Richey Menard v. the Regional Health System of Acadiana, LLC

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-459

RICHEY MENARD, ET AL.

VERSUS

THE REGIONAL HEALTH SYSTEM OF ACADIANA, LLC, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2017-3833
HONORABLE DAVID SMITH, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret,
Judges.

AFFIRMED.

R. Scott Iles
Attorney at Law
Post Office Box 3385
Lafayette, LA 70502-3385
(337) 234-8800
COUNSEL FOR PLAINTIFF-APPELLANT:
Richey Menard, Individually and on behalf of his daughter,
Aubrey Menard

Marc W. Judice
J. Ryan Pierret
Judice & Adley (A Professional Law Corporation)
Post Office Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
COUNSEL FOR DEFENDANT-APPELLEE:
Dr. Keith Strain

2

Pickett, J.

The plaintiff in this medical malpractice litigation appeals the trial court’s

grant of summary judgment in favor of one of the defendants. We affirm.

FACTS

On June 9, 2014, Aubrey Menard, fourteen months of age, presented to the

emergency room (ER) at Women’s and Children’s Hospital (WCH) accompanied

by her grandmother and mother. Her grandmother related that Aubrey had been

vomiting for two days and had fever of 100 degrees. The grandmother also stated

that Aubrey had a bump on her left knee and that she had quit walking a couple of

days before that day. Aubrey’s mother reported to Valerie Louviere, R.N., that

Aubrey had vomited five times since the previous night and had a temperature of

100.

Nurse Louviere performed an initial assessment and noted that Aubrey was

awake, alert, fussy, hard to console, and vomiting clear fluid during her

examination. She conducted a neurological examination on Aubrey and found that

Aubrey’s responses were within defined parameters.

Dr. Keith Strain then examined Aubrey, noting that she appeared acutely

dehydrated, was fussy, and had somewhat dry mucous membranes. He also

examined the mass in the tissue next to her left knee which he determined was

approximately one centimeter in size. Dr. Strain further noted that Aubrey refused

to put her legs down when picked up to see if she would walk. He testified that he

did not perform a detailed neurological examination because her presenting

problem was acute gastroenteritis. He explained, however, that he did perform a

neurological examination on Aubrey and found no abnormalities.

Dr. Strain ordered blood work and an x-ray of Aubrey’s left knee. The

blood work results showed only that Aubrey was dehydrated; the x-ray revealed no

acute fracture or bony abnormality. Dr. Strain diagnosed gastroenteritis and

dehydration. He ordered IV hydration and Zofran to relieve Aubrey’s nausea. Dr.

Strain later re-evaluated Aubrey, finding that she had improved and was drinking

fluids without vomiting. He discharged her with a prescription for Zofran that

dissolves on the tongue and instructions for her mother to follow up with Aubrey’s

primary care provider and to return to the ER if vomiting was not controlled with

Zofran.

Twenty-four hours later, on June 10, 2014, Ms. Menard returned with

Aubrey to WCH’s ER and reported that Aubrey had continued vomiting after she

returned home the previous day. She reported that Aubrey spit out the Zofran and

would not take it. According to Ms. Menard, Aubrey was no better and was

listless at home. On exam, Nurse Louviere found Aubrey to be awake, alert, and

oriented to her mother. Nurse Louviere noted that Aubrey was fussy during her

assessment but was easily consoled by her mother. Nurse Louviere also noted that

Aubrey was not listless and that she stood on the scale without difficulty. She

conducted a neurological examination, noting the results were within defined

parameters.

Dr. Tomas Golan examined Aubrey on this visit. He also conducted a

neurological examination on Aubrey and found her responses normal. Dr. Golan

ordered IV hydration and Zofran to relieve Aubrey’s symptoms. He reevaluated

Aubrey later at which time he admitted her to WCH in outpatient status with a

diagnosis of vomiting and dehydration.

