Opinion
2013 CA 1600
07-21-2014
AUDREY ALLEMORE, WIFE OF/AND FLOYD ALLEMORE, JR. v. CAMELLIA HOSPICE OF LOUISIANA, LLC, HOME HEALTH CARE OF BOGALUSA, INC., D/B/A CAMELLIA HOME HEALTH & HOSPICE, AND VINCENT H. MANCUSO, JR.
Troy G. Ingram Slidell, LA Attorney for Plaintiffs-Appellants Audrey Allemore, wife of/and Floyd Allemore, Jr. Micholle Walker Mordock Metairie, LA Attorney for Defendant-Appellee Vincent H. Mancuso, Jr.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 22nd Judicial District Court
Parish of St. Tammany, Louisiana
Docket No. 2008-15960, Division "I"
Honorable Reginald T. Badeaux, III, Judge Presiding
Troy G. Ingram
Slidell, LA
Attorney for
Plaintiffs-Appellants
Audrey Allemore, wife of/and Floyd Allemore, Jr.
Micholle Walker Mordock
Metairie, LA
Attorney for
Defendant-Appellee
Vincent H. Mancuso, Jr.
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
PARRO, J.
Plaintiffs appeal a summary judgment, which dismissed their claims against the defendants. For the reasons that follow, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In September 2007, Floyd Allemore, Jr., sustained a work-related injury to his knee and a fracture to the femoral neck of his left hip. As a result of this injury, Mr. Allemore underwent a left hip hemi-arthroplasty on October 1, 2007, which was performed by Dr. Simon Finger. Mr. Allemore was subsequently discharged from the hospital and was issued a prescription for in-home physical therapy.
Camellia Home Health & Hospice (Camellia) was selected to perform the in-home physical therapy for Mr. Allemore, and on November 13, 2007, Vincent H. Mancuso, Jr., a physical therapist allegedly employed by Camellia, was performing physical therapy on Mr. Allemore at his home. While Mr. Mancuso was exercising Mr. Allemore's legs, he extended Mr. Allemore's left leg outward approximately 46 degrees, when a loud "pop" was heard, allegedly from Mr. Allemore's left hip. Mr. Allemore questioned Mr. Mancuso about the cause of the pop, and Mr. Mancuso apparently admitted that he did not know the cause. Over the next two weeks, Mr. Mancuso continued to perform physical therapy with Mr. Allemore, despite Mr. Allemore's continued complaints that he was experiencing significantly more pain in his left leg and groin than he had been before the popping incident, particularly when required to perform weight-bearing exercises.
Eventually, the pain increased to the point that Mr. Allemore was unable to continue physical therapy, and he returned to Dr. Finger for an examination on November 27, 2007. At that examination, Dr. Finger discovered that Mr. Allemore's left hip had become internally rotated and that his left leg was shorter when compared to his right leg. Dr. Finger attempted a closed reduction of the left hip; however, the hip would not move. Therefore, Dr. Finger was required to perform an open reduction of the hip. During the surgery, he discovered severely damaged and infected tissue, which had to be removed. Dr. Finger further found the presence of heterotropic bone formation, which he had to pry up off the femur. The sciatic nerve was encased in the scar, and it was too dangerous to actually free it up. In addition, Dr. Finger noted that the cartilage appeared to be almost completely gone from the inside of the acetabulum. Dr. Finger surgically removed the prosthesis that had been placed in the hip in the earlier surgery and obtained cultures and tissue samples for further analysis. Because of the lack of cartilage and because the hip was not stable, Dr. Finger determined that it would be impossible to relocate the hip to its original location. He further noted that the only way to make the hip stable would be to put in a cup.
Therefore, Dr. Finger and Dr. Chad Millet, an orthopedist specializing in constructing cups and stabilizing structures using cups, performed another surgery on Mr. Allemore on November 30, 2007. In this surgery, a spacer was placed in Mr. Allemore's left hip area, and he was given an extensive course of antibiotics. However, because of the extensive infection and heterotropic bone formation that had accumulated in the pelvic area, Mr. Allemore remained hospitalized, with his left hip out of socket and the prosthesis removed, for over fifteen weeks.
