2018-05-03 10:20:00: Bench Trial Completed - PUT MINUTES INTO ACS ON MAY 08, 2018 AT 10:20 This matter came on for a five-day jury trial which was converted to a five-day bench trial per fax dated 04/12/18 from Garrett S. Callaway. Present in court: Mr. Harry Widmann, counsel for plaintiffs; Ms. Tara Bourgeois and Ms. Garrett Callaway, counsels for defendants. Documentary and testimonial evidence were introduced and the matter was submitted. Whereupon, for oral reasons assigned, the Court rendered judgment in favor of defendants, dismissing plaintiffs? case with prejudice at plaintiffs? costs. Judgment is to be signed accordingly upon presentation.

syndrome (CES). This is a neurosurgical emergency that may require prompt surgical re­

exploration. Dr. Mitchell did not order any imaging studies to discern what was going on.

Finally, on December 6, 2010, at the insistence of Mrs. Fuller, he ordered a CT scan. In fact

an MRI or CT with contrast should have been ordered. Mr. Fuller also demonstrated bowel

and bladder dysfunction as well as impotency.

Dr. Mitchell, as well as the standard of care experts for both plaintiffs and

defendants, agree that Dr. Mitchell's surgery caused the CES. CES can occur in the absence

of negligence in connection with a laminectomy if there is a hematoma, major disc

herniation or spinal instability. None of those circumstances were present. Plaintiffs'

neurosurgery expert, Dr. Andrew Zelby, will testify that Dr. Mitchell acted below the

standard of care and caused the injury by either being overly aggressive with the surgical

instruments in removing the lamina, excessive retraction or failure to cautiously reposition

extruded nerve roots. Since Dr. Mitchell used a template for his operative report, it does not

describe in detail what actually happened and how he addressed it. Dr. Mitchell's failure to

investigate the CES was also below the standard of care.

Even to this day Mr. Fuller suffers from the CES and remains under the care of a

neurologist and a urologist. He has also treated with mental health professionals. He

continues to experience bowel and bladder dysfunction, impotency, bilateral leg pain,

numbness and weakness and depression. He uses a walker and a power scooter for

ambulation. Even though he is disabled, he still attempts to work on a part-time basis. He

has sustained a loss of earnings and earning capacity of about $800,000. His medical bills to

date are about $60,000. Without question plaintiffs' general damages, including Stacy

Fuller's loss of consortium, have a value in excess of the statutory cap.

B) DEFENDANTS' CONTENTIONS

Defendants aver that, at all relevant times, Horace L. Mitchell, M.D. did possess the

degree of knowledge and skill ordinarily possessed by physicians certified to practice the

medical specialty of neurosurgery; that he did, at all relevant times, employ reasonable care

and diligence, along with his best judgment, in the application of that skill and knowledge;

and, that the alleged injuries and damages described by plaintiffs in the petition for

damages were not caused by any failure on the part of Horace L. Mitchell, M.D. to meet the

standards of care ordinarily practiced under similar circumstances by physicians certified

to practice the medical specialty of neurosurgery. Louisiana Revised Statutes 40:1231.1, et

seq.

Defendants further avers that Horace L. Mitchell, M.D. is, and was at all times

relevant hereto, a qualified health care provider within the meaning and intendment of

Louisiana Revised Statutes 40:1231.2, with the result that the total amount recoverable

herein may not exceed five hundred thousand dollars plus interest and costs, and the

amount recoverable against defendants may not exceed the sum of one hundred thousand

dollars plus interest.

C) LEGAL AUTHORITY, STATUTES, CODE ARTICLES, CASES

1. LSA R.S. 40:1299.41 et seq.

2. LSA R.S. 9:2794.

Defendants do not agree that these statutes are the only statutes and/or law applicable to this case.

D) PERTINENT FACTS ESTABLISHED BY THE PLEADINGS, STIPULATIONS, ANDADMISSIONS

No facts have been established by the pleadings, stipulations and admissions at this

time. Plaintiffs are willing to stipulate that Dr. Horace Mitchell is a qualified healthcare

provider pursuant to LSA R.S. 40:1299.41 et seq.

