Opinion
23-CA-538
05-29-2024
THOMAS GIBSON, JR. AND BARBARA GIBSON, INDIVIDUALLY AND ON BEHALF OF THEIR FATHER, THOMAS GIBSON (D) v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO 2 D/B/A EAST JEFFERSON GENERAL HOSPITAL &OCHSNER CLINIC FOUNDATION
COUNSEL FOR PLAINTIFF/APPELLANT, THOMAS GIBSON, JR. AND BARBARA GIBSON Anh Q. Cao Amy E. Schapansky COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER CLINIC FOUNDATION Don S. McKinney William K. Wright, IV
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 789-884, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT,
THOMAS GIBSON, JR. AND BARBARA GIBSON
Anh Q. Cao
Amy E. Schapansky
COUNSEL FOR DEFENDANT/APPELLEE,
OCHSNER CLINIC FOUNDATION
Don S. McKinney
William K. Wright, IV
Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.
JOHN J. MOLAISON, JR. JUDGE
The plaintiffs, Barbara Gibson and Thomas Gibson, Jr., individually and on behalf of their father, Thomas Gibson, ("plaintiffs"), have appealed the July 11, 2023 judgment granting summary judgment in favor of the defendant, Ochsner Clinic Foundation, ("Ochsner"), and dismissing the plaintiffs' claims with prejudice. We affirm the judgment for the following reasons.
FACTS AND PROCEDURAL HISTORY
Thomas Gibson, aged 91, ("decedent") sustained multiple fractured ribs and a pneumothorax in a fall on March 8, 2011, for which he received treatment at East Jefferson General Hospital. While hospitalized at EJGH he developed pneumonia, respiratory distress, and renal failure. While there, he also required a tracheotomy and a feeding tube. Upon his release from EJGH he received treatment from other medical facilities. Ochsner admitted him on May 30, 2011, where he remained, in and out of the intensive care unit, until he died on December 19, 2011.
The plaintiffs, Mr. Gibson's children, filed a petition for damages seeking to recover under La. Civil Code articles 2315.1 and 2315.2 for the survival and wrongful death of their 91-year-old father, naming Ochsner as a defendant. The plaintiffs alleged that on October 2, