Louisiana Record

Tuesday, November 12, 2019

District court judge throws out wrongful death lawsuit levied against the federal government


By Payton Kuhn | Jun 1, 2019

Medical malpractice 07

NEW ORLEANS – Responding to a motion submitted by the U.S. government to dismiss both an expert's testimony and a lawsuit regarding a purported wrongful death and multiple claims of the Federal Tort Claims Act, a judge within the U.S. District Court of the Eastern District of Louisiana granted each motion, thus ending the lawsuit.

The plaintiffs, Jay Holt Fulmer and Christina MacDonald, claimed that multiple doctors neglected and failed to “prevent, diagnose and treat,” the breast cancer that led to the death of Catherine Fulmer. Jay Holt Fulmer was previously married to the deceased, and MacDonald is their daughter.

They claimed that during the few years prior to her death on March 19, 2015, Catherine Fulmer had visited doctors – including Manuel Imseis and Cynthia Bartholomae – for a variety of chronic conditions. Each doctor she had visited had recommended Fulmer proceed with a pap smear and detailed the dangers of not doing so. However, each time Fulmer rejected to do so and on one occasion failing to attend a scheduled mammogram.

The U.S. government in response had sought to exclude the plaintiffs’ testimony of Dr. Maxwell Axler, to which Judge Barry W. Ashe found had failed to “identify the basis and reasons” regarding the standard of care Fulmer received. Ashe also detailed multiple other shortcomings the testimony offered, including the fact that Axler had not fulfilled requisite expertise in oncology or pathology, regardless of his experience in the medical field.

Ashe also granted the government’s motion to dismiss the case with summary judgment, finding that the plaintiffs had not sufficiently proved they would offer a testimony that reasonably proves the malpractice they claim occurred.

The judge concluded that the case be dismissed with prejudice, and that no further litigation could be attempted in regard to the lawsuit.

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