El CONTESTED ISSUES OF FACT

The contested facts are those raised by the pleadings and include:

A Whether defendant, Horace L. Mitchell, M.D. was negligent/breached the standard of care.

B. Whether the alleged negligence or failure to comply with the standard of care ofdefendant, Horace L. Mitchell, M.D., was a legal cause of any injury or damagescomplained of in these proceedings;

C. Whether Ricky Fuller was negligent or otherwise at fault in failing to followmedical advice and instruction;

D. Whether any third party for whom defendant, Horace L. Mitchell, M.D., is notlegally responsible was negligent; and

Plaintiffs object to this issue. In responses to interrogatories, defendants denied that they were asserting third party fault.

E. The amount of damages, if any, to which plaintiffs are entitled.

F) CONTESTED ISSUES OF LAW

No contested issues of law have been identified at this time.

Horace L. Mitchell, M.D. and LAMMICO reserve their right to amend the pretrial

order and the contested issues of law as discovery in this matter continues. Plaintiffs object

to this, as discovery is complete.

G) EXHIBITS:

Plaintiffs, Ricky Fuller and Stacey Fuller, may use at trial and/or introduce

into evidence the following exhibits:

a) Chart of Dr. Horace Mitchell, the NeuroMedical Center Clinic and the Neuro

Medical Center Hospital.

b) Our Lady of the Lake Regional Medical Center - medical records

c) Our Lady of the Lake Regional Medical Center - billing records

d) Office chart and billing records of Dr. Martin Langston.

e) Office chart and billing records of Dr. David Hasting.

f) Office chart and billing record of Dr. Mark Posner.

g) Office chart and billing record of Atluri & Associates.

h) Office chart and billing record of Justin W. Schleis, LCSW

i) Office chart, reports and billing records of Daniel Trahant, M.D.

j) Chart and bills of Health Quest Physical Therapy.

k) Chart and bills of Beaver Creek Physical Therapy.

l) Prior depositions of Dr. Horace Mitchell for impeachment.

m) Policy of insurance issued to Dr. Horace Mitchell by LAMMICO.

n) Prior depositions of any expert witnesses identified by defendants for

impeachment.

o) Anatomical illustrations or models demonstrating the lumbar spine, including

the vertebrae, discs and neuro-anatomy.

p) Curriculum vitae of Andrew Zelby, M.D., (Plaintiffs expert).

q) Curriculum vitaes of any treating physicians called to testify.

r) Responses of Dr. Mitchell to plaintiffs discovery for impeachment.

s) Office chart of Michael Day, M.D.

t) Report of Vocational Rehabilitation expert, Thomas Meunier.

u) Report of Shael Wolfson, Ph.D.

v) Any exhibit listed or offered by any other party.

w) Certificate of enrollment for Dr. Horace Mitchell with the Louisiana Patients

Compensation Fund.

x) Prescription records for plaintiff.

y) Invoices and receipts for ambulatory assistance devices used by plaintiff.

z) Deposition and exhibits of Dr. Horace Mitchell for imipeachment.

aa) Deposition and exhibits of Dr. Najeeb Thomas.

bb )Chart of Baton Rouge Physical Therapy.

cc) Medical textbooks, treatises or journal articles referred to by any expert witness.

dd)Imaging studies concerning plaintiffs lumbar spine.

ee) Any exhibit listed by any other party or required for impeachment or rebuttal.

Defendants object to the use of the deposition of Dr. Najeeb Thomas, except for impeachment, as he will testify live at trial.

Defendants, Horace L. Mitchell, M.D. and LAMMICO, may use at trial and/or

introduce into evidence the following exhibits:

1. Certificate of enrollment, insurance policy, cancelled checks, and other evidence

establishing defendant as a qualified health care provider under the Louisiana Medical

Malpractice Act;

2. Hospital records, office records, and other medical records, including

radiographic images or films, of any physician, nurse, hospital, or other health care

provider by whom or in which Ricky Fuller was treated or examined, to include, but not

limited to: the records of The NeuroMedical Center Clinic; The NeuroMedical Center

Surgical Hospital; the NeuroMedical Center Rehab Hospital; Our Lady of the Lake Regional

Medical Center; Baton Rouge Urology Group; Dr. Daniel Trahant; Alturi & Associates;

Doctors Imaging Services; Justin W. Schleis, LCSW; Louisiana Urology; Ochsner Medical

Center - Baton Rouge; Shenandoah Medical Associates; Beaver Creek Physical Therapy;

Baton Rouge Physical Therapy Lake Rehab Center; and Health Quest Physical Therapy.

3. Depositions of the parties and of the various witnesses, whether taken during

these proceedings or during the medical review panel proceedings, whether used for

purposes of cross examination or as substantive evidence;

4. Diagrams, models, replicas, slides, photographs, and/or drawings designed to

illustrate the pertinent anatomy and medical procedures and techniques;

5. Photographs, comments or other information contained on or posted to social

media/networking accounts of plaintiffs and/ or witnesses;

6. Various medical textbooks, treatises, medical journal articles, whether used for

purposes of cross examination or as substantive evidence;

7. Responses to discovery and attachments thereto provided by any party or

witness in these proceedings;

8. Any exhibit listed or offered by any other party.

9. Defendants, Horace L. Mitchell, M.D. and LAMMICO, reserve their right to amend

the pretrial order and their exhibit list as discovery in this matter continues. Plaintiffs

object to this as discovery is complete.

H) WITNESSES:

Plaintiffs, Ricky Fuller and Stacey Fuller, have identified the following

witnesses that they may call to testify at the trial of this matter:

a) Ricky Fuller, facts and damages.

b) Stacey Fuller, facts and damages.

c) Horace Mitchell, M.D., Under Cross-Examination. See his deposition.

d) Al Versen, Prairieville, LA; will testify as to the effect upon earnings Rick Fuller

suffered because of his injuries.

e) Taryn Russell, Baton Rouge, LA; Plaintiffs sister will testify concerning the

problems plaintiff has encountered because of his injuries.

a) Andrew Zelby, M.D. - Neurosurgery expert.

b) Daniel Trahant, M.D. - Treating neurologist and expert.

c) David Hastings, M.D. - Treating urologist and expert.

d) Mark Posner, M.D. - Treating urologist and expert.

e) Anupama Atluri, M.D. and/or Justin Schleis, LCSW, Ph.D. -Treating mental healthprofessionals and expert.

f) Thomas Meunier, Vocational Rehabilitation -expert.

g) Shae! Wolfson, Ph.D. - Forensic Economics and expert.

h) Michael Day, M.D. - Attending physician and expert.

i) Any witness listed by defendants or identified in defendants responses toplaintiffs' discovery.

j) Any witness necessary for impeachment or rebuttal.

k) Any witnesses necessary to authenticate records.

Defendants, Horace L. Mitchell, M.D. and LAMMICO, have identified the

following witnesses that they may call to testify at the trial of this matter:

Horace L. Mitchell, M.D. - defendant;

Najeeb Thomas, M.D. - expert medical testimony (neurosurgery);

Frank Culicchia, M.D. - medical review panel physician - facts and medical expert testimony;

Martin Langston, M.D. - treating physician -facts and expert medical testimony;

Gregory F. Ferrera, M.D. treating physician -facts and expert medical testimony;

John R. Clifford, M.D. - treating physician -facts and expert medical testimony;

Scott Soleau, M.D. - treating physician -facts and expert medical testimony;

Kelly Scrantz, M.D. - treating physician -facts and expert medical testimony;

Joseph M. Cefalu, M.D. - treating physician -facts and expert medical testimony;

R. Stephen Williams, M.D. - treating physician -facts and expert medical testimony;

Gary B. Lum, M.D. - treating physician - facts and expert medical testimony;

