The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
SHEENA ROBERTSON CASE NO. 6:17-CV-01663
VERSUS JUDGE ROBERT R. SUMMERHAYS
IBERIA COMPREHENSIVE COMMUNITY MAGISTRATE JUDGE DAVID J. AYO
HEALTH CENTER INC
MEMORANDUM RULING
This is amedical malpractice action filed by Sheena Robertson (“Plaintiff’ or “Robertson”)
against Dr. Danielle McLurkin (“McLurkin”) and her employer, Iberia Comprehensive
Community Health Clinic (the “Clinic”). The Clinic was deemed eligible for Federal Tort Claims
Act coverage pursuant to the Federally Supported Health Centers Assistance Act (“FSHCAA”),
42 U.S.C. § 233(g)- (0), on June 27, 2014, and its deemed status has continued without interruption
since that date, Since the Clinic is a federally-supported health facility of the Health Resources
and Services Administration, the United States of America is the proper defendant in this matter.
Robertson alleges that Dr. McLurkin, who was a family medicine specialist, failed to promptly
diagnose Cauda Equina Syndrome (“CES”). Dr. McLurkin was one of several health care
providers who saw plaintiff from April 30, 2015, through May 27, 2015. The other health care
providers are defendants in Plaintiff's state action.
I.
FINDINGS OF FACT
1, Plaintiff was a patient at the Clinic who presented for examination on May 26, 2015.' Her
treating physician was McLurkin, who treated Plaintiff on May 26, 2015 in the course and
Def. Ex. 1, pp. 001-004; Def. Ex. 3, pp. 008-010.
scope of her employment with the Clinic.” The diagnostic capabilities at the Clinic were
limited. There was no X-ray machine, no EKG machine, no ultrasound machine, no MRI
machine and no CAT scan machine. Labs could be drawn but had to be packaged up and
sent out to LabCorp for processing and results.? Medicaid, Sheena Robertson’s insurer,
required that specialized imaging, such as the MRI at issue in this matter, be preapproved.
Neither McLurkin, nor the Clinic, had the capability to simply send Plaintiff to a facility
with an order in hand to get an MRI, or to set her up with an appointment to get same,
without preapproval from Medicaid.*
2. There were no neurosurgeons in the area that accepted Medicaid for an outpatient
consultation. In May of 2015, the only places that accepted Medicaid patients for outpatient
consultations were LSU-Shreveport and LSU-New Orleans and there was a six month to
one year waiting list for outpatient appointments.” Plaintiff had been a patient at the Clinic
for years prior to May 26, 2015, starting with an initial visit on July 16, 201 0.° Plaintiff had
a history of noncompliance with recommendations made by doctors and staff at the Clinic.’
3. Over a 28-day period in 2015, which included the visit to the Clinic, Plaintiff presented to
_ numerous medical settings complaining of back pain including the Clinic as well as the
emergency departments at Our Lady of Lourdes Regional Medical Center and Dauterive
Hospital. Initially, on April 30, 2015, Plaintiff presented to Our Lady of Lourdes Regional
Medical Center (“OLLRMC”) emergency room for “recurrence of pain radiating down the
right lower extremity from the right lower back.”® She was evaluated by Dr. Romig and
2 ECF No. 8; Def. Ex. 3, pp. 008-010.
3 Trial Transcript, p. 117, lines 16-25, p. 118, limes 1-15.
4 Trial Transcript, p. 119, lines 11-25, p. 120, lines 1-15.
5 Trial Transcript, p. 122, lines 13-22.
§ Def. Ex. 3, pp. 002-054.
? Trial Transcript, p. 116, lines 16-25, p. 117, lines 1-8.
