CATHERINE MCCOY, ET AL NO. 21-C-91 VERSUS FIFTH CIRCUIT DR. FIDEL F. SENDRA, ET AL COURT OF APPEAL STATE OF LOUISIANA

May 11, 2021 Susan Buchholz First Deputy Clerk

IN RE ELLIOT MCCOY, HENRY MCCOY, KARL MCCOY, MELDALYN MCCOY, ROSLYNN MCCOY, TIMOTHY MCCOY, AND TODD MCCOY ON THEIR OWN BEHALF AND ON BEHALF OF THE LATE CATHERINE MCCOY APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE STEPHEN D.

ENRIGHT, JR., DIVISION "N", NUMBER 715-642

Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst

WRIT GRANTED Plaintiffs, the children of the late Catherine McCoy, seek review of the trial court’s evidentiary ruling granting the motion in limine to exclude the Medical Review Panel opinion at trial filed by defendants, Louisiana Compensation Fund and Louisiana Patient’s Compensation Fund Oversight Board. The trial court concluded that the Medical Review Panel exceeded the scope of its statutory authority under La. R.S. 40:1231.8 G by making a finding of fact in its opinion, specifically finding that the administration of clindamycin resulted in Ms. McCoy developing Steven-Johnson Syndrome.

La. R.S. 40:1231.8 G provides as follows: The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions, which shall be in writing and signed by the panelists, together with written reasons for their conclusions: (1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.

21-C-91 (2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint. (3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court. (4) When Paragraph (1) of this Subsection is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.

Under this provision, the Panel’s duty is to express its expert opinion as to whether or not the evidence supports the conclusion that the defendants acted or failed to act within the appropriate standards of care and to what degree that substandard care contributed to the resultant damages. La. R.S. 40:1231.8 G; McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La. 07/01/11), 65 So.3d 1218, 1229. Matranga v. Par. Anesthesia of Jefferson, LLC, 14-448 (La. App. 5 Cir. 5/14/15), 170 So.3d 1077, 1090-91, writ denied, 15-1143 (La. 9/18/15), 178 So.3d 148, and writ denied, 15-1168 (La. 9/18/15), 178 So.3d 152. In performing its duty, the Panel is not permitted to render an opinion on any disputed issue of material fact that does not require their medical expertise. McGlothlin, 65 So.3d at 1229. In addition, La. R.S. 40:1231.8 H provides that any report of the expert opinion of the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law.

Plaintiffs assert that resolution of whether the administration of clindamycin caused Ms. McCoy to develop Steven-Johnson Syndrome requires an expert opinion because medical causation is generally not a matter of common knowledge. In support of their argument, plaintiffs cite Louisiana jurisprudence finding that expert testimony is required where the alleged malpractice relates to the prescribing and administering of medication. Jordan v. Cmty. Care Hosp., 19-39 (La. App. 4 Cir. 7/24/19), 276 So.3d 564, 579; Guillory v. Dr. X, 96-85 (La. App. 3 Cir. 8/28/96), 679 So.2d 1004, 1009. The reasoning of this conclusion is that the uses and contraindications of medicine, and the appropriateness of the administration of medicine to a particular patient, are generally not within the average lay person’s knowledge. Jordan, supra; Guillory, supra. We agree with plaintiffs that the determination of whether the clindamycin caused Ms. McCoy to develop Steven-Johnson Syndrome requires an expert opinion. The uses and contraindications of clindamycin and the benefits and risks of administering this drug to Ms. McCoy require expert knowledge. In order to prove their case, plaintiffs must provide expert testimony to show that an allergic reaction or side effect to clindamycin could include developing Steven-Johnson Syndrome. Accordingly, we find that the trial court erred in ruling that the administration of clindamycin resulted in the development of Steven-Johnson Syndrome is a material issue of fact not requiring expert opinion. We therefore find that the trial court erred in granting the motion in limine to exclude the Medical Review Panel opinion.

In light of the foregoing, we grant this writ, reverse the trial court’s judgment which granted the motion in limine to exclude the Medical Review Panel opinion, and we deny that motion.

Gretna, Louisiana, this 11th day of May, 2021.

SJW MEJ RAC

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org

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21-C-91 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Stephen D. Enright, Jr. (DISTRICT JUDGE) Sarah J. L. Christakis (Respondent) Hugo L. Chanez (Relator) Andy J. Dupre (Relator) Conrad Meyer (Respondent) MAILED Jeffrey A. Mitchell (Relator) Ilijana Todorovic (Relator) Attorneys at Law 3850 North Causeway Boulevard Suite 1500 Metairie, LA 70002 ~I 1 i 12...1 SENDER: COMPLETE THIS SECTION • Complete Items 1, 2, and 3. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mallpl~. or on the front If space permits. • 1. Article Addressed to: Ilijana ~dorovic Jeffrey .... Mitchell Atto~~i at Law 3850 ~rth Causeway Blvd -Suite 1500 Metairie, LA 70002

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