Eduardo Moroni, M.D. - treating physician -facts and expert medical testimony;

Daniel J. Trahant, M.D. - treating physician -facts and expert medical testimony;

Jash Patel, M.D. - treating physician - facts and expert medical testimony;

Gerard Tassin, M.D. - treating physician - facts and expert medical testimony;

Susan D. Taylor, M.D. - treating physician - facts and expert medical testimony;

Virasith Rajapho, M.D. - treating physician facts and expert medical testimony;

Janine N. Ferrier, M.D. - treating physician - facts and expert medical testimony;

Christopher Ferguson, M.D. - treating physician - facts and expert medical testimony;

Lisa L. Baldridge, D.O. - treating physician - facts and expert medical testimony;

Mark Posner, M.D. - treating physician - facts and expert medical testimony;

David Hastings, M.D. - treating physician - facts and expert medical testimony;

Salvador Velazquez, M.D. - treating physician - facts and expert medical testimony;

Matthew C. Mitchell, M.D. - treating physician - facts and expert medical testimony;

Chad J. Aultman, M.D. - treating physician - facts and expert medical testimony;

Mark F. Loupe, PA-C- treating healthcare provider - facts and expert medical testimony;

Kelly Whitaker, PA-C - treating healthcare provider - facts and expert medical testimony;

Russell S. Williams, M.D. - treating physician - fact and expert medical testimony;

Michael Day, M.D. - treating physician - fact and expert medical testimony;

Christopher Lee, M.D. - treating physician - fact and expert medical testimony;

Kerry J. Howell, M.D. - treating physician - fact and expert medical testimony;

Rhett J. Robbins, PT - treating healthcare provider - fact and expert medical testimony;

Lance Lemoine, PT - treating healthcare provider - fact and expert medical testimony;

Jonathon Mitchell, PT - treating healthcare provider - fact and expert medical testimony;

Steven Trey Gremillion, M.D. - treating physician - fact and expert medical testimony;

Ellis Johnson, PT - treating healthcare provider - fact and expert medical testimony;

Justin W. Schleis, LCSW, Ph.D. - treating healthcare provider - fact and expert medical testimony;

Anupama Atluri, M.D. - treating physician - fact and expert medical testimony;

Ricky W. Fuller - plaintiff on cross-examination;

Stacey Fuller - plaintiff on cross-examination;

Sandra Jean Fuller - fact witness;

Jaqueline Laura_ - fact witness;

Bobbie Raynette Hardin - fact witness;

Nancy Kelley or other representative from The NeuroMedical Center, Inc. - fact

witness re status of Horace L. Mitchell, M.D. as a qualified health care provider;

Broadie Copeland or other representative from Louisiana Medical Mutual Insurance Company - fact witness re status of Horace L. Mitchell, M.D. as a qualified health care provider; and

Any witness needed to authenticate any exhibit listed above.

In addition to the foregoing, defendants may call any person identified as a potential

witness in the discovery responses of any party or listed in the may-call witness list of any

party to these proceedings and any health care provider (in addition to those listed above)

by whom Ricky Fuller was examined or treated whether before or after the treatment at

issue.

Defendants, Horace L. Mitchell, M.D. and LAMMICO, reserve their right to amend the

pre-trial order and their witness list as needed as discovery in this matter continues.

Plaintiff objects to this as discovery is complete.

I) OTHER MATTERS

1. Plaintiffs object to defendants calling Frank Culicchia, M.D. as an expert.Defendants previously represented that they would not call him and therefore plaintiffs did

not take his deposition. Discovery is now closed.

2. Defendants intend to file a motion to re-open discovery in order to completediscovery on the issue of damages, if the parties are unable to reach an agreement

regarding same.

I) ESTIMATED LENGTH OF TRIAL

Plaintiffs believe their evidence can be presented in two (2) days, exclusive of

selecting the jury.

Defendants believe their testimony can be presented in two (2) days, exclusive of

selecting the jury.