Ouida Nugent, Individually and on behalf of Dennis Nugent and Rick Nugent and Ross Nugent VS Louisiana Medical Mutual Insurance Company, Waref Azmeh, M.D., and G. Michael Blanchard, Jr., M.D.
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAI FIRST CIRCUI C 2012 CA 1970 OUIDA NUGENT INDNIDUALLY AND ON BEHALF OF DENNIS NUGENT AND RICK NUGENT AND ROSS NUGENT VERSUS ANA LOUIS MEDICAL MUTUAL INSURANCE COMPANY WAREF AZMFH M AND G MICHAEL BLANCHARD JR M D D Judgment Rendered UN 0 7 2013 APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER 602004 HONORABLE TODU W HERNANDEZ IUDGE x Robert W Hallack Baton Rouge Louisiana Attorney for Plaintiffs Appellants Ouida Nugent Individually and on Behalf of Dennis Nugent and Rick Nugent and Ross Nugent Garrett S Attorneys for Defendants Appellees Tara S Louisiana Medical Mutual nsurance Baton Company Waref Azmeh M and D Callaway Bourgeois Rouge Louisiana G Michael Blanchard Jr M D c uff n T JCaiQs CQ JS s Fs 6 s e BEFORE KUHN PETTIGREW AND McDONALD JJ o sse ek ae 3 i c J McDONALD J This case is an appeal of a motion for summaryjudgment granted on behalf of a medical practitioner and his insurer For the following reasons we affirm The plaintiffs Ouida Nugent individually and on behatf of Dennis Rick and Ross Nugent filed suit against doctors Waref Azmeh and G Michael Blanchard and their insurer Louisiana Medical Mutual Insurance Ca LAMM alleging CO failure to appropriately treat Mr Nugent The doctois alleged fault resulted in the death of Mr Nugent and the loss of love and affection companionship and service and society to his wife Ouida and two sons Rick and Ross Dennis Nugent a diabetic died of complications from an ulcerated right heel that resulted in an infection that spread through his body causing an acute cardiac endocardiris an infection of the heart Mr Nugent cardiologist referred s him to Dr Azmeh an infectious disease physician following a four day admission for congestive heart failure in September 2008 Dr Azmeh examined Mr s Nugent infected right heel at the hospital and initially prescribed an oral antibiotic Dr Azmeh next saw Mr Nugent in his office on September 30 2008 Because Mr Nugent heel did not appear to be improving Dr Azmeh changed s the oral antibiotic to an intravenous antibiotic and referred him to Dr Blanchard an orthopedic surgeon for evaluation for possible below the knee amputation Dr Blanchard saw Mr Nugent on October 6 2008 and recommended a below the knee amputation The amputation was scheduled for October 23 2008 Mr Nugent was admitted to the hospital on October 20 2008 for inpatient evaluation and cardiac work up prior to surgery Following the cai assessment diac and evaluation he was not a for the surgery The scheduled amputation proved s Plaintiff pctition indicates the amputation was scheduled for October 16 2008 However this date is inconsistent with the other dates 2 was canceled and arrangements were made for Mr Nugent to receive hospice care On October 27 2008 Mr Nugent died On September 14 2009 the plaintiffs filed a request for a medical review panel The medical review panel expired without rendering an opinion and was dismissed on March 7 20ll Plainriffs filed a lawsuit in the Nineteenth Judicial District Court on May 23 2011 A motion for summary judgment was filed in the trial court on behalf of Drs Azmeh and Blanchard which was set for hearing on April 16 2012 Prior to the hearing Dr Azmeh was removed as a movant and the hearing was held on behalf of Dr Blanchard only After argument of the parties the matter was taken under advisement The district court judge issued his ruling on May 29 2012 Judgment granting Dr Blanchard motion for sumnlary judgment was signed on June 26 s 2012 This appeal followed Appellate courts review a motion for summary judgment de yaovo under the same criteria that govern a district courts consideration of whether summary judgment is appropriate and in the light most favorable to the to the non movant Yokurra v 615 Bourbon Sdreet L 07 785 La 2 977 So 859 876 C 08 26 2d The summary judgment procedure is designed to secure the just speedy and inexpensive deteimination of every action and this procedure is favored and shall be construed to accomplish these ends See La C art 966 If the P 2 A pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue of material fact then judgment shall be granted as a matter of law La C art 966 P 2 B Defendant as the movant bears the initial burden of proof and tnust show that no genuine issue of material fact exists See La C art 966 If a defendant P 2 C successfully meets their burden then the burden shifts to the plaintiff to present 3 factual support adequate to establish that he will be able to satisfy his evidenriary burden at trial See La C art 966 P 2 C A fact is material if it potentially insures or precludes recovery affects a sultimate success or determines the outcome of the legal dispute Smith v litigant Our Laclv of the Lake Hosp Inc 93 La 7 639 So 730 751 A 2512 94 5 2d genuine issue is one to which reasonable persons could disagree if reasonable persons could reach only one conclusion there is no need for trial on that issue and summary judgment is appropriate Id Appellants raise one assignment of error alleging that the trial court erred in finding that an internal medicine and infectious disease specialist could not tesrify to the standard of care practiced by an orthopedist and as a result the trial court erred in granting summary judgment in favar of the defendant Dr Michael Blanchard M D Appellant raises issues regarding the treatment of Mr Nugent infected heel s by Dr Blanchacd Specifically they assert tl Dr Blanchard failed to use an at antibiotic appropriate for the type infection Mr Nugent had Also they contend that he failed to review the wound culture Dr Blanchard affidavit asserts that as s an orthopedic surgeon he was consulted far evaluation of a possible below the knee amputation only and did not treat Mr Nugent Appellants offered no evidence to dispute Dr Blanchard affidavit s The trial court issued reasons far his ruling which we adopt as follows Plaintiffs are the surviving family members of Dennis Nugent Nugent suffered from various ailments and in September 2008 was hospitalized at Our Lady of the Lake Hospital for congestive heart failure At the time he was also suffering from an ulcer of his foot Prior to leaving the hospital he was examined by a doctor for this condition An antibiotic was prescribed and he was instructed to see the doctor in his office The wound however failed to improve despite the administration of IV antibodies and he was referred to Dr Michael Blanchard an orthopedist for a consultation regarding possible amputation Dr Blanchard recommended the amputation but wanted Nugent to get pre clearance from his treating physician and operative 4 cardiologist The surgery was not approved by his doctors Within a month Nugent returned to Dr Blanchard with a worsening condition Nugent elected not to undergo the amputation but a month later with his condition deteriorating further he made the decision to undergo surgery However upon being admitted to the hospital for his pre surgery work up his doctors determined that he would not be able to withstand the surgezy Shortly thereafter he was discharged to hospice care and died within a few days Plaintiffs cause of action alleges that Dr Blanchard failed to adequately treat the ulcer on his foot In particular plaintiff claims that he failed to order appropriate and adequate antibiotics in treatment of Mr Nugent wound infection failed to follow up on s wound cultures and failed to timely perform the amputation of Mr s Nugent right leg Plaintiff expert witness in support of this theory s is Dr David McKinsey an infectious disease specialist He opined that Dr Blanchard did not order the appropriate antibiotic therapy and did not recognize the importance of re the infected source in noving an expedited fashion In support of his motion Dr Blanchard argues Dr McKinsey s opinion and affidavit are inadmissible because he is not qualified to testify regarding the standard of care for an orthopedic surgeon La S 2794 R 9 provides the qualifications for a physician to testify as an expert witness on the issue of whether the defendant physician deviated from the accepted standards of care A person is qualified if 1 he was practicing medicine at the time such testimony is given or was practicing at the time of the incident 2 he has knowledge of accepted standards of inedical care for the diagnosis ca or treatment e of the illness injury or condition in the claim 3 he is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards ofcare and 4 he is licensed to pracrice medicine by In jurisdiction in the United States S R addition 3 D 2794 9 provides that in determining qualifications the court shall consider whether the witness is board any other cerrified or has other substantial training or experience in an area of medical practice relevant to the claim and is actively practicing ii1 that area Defendant argues that Dr McKinsey is not an o thopedic surgeon therefore he does not have knowledge of the accepted standards of inedicine for orthopedics nor the training or experience to offer an opinion in that field Additionally plaintiff asserts that Dr Blanchard did not order the correct antibiotic for the type ofinfection that Nugent was suffering from Dr Blanchard notes that when he initially saw Nugent he was already receiving antibiotic therapy prescribed by the other treating doctor an infectious disease physician and he was consulted solely for an evaluation regarding amputation After a review of the argument of the parties the court grants defendant Dr Blanchard motion s for summary judgment This lawsuit was filed against two physicians who treated Nugent regarding this ulcer Dr Blanchard only role in his Mr Nugent s s treatment was a consultation regarding possible amputation Dr I I 5 i Blanchard did not prescribe antibiotics nor make any decisions Dr regarding what antibiotics Nugent should be treated with Blanchard was seen for a consultation recommended amputation and then attempted to schedule this surgery The surgery however was never performed because it was determined that Ilis medical condition was too poor for him to survive it With regard to the testimony of s plaintiff expert the court determines that Dr McKinsey is not qualified to testify regarding the standard of care of an orthopedist The court does not find that he is qualified based on his training and experience to offer an expert opinion on the expertise of an orthopedist We have thoroughly conducted a de novo review of the law record and evidence in this appeal We find no error on the part of the trial court judge Accordingly the judgment is affirmed Costs are assessed to the plaintiff AFFIRMED 6 OUIDA NUGENT ET AL FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA LOUISIANA MEDICAL MUTUAL NO 2012 CA 1970 INSURANCE COMPANY ET AL KLJIIN J concurring I agree that Dr David McKinsey a board certified physician in internal medicine and infectious diseases licensed to practice medicine in the state of Missouri was not qualified to offer expert testimony on the issue of whether Dr Michael Blanchard Jr an orthopedic surgeon departed from the accepted standards of inedical care relative to his specialty in his treatment of Dennis Nugent See La R 9 S 2794D Specifically Dr McKinsey attested that Dr s Blanchard failure to order appropriate antibiotic therapy inadequate treatment of the infection and failure to recognize the importance of removal of the infective source in an expedited fashion were more likely than not substantial factors in s Dennis death But in support of summary judgment Dr Blanchard attested that he was consulted solely for surgical management of Dennis right heel ulcer did s not prescribe any antibiotics or other medications and did not participate in any decisions regarding the antibiotic therapy administered to Dennis Because Dr McKinsey is not board certified and failed in his affidavit to demonstrate knowledge of substantial training or experience in an area of orthopedic surgery he is not qualified to opine whether Dr Blanchard should have intervened in the treatment rendered by the infectious disease physician who was treating Dennis at the same time that Dr Blanchard was consulted Thus the trial court conectly concluded Dr McKinsey was not qualified to offer an expert opinion about whether Dr Blanchard departed from the acceptable standard of care Because an expert witness is generally necessary as a matter of law to meet the burden of proof on a medical malpractice claim see McGregor u Hospice Care ofLouisiana in Baton Rouge L 2009 La App lst Cir 2 C 1355 10 12 36 So 281 285 writ denied 2010 La 3d 0832 10 28 5 36 So 258 Dr 3d Blanchard and his insurer have successfully pointed out an absence of factual support for one or more elements essential to the medical malpractice claim against him Thus the Nugents having failed to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof against Dr Blanchard at the trial cannot demonstrate a genuine issue of material fact see La C art 966C and the trial court correctly granted summary judgment P 2 For these reasons I concur 2 I
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
