Karen Kidd Aug. 6, 2016, 2:04pm


SHREVEPORT – While most likely of great importance to a now severely disabled man and his wife, the 2nd Circuit's recent reversal in a medical malpractice case has little legal significance, a malpractice attorney said during a recent interview.

"This case is not very important the development of the law in the area of medical malpractice," Chip Wagar, founding partner with Wagar Richard Kutcher Tygier & Luminais in Metairie, said during a Louisiana Record email interview. "It would be much more important in the development of procedural law in Louisiana, except the very rule in question has since been amended by the Legislature. Thus, the case would have limited precedential value because the rule is no longer in effect, so to speak."

Wagar, who also is an adjunct law professor at Loyola University in New Orleans, has been in civil litigation for more than three decades in a practice that includes products liability and medical malpractice.

While not of great precedential importance, the case was not without various difficulties that had to be sorted and lessons that can be learned, Wager said.

The appeals court's ruling referred to errors in the case and the plaintiff’s late filing that were problems in district court.

"I believe the court of appeals ruled as it did because the exact procedural question had never been decided before and the result in the district court was harsh," Wagar said.

The case, Francis Grayson and Anita Grayson v. Northeast Louisiana Kidney Specialists, et al., was the subject of a ruling by the Louisiana 2nd Circuit Court of Appeal in Shreveport. The appeals court reversed and remanded a ruling handed down by a 4th Judicial District Court judge last summer.

The case concerns Francis Grayson, who suffers from a number of health issues, including diabetes and was, in 2011, on kidney dialysis and was a patient of two nephrologists at Northeast Louisiana Kidney Specialists, Dr. Michael Hand and Dr. Nkeeham Anumele, according to court records. Grayson was admitted to a local hospital for surgery Dec. 7, 2011, to remove an epidural abscess in his neck, allegedly caused by an infection in the catheter through which he'd been receiving diabetes treatment. After the surgery, Grayson found he'd become a quadriplegic.

About a year after his surgery, Grayson asked for a medical review panel to look into his case, alleging Hand had failed to recognize Grayson’s complaints about pain and that the doctors failed to treat the infection before it resulted in Grayson’s becoming a quadriplegic. Almost two years after that, in October 2014, the medical review panel issued its opinion, that there was no breach of the applicable standard of care by any of the health care providers.

Grayson filed his medical malpractice case the following February against his health care providers, including Northeast Louisiana Kidney Specialists, his nephrologists and the neurosurgeon who'd been part of the surgery, Dr. Carlton R. Greer.

Less than two months after Grayson filed his lawsuit, some of the defendants filed a motion for summary judgment, arguing that more than two years had passed. They also argued Grayson didn't provide a medical expert to testify against them about the standard of Grayson’s care. Grayson opposed that motion and provided an affidavit from medical expert and nephrologist, Dr. David Martin, saying he could testify that Hand had breached the standard of care.

The case was heard Aug. 17, 2015, before 4th Judicial District Court Judge Carl Sharp, who asked Grayson’s legal counsel: "If the opposition is – if the motion to strike is granted, are you dead in the water on this thing?” Sharp repeated the question several times before announcing he would take the matter under advisement.

Sharp issued his ruling Aug. 24, a day when parties in the case were not required to be present. Sharp made an error in his ruling, stating he would grant the plaintiffs' motions to strike and for summary judgment, when he meant the defendants' motions to strike and for summary judgment.

The following Sept. 4, 2015, Sharp issued an order and minute entry correcting the mistake, which read: “This matter was taken up in open court on Aug. 17, 2015, and the court took some of the issues under advisement. The court orally ruled in open court on 8-21-15 that plaintiffs’ motions were granted. The court misspoke. This written order is the correct ruling: The motion to strike filed by the defendants on Aug. 13, 2015, is granted. The motion for summary judgment filed by the defendants on March 30, 2015, is granted. All claims of the plaintiff[s] against all defendants are denied.”

After that, Grayson appealed the denial of claims, but this time only against Hand.

In its ruling handed down last month, the 2nd Circuit reversed Sharp's ruling, based mostly on the timeliness of motions and memoranda filed the case. The appeals court found that Grayson had complied with statutory requirements and that the trial court erred when it rejected Grayson's opposition to Hand’s motion for summary judgment.

"Also, the trial court erred in granting summary judgment in favor of Dr. Hand and dismissing the plaintiffs’ claims against him, because that ruling was based upon the failure to recognize the plaintiffs’ affidavit from an expert who would testify that Dr. Hand breached the applicable standard of care," the appeals court ruling said.

Wager said he doesn't expect to see the case go before the state's Supreme Court.

"I doubt the defendants will appeal to the Supreme Court on this issue and further doubt a writ would be granted by the Supreme Court," he said. "There is no appeal of right to the Louisiana Supreme Court in such cases, which has complete discretion to accept or reject applications and given the nature of this case. This is particularly true since the rules involved in this case have since been amended and clarified, so the 2nd Circuit ruling will have little precedential impact on future cases."

The Grayson case also has some lessons, Wager said.

"The lesson I think to be learned is that litigants file things at the last minute to their peril," he said. "While this case eventually turned out favorably for the late-filing party, it could have gone the other way and considerable time and expense was probably wasted."

Organizations in this Story

Louisiana Supreme Court
400 Royal Street
New Orleans, LA 70130

Louisiana 2nd Circuit Court of Appeal in Shreveport
430 Fannin Street
Shreveport, LA 71101

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