On February 13, 2008, Mr. Allemore underwent an aspiration of the left hip, with cultures. The pathology of the cultures demonstrated that the left total hip was still infected, which required treatment by a course of the highest levels of antibiotics. At that time, Mr. Allemore's physician informed him that he might not be able to reinsert the hip and that Mr. Allemore might not be able to walk again. Ultimately, on March 14, 2008, Dr. Millet relocated and stabilized the hip using a cup; however, Mr. Allemore's left leg had to be shortened approximately two to three inches in the process.
On November 10, 2008, Mr. Allemore and his wife, Audrey Allemore filed suit against Mr. Mancuso, Camellia Hospice of Louisiana, L.L.C., and Home Health Care of Bogalusa, Inc. (the Camellia entities). According to the petition, both Camellia entities were authorized to do, and were doing business, in the state of Louisiana as Camellia Home Health & Hospice. The petition further alleged that Mr. Mancuso was employed by one or both of the Camellia entities. However, the Camellia entities answered the petition, alleging that Mr. Mancuso was an independent contractor and that they were not vicariously liable for his acts, errors, or omissions. The Camellia entities were subsequently dismissed by joint motion, without prejudice, on September 30, 2009, but the Allemores' claims against Mr. Mancuso were reserved.
According to the Allemores' brief to this court, the Camellia entities were dismissed after Mr. Mancuso established that he had sufficient insurance to cover the damages set forth in the petition.
On January 29, 2009, prior to the dismissal of the Camellia entities, Mr. Mancuso filed an answer and demand for trial by jury, in which he asserted a general denial to the Allemores' allegations. Mr. Mancuso further asserted the comparative negligence of Mr. Allemore, as well as various other affirmative defenses, including assumption of the risk, failure to mitigate damages, victim fault, and negligence of third parties for whom he had no responsibility.
On August 15, 2012, Mr. Mancuso filed a motion for summary judgment, alleging that the Allemores could not prove that he caused the damages complained of or that they were causally linked to the alleged professional negligence. Specifically, Mr. Mancuso contended that the Allemores did not have a witness who could testify to the medical causation necessary to prove their claim. After a hearing, the trial court granted the motion for summary judgment and dismissed the Allemores' claim against Mr. Mancuso. The Allemores have appealed.
Mr. Mancuso originally filed his motion for summary judgment on May 6, 2011; however, due to various scheduling conflicts, the hearing on that motion was cancelled, without date.
The Allemores filed a motion for new trial, which was denied by the trial court. The Allemores have also appealed this judgment.
SUMMARY JUDGMENT
The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(2).
An appellate court's review of a summary judgment is a de novo review based on the evidence presented to the trial court, using the same criteria used by the trial court in deciding whether a summary judgment should be granted. Buck's Run Enterprises, Inc. v. Mapp Const. Inc., 99-3054 (La. App. 1st Cir. 2/16/01), 808 So.2d 428, 431. In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable or material fact. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765.
On a motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the moving party's burden on the motion is to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See LSA-C.C.P. art. 966(C)(2).
DISCUSSION
On appeal, as at the hearing on the motion for summary judgment, the sole issue before the court is whether the Allemores have produced an expert capable of testifying as to causation in this matter. The hearing on the motion for summary judgment was held in October 2012, almost four years after the petition in this matter had been filed against Mr. Mancuso. At that hearing, the trial court determined that despite that passage of time, the Allemores did not have an expert capable of testifying as to causation and granted summary judgment in favor of Mr. Mancuso. The Allemores have appealed, raising two assignments of error.
The Allemores assigned a third error relating to the denial of their motion for new trial. Such judgments are interlocutory and unappealable. See LSA-C.C.P. art. 2083. It is true that the supreme court has instructed this court to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from the appellant's brief that the appeal was intended to be of the merits. See McKee v. Wal-Mart Stores, Inc.. 06-1672 (La. App. 1st Cir. 6/8/07), 964 So.2d 1008, 1013, writ denied, 07-1655 (La. 10/26/07), 966 So.2d 583. However, in this case, the plaintiffs have clearly appealed the judgment on the merits; therefore, we need not address this assignment of error.
