Dade et al v. Clayton, III et al

Filing 54

MEMORANDUM RULING DENYING 6 MOTION for Summary Judgment, filed by Robert Wadell Clayton, III and American Casualty Co of Reading Pennsylvania. MEMORANDUM RULING DENYING 22 MOTION for Partial Summary Judgment, filed by Carl Dade, Michael Dade. Signed by Magistrate Judge Karen L Hayes on 10/23/12. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
MICHAEL DADE and CARL DADE

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CIVIL ACTION NO. 12-0680

VERSUS

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MAG. JUDGE KAREN L. HAYES

ROBERT WADELL CLAYTON, III,
CRNA, ET AL.

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MEMORANDUM RULING
Before the court are the following motions, 1) motion for summary judgment [doc. # 6]
filed by defendants, Robert Clayton and American Casualty Company of Reading, Pennsylvania;
and 2) motion for partial summary judgment [doc. # 22] filed by plaintiffs, Michael and Carl
Dade. With the consent of all parties, the District Court referred the above-captioned case to the
undersigned magistrate judge for the conduct of all further proceedings and the entry of
judgment. 28 U.S.C. § 636(c). For reasons assigned below, the motions [doc. #s 6 & 22] are
DENIED.
Background
On August 26, 2010, Melvin Louise Dade, an octogenarian, underwent an
esophagogastroduodenoscopy (“EGD”) at the Endoscopy Center of West Monroe, Louisiana.
Johnny McHugh, M.D., performed the seven minute procedure, and Certified Registered Nurse
Anesthetist (“CRNA”), Robert Clayton administered the anesthesia. According to CRNA
Clayton, he administered 120 mg. of Diprivan a/k/a Propofol in three 40 mg. doses during the
procedure. (Depo. of Robert Clayton, pg. 60; Pl. MPSJ, Exh. [doc. # 22-5]). Following the

procedure, as Dade was being transferred to the recovery room, CRNA Clayton observed Dade
cough, and then noticed that she had stopped breathing, with no discernible pulse from her
carotid arteries. Id., at pg. 83. Accordingly, Clayton and the recovery room nurse immediately
began to perform CPR. Id. An ambulance was called, and, in due course, Dade was transferred
to Glenwood Regional Medical Center. See Anesthesia Record, Pl. MPSJ, Exh. [doc. 22-6]. She
was diagnosed with anoxic encephalopathy, which is a term that denotes brain damage caused by
lack of blood flow or insufficient oxygen to the brain. (Ronald Hammett, M.D., Depo., pgs. 1214; Pl. Suppl Memo., Exh. 3 [doc. # 49]; Defs. Answer, ¶ 11 [doc. # 6]).
On or about September 14, 2010, Dade was transferred from Glenwood Hospital to the
Louisiana Extended Care Rehabilitation Center. See Jaya Sharma, M.D. Depo., pgs. 12-14; Pl.
Suppl. Memo., Exh. 2 [doc. # 49]). Upon discharge from Glenwood, she essentially was
unresponsive – her condition having failed to improve during the hospitalization. Id. On
December 6, 2010, Dade passed away. (Frank Peretti, M.D., pg. 8; Pl. Suppl. Memo., Exh. 2
[doc. # 49]). In the three-plus months from the date of the EGD until her eventual death, Dade
never regained consciousness. (Defs. Answer, ¶ 10 [doc. # 6]). Her cause of death was listed as
“Pneumonia due to Anoxic Encephalopathy Complicating EGD (Esophagogastroduodenoscopy)
for Esophageal Stricture.” Id., Exh. 3; Death Certificate, Pl. MPSJ, Exh. [doc. # 22-12]).
Dade’s surviving sons, Michael Dade and Carl G. Dade, retained counsel, who, in turn,
convened a medical review panel to “consider the liability of Johnny Bruce Duke Mc Hugh,
M.D. (Gastroenterology) and Robert W. Clayton, III, CRNA.” (Opinion and Written Reasons for
Conclusion; Def. MSJ, Exh. A [doc. # 6]). On February 22, 2012, the panel considered the
following three questions, but unanimously answered each in the negative,
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1.

Given the classification of the patient (ASA Group 3) with all the
underlying medical conditions including one lung, her age and
prior issue with sedation, was it a breach of the standard of care for
the CRNA to have even proceeded with the procedure at the
Endoscopy Center of West Monroe?