On June 11, 2014, Aubrey was admitted to the pediatric service with a chief

complaint of vomiting and dehydration. Not long after being admitted, she

suffered from profound neurological deterioration, followed by acute respiratory

failure. A CT scan of Aubrey’s head revealed a brain tumor and massive cerebral
2

edema. Dr. Darric Baty, a pediatric neurosurgeon, was consulted. He performed a

ventriculostomy to relieve the pressure on Aubrey’s brain. After the pressure in

Aubrey’s brain subsided, Dr. Baty performed a craniotomy to remove the brain

tumor. After recovering from surgery, Aubrey suffered some permanent

neurological impairment.

Richey Menard, Aubrey’s father, individually and on behalf of Aubrey, filed

a complaint with the Commissioner of Administration as provided in the Medical

Malpractice Act. La.R.S. 40:1231.1 to 40:1231.10. The medical review panel

determined that the treatment provided by the named health care providers met the

applicable standards of care. Mr. Menard then filed suit against Dr. Strain,

Dr. Golan, and WCH, alleging that their care and treatment of Aubrey in the ER

June 9, 10, and 11, 2014, fell below the standard of care applicable to each of them

and that Aubrey suffered additional brain damage or the loss of a better chance of

recovery because of their substandard care.

In January 2018, the defendants filed motions for summary judgment. After

hearings were held on the motions, the trial court granted judgments dismissing

Mr. Menard’s claims against all of the defendants. Mr. Menard appealed only the

judgment dismissing his claims against Dr. Strain.

DISCUSSION

Mr. Menard assigns one error with the trial court’s grant of summary

judgment: the trial court failed to find that Ms. Menard’s affidavit and the

testimony of Dr. Toni Leoni create a genuine issue of material fact which

precludes summary judgment herein.

Appellate courts review a judgment granting a motion for summary

judgment de novo, using the same standard as the trial court. Thomas v. Drew, 17-

818 (La.App. 3 Cir. 3/7/18), 240 So.3d 980. A defendant who does not bear the
3

burden of proof at trial need only show “the absence of factual support for one or

more elements essential to the adverse party’s claim” to successfully support its

motion for summary judgment. La.Code Civ.P. art. 966(D)(1). The burden of

proof then shifts to the non-moving party “to produce factual support sufficient to

establish the existence of a genuine issue of material fact or that the mover is not

entitled to judgment as a matter of law.” Id.

To succeed with a medical malpractice claim, the plaintiff must show the

standard of care applicable to the defendant, that the defendant breached that

standard of care, and that the breach caused an injury to the plaintiff. La.R.S.

9:2794(A). As a general rule, expert testimony is required to prove the standard of

care, a breach thereof, and causation. Samaha v. Rau, 07-1726 (La. 2/26/08), 977

So.2d 880. Expert testimony is not required, however, when the issues presented

“are such that a lay jury can perceive negligence in the charged physician’s

conduct as well as any expert can, or . . . the defendant/physician testifies as to the

standard of care and there is objective evidence, which demonstrates a breach

thereof.” Pfiffner v. Correa, 94-924, pp. 9-10 (La. 10/17/94), 643 So.2d 1228,

1234. “Expert testimony is also required to establish causation unless the causal

connection between the breach of the standard and the plaintiff’s damages are

obvious.” Rogers v. Hilltop Ret. & Rehab. Ctr., 13-867, p. 8 (La.App. 3 Cir.

2/12/14), 153 So.3d 1053, 1060.

A defendant in a medical malpractice action does not bear the burden of

proof at trial. Therefore, Dr. Strain is only required to point out the absence of

factual support for any one of the three elements of this medical malpractice claim.

Id.

To support his motion for summary judgment, Dr. Strain introduced the

report of the medical review panel in which the three physician panel members
4

found no breach in the standard of care owed to Aubrey by any defendant. He also

introduced excerpts of his deposition testimony, the deposition testimony of the

other named defendants, and members of the medical review panel.