In their first assignment of error, the Allemores contend that the trial court erred in granting the motion for summary judgment when Mr. Mancuso failed to attach certified copies of all documents and medical records to his medical expert's affidavit in violation of LSA-C.C.P. art. 967. Louisiana Code of Civil Procedure article 967(A) provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
In support of his motion for summary judgment, Mr. Mancuso submitted the affidavit and report of Dr. John B. Cazale, IV, an orthopedic surgeon. Dr. Cazale reviewed Mr. Allemore's medical records with Dr. Finger and Dr. Millet and determined that Mr. Allemore's hip dislocation was not caused by physical therapy; rather, Dr. Cazale concluded that the hip dislocation was secondary to an infection, which would have developed post operatively.
Mr. Mancuso initially submitted only the report of Dr. Cazale; however, he subsequently provided an affidavit from Dr. Cazale.
The Allemores contend that the affidavit of Dr. Cazale was not supported by sufficient evidence to allow Mr. Mancuso to carry his burden of proof on the motion for summary judgment. Specifically, the Allemores note that the medical records that Dr. Cazale relied on in reaching his conclusion that Mr. Allemore's damages were caused by a post-operative infection were not attached to his report or affidavit in alleged violation of LSA-C.C.P. art. 967. Thus, the Allemores allege that Mr. Mancuso has failed to carry his initial burden of proof as the movant on the motion for summary judgment. The Allemores' argument is without merit.
As the plaintiffs, the Allemores bore the burden of proving at trial that Mr. Allemore's injuries were caused by the negligent actions of Mr. Mancuso during his physical therapy sessions. More specifically, the Allemores had the burden of proving that Mr. Mancuso violated the applicable standard of care and that this violation caused Mr. Allemore's harm or injury. See Coleman v. La Terre Physical Therapy. Inc., 09-1666 (La. App. 1st Cir. 3/26/10), 36 So.3d 325, 328. As the movant on the motion for summary judgment who would not bear the burden of proof on the issue at trial, Mr. Mancuso simply bore the initial burden of proof, which in this case merely required that he point out to the court that there was an absence of factual support for one or more elements essential to the adverse party's claim. See LSA-C.C.P. art. 966(C)(2). The affidavit of Dr. Cazale, which Mr. Mancuso submitted in support of his motion for summary judgment, contended that Mr. Allemore's injuries were not caused by the physical therapy sessions with Mr. Mancuso. Instead, Dr. Cazale opined that the hip dislocation suffered by Mr. Allemore was sustained due to an infection, which would have developed post operatively.
With this affidavit, Mr. Mancuso pointed out that there was an absence of factual support for the causation element of the Allemores' claim. Once Mr. Mancuso demonstrated this deficiency in the Allemores' case, the burden shifted to the Allemores to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial. See LSA-C.C.P. art. 966(C)(2). It is true that the medical records relied upon by Dr. Cazale were not attached to the affidavit; however, despite the Allemores' arguments to the contrary, Mr. Mancuso was not required to resolve all genuine issues of material fact in his favor before the burden of proof would shift to the Allemores. Rather, as noted, Mr. Mancuso only needed to point out to the court that there was an absence of factual support for one or more elements of the Allemores' claim. This could be done with or without supporting affidavits. See LSA-C.C.P. art. 966(A)(1). Once it was done, the burden shifted to the Allemores to prove that they would be able to carry their burden of proof at trial. After a thorough de novo review of the record, we find that Mr. Mancuso met his initial burden of proof to point out to the court that there was an absence of factual support for an element essential to the plaintiffs' claim and that the Allemores failed to produce factual support sufficient to establish that they would be able to carry their evidentiary burden of proof at trial. See LSA-C.C.P. art. 966(C)(2).
