Soileau v. U S Dept of Health & Human Services

Filing 26

ORDER: IT IS ORDERED that the 14 Motion for Summary Judgment is DENIED AS MOOT, without prejudice to Defendant's right to reurge either a motion to dismiss or motion for summary judgment when deemed appropriate. Signed by Magistrate Judge Carol B Whitehurst on 6/1/2018. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Soileau

Civil Action No. 17-00526

versus

Unassigned District Judge

US Dept of Health & Human
Services

Magistrate Judge Carol B. Whitehurst

ORDER
Before the Court is a Motion For Summary Judgment filed by Defendant the
United States of America for the United States Department of Health & Human
Services (“the United States”) [Rec. Doc 14], a Memorandum in Opposition filed by
Plaintiff, Christy Soileau, individually and on behalf of Kristopher Ashton Steward
Soileau, [Rec. Doc. 20] and the United States Reply thereto [Rec. Doc. 25]. For the
reasons that follow, the Court will deny the Motion as moot.
Background
Citing Plaintiff’s allegations in the Complaint, the United States contends that
Plaintiff’s minor child, Kristopher Ashton Stewart Soileau (“Soileau”), was born on
March 5, 2013. After birth, Soileau was treated by Dr. Suzanne Foster (“Dr. Foster”),
a pediatrician employed by the Southwest Louisiana Center for Health Services
(“Southwest”) in Lafayette, Louisiana. R. 1. Plaintiff asserts liability against the
Defendant, alleging a failure to timely diagnose Soileau with Malignant Infantile
Osteopetrosis (sometimes referred to as “MIOP” or “Osteopetrosis”) during the

period he was treated at Southwest by Dr. Foster─March 5 – April 1, 2013. Id.
Plaintiff alleges that Defendant failed to properly and adequately supervise its
employees’ judgments, medical opinions, treatment plan, care being provided and to
ensure proper diagnosis of Soileau’s medical condition; abandoned the care of
Soileau; failed to notice or acknowledge that the care of Soileau was abandoned;
failed to inform Plaintiff of Soileau’s condition, and failed to follow or adhere to the
standard of care of a physician similarly situated which constitutes negligence. Id.
As a result of these alleged breaches of the standard of care, Plaintiff alleges she and
Soileau have suffered damages, past, present and future. Id.
The medical records indicate that Dr. Foster initially saw Soileau on March 5,
2013, after he was born at Women’s and Children’s Hospital in Lafayette, Louisiana,
and followed him while he remained in the hospital after birth. Soileau was released
from the hospital to home on March 8, 2013. At that time, Plaintiff was instructed to
schedule a follow-up visit for Soileau with Dr. Foster at Southwest within one to two
weeks.
Dr. Foster next saw Soileau at Southwest on March 13, 2013. On that date,
Plaintiff reported that Soileau was taking the bottle well, had numerous dirty diapers
and was congested. At the conclusion of the visit, Dr. Foster diagnosed Soileau with
rhinitis (congestion) but noted he was otherwise healthy. Instructions were given to
schedule a follow-up visit two weeks later. R. 14-5, Ex. 2, Southwest Medical
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Records, SWLA 001 – SWLA 005.
Soileau returned to see Dr. Foster at Southwest on March 19, 2013. Plaintiff
related that Soileau was treated at the Emergency Department (“ED”) at Women’s
and Children’s Hospital on March 17, 2013, for vomiting and the flu. Plaintiff made
no mention to Dr. Foster that radiographs of Soileau’s abdomen were taken which
showed “gaseous distention of the stomach and diffusely radiodense bones” or that
the radiologist recommended a skeletal survey upon considering Osteopetrosis. R.
25-1, pp. 3-4; R. 14-5, Ex. 2, SWLA 006 – SWLA 009. A copy of the radiologist’s
report was sent to Dr. Foster, but had not yet been received by her. Id.
Soileau’s last visit with Dr. Foster was April 3, 2013, when he was four weeks
old. The visit was a well-child checkup. The only complaints from the Plaintiff
concerned abdominal pain. Dr. Foster did not review the results from the ED visit
on March 17, 2013. Plaintiff made no mention of the possible Osteopetrosis and the
March 17, 2013 radiology report was not discussed. Though Plaintiff had scheduled
the next visit with Dr. Foster on May 8, 2013, Soileau did not show for that
appointment. When contacted on May 9, 2013 about rescheduling so that Soileau
could be seen by Dr. Foster, Southwest was informed by Plaintiff that Soileau was
changing physicians and would no longer be seeing Dr. Foster.
On April 18, 2013, Soileau began seeing another pediatrician, Dr. Alfredo
Lebron-Berges. There is no evidence that Dr. Lebron-Berges requested Southwest’s
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chart and no evidence that the plaintiff provided those records to Lebron-Berges. R.
14-5, SWLA 011 - 014, SWLA 021, SWLA 027; R. 14-6, medical records of Dr.
Lebron-Berges, Pediatric Group of Acadiana, LLC.
Plaintiff filed this action against the Department of Health & Human Services
on April 12, 2017, asserting a medical malpractice action under the FTCA in
connection with the medical treatment Soileau received at Southwest by Dr. Foster.
R. 1. Specifically, she alleged that Defendant failed to properly and adequately
supervise its employees’ judgments, medical opinions, treatment plan, care being
provided and ensure proper diagnosis of Soileau’s medical condition; that Defendant
abandoned the care of Soileau; failed to notice or acknowledge that the care of
Soileau was abandoned; failed to inform Plaintiff of Soileau’s condition, and failed
to follow or adhere to the standard of care of a physician similarly situated which
constitutes negligence. R. 1, ¶9. As a result of these alleged breaches of the standard
of care, Plaintiff alleges that she and Soileau have suffered damages, past, present
and future. Id.
Summary Judgment Standard
Federal Rule of Civil Procedure 56 instructs that summary judgment is proper
if the record discloses no genuine issue as to any material fact such that the moving
party is entitled to judgment as a matter of law. No genuine issue of fact exists if the
record taken as a whole could not lead a rational trier of fact to find for the
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non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,
586 (1986). A fact is material if proof of its existence or nonexistence might affect
the outcome of the lawsuit under the applicable substantive law in the case. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Minter v. Great American Ins. Co.
of New York, 423 F.3d 460,465 (5th Cir.2005). A genuine issue of material fact exists
if a reasonable jury could render a verdict for the nonmoving party. Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Cir.2008), citing Anderson at 252. The party seeking
summary judgment has the initial responsibility of informing the court of the basis
for its motion, and identifying those parts of the record that it believes demonstrate
the absence of a genuine issue of material fact. Washburn v. Harvey, 504 F.3d 505,
508 (5th Cir.2007), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
moving party carries its initial burden, the burden shifts to the nonmoving party to
demonstrate the existence of a genuine issue of a material fact. Washburn at 508. If
the dispositive issue is one on which the nonmoving party will bear the burden of
proof at trial, the moving party may satisfy its burden by pointing out that there is
insufficient proof concerning an essential element of the nonmoving party's claim.
Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520
F.3d 409, 412 (5th Cir.2008), citing Celotex at 325. The motion should be granted if
the non-moving party cannot produce evidence to support an essential element of its
claim. Condrey v. Sun Trust Bank of Georgia, 431 F.3d 191, 197 (5th Cir.2005).
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Analysis
In its motion for summary judgment, Defendant argues that Plaintiff has not
provided an expert report substantiating any of the claims in this matter and is well
past the February 20, 2018 deadline to do so in accordance with this Court’s
Scheduling Order.1 R. 8. Defendant’s Statement of Uncontested Facts, R. 14-2,
provides as follows:
1. The Plaintiff’s claims against the United States sound in
negligence, and more particularly, medical malpractice;
2. The Plaintiff has not designated an expert witness to testify as to
the appropriate standard of care and causation in this case;
3. The Plaintiff has not designated an expert witness to support the
specific allegations of medical malpractice.
As indicated by the foregoing statement of facts, Defendant’s motion did not address
the merits of Plaintiff’s action, and instead relied on Plaintiff’s failure to retain a
medical malpractice expert.
The record indicates that, following the filing of the instant motion, counsel
for Plaintiff filed a motion for extension of the deadline to submit an expert report
as well as the time to file a response to the motion for summary judgment. R. 17,

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Defendant further contends that Plaintiff admitted in discovery that she needs an expert to prove her claims, but
has not retained one and does not intend to abide by this Court’s Scheduling Order. R. 14-3.

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Plaintiff’s motion was granted on April 4, 2018, R. 19. On May 9, 2018, Plaintiff
filed a memorandum in opposition to the motion which included an Affidavit of her
expert, Nicholas Danna, III, M.D., a licensed physician practicing in Louisiana for
the past 39 years. R. 20-4. Defendant filed a reply which included a report from its
expert witness, Jaime Estrada, MD, Pediatric Hematology and Oncology Expert
Witness.
In its reply to Plaintiff’s expert’s Declaration, Defendant attempts to add to its
motion for summary judgment issues based on the merits of the case by referring to
a May 16, 2018 report and May 17, 2018 Declaration by its expert witness, Jaime
Estrada, M.D., stating that Plaintiff cannot prove causation in this case. R. 25-1.
While Defendant cites Louisiana Revised Statute 9:2794 which sets forth the burden
of proof imposed on the Plaintiff to establish his malpractice claim, Defendant
makes no argument what-so-ever as to the specific circumstances in this case. 2
The Court finds that, based on Defendant’s motion for summary judgment,
this case is not in a posture to litigate the merits by summary judgment. Thus, in
light of Plaintiff’s retention of an expert witness the Court will deny Defendant’s
motion as moot without prejudice to the Defendant’s right to reurge its motion when

2
The Court notes that the record does not reveal whether (1) any of Plaintiff’s claims have been or should
be presented to a medical review panel; (2) the applicable prescriptive/preemptive period has been met; (3)
Plaintiff’s claims against Defendant for alleged negligence wrongdoing are sufficient to invoke the provisions of the
state malpractice act.

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Defendant deems appropriate. Accordingly,
IT IS ORDERED that the Motion For Summary Judgment filed by
Defendant, the United States of America for the United States Department of Health
& Human Services, [Rec. Doc 14] is DENIED AS MOOT, without prejudice to
Defendant’s right to reurge either a motion to dismiss or motion for summary
judgment when deemed appropriate.
THUS DONE AND SIGNED this 1st day of June, 2018.

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