181 So. 3d 900
La. Ct. App.2015Background
- On Oct. 7, 2010 Jason Kinch went to the ER with fever, chills, nausea/vomiting, weakness, and right leg pain after a bite/scratch; Dr. Kenneth Godeaux treated and discharged him without antibiotics.
- Kinch returned Oct. 10, 2010 with marked erythema, swelling (calf ~3x size), and was diagnosed with cellulitis, compartment syndrome, and fasciitis; he underwent multiple surgeries and an 11‑day admission.
- Kinch sued for medical malpractice; defendants moved for summary judgment arguing Kinch lacked competent expert proof of standard of care, breach, and causation.
- Kinch produced an expert report (initially unsigned) and an affidavit from Dr. Shannon Stinson (board‑certified in emergency medicine and clinical informatics) opining Dr. Godeaux breached the standard of care by not treating with antibiotics and that a three‑day delay likely increased morbidity.
- Trial court admitted the affidavit/report but granted summary judgment, finding the expert opinion conclusory and speculative on causation and therefore insufficient to create a genuine issue of material fact; appellate majority affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony was required to establish standard of care, breach, and causation | Kinch: Dr. Stinson’s opinion supplies required expert proof to survive summary judgment | Defs: No competent expert evidence was timely presented to support essential elements | Court: Expert testimony was required; defendants properly pointed out absence of support under La. C.C.P. art. 966(C)(2) |
| Whether Dr. Stinson’s affidavit/report created a genuine issue of material fact on standard of care and breach | Kinch: Dr. Stinson set out that objective signs (fever, tachycardia, leukocytosis, leg pain) warranted antibiotics and that failure to treat breached the standard | Defs: The report is conclusory/unsworn (originally) and fails to tie specific facts to breach | Court: Report was conclusory as to breach and insufficiently tied to facts to defeat summary judgment |
| Whether Dr. Stinson’s opinion sufficiently established causation (that delay caused increased morbidity) | Kinch: Dr. Stinson opined it was "more likely than not" a three‑day delay increased morbidity even if extent is indeterminate | Defs: The opinion is speculative and offers no objective basis quantifying causation | Court: Opinion is speculative and indeterminate as to causation; insufficient to create genuine issue |
| Whether the trial court misapplied summary‑judgment burden shifting under La. C.C.P. art. 966 | Kinch: The court applied burdens improperly and should have construed inferences in favor of non‑movant | Defs: Proper application—movant pointed out lack of factual support; non‑movant failed to present admissible, specific factual proof | Court: No error in applying art. 966(C)(2); Kinch failed to produce sufficient factual support to meet trial evidentiary burden |
Key Cases Cited
- Schultz v. Guoth, 57 So.3d 1002 (La. 2011) (standard of review and summary‑judgment burden shifting under La. C.C.P. art. 966)
- Pfiffner v. Correa, 643 So.2d 1228 (La. 1994) (expert testimony not required where negligence is obvious to a layperson)
- Bianchi v. Kufoy, 53 So.3d 530 (La. App. 3 Cir. 2010) (causation in malpractice: need show it is more probable than not defendant’s negligence caused injury)
- Willis v. Medders, 775 So.2d 1049 (La. 2000) (on summary judgment, admissible expert opinion that would allow a juror to find a fact more likely than not should defeat summary judgment)
- Independent Fire Ins. Co. v. Sunbeam Corp., 755 So.2d 226 (La. 2000) (courts must draw inferences favorably to nonmoving party on summary judgment)