2.

Given the underlying medical issues, was it a breach of the
standard of care for the CRNA to administer the amount of
sedative during the time period he testified to?

3.

If the CRNA did, in fact, administer the amount of medications as
testified to by the EMT and reflected in the run report, would those
amounts of medications over the time period as related to the EMT
by the CRNA have been a breach of the standard of care?

Id.
The report concluded that “[t]he evidence presented does not support the conclusion that the
defendants, Johnny Bruce Duke McHugh, M.D. (Gastroenterology) and Robert W. Clayton, III,
CRNA, failed to meet the applicable standard of care as charged in the complaint.” Id.
Procedural History
Notwithstanding the unfavorable panel decision, on March 15, 2012, Michael Dade and
Carl G. Dade filed the instant diversity suit against defendants, Robert Wadell Clayton, III,
CRNA, Dr. Johnny Bruce Duke McHugh, and their respective insurers. The complaint seeks
survival and wrongful death damages suffered by plaintiffs and/or their decedent as a result of the
alleged medical practice committed by Clayton and McHugh during the course of the August 26,
2010, EGD procedure.
Within one week after suit was filed, Clayton and his medical malpractice carrier,
American Casualty Company of Reading, Pennsylvania (“American Casualty”), answered the
complaint, and contemporaneously filed the instant motion for summary judgment seeking
dismissal of plaintiffs’ complaint because plaintiffs lacked a medical expert opinion or report to
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establish that CRNA Clayton breached the applicable standard of care. (Motion for Summary
Judgment [doc. # 6]). In their supporting memorandum, defendants further argued that plaintiffs
did not have an expert to establish causation between any alleged breach and resulting injury.
(MSJ, Memo.).
Meanwhile, on April 23, 2012, co-defendant, Johnny Bruce Duke McHugh and his
medical malpractice carrier, Louisiana Medical Mutual Insurance Co. (“LAMMICO”) filed their
own motion for summary judgment seeking dismissal of plaintiffs’ claims against them. [doc. #
16]. On April 30, 2012, plaintiffs’ counsel advised the court that he would not file an opposition
to McHugh and LAMMICO’s motion for summary judgment. [doc. # 18]. On May 11, 2012,
Judge James determined that
Dr. McHugh relies on the opinion of the Medical Review Panel to show that he
did not breach the applicable standard of care. [Op. of Med. Review Panel, Doc.
No. 16-6, p. 7]. In this case, Dr. McHugh’s actions were not so obviously careless
that a layperson could infer liability. See [Id. at 3-7]. Therefore, to establish a
genuine dispute as to a material fact, Plaintiffs must present expert evidence
controverting the Medical Review Panel’s opinion. Because Plaintiffs have not
presented any such evidence, they have not raised a genuine dispute of material
fact as to Dr. McHugh’s liability.
(May 11, 2012, Mem. Ruling [doc. # 19]).
Accordingly, the District Court granted McHugh and LAMMICO’s motion for summary
judgment and entered judgment in favor of movants dismissing plaintiffs claims against said
defendants only. Id. On June 6, 2012, the Court certified its judgment as a final judgment
pursuant to Federal Rule of Civil Procedure 54(b). (June 6, 2012, Order [doc. # 29]). No party
appealed the judgment.
Although plaintiffs elected not to contest the dismissal of Dr. McHugh and his insurer,
they did oppose the motion for summary judgment filed by Clayton and his malpractice carrier.
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(May 18, 2012, Response [doc. # 21]). In addition, plaintiffs filed their own motion seeking
partial summary judgment “on the issue of liability and causation of the death of Melvin L. Dade
as being related to and caused by the sedation administered by the defendant, Robert Wadell
Clayton, III, CRNA.” (May 22, 2012, MPSJ, Memo., pg. 4 [doc. # 22]).
Following several delays for supplemental briefing on the pending motions, as well as to
ensure that the court enjoys subject matter jurisdiction to entertain this action, the matter is now
before the court.
Summary Judgment Principles
Summary judgment is appropriate when the evidence before the Court 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). A fact is “material” 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.
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247). “The moving
party may meet its burden to demonstrate the absence of a genuine issue of material fact by
pointing out that the record contains no support for the non-moving party’s claim.” Stahl v.
Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is
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unable to identify anything in the record to support its claim, summary judgment is appropriate.
Id. “No genuine issue of material fact exists if the summary-judgment evidence is such that no
reasonable juror could find in favor of the nonmovant.” Jenkins v. Methodist Hospitals of
Dallas, Inc., 478 F.3d 255, 260 (5th Cir. 2007) (citation omitted).
In evaluating the evidence tendered by the parties, the court must accept the evidence of
the non-movant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at
255. While courts will “resolve factual controversies in favor of the non-moving party,” an
actual controversy exists only “when both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). There can be no genuine
issue as to a material fact when a party fails “to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp., 477 U.S. at 322-323. This is true “since a complete
failure of proof concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Id. at 323.
When a movant bears the burden of proof on an issue, he must establish “beyond
peradventure1 all of the essential elements of the claim . . . to warrant judgment in his favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Stated differently, the movant
must affirmatively establish his right to prevail as a matter of law. Universal Sav. Ass'n v.
McConnell, 1993 WL 560271 (5th Cir. Dec. 29, 1993) (unpubl.).

