LAFAYETTE – The Third Circuit Court of Appeal, in an unusual ruling, concludes the St. Landry trial court abused is discretionary authority in dismissing a malpractice claim after an expectant mother died and her child was stillborn and order proceedings reinstated.

The appeal judges ruled that 27th Dist. Judge James Doherty, Jr. incorrectly denied the plaintiff attorneys motion for a new trial after earlier dismissing the matter.

According the Third Circuit, Sondria and Alfred Dupree and Brandon Harris filed suit against Dr. José Dorta and Louisiana Medical Mutual Insurance Company alleging medical malpractice in the prenatal care and treatment of the Duprees’ daughter, Katie Lynn Dupree, and her unborn child, Kaydon Harris.

The petition was dismissed via summary judgment when Doherty ruled that plaintiffs failed to present evidence sufficient to establish a genuine issue of material fact. A motion for new trial was denied.

Twenty-seven-year old Katie Lynn Dupree became a patient of Dr. Dorta when she was pregnant with her child Kaydon, whose father is Brandon Harris, according to the court record.

On Jan. 9, 2009, Dupree went to the Emergency Room of Opelousas General Hospital with complaints of facial edema, vomiting, and headaches. She was found to have elevated blood pressure and was told to stop working and decrease her activities.

On Jan. 26, at 36 weeks gestation, Dupree again presented with elevated blood pressure and other symptoms suggestive of gestational hypertension or preeclampsia. Dr. Dorta did not intervene medically nor did he propose an early delivery of the baby. Dupree was again sent home with no medical intervention in place other than bed rest.

Two days later, Dupree was found face down and unresponsive by her father. Her baby was stillborn the following day. Dupree was then taken off life support and died after donating her organs.

Plaintiffs filed a request for review by a Medical Review Panel on June 25, 2009. Eleven months later, on May 12, 2010, the panel rendered its opinion finding no malpractice on the part of Dr. Dorta. Plaintiffs then filed suit on May 28, 2010 against Dr. Dorta and his insurer, LAMMICO. Defendants filed numerous exceptions.

Dr. Dorta, who has other malpractice claims pending against him and no longer practices medicine, was soon dismissed from the case due to his discharge in bankruptcy.

The procedural clock then began ticking.

According to the Third Circuit:

Plaintiffs sought to compel LAMMICO to comply with discovery requests and moved for sanctions and a protective order. Plaintiffs then requested a status conference to schedule deadlines and a trial date. Immediately after the scheduling order was issued, on Nov. 9, 2010, LAMMICO moved for summary judgment.

A hearing on the motion was held on Dec. 10, 2010; the court ruled from the bench in favor of LAMMICO based on the plaintiffs’ failure to submit an affidavit from an expert showing a genuine issue of material fact sufficient to defeat summary judgment.

At the hearing, plaintiffs’ counsel argued that he declined to submit an expert’s affidavit because he was relying on the scheduling order which provided for expert reports to be exchanged several months in the future. Although counsel acknowledged that he had consulted an expert, he denied having retained one for trial purposes.

The trial court found this argument disingenuous and considered counsel’s argument to be a risky strategy that had failed. Plaintiffs’ counsel then requested a ten-day extension of time in order to submit expert evidence. The trial court held: “[T]he plaintiffs need to provide the testimony, either by reports or affidavits or depositions of an expert, that raises the material issue that they will be able to carry their burden of proof. That’s not done in this matter.”

Two weeks later, on Dec. 28, 2010, plaintiffs filed a motion for new trial and attached as an exhibit an affidavit from Dr. James Tappan, a board certified physician specializing in obstetrics and gynecology whose credentials as an expert are undisputed. LAMMICO opposed the motion for new trial and moved to strike the affidavit. A hearing was held, and the trial court denied the plaintiffs’ motion and found LAMMICO’s motion to strike moot.

“The trial court, however, ruled on the motion for new trial without reference to the affidavit, choosing to rely instead on the fact that plaintiffs failed to take advantage of their one opportunity to present evidence.

A trial court is imbued with great discretion in both pre-trial and post-trial matters,” the court noted but added “in the instant case, the facts, the law, and plaintiffs’ prudence and initiative in prosecuting this case, compel a finding of an abuse of discretion by the trial court.”

“We by no means intend to condone or legitimize the actions of plaintiffs’ counsel in failing to timely file an expert affidavit. We reach our decision herein after careful consideration of the facts, the law, and the procedural record before us. Rare is the case where we find an abuse of the trial court’s great discretion. This instance is indeed one of rarity.

“For the above and foregoing reasons, the judgments of the trial court are reversed, and this case is remanded to the trial court for further proceedings. Costs of this appeal are assessed to LAMMICO.” the court ruled.