Opinion
CIVIL ACTION NO. 02-2365, SECTION "R" (5).
May 30, 2003.
ORDER AND REASONS
Before the Court is the motion of defendants, Drs. Claudio Guillermo and Thomas Kleinpeter, for summary judgment or, alternatively, motion in limine. For the following reasons, the Court GRANTS summary judgment as to plaintiff's claim against Dr. Guillermo. The Court DENIES summary judgment as to plaintiff's malpractice claim against Dr. Kleinpeter. Further, the Court DENIES defendants' motion to exclude the expert testimony of Dr. Charles Monier on the issue of causation.
I. Background
Plaintiff, Todd Siegrist, asserts that Drs. Kleinpeter and Guillermo committed medical malpractice by negligently delaying the performance of his colonoscopy, thereby increasing the chance that plaintiff would need to have his colon removed. A few weeks after Dr. Guillermo performed the allegedly delayed colonoscopy, plaintiff suffered a toxic megacolon, which required the removal of his entire colon.
Plaintiff, a 25-year-old male, first presented himself to Dr. Kleinpeter, a general practitioner, on November 23, 1999. He complained to Dr. Kleinpeter of rectal bleeding off and on for approximately two months. Dr. Kleinpeter prescribed medication for hemorrhoids. The parties dispute whether Dr. Kleinpeter indicated that plaintiff should notify him when the hemorrhoids had subsided so that a colonoscopy could be arranged. Regardless, plaintiff returned to Dr. Kleinpeter for the second and final time on December 15, 1999, this time complaining of respiratory problems. Dr. Kleinpeter arranged for Dr. Guillermo to perform a colonoscopy on plaintiff. Dr. Guillermo, a general surgeon, met with plaintiff once, on the morning of January 3, 2000, and he performed the colonoscopy that day. During the procedure, Dr. Guillermo noted an inflammatory reaction within the first 35 cm of plaintiff's colon. He opined that plaintiff had mild to moderate ulcerative colitis and planned to recommend conservative treatment. Plaintiff, however, did not return to Dr. Guillermo after the colonoscopy.
Instead, on January 6, 2000, plaintiff visited Dr. Monier, a gastroenerologist. Dr. Monier concluded, as did Dr. Guillermo, that plaintiff had a mild case of ulcerative colitis that did not require hospitalization. Ulcerative colitis is an inflammatory disease of the colon. Its course is relatively unpredictable; it can either develop slowly or it can instantaneously erupt into a severe case requiring surgery. Approximately 20-25% of patients with ulcerative colitis ultimately require surgical removal of their entire colon. An additional 5% suffer a toxic megacolon, which also requires surgical removal of the entire colon. Plaintiff's case of ulcerative colitis was slow to improve, prompting Dr. Monier to admit plaintiff to Thibodaux Regional Medical Center on January 14, 2000. The hospital treated plaintiff conservatively with medication and diet restrictions. He was discharged on January 28, 2000. Five days later, his ulcerative colitis condition flared up, prompting a return visit to Dr. Monier. Dr. Monier referred plaintiff to Ochsner in the event that colon rectal surgery was necessary. Ochsner determined that his condition had erupted into a toxic megacolon that required an immediate and total colectomy.
Plaintiff filed a complaint with the Louisiana Patient's Compensation Fund alleging that Drs. Guillermo and Kleinpeter committed malpractice in the treatment of his ulcerative colitis condition, increasing the chance that he would ultimately need a colectomy. A medical review panel comprised of Drs. Clay Craighead, Sarat Dunepudi and Robert Davis, with Jack Wise serving as chairman, unanimously held that (1) defendants did not breach the appropriate standard of care and (2) any delay in the scheduling of plaintiff's colonoscopy did not cause the medical problem that ultimately led to the removal of the patient's colon. Plaintiff's filed suit in this Court. Dr. Guillermo moves for summary judgment on the grounds that he did not breach the standard of care and that his breach, if any, did not cause plaintiff's injuries. Dr. Kleinpeter moves for summary judgment only on the issue of causation. Alternatively, defendants move to exclude the expert testimony of Dr. Monier on the issue of causation.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993). A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See Hunt v. Rapides Healthcare System, LLC, 2001 WL 1650961 (5th Cir. 2001) (citations omitted).