1

I.e., beyond doubt.
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Law
I.

Louisiana Law Applies to Substantive Issues
Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and

federal procedural law.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct.
2211(1996); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817 (1938). The
parties in this matter implicitly agree that the disputed issues are governed by the substantive law
of Louisiana.2 See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 206 (5th Cir. 2007)
(deferring to the parties’ agreement that Louisiana substantive law controlled); Ace American
Insurance Co. v. Freeport Welding & Fabricating, Inc.,

F.3d

, 2012 WL 5077688 (5th

Cir. Oct. 19, 2012) (applied Texas law where neither side disputed that Texas law applied).
To determine Louisiana law, federal courts look to the final decisions of the Louisiana
Supreme Court. Moore v. State Farm Fire & Casualty Co., 556 F.3d 264, 269 (5th Cir. 2009)
(citation omitted).
II.

Medical Malpractice Principles
In a medical malpractice action, the plaintiff carries a two-fold burden of proof. Martin v.

E. Jefferson Gen. Hosp., 582 So. 2d 1272, 1276 (La. 1991). First, plaintiff must establish by a
preponderance of the evidence that the physician’s treatment fell below the ordinary standard of
care expected of doctors in the same medical specialty. Id.3 Second, plaintiff must establish a

2

Both sides analyzed plaintiffs’ claims pursuant to Louisiana law.

3

“Nurses who perform medical services are subject to the same standards of care and
liability as are physicians.” Cangelosi v. Our Lady of the Lake Reg'l Med. Ctr., 564 So. 2d 654,
661 (La. 1989), holding modified by Linnear v. CenterPoint Energy Entex/Reliant Energy, 966
So. 2d 36 (La. 2007).
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causal relationship between the alleged negligent treatment and the injury sustained. Id. (citing
inter alia, LA . REV . STAT . ANN . § 9:2794). Thus, in a negligence case such as this, plaintiff has
the burden to
produce evidence from which the factfinder can reasonably conclude that his
injuries, more probably than not, were caused by the negligence of the particular
defendant. The plaintiff, however, does not have to conclusively exclude all other
possible explanations for his injuries, because the standard is not proof beyond a
reasonable doubt. Placing the burden of proof on the plaintiff requires him
ultimately to persuade the factfinder concerning the defendant's negligence, and if
the factfinder is undecided after all the evidence has been presented, the plaintiff
loses because of the failure of his evidence. . . . The inference of negligence points
to the defendant when the conduct of others is eliminated as a more probable
cause.
Cangelosi, supra, 564 So. 2d at 664-666 (citations omitted).
“Expert testimony is generally required to establish the applicable standard of care and
whether or not that standard was breached, except where the negligence is so obvious that a lay
person can infer negligence without the guidance of expert testimony.” Samaha v. Rau, 977 So.
2d 880, 884 (La. 2008) (citation omitted).4 Furthermore, the “requirement of producing expert
medical testimony is especially apt when the defendant has filed a motion for summary judgment
and supported such motion with expert opinion evidence that the treatment met the applicable
standard of care.” Boudreaux v. Mid-Continent Cas. Co., 950 So. 2d 839, 844 (La. App. 1st Cir.
2006) (citations omitted).
Discussion
In support of their motion for summary judgment, defendants Clayton and American