In their second assignment of error, the Allemores contend that the trial court erred in finding that their expert could not testify as to causation. In his motion for summary judgment, Mr. Mancuso initially argued that the Allemores did not have a witness to testify concerning the standard of care required of a physical therapist or a witness to testify as to causation. Eventually, the Allemores offered the testimony of Matthew Twombly, who is a doctor of physical therapy, to testify regarding issues of the standard of care required of a physical therapist. Dr. Twombly concluded that Mr. Mancuso had breached the standard of care required by a physical therapist and further opined that Mr. Mancuso's substandard level of care was a cause of Mr. Allemore's medical injuries and problems. However, the trial court determined that Dr. Twombly could not testify as to medical causation, because he was not a medical doctor. As the Allemores did not have another witness to testify concerning causation, the trial court granted summary judgment in favor of Mr. Mancuso.
The Allemores contend that the trial court erred in not allowing Dr. Twombly to testify concerning causation, since he practices in the same area of health care as Mr. Mancuso. According to the Allemores, testimony from a medical doctor is unnecessary, because physical therapists are not within the purview of the Louisiana Medical Malpractice Act; rather, these are cases of ordinary negligence governed by the traditional duty-risk analysis. Pontiff v. Pecot & Associates Rehabilitation & Physical Therapy Services. Inc.. 00-1203 (La. App. 3rd Cir. 1/31/01), 780 So.2d 478, 485; Henry v. Williams, 39,318 (La. App. 2nd Cir. 1/26/05), 892 So.2d 765, 769, writ denied, 050472 (La. 4/22/05), 899 So.2d 576.
LSA-R.S. 40:1299.41 et seq.
The Allemores are correct that cases involving the professional negligence of physical therapists are not governed by the Louisiana Medical Malpractice Act; however, the duty-risk analysis still requires a showing of causation. Specifically, the plaintiff must demonstrate that the conduct in question was a cause-in-fact of the resulting harm. See Pontiff, 780 So.2d at 485.
Louisiana Revised Statute 37:2407(A)(5) defines the "practice of physical therapy" as:
[T]he health care profession practiced by a physical therapist licensed under this Chapter and means the holding out of one's self to the public as a physical therapist and as being engaged in the business of, or the actual engagement in, the evaluation and treatment of any physical or medical condition to restore normal function of the neuromuscular and skeletal system, to relieve pain, or to prevent disability by use of physical or mechanical means, including therapeutic exercise, mobilization, passive manipulation, therapeutic modalities, and activities or devices for preventative, therapeutic, or medical purposes, and further shall include physical therapy evaluation, treatment planning, instruction, consultative services, and the supervision of physical therapy supportive personnel, including physical therapist assistants.This is distinguishable from the "practice of medicine," which is defined, in pertinent part, in LSA-R.S. 37:1262(3) to mean:
[T]he holding out of one's self to the public as being engaged in the business of, or the actual engagement in, the diagnosing, treating, curing, or relieving of any bodily or mental disease, condition, infirmity, deformity, defect, ailment, or injury in any human being, other than himself, whether by the use of any drug, instrument or force, whether physical or psychic, or of what other nature, or any other agency or means ....Pursuant to LSA-R.S. 37:1262(2) and 37:1271(A), a person must have an M.D. or a D.O. degree and a duly recorded license in order to be a physician and to engage in the "practice of medicine." Only with those qualifications can an individual diagnose an injury or its cause.
It is undisputed that Dr. Twombly is not a medical doctor. Unlike the definition of the "practice of medicine," the definition of the "practice of physical therapy" does not authorize those who engage in its practice to diagnose injuries or illnesses. Therefore, while Dr. Twombly, as a doctor of physical therapy, is qualified to offer an opinion concerning the standard of care required of Mr. Mancuso as a physical therapist, he is not qualified to offer any diagnosis of Mr. Allemore's injuries or any opinion as to the cause of his injuries.
The Allemores have not produced any other witnesses or evidence to indicate that they will be able to satisfy their evidentiary burden of proof at trial. See LSA-C.C.P. art. 966(C)(2). Accordingly, we find that summary judgment was properly granted in favor of Mr. Mancuso.
DECREE
For the foregoing reasons, the judgment of the trial court granting the motion for summary judgment filed by Vincent H. Mancuso, Jr., is affirmed. All costs of this appeal are assessed to the plaintiffs, Audrey Allemore, wife of/and Floyd Allemore, Jr.
AFFIRMED.