Nasset v. United States of America

Filing 58

ORDER AND REASONS: IT IS ORDERED that 55 Motion for Partial Summary Judgment filed by the Defendant is DENIED as set out in document. Signed by Judge Jay C. Zainey on 9/11/2020. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KENNETH NASSET

CIVIL ACTION

VERSUS

NO. 18-9253

UNITED STATES OF AMERICA

SECTION “A” (1)

ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment (Rec. Doc. 55) filed by
the Defendant the United States of America. The Plaintiff Kenneth Nasset opposes this
motion. This motion, set for submission on September 19, 2020, is before the Court on the
briefs without oral argument.
I.

Background
Nasset filed his Complaint against the Government pursuant to the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., regarding the care he received from
the U.S. Department of Veterans Affairs (“VA”) in New Orleans, Louisiana, for the treatment
of his psoriatic arthritis in 2016. (Rec. Doc. 49, p. 1, Court’s Order). Nasset claims that on
September 13, 2016 he saw Dr. Hugh McGrath, a rheumatologist, and was prescribed a TNF
inhibitor after discussing two drugs, Humira and Enbrel, for treating his psoriatic arthritis.
(Rec. Doc. 1, p. 3, Nasset’s Complaint). After taking Enbrel for almost a year, Nasset was
hospitalized on June 13, 2017 and was informed that he had congestive heart failure and a
myocardial infarction. Id. at 4. During this hospitalization, Nasset claims that his attending
physicians, Dr. Margret Maxi and Dr. Meredith Barr, advised him that the Enbrel medication
was the cause of his myocardial infarction. Id.

Page 1 of 5

On June 4, 2020, the Court allowed Nasset to amend his Complaint to make the
following three claims against the Government: (1) negligence, (2) vicarious liability, and (3)
lack of informed consent. As a result of this amendment, the Government filed a Motion for
Partial Summary Judgment as to Nasset’s negligence and vicarious liability claims.
II.

Summary Judgment Legal Standard
Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary

judgment, identifying each claim or defense--or the part of each claim or defense--on which
summary judgment is sought.” “The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of
informing the court of the basis for its motion by identifying portions of the record which
highlight the absence of genuine issues of material fact. Topalian v. Ehrmann, 954 F.2d 1125,
1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact cannot
be . . . disputed must support the assertion by . . . citing to particular parts of materials in the
record[.]). A fact is immaterial “if proof of its existence or nonexistence would affect the
outcome of the lawsuit under applicable law in the case.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that
a reasonable fact finder could render a verdict for the nonmoving party. Id.
III.

Discussion
To prevail in a medical malpractice case, a plaintiff must prove all three of the following

elements by a preponderance of the evidence: (1) the applicable standard of care expected
of physicians in his medical specialty, (2) a violation of that standard of care, and (3) a causal
connection between the alleged negligent treatment and the plaintiff's injuries. La. R.S.

Page 2 of 5

9:2794; Pfiffner v. Correa, 643 So.2d 1228, 1233 (La. 1994). While expert testimony is
generally required to establish malpractice, “[t]he jurisprudence has also recognized that
there are situations in which expert testimony is not necessary.” Pfiffner, 643 So.2d at 1233.
For instance, expert testimony is not required where the physician does an obviously careless
act, from which a lay person can infer negligence. Id. (citing Hastings v. Baton Rouge Gen.
Hosp., 498 So.2d 713, 719 (La. 1986)). “Failure to attend a patient when the circumstances
demonstrate the serious consequences of this failure, . . . [is] also [an] example[ ] of obvious
negligence which require[s] no expert testimony to demonstrate the physician's fault.” Id. at
1234. “Likewise, where the defendant/physician testifies as to the standard of care and his
breach thereof, see, e.g., Riser v. American Medical Int'l Inc., 620 So.2d 372, 377 (La. Ct.
App. 5th Cir. 1993); Hastings, 498 So.2d at 722 (violation of LSA-R.S. 40:2113.4 which
imposes duty on a hospital to make emergency services available to all persons in the
community without regard to income or insurance protection and hospital bylaws establishing
duties for on-call physicians), . . . expert testimony is also unnecessary to establish a
malpractice claim.” Pfiffner, 643 So.2d at 1234.
In its Motion for Partial Summary Judgment, the Government argues that Nasset
cannot satisfy his burden of proof because both his negligence claim and his vicarious liability
claim require expert testimony, which he failed to obtain. More specifically, the Government
points out that Nasset only has one medical expert, Dr. Mark Levin, who the Court determined
to be unqualified to give an opinion on the standard of care for a rheumatologist. (Rec. Doc.
55, p. 10-12, Government’s Memorandum in Support).1

1 However, the Court qualified Dr. Mark Levin as an expert to testify as to whether Nasset had informed
consent to use Enbrel. (Rec. Doc. 49, p. 5, Court’s Order).

Page 3 of 5

Conversely, Nasset contends that an expert opinion is not required for his negligence
and vicarious liability claims because (1) Dr. McGrath admitted to the negligence and (2) the
obvious negligence exception applies. As noted in Nasset’s Opposition, the VA Medication
Management Policy states that, “an assessment of each patient’s response to his/her
medications is to be performed by the clinician to ensure clinical needs are met and to address
the patient’s response to the prescribed medications and actual or potential medication
related problems.” (Rec. Doc. 56, p. 3, Nasset’s Opposition). Accordingly, Nasset argues that,
“[t]his policy indicates that an assessment should have been performed as to Mr. Nasset’s
response to Enbrel to address any actual or potential medication related problems.” Id. at 4.
“Dr. McGrath [testified that he] never did an assessment because [he] did not write ‘return to
clinic’ in Mr. Nasset’s records which means Dr. McGrath was not requesting Mr. Nasset to
return to the clinic.” Id. “Nurse Godfrey did not schedule a follow up appointment[, and] Mr.
Nasset was not seen by another rheumatologist for nine months after the initial consultation.”
Id. “Thus, that is a breach of care as set forth by VA policy as there was no follow-up by Dr.
McGrath or the VA after mailing Plaintiff the wrong medication.” Id. at 5. “Had Dr. McGrath
done an assessment, he would have realize[d] that Mr. Nasset was not using the correct
dosage and that he received Enbrel instead of Humira.” Id.
Here, the Court finds that it is premature to grant summary judgment in favor of the
Government as to Nasset’s negligence and vicarious liability claims. More specifically, there
still remains a question of fact as to whether Dr. McGrath violated the VA Medication
Management Policy by not having a follow-up assessment with Nasset. As noted above,
expert testimony is not needed when “the defendant/physician testifies as to the standard of
care and his breach thereof.” Pfiffner, 643 So.2d at 1234; Hastings, 498 So.2d at 722. Thus,

Page 4 of 5

although this issue is likely not an example of obvious negligence, Nasset can still attempt to
prove that Dr. McGrath breached his standard of care by violating the VA’s policies without
having to present additional expert testimony. Further, the Court, as the trier of fact in this
case, will be in a better position following the presentation of evidence at trial to determine
whether Nasset can meet his burden of proof as to his negligence claims in the absence of
expert testimony. As a result, the Court denies the Government’s Motion for Partial Summary
Judgment.
Accordingly;
IT IS ORDERED that the Motion for Partial Summary Judgment (Rec. Doc. 55)
filed by the Defendant the United States of America is DENIED.

September 11, 2020

__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

Page 5 of 5