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. Celotex, 477 U.S. at 325, 106 S.Ct. at 2552; Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
B. Plaintiff's Claim Against Dr. Guillermo
To recover in this malpractice action, the plaintiff bears the burden of proving (1) the degree of care ordinarily exercised by a physician within the medical specialty involved; (2) that the defendant failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and (3) that as a proximate result of this failure the plaintiff suffered injuries that would not otherwise have been incurred. LA. REV. STAT. §§ 9:2794 and 40:1299.41; Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1276 (La. 1991). Dr. Guillermo moves for summary judgment on the ground that he did not breach the relevant standard of care. Plaintiff concedes that in order to establish that Dr. Guillermo breached the relevant duty of care, he must prove that Dr. Guillermo unreasonably delayed the scheduling of his colonoscopy. Plaintiff further concedes that discovery has turned up no evidence that enables him to meet this burden. Dr. Kleinpeter cannot recall when he initiated contact with Dr. Guillermo, and Dr. Guillermo has no record of when he initially received the referral for a colonoscopy. Plaintiff has therefore failed to create an issue of fact as to whether Dr. Guillermo breached his standard of care by unreasonably delaying the scheduling of the colonoscopy, and Dr. Guillermo is entitled to summary judgment. Celotex, 477 U.S. at 325, 106 S.Ct. at 2552; Lavespere, 910 F.2d at 178.
In the alternative, Dr. Guillermo moves for summary judgment on the issue of causation.
C. Plaintiff's Claim Against Dr. Kleinpeter
Dr. Kleinpeter, by contrast, moves for summary judgment on the issue of causation. Even assuming that he breached the relevant standard of care, Dr. Kleinpeter asserts, plaintiff brings no evidence that the delay in the performance of the colonoscopy caused plaintiff a "lost chance" of saving his colon. Under Louisiana law, a malpractice plaintiff may recover if he shows by a preponderance of the evidence that the defendant's negligence caused him to suffer the loss of a chance of survival or for a better recovery. Louisiana's "lost chance" doctrine is set forth in Smith v. State Dep't of Health and Hospitals, 676 So.2d 543, 544 (La. 1996), which dealt with the loss of a chance of survival. The Smith court held that when a plaintiff proves by a preponderance of the evidence that the negligence of the defendant deprived plaintiff of a chance of survival, the defendant must respond in damages. Smith, 676 So.2d at 546. The chance need not be "reasonable" or "substantial," meaning that a plaintiff deprived of an even a small chance of survival has sustained a compensable injury. Id. Indeed, The issue in a "loss of a chance" case is whether the plaintiff can prove by a preponderance of the evidence that he has lost any chance of survival because of the defendant's negligence. Courts routinely apply this "loss of a chance" standard to plaintiffs suffering injuries short of death. See Graham v. Willis-Knighton Medical Center, 699 So.2d 365 (La. 1997) (lost chance of saving a leg from amputation); Richardson v. O'Byrne, 830 So.2d 1013 (La.Ct.App. 2002) (lost chance of saving vision). One court recently applied the "lost chance" theory of recovery in a case involving negligent treatment after a colonoscopy. Holtzclaw v. Ochsner Clinic, 831 So.2d 495 (La.Ct.App. 2002).
Dr. Kleinpeter moves for summary judgment only on plaintiff's malpractice claim. Dr. Kleinpeter does not move for summary judgment on plaintiff's claim against him for spoliation.
The parties agree that plaintiff must establish the existence of a lost chance by a preponderance of the evidence. Defendant asserts plaintiff cannot meet this burden because no witness is prepared to testify that, more likely than not, plaintiff suffered a lost chance. The record indicates otherwise. Plaintiff's expert, Dr. Monier, testified that the colonoscopy should have been performed sooner than it was. (Defs.' Mot. for Summ. J., Ex. 4, Dep. of Dr. Charles Monier, at 67, 73 and 84.) He further testified that "I would believe with earlier treatment, earlier diagnoses and treatment, he would have had an enhanced chance at avoiding surgery." ( Id. 89-91.) He added that "obviously any delay is not a good thing." ( Id.) Similarly, Dr. Guillermo testified that the colonoscopy should have been performed within one week of plaintiff's first visit with Dr. Kleinpeter. ( Id., Ex. 2, Dep. of Dr. Claudio Guillermo, at 26.) It is true that Dr. Monier's choice of words is somewhat inconsistent. (Dep. of Monier, at 78, plaintiff "may have had a better chance at avoiding the colectomy.") The Court finds that fairly read his testimony as a whole creates an issue of fact on the issue of causation. Accordingly, the Court denies defendant's motion for summary judgment.
The Court concludes that Dr. Monier may testify at trial on the issue of causation. See discussion infra Part II.D.
The Court notes that Dr. Kleinpeter does not move for summary judgment on the ground that any damage award for lost chance would be speculative because of the nature of plaintiff's evidence as to the size of the lost chance. See Hebert v. Parker, 796 So.2d 19 (La.Ct.App. 2001); Lovelace v. Giddens, 740 So.2d 652 (La.Ct.App. 1999).
D. Defendants' Motion In Limine
Defendants move to exclude Dr. Monier's expert testimony on the issue of causation. The Federal Rules of Evidence govern this motion. Mathis v. Exxon Corporation, 302 F.3d 448, 459 (5th Cir. 2002). Specifically, Rule 702 provides:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
FED. R. EVID. 702. This rule applies to testimony based on scientific knowledge, but it also applies to testimony of engineers and other experts that is based on technical or specialized knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171 (1999). The rule requires the trial court to act as a "gate-keeper," ensuring that any scientific or technical expert testimony is not only relevant, but reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2795 (1993). Defendants do not challenge the relevancy of Dr. Monier's testimony. Nor do defendants challenge his credentials to testify as an expert. Instead, defendants attack the reliability of his findings as to causation.
As the party offering the expert, plaintiff bears the burden of proving by a preponderance of the evidence that the proffered testimony is reliable. Mathis, 302 F.3d at 459-60. The factors that bear on the issue of reliability include: "`(1) whether the expert's theory can be or has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error of a technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) the degree to which the technique or theory has been generally accepted in the scientific community.'" Id. (quoting Moore v. Ashland Chem. Inc., 151 F.3d 269, 275 (5th Cir. 1998)). The Court's inquiry into the reliability of expert testimony is flexible and necessarily fact-specific. See Seatrax, Inc. v. Sonbeck International, Inc., 200 F.3d 358, 372 (5th Cir. 2000).
Dr. Monier was board certified in gastroenterology in 1991. (Dep. of Monier, at 4.) His cogent explanations of ulcerative colitis and megacolon during his deposition demonstrate a thorough understanding of the medical condition at issue. (Id. at 15-18.) Before giving his deposition testimony, Dr. Monier reviewed a significant amount of literature on the disease, including several text books and review articles. ( Id. at 1824.) Based on his experience and this literature review, Dr. Monier opined that 20-30% of patients with ulcerative colitis ultimately require surgery, and that the reasons why these patients require surgery and that others do not is "not clear." ( Id. at 22.) Dr. Monier further testified that "I would believe with earlier treatment, earlier diagnoses and treatment, he would have had an enhanced chance at avoiding surgery." ( Id. 89-91.) Defendants characterize this testimony as to causation as conclusory and speculative. They assert that it lacks any foundation in literature. Dr. Monier, however, asserted that "[t]here is no study I can refer to that will tell me the answer to [the issue of causation] because they can't withhold therapy and do controlled trials and allow us to know at what point time comes into play and allows the disease to progress." ( Id. at 93.) His opinion cannot be scientifically tested. Mathis, 302 F.3d at 459-60. This does not mean that the opinion is necessarily unreliable. The Court finds that his opinion is sufficiently reliable because it is based on his experience as a gastroenterologist. Further, the Court notes that Dr. Guillermo came to a similar conclusion on the issue of causation. The Court finds that Dr. Monier's testimony as to causation is sufficiently reliable to reach the jury, which can accord whatever weight to the opinion it finds appropriate. Defendants' motion in limine is denied.
III. Conclusion
For the foregoing reasons, the Court GRANTS defendants' motion for summary judgment as to plaintiff's claim against Dr. Guillermo. The Court DENIES defendants' motion for summary judgment on plaintiff's malpractice claim against Dr. Kleinpeter. The Court DENIES defendants' motion to exclude the expert testimony of Dr. Monier on the issue of causation.