® Def. Ex. 5, pp. 08-09.
discharged with a diagnosis of sciatica and prescriptions for a muscle relaxant and
analgesic.’ Plaintiff returned to the OLLRMC emergency room on May 3, 2015, at which
time her motor and sensory exams were normal. Radiographs were obtained and read as
normal alignment, normal disc spaces with no fractures noted.!! Flexeril and Toradol were
prescribed and the discharge diagnosis was low back pain and sciatica.’*
4, On May 7, 2015, Plaintiff presented to the Clinic, where she saw McLurkin. Following an
unremarkable exam, McLurkin diagnosed lumbar radiculopathy and prescribed an
analgesic and muscle relaxant.'? On May 23, 2015, Plaintiff went to the Dauterive Hospital!
emergency room. Plaintiff complained of bilateral lower back pain and numbness with
posterior right knee pain, rated as severe. Plaintiff also complained of voiding frequency
which is a urological finding. The voiding frequency, 10/10 on pain scale and bilateral
numbness were new findings. The ER physician was concerned enough about her
symptoms at this visit to consider, but did not order an MRI, and she was released."
5. On May 25, 2015, Plaintiff returned, again, to the Dauterive Hospital emergency room with
worsening symptoms. She complained of “spasms in both legs with numbness and pain.”
She also reported, “difficulty walking.” No imaging studies were performed and, despite
the worrisome symptoms consistent with nerve root compression, especially in light of pain
* Def, Ex. 5, pp. 016-019; Trial Transcript, p. 135, lines 3-18.
Def. Ex. 5, p. 050.
Def. Ex. 5, p. 034.
2 Def. Ex. 5, p. 050; Trial Transcript, p. 135, lines 3-18.
'3 Def. Ex. 3, pp. 011-012; Trial Transcript, p. 135, lines 19-25, p. 136, lines 1-25, p. 137, lines 1-8.
4 Def. Ex. 14, p. 60, lines 16-25; Def. Ex. 17, p. 40, lines 10-16.
5 Def. Ex. 14, p. 60, lines 6-21; Def. Ex. 17, lines 3-22.
16 Pl. Ex. 17, pp. 26-27; Def. Ex. 17, p. 40, lines 17-23.
and numbness in BOTH legs, yet, she was, again, diagnosed with back pain and discharged.
Dauterive Hospital did not obtain an MRI or any other imaging study during this visit.!”
6. On May 26, 2015, Plaintiff, as a walk-in patient, returned following multiple ER visits, for
a follow-up with McLurkin at the Clinic. At that time, she detailed her two ER visits on
May 23 and May 25, 2015 at Dauterive Hospital.!® She signed a release for McLurkin to
get records from Dauterive. She complained of continued back pain, difficulty walking,
numbness in her buttocks and genital area and indicated that she could not feel herself
urinating.!? The Clinic did not have an MRI or CT scan machine onsite?” McLurkin
examined Plaintiff, including examining her genital and rectal areas, and, given her
evolving symptoms, ordered both a lumbar MRI and bilateral lower extremity EMGs.7!
These scans were contingent on insurance approval. Medicaid denied the MRI ordered.”
Plaintiff testified that she recalled McLurkin telling her she was going to order an MRI.
She also testified that she went to Lourdes ER after the MRI was denied, confirming
McLurkin’s testimony that she told her to go to an ER if her MRI was denied.”
7. On May 27, 2015, at 1:43 a.m., less than 17 hours after leaving the Clinic, Plaintiff called
911 and was transported to Dauterive Hospital. She complained of “muscle spasms in both
legs, with numbness in her left perineal and groin area.” She had diarrhea and urination but
was unable to “feel” either effort.** She underwent a catheterization which drained 1200
Def. Ex. 4, pp. 010-013; Def. Ex. 17, p. 44, lines 3-25, p. 45, lines 1-3, p. 98, lines 13-25, p. 99, lines 1-18, p. 100,
limes 17-19,
18 Trial Transcript, p. 137, lines 15- 25.
19 Def, Ex, 3, p. 008; Trial Transcript, p. 137, lines 20-25, p. 138, lines 1-6.
20 Trial Transcript, p. 117, lines 16-25, p. 118, lines 1-15.
21 Def. Ex. 3, pp. 9-10, Trial Transcript, p. 139, lines 3-13.
» Def. Ex. 3, p. 007; Trial Transcript, p. 141, lines 24-25, p. 142, lines 1-5.