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For instance, “[e]xpert testimony is not required where the physician does an obviously
careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a
knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay
person can infer negligence.” Pfiffner v. Correa, 643 So. 2d 1228, 1233 (La. 1994).
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Casualty initially argued that they were entitled to dismissal because plaintiffs did not possess
requisite medical expert testimony to establish that Clayton breached the applicable standard of
care, and/or that the breach of care was the cause of the anoxic encephalopathy suffered by the
decedent. Defendants emphasize that the medical review panel unanimously concluded that
Clayton had not failed to meet the applicable standard of care.
In response to defendants’ motion, and in support of their own motion for partial
summary judgment on the issue of liability, plaintiffs adduced the affidavit of CRNA Neil
Buettner, Jr., in which he opined that
based upon [his] training and experience that Ms. Dade [sic] respiratory arrest and
subsequent anoxic encephalopathy was caused by the amount of sedation, choice
of medications, a failure to give adequate supplemental oxygen and a failure of
CRNA Clayton to properly monitor and document Ms Dade’s vital signs. Base
[sic] upon [Buettner’s] training and experience, CRNA Clayton violated the
standard of care by failing to provide adequate oxygen during and after the
procedure and constant monitoring of all vital signs parameters during and after
the procedure.
(Affidavit of Neil Buettner, Jr., Pl. Response to Court’s Order [doc. # 40]).
Defendants do not seriously contest that Buettner is qualified to render an opinion regarding the
applicable standard of care for CRNAs and that Clayton’s treatment fell short of that standard.5
Thus, the conflicting findings of the medical review panel and CRNA Buettner present a genuine
dispute as to a material fact that precludes summary judgment on the issue of whether Clayton
breached the applicable standard of care.6

5

In fact, a CRNA was a member of the medical review panel assigned to this case.

6

Citing McGlothlin v. Christus St. Patrick Hosp., 65 So. 3d 1218 (La. 2011), plaintiffs
contend that the court should not consider the findings of the medical review panel because the
panel impermissibly exceeded its authority by resolving a factual dispute between Clayton and
the responding EMT regarding the amount of anesthesia administered by Clayton. Although at
one point in its report the panel stated that “[t]he best evidence is the anesthesia record . . .,” the
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Recognizing the likelihood that Buettner’s affidavit created a genuine dispute of fact that
precludes summary judgment on the issue of duty and breach,7 defendants instead re-focus their
motion on the lack of expert testimony to establish that any breach of care caused Ms. Dade’s
anoxic encephalopathy. Defendants argue, in this regard, that a CRNA is not qualified to render
an opinion on causation, and that Drs. Jaya Sharma and Ronald Hammett were unable to link any
breach of care to the decedent’s injury and eventual death.
The court shared defendants’ concern that a CRNA was not competent to render an
opinion as to causation. See June 15, 2012, Order [doc. # 32]. Therefore, the court directed the
parties to further brief this issue. Id. In response, plaintiffs initially conceded that a CRNA
could not render an opinion as to medical causation. (Pl. Supp. Memo., [doc. # 34]). In a
subsequent brief, plaintiffs deftly reversed course, and represented, in conclusory fashion, that a
“CRNA is most certainly qualified to render an opinion” as to the cause of anoxic
encephalopathy. (Pl. Suppl. Memo., [doc. # 45]).
As noted by defendants, however, in Louisiana, the license to practice nursing does not
include the authority to render medical diagnoses. LA . REV . STAT . ANN . § 37:913(13). Under
similar circumstances, courts in other states have held that nurses are not qualified to render

panel further found that Clayton did not breach the applicable standard of care – even assuming
that Clayton administered the amount of anesthesia as testified to by the EMT. (Med. Review
Panel Opinion, Def. MSJ, Exh. A). In any event, the total amount of anesthesia that Clayton said
he administered (three dosages of 40 mg. of Propofol), is less than the total documented by the
EMT (two dosages of 50 mg. of Propofol). Thus, the court discerns no creditable grounds to
exclude the findings of the medical review panel from the instant summary judgment record. See
LA . REV . STAT . ANN . § 40:1299.47(H) (“Any report of the expert opinion reached by the medical
review panel shall be admissible as evidence in any action subsequently brought by the claimant
in a court of law . . .”).
7