Dr. Strain testified that, although he failed to document it, he performed a

neurological examination on Aubrey when he treated her. He explained that he did

not perform a detailed neurological examination because the grandmother’s chief

complaints regarding Aubrey were vomiting and the bump on her knee and

because she looked dehydrated. Dr. Strain further explained that Aubrey

responded appropriately during his neurological examination of her and that he

remembered performing the neurological examination because “he hadn’t felt a

bump like [the one on Aubrey’s knee] before.” Dr. Strain’s testimony is

uncontradicted and supported by Nurse Louviere’s documented finding that her

neurological examination of Aubrey was normal.

Dr. Toni Leoni, a pediatrician who was a member of the medical review

panel, testified that under the facts of this case, the applicable standard of care

required Dr. Strain to perform a neurological examination on Aubrey. She noted

that the panel would have preferred that Dr. Strain’s neurological examination be

documented in Aubrey’s records but clarified that because he did perform the

examination he did not breach the applicable standard of care.

Dr. Lori McBride, a pediatric neurologist who served on the medical review

panel, explained that pediatric patients with brain tumors present with very

nonspecific symptoms. Dr. McBride testified that the examination performed by

Dr. Strain revealed no indicia that a radiological study of Aubrey’s brain should

have been ordered.

Dr. Baty, Aubrey’s surgeon, testified that he could not say Aubrey would

have suffered less neurological damage if he had performed her surgery two days
5

earlier because nothing established when the pressure in her brain increased. He

explained that it is hard to know whether the pressure shown on radiographs taken

of Aubrey’s brain occurred spontaneously immediately before he was contacted or

was present before that time. Dr. Baty further explained that Aubrey’s continued

vomiting could have contributed to the increased pressure in her brain.

Importantly, Dr. Baty testified that he did not have appropriate information to

opine whether Aubrey would have suffered less brain damage if the procedures he

performed had been performed on June 9. Mr. Menard did not present any

evidence on causation.

Dr. Strain’s evidence established that he did not breach the applicable

standard of care and that there is no evidence to establish whether his treatment

caused Aubrey damage. Therefore, the burden shifted to Mr. Menard to show that

a genuine issue of material fact exists as to whether Dr. Strain is entitled to

summary judgment.

Mr. Menard argues that Ms. Menard’s affidavit and a short excerpt from Dr.

Leoni’s deposition testimony create genuine issues of material fact that preclude

summary judgment. He first contends that Dr. Leoni’s testimony establishes that

Dr. Strain breached the standard of care when he examined Aubrey. Dr. Leoni

testified that because Aubrey had reportedly quit walking a couple of days before

Dr. Strain examined her “it would have been nice to have a neurologic exam

documented.” Pursuant to further questioning by counsel for Mr. Menard, Dr.

Leoni agreed “nice [is] a code word for the reasonable thing to do” and that the

standard of care for a physician is “doing what’s reasonable under the

circumstances and what other doctors [in that specialty] would do.” As discussed

above, Dr. Leoni later clarified, however, that the applicable standard of care

required Dr. Strain to perform a neurological examination, which he did. The
6

standard of care did not require him to document that he performed the

examination.

Mr. Menard argues that Dr. Strain’s testimony creates a genuine issue of

material fact because it presents a credibility issue that should be resolved a trier of

fact, not the court on summary judgment. We do not agree because Nurse

Louviere’s testimony also establishes that Aubrey’s neurological examination was

normal.

Mr. Menard does not address the essential element of causation; he urges

that causation is not before the court. Contrary to this claim, Dr. Strain asserts in

his motion for summary judgment that Mr. Menard has the burden of proving that

his treatment of Aubrey fell below the applicable standard of care and that his

substandard care damaged Aubrey.

Mr. Menard did not rebut Dr. Baty’s testimony that no evidence existed to

establish that Aubrey would not have suffered neurological damage, or suffered

less neurological damage, if he had performed surgery earlier than he did.

Accordingly, Mr. Menard failed to establish an essential element of his claim, and

Dr. Strain is entitled to judgment as a matter of law. The trial court did not err in

granting Dr. Strain’s motion for summary judgment.

DISPOSITION

The trial court’s grant of summary judgment in favor of Dr. Keith Strain

dismissing all of Richey Menard’s claims against him is affirmed. All costs are

assessed to Richey Menard.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

7