believe this to be a history and
physical since it was dictated the day of admission and not the day of
discharge) that “they do report some fever and chills associated
with infection in her jaw and molars . . .”. He goes on to note in his
physical examination that Ms. Leblanc has “some swelling on her
right face at the angle of the mandible . . . has some slight
erythema and is slightly indurated.” He notes in the laboratory
data section of this summary that the “white blood cells are 10.6
thousand” (which is elevated per the reference range on the
laboratory report.) All this supports that the patient has an
infection, likely of the jaw related to the molar infection. Dr.
Lewis documents “E. Sepsis” in his note and under plans writes “ 6.
Antibiotics and monitoring for osteomyelitis and/or cellulitis of
the right angle of the jaw.” Unfortunately, no antibiotics are
prescribed by my review of the “Doctor’s Orders” and the “MD
Medication Administration Detail Report.” Furthermore, Ms. Leblanc
was discharged from the hospital on February 25, 2011 without any
prescription for antibiotics. . . Review of the “Discharge Home
Medication List” reveals no antibiotics. It is part of training and
normal standard practice of internists, family practitioners, and
hospitalists to prescribe antibiotics for possible infection.
According to the Death Certificate, Ms. Leblanc died on February 27,
2011 from “sepsis.” Had appropriate antibiotics been given to Ms.
Leblanc in a timely fashion she more likely than not would have
survived this infection. She lost her chance for survival by failing
to administer appropriate antibiotics. In summary, Ms. Leblanc
was not given appropriate antibiotics to cover infection of her jaw
which resulted in sepsis and death, a breach of the standard of
care. This breach led directly to her death.

My reading of Dr. Shaneyfelt’s affidavit coupled with my thorough review

of the record leads me to conclude that Plaintiffs have met their burden to establish

that there are many unresolved genuine issues of material fact that cannot be

resolved on summary judgment.

Additionally, Judith died 40 hours after being sent home from St. Patrick

and, according to Dr. Lewis, who signed her death certificate, the cause of her

death was sepsis. It is very telling that when the ER doctor at Memorial

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telephoned Dr. Lewis about Judith he knew she had septicemia before even seeing

her. This too, raises questions over the propriety of Dr. Lewis’ “differential

diagnosis” at St. Patrick and presents a genuine issue of fact as to his negligence in

that regard. The trial judge and defendant say the mention of sepsis in Judith’s

medical records at St. Patrick was part of a “differential diagnosis” not the actual

final diagnosis of Judith’s problem. But the final diagnosis allegedly arrived at by

Dr. Lewis is not a diagnosis at all. According to Dr. Lewis, as reflected in the

medical records, his “differential diagnosis,” which he identifies in the medical

records as his “secondary diagnosis” initially included: “(1)Rheumatoid arthritis,

(2) Esophageal reflux, (3) Chronic pulmonary heart disease, (4) swelling of limb,

(5) unspecified septicemia, (6) Sepsis, (7) disorder of teeth and supporting

structures, and (8) Obstructive sleep apnea.” According to the defense, given all of

the clinical symptoms, lab reports, and charted stats of this patient, and after

considering all of these possibilities as the cause of Judith’s being admitted to the

hospital foaming at the mouth, incoherent, feverish, with an abnormal white blood

cell count, and elevated heart rate, Dr. Lewis concludes that his “Primary

Diagnosis” is “syncope and collapse,” yet his plan for treatment included the need

to administer antibiotics and to monitor the patient’s jaw infection. Dr.

Sahneyfelt’s affidavit and the medical records he relied on as the basis for his

expert opinion raise genuine issues of material fact concerning Dr. Lewis’

negligence in both his diagnosis and treatment of his patient, all of which precludes

summary judgment. For these reasons I respectfully dissent.

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