See Def. Reply Memo. [doc. # 24].
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opinions on medical causation. See e.g., Costello v. Christus Santa Rosa Health Care Corp., 141
S.W.3d 245, 248-49 (Tex. App. 2004); Gordon v. Sunrise Senior Living Services, Inc., 2009 WL
3698527 (D. Colo. Nov. 5, 2009); Williams v. Eight Judicial Dist. Court of State, ex rel. County
of Clark, 262 P.3d 360, 366 (Nev. 2011); Land v. Barnes, 2008 WL 4254155 (Tenn. Ct. App.
Sept. 10, 2008); Vaughn v. Mississippi Baptist Med. Ctr., 20 So. 3d 645, 651-52 (Miss. 2009).
This court is persuaded that the Louisiana Supreme Court would reach the same conclusion.
Regardless, however, the instant record contains testimony from one or more medical
doctors sufficient to preclude summary judgment in favor of defendants. For instance, by
eliminating the likelihood of three other major causes of death, Frank Peretti, M.D., the forensic
pathologist who performed the autopsy, opined that drugs were the most likely cause of Ms.
Dade’s anoxic encephalopathy and subsequent death. See Peretti Depo., pgs. 12-13, 20.
Furthermore, Jaya Sharma, M.D., the hospitalist who treated Dade during her stay at
Glenwood, testified that she had no reason to disbelieve that Dade’s respiratory suppression was
caused by sedation. (Sharma Depo., pgs. 11-12). She further added that sedation definitely was
a consideration. Id. At times during her deposition, Dr. Sharma stated that she did not know
whether Dade’s anoxic encephalopathy was most probably related to sedation or not. (Tr. 24).
Nonethless, she maintained that it definitely was possible that anoxic encephalopathy was
induced by sedation. (Tr. 39-40). Dr. Sharma further agreed, akin to Dr. Peretti, that if the three
other main causes of anoxic encephalopathy were ruled out, then she could not think of any other
medical condition more probable than sedation as the cause of Ms. Dade’s anoxic
encephalopathy. Id.
Finally, Ronald Hammett, M.D., the decedent’s consulting pulmonologist and critical
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care specialist, testified that his initial impression was respiratory suppression secondary to
sedation. (Hammett Depo., pgs. 21-22). Hammett later testified that the only thing that might
motivate him to change his initial impression regarding the cause of Dade’s respiratory
suppression was the fact that she coughed before she stopped breathing. Id., pgs. 46-50.
Nevertheless, he explained that no subsequent tests were performed that would cause him to
change or alter his initial opinion. Id.8
Construing, as the court must, “all facts and inferences in the light most favorable to the
nonmoving party . . .,”9 the undersigned finds that plaintiffs have adduced sufficient evidence for
a reasonable trier of fact to find, more probably than not, that sedation was the cause of Ms.
Dade’s anoxic encephalopathy and subsequent death. When this evidence is coupled with
CRNA Buettner’s opinion that Clayton’s management of Dade’s sedation during her EGD
procedure breached the applicable standard of care (i.e., the amount of sedation that he
administered, his choice of medication, his failure to provide adequate supplemental oxygen, and
his failure to properly monitor and document Dade’s vital signs), a reasonable trier of fact could
return a verdict in favor of plaintiffs on the issue of liability. It is manifest, however, that, for
their part, defendants have adduced evidence sufficient to support a jury verdict in their favor.10

8

Although Dr. Hammett was not able to rule out at least two other potential causes of
Dade’s anoxic encephalopathy, it appears that he stood by his initial impression that Dade’s
respiratory suppression was caused by sedation. Id., pgs. 48-52. Further, plaintiffs need not
conclusively exclude all other possible explanations for his injuries. Cangelosi, supra,
9

Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (citation omitted).

10

Indeed, as defendants point out, other portions of the doctors’ depositions can be read
to support defendants’ position on the issue of causation.
12

Thus, on the existing record, summary judgment in not appropriate.
Conclusion
For the foregoing reasons,
The motion for summary judgment [doc. # 6] filed by defendants, Robert Clayton and
American Casualty; and the motion for partial summary judgment [doc. # 22] filed by plaintiffs,
Michael and Carl Dade, are both DENIED.
THUS DONE AND SIGNED in chambers, at Monroe, Louisiana, this 23rd day of October
2012.

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