Third Circuit Reverses Trial Court in Rare Finding of Abuse of Discretion in Med Mal Action

In a medical malpractice lawsuit, the plaintiff faces a three-part evidentiary burden. First, she must present evidence to establish the applicable standard of care. Next, she must show that a breach of that standard of care occurred. Finally, she must demonstrate a link between that breach and the injury that resulted. In nearly all cases, the opinion of a medical expert is an essential element of the required evidence. Without a qualified medical expert’s opinion, the plaintiff risks losing at summary judgment due to a lack of material issues of fact to be determined at trial. The availability of an expert’s opinion was at the center of the recent case in the Third Circuit, Dupree v. Louisiana Medical Mutual Insurance Co.

Katie Dupree became a patient of Dr. Jose Dorta, an OB/GYN specialist, in 2008 when she was pregnant. On January 9, 2009, Dupree went to the ER at Opelousas General Hospital with facial swelling, vomiting, and a severe headache. She was told to stop working and rest at home due to elevated blood pressure. Two weeks later, Dupree again went to the ER with elevated blood pressure and other symptoms that suggested pregnancy complications. Dr. Dorta did nothing to treat these issues and did not suggest an early delivery of Dupree’s baby. In fact, Dr. Dorta merely sent Dupree home with the suggestion of bed rest. Two days later, Dupree was found face down and unconscious. Tragically, her baby was stillborn the following day, at which point Dupree was then taken off life support and died. Dupree’s parents requested review by a Medical Review Panel in June 25, 2009. The panel rendered its finding of no malpractice on Dr. Dorta’s part on May 12, 2010. Sixteen days later, Dupree’s parents filed suit against Dr. Dorta and his medical malpractice insurance carrier, Louisiana Medical Mutual Insurance Co. After overcoming a series of exceptions filed by the defendants, the plaintiffs requested a status conference to schedule a trial date. Immediately thereafter, the defendants filed a motion for summary judgment. The trial judge granted the defendants’ motion based on the plaintiffs’ “failure to submit an affidavit from an expert showing a genuine issue of material fact sufficient to defeat summary judgment.” At the hearing, plaintiffs’ counsel argued that he had obtained an expert but did not submit an affidavit because the trial scheduling order called for expert reports to be exchanged several months later. The trial court disregarded this argument. It then denied the plaintiffs’ request for a new trial after they produced an affidavit from Dr. James Tappan, a board certified physician specializing in obstetrics and gynecology.

The Third Circuit Court of Appeal, mindful that a “trial court is imbued with great discretion in both pre-trial and post-trial matters,” ultimately concluded the this denial of a new trial was an abuse of that discretion. “[T]he Louisiana Code of Civil Procedure provides that a ‘new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law,’” the court reasoned, and “after reviewing the record before us, we find good and valid reasons for a new trial.” Namely, Dr. Tappan’s affidavit included “three specific acts of medical negligence … : failure to diagnose, failure to warn, and failure to timely deliver the baby.” The court noted that Dr. Tappan reported that “Dr. Dorta failed to warn Ms. Dupree and/or her family of her condition and what to look for with respect to further symptoms,” which was at odds with the Medical Review Panel’s finding that “we are sure a lengthy discussion ensued” when Dupree sought treatment. These conflicting views presented a genuine issue of material fact. Yet, the trial court “ruled on the motion for new trial without reference to the affidavit, choosing to rely instead on the fact that plaintiffs failed to take advantage of their one opportunity to present evidence.” Being careful not to “condone or legitimize the actions of plaintiffs’ counsel in failing to timely file an expert affidavit,” the court concluded that “the facts, the law, and plaintiffs’ prudence and initiative in prosecuting this case compel a finding of an abuse of discretion by the trial court,” and reversed the denial of a new trial.

The court admitted that “[r]are is the case where we find an abuse of the trial court’s great discretion.” But the Dupree case shows that a negative result at the trial level can still be overcome on appeal. Moreover, the case demonstrates the need for a skilled attorney for every step of a medical malpractice dispute.

The lawyers at the Berniard Law Firm have extensive experience litigating medical malpractice cases. If you have been injured to the negligence of a medical professional, call the firm today at 1-866-574-8005 to obtain the recovery you deserve.

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