In November of 2005, Shane Kerry checked into the ER at West Calcasieu Cameron Hospital in Sulphur, Louisiana after fracturing the heel bone in his right foot. Kerry was examined by Dr. Charles Pearson, who discharged him later in the day with instructions to report for a follow-up at the LSU Medical Center in Shreveport the following week. As he was being transported back to his home, Kerry detoured to another ER, this time at the Christus St. Frances Cabrini Hospital in Alexandria. There, Kerry underwent surgery on his heel by a podiatric specialist. In September of 2008 Kerry filed a suit against Dr. Pearson, alleging that as a result of “delay, negligence, and deviations from the standard of care” on Dr. Pearson’s part, he suffered “extreme disability, loss of sensation, and tissue necrosis with loss of muscle, tendon, skin, and subcutaneous tissue” around his heel. Kerry argued in his complaint that Dr. Pearson was negligent in failing to immediately decompress his foot, perform surgery, call in an orthopaedic surgeon, or arrange for his immediate transport to a hospital willing to properly treat him.
According to Louisiana procedure in medical malpractice cases, Kerry’s complaint was submitted to a state medical review panel. On June 5, 2009, the panel returned a unanimous opinion that “the evidence [did] not support the conclusion that [Dr. Pearson] failed to comply with the appropriate standard of care as charged in the complaint.” Accordingly, Dr. Pearson filed a motion for summary judgment with the trial court, requesting that the suit be dismissed on the grounds that Kerry could not establish that Dr. Pearson had failed to meet the applicable standard of care in his treatment of Kerry’s foot.
In support of his motion, Dr. Pearson included the written opinion of the medical review panel, the affidavits of two doctors who sat on the review panel and who held licenses to practice emergency medicine in Louisiana, the medical records from Kerry’s visit to the ER at West Calcasieu Cameron Hospital, and the discharge summary prepared by the podiatry specialist who treated Kerry at Cabrini Hospital. In his response, Kerry offered the affidavits of his mother and brother, both of whom suggested that there were clear indications that Kerry was in dire need of surgery when he entered the West Calcasieu Cameron ER, but that Dr. Pearson refused to perform it because Kerry lacked health insurance and couldn’t afford the procedure. Kerry also attacked the accuracy medical records from his stay at that hospital, alleging that Dr. Pearson prepared them and that they did not reflect the severity of his injury. The trial court granted Dr. Pearson’s motion and dismissed Kerry’s claim because it “did not find that the submissions at th[at] point [were] adequate to establish a genuine issue of material fact as to the burden that is required under the unique specialization of medical malpractice.” Kerry appealed.
The Third Circuit Court of Appeals reviewed the state of medical malpractice law in Louisiana:
“Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony.” Samaha v. Rau, 977 So.2d at 884 (La. 2008).
In examining the record, the court concluded that the trial court was correct in holding that Kerry failed to offer sufficient evidence to establish that, during a trial, he would be able to prove that Dr. Pearson was negligent. The court’s decision rested heavily on the fact that Kerry was unable to produce any expert testimony to support his negligence theory. Thus, the court concluded that Pearson’s motion for summary judgment was properly granted, and affirmed the decision.
This case is yet another in a line of examples demonstrating the uniqueness and complexity of medical malpractice lawsuits. The testimony of an expert witness is absolutely essential for establishing the standard of care and explaining how a doctor failed to meet it. Even in cases of so-called obvious negligence, a plaintiff’s case is nearly always made stronger by the opinion of a qualified expert. Here, Kerry was not even able to tell his story to a jury because he had expert to rely on to back up his theory of negligence.
If you have been injured by a doctor or other medical provider, call the Berniard Law Firm toll-free at 1-866-574-8005 to speak with an experienced medical malpractice attorney who can help.