Louisiana Third Circuit Court of Appeal grants dismissal in medical malpractice case

By Robert Davis | Mar 21, 2018

LAKE CHARLES — On March 7, Louisiana's Third Circuit Court of Appeal dismissed Justin Thomas' claims of medical malpractice against Dr. Otis Rashad Drew after Thomas suffered a brain injury from falling into a coma while he recovered from shoulder surgery. 

Judge Billy Ezell presided over the case while Judge Sylvia R. Cooks concurred with the ruling. 

Thomas filed suit against Dr. Drew, the anesthesiologist, Lafayette Surgicare, Lafayette Surgery Center and The Regions Health System of Acadiana on Aug. 26, 2017, claiming that he was released too early after having surgery on his right shoulder.

The court noted that when Thomas was admitted for care, his pain was a six out of ten. He also liked to work out heavily and frequently, perform manual labor and was considering joining the armed forces in the near future. 

A medical review board rendered an opinion on May 26, 2017, stating that all parties involved in the surgery followed the proper protocols of care, according to the court decision. 

The surgery took place on July 1 and lasted less than three hours. During that time Thomas was administered a nerve blocker, ropivacaine, and fentanyl and propofol. Doctors also administered anesthetics and medication to control shivering. 

Afterward, Thomas woke up in severe pain, around 12:05 p.m., according to the decision. Doctors then gave him 5mg of morphine and another dose of ropivacaine. He was observed and monitored until nearly 2:00 p.m. when he was released into the care of his parents. He was prescribed oxycodone for his pain.

Later that night, Thomas fell into a coma that lasted five days after taking a dose of oxycodone, causing him to lose function on his left side and leaving him with a mild brain injury. 

According to the decision, Thomas opposed the findings of the medical review board with an affidavit from Dr. Albert Gros, an anesthesiologist and pain management physician. Dr. Gros argued that Thomas was not monitored long enough before being discharged. 

Under Louisiana law, supporting and opposing affidavits by experts testifying against a physician must be practicing medicine at the time of their testimony, have expertise in the accepted standards of medical care regarding the issues in the lawsuit, be qualified to offer an opinion and be licensed by the Louisiana State Board of Medical Examiners.

Dr. Drew had disputed Dr. Gros' affidavit because Dr. Gros is not an orthopedic surgeon.

The court argued that even though an expert in orthopedic surgery is not required to opine on his case, Dr. Gros’s affidavit was not enough to establish that there was a breach of the standard of care. According to the decision, the affidavit did not provide supporting underlying facts legally sufficient to defeat Dr. Drew's motion for a summary judgment, prompting a ruling in favor of Dr. Drew.  

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