23 Def. Ex. 3, p. 8; Trial Transcript, p. 11, tines 1-8; p. 74, lines 14-20.
*4 Def. Ex. 4, p. 14.
ccs of urine from her bladder.”* Plaintiff was diagnosed with a urinary tract infection and
discharged.”
8. On May 27, 2015, at 6:36 p.m., twelve hours after being discharged from Dauterive
Hospital, Plaintiff arrived by ambulance and was triaged at the ER at OLLRMC.”’ At this
time, more than 2000 ces of urine was drained from her bladder and a lumbar MRI was
performed.”* The ER physician documented Plaintiff as being neurologically intact noting
specifically no lower extremity weakness.”’ The ER physician also indicated that no focal
neurological deficits were observed.?" Plaintiff was found to have a large L5-S1 herniation
with complete canal blockage.*! Plaintiff was seen the following morning by Dr. William
Brennan, a neurosurgeon, who recommended prompt surgery .*
9, Plaintiff elected to delay this surgery until after she spoke to a relative. Consequently,
Plaintiff's surgery did not begin until after 5 p.m. on May 28, 2015.7? According to Dr.
Brennan, Plaintiff likely already had developed a neurogenic bladder by the time she was
seen by the Clinic on May 26, 2015.4 A neurogenic bladder occurs when the person is no
longer able to fully empty their bladder.** Plaintiff's own expert, Dr. Bertha Daniels agreed
that Plaintiff did not develop a neurogenic bladder in the 18 hours between the time she
left the clinic and the time she next presented to an ER at 2 a.m. on May 27, 2015.*°
3 Def. Ex. 4, p. 15.
76 Def. Ex. 4, p. 16.
27 Def. Ex. 5, p. 96.
28 Def. Ex. 5, p. 91.
2 Id.
°° Def. Ex. 5, p. 092.
41 Def. Ex. 5, p. 094,
2 Def. Ex. 2, pp. 44-45.
33 Def. Ex. 2, pp. 48-52; Def. Ex. 17, p. 56, lines 1-17; Trial Transcript, p. 74, lines 2-13.
4 Def. Ex. 2, pp. 36-38.
> Def. Ex. 14, p. 023.
3 PL. Ex. 49, p. 39, lines 15-25,
CONCLUSIONS OF Law AND ANALYSIS
Under the Federal Tort claims Act?’ (“FTCA”), the United States is immune from suit
except to the degree that sovereign immunity has been waived.?? The FTCA waives sovereign
immunity for personal injury caused by the negligence or wrongful act or omission of any
employee of the government while acting within the scope ofhis or her duties, under circumstances
where the United States, if a private person, would be liable in accordance with the substantive
law of the place where the act or omission occurred.*? State substantive law controls liability for
medical malpractice under the FTCA.”
In a medical malpractice action such as the present action where a plaintiff alleges a failure
in the standard of care, under Louisiana Medical Malpractice Act*! (“MMA”), a plaintiff must
prove the standard of care applicable, breach of the standard, and causation by a preponderance of
the evidence. In a medical malpractice action against a physician who practices in a particular
specialty, the plaintiff has the burden of proving (1) the degree of care ordinarily practiced by
physicians in that specialty; (2) that the defendant either lacked this degree of skill or failed to use
reasonable care and diligence, along with his best judgment in the application of that skill; and (3)
that as a proximate result of the breach the plaintiff suffered injuries that would not otherwise have
been incurred.”
Louisiana law makes clear, a physician who is not a specialist is to be held to the standard
of care exercised by other physicians licensed to practice in this state who are actively practicing
3738 U.S.C. 1346(B), 2671, et seq.
38 re: Fema Trailer Formaldehyde Products Liability Litig. 668 F. 3d 281, 287 (5th Cir. 2012)
39 28 U.S.C. 1346(b)(1), 2674; Hanna v. the United States, 523 F.3d 597,601 (Sth Cir. 2008)
40 1d. Coleman v, U.S., 12 F 3d 824, 829 (5th Cir. 2019)
La. 40:1231.1, et seq.
