Opinion
No. 2021-C-01790
02-15-2022
Akil AZIZ v. Dr. Michael L. BURNELL, et al.
Writ application denied.
Crichton, J., would grant for reasons assigned by Justice McCallum.
McCallum, J., would grant and assign reasons.
McCALLUM, J., dissents and assigns reasons.
I respectfully dissent and would grant the writ application.
In a medical malpractice action, a plaintiff has the burden of proving "the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician's alleged negligence and the plaintiff's injuries resulting therefrom." Pfiffner v. Correa , 94-0924, p. 8 (La. 10/17/94), 643 So. 2d 1228, 1233 ; La. R.S. 9:2794(A). As a general rule, expert testimony is required to establish the applicable standard of care and whether that standard was breached, except where the negligent act is so obvious that a lay person can infer negligence in the absence of expert testimony. Id ., pp. 9-10, 643 So.2d at 1234.
"[I]n most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794's requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician's conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care and there is objective evidence, including the testimony of the defendant/physician, which demonstrates a breach thereof." Id .
In the instant case, although the plaintiff retained an expert, Dr. Todd Eisner, who expressed his opinions, including his opinion that Dr. Burnell may have breached a standard of care, he did not set forth any applicable standard of care. Aziz , p. 16, 329 So.3d at 971, 973 (Dr. Eisner "did not enunciate the standard of care;" "Dr. Eisner never specifically enunciated the applicable standard of care."). Despite an absence of any expert testimony on this issue, the court of appeal articulated a standard of care and applied that standard to Dr. Burnell. In my view, this was error and it, alone, warrants the reversal of the court of appeal's judgment.
Dr. Eisner's affidavit is inconclusive and indicated that "[i]f a delay in [plaintiff's] treatment is related to Dr. Burnell and his staff's failure to communicate, it is my opinion Dr. Burnell breach [sic] the Standard Care [sic] owned [sic] to Mr. Aziz Post Colonoscopy Procedure." Aziz v. Burnell , 2021-187, p. 13 (La. App. 3 Cir. 11/3/21), 329 So.3d 963, 971–72.
A reversal of the judgment is also necessitated by what I view as the court of appeal's second error; namely, its finding of a genuine issue of material fact as to whether Dr. Burnell received any messages to call the plaintiff. Although the plaintiff maintains that he called Dr. Burnell's office more than once after he began experiencing problems following his colonoscopy, he testified that he did not speak with Dr. Burnell and Dr. Burnell testified that he was unaware of these phone calls. Thus, assuming the plaintiff's testimony to be accurate, he only established that he contacted Dr. Burnell's office. Discovery was conducted in this case, including the depositions of the members of the staff, and the plaintiff offered no evidence to controvert Dr. Burnell's testimony as to his lack of knowledge that the plaintiff had called his office.
"[I]f the moving party will not bear the burden of proof on the issue at trial and points out an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial." Planchard v. New Hotel Monteleone, LLC , 2021-00347 (La. 12/10/21), 332 So.3d 623, 625. If the non-moving party "fails to do so, there is no genuine issue of material fact and summary judgment will be granted." Id .
While the plaintiff may have a claim against the staff of the medical corporation for its alleged failure to relay messages to Dr. Burnell, the plaintiff failed to demonstrate a genuine issue of material fact that Dr. Burnell was made aware of his calls. See Gaffney v. Giles , 2014-0384 (La. App. 4 Cir. 4/29/15), 165 So. 3d 1100 (Dysart, J., concurring). Thus, in my view, the court of appeal erred in finding that a genuine issue of material fact exists in this case.
For these reasons, I would grant the writ application, reverse the court of appeal's judgment and reinstate the trial court's judgment, granting summary judgment in Dr. Burnell's favor.