La RS. 9:2794(A); Elliott v. Robinson, 612 So.2d 996 (La. App. 2d Cir. 1993).
in a similar community under similar circumstances. A physician is not required to exercise the
highest degree of care possible, rather he must only exercise the degree of skill ordinarily employed
by his peers under like circumstances, using reasonable care and his best judgment in performing
the skill.** The mere fact that an injury occurred does not raise a presumption that the physician
was negligent. A physician's conduct and professional judgment must be evaluated in terms of
the reasonableness under the existing circumstances and should not be viewed in hindsight and in
terms of results or in light of subsequent events.”*°
As to the standard of care, according to Plaintiffs expert, Dr. Bertha Daniels, once CES is
suspected, the standard requires the doctor to treat it as an emergency and immediately procure an
MRI.*’ Dr. Kevin Barlotta also testified that the standard of care required ordering an emergent
MRI.** Based on the facts established by the evidence, the Plaintiff has failed to prove that
McLurkin and the Clinic deviated from the standard of care in their treatment of Ms. Robertson in
this matter.’ McLurkin examined Plaintiff on May 26, 2015 and ordered an MRI.*? She properly
and thoroughly assessed Plaintiff. She ordered an MRI and sought authorization for same. At the
time the Plaintiff presented to the Clinic on May 26, 2015, she was already experiencing numbness
and had issues with urination. Her bladder had become neurogenic over a period of days to weeks.
McLurkin testified that, following her examination of the Plaintiff, she discussed the possibility of
CES with Ms. Robertson and advised her that she needed’ and MRI immediately.*! She advised
Ms. Robertson that she needed to go to the emergency room right away and McLurkin started to
La RS. 9:2794(A\1).
“4 Matthews v. La. State Univ. Med. Ctr. in Shreveport, 467 So.2d 1238 (La. App. 2d Cir. 1985).
La B.S. 9:2794(C). .
48 Gordon v. La. State Univ. Bd. of Supervisors, 27,966 (La. App. 2d Cir. 03/01/96), 669 So.2d 736, 740.
47 pl, Ex. 49,
48 Trial Transcript, p. 43, lines 23-25,
Def. Ex. 14, p. 25.
30 Fd,
3! Trial Transcript, p. 10, lines 17-25.
make arrangements to transport Ms. Robertson to the emergency room via ambulance.** However,
Robertson refused to go to the emergency room based upon the fact that she had already visited —
the emergency room on several occasions during the preceding days.’ Plaintiff presented no
evidence to rebut McLurkin’s testimony, which clearly established that McLurkin had made the
appropriate diagnosis and ordered the appropriate diagnostic treatment. Plaintiff has failed to meet
her burden of proving a breach of the standard of care.
In addition, Plaintiff has not proven that having the MRI performed any earlier than the
evening of May 27, 2015 and scheduling the surgery any earlier than when it was done on May
28, 2015 would have made any difference in her outcome.** Thus, even if Plaintiff could establish
that McLurkin and the Clinic failed to meet the standard of care, there is no evidence that any
action taken or not taken by McLurkin was the proximate cause of Plaintiffs injuries.
Based upon the foregoing, the Court finds that Plaintiff has failed to meet her burden of
proof regarding both a breach of the standard of care and causation. Accordingly, the Court finds
in favor of Defendant on Plaintiff's claims. The parties are to submit a judgment within ten (10)
days reflecting the Court’s ruling,
THUS DONE in Chambers on this 13th day of September, 2023.
Ys
ROBERT R. SUMMERHAYS
UNITED STATES DISTRICT JUDGE
Trial Transcript, p. 11, lines 9-17,
33 Td.
4 Def. Bx. 14, p. 25; Pi. Ex. 50, p. 41, lines 11-25, p. 42, lines 1-2, p. 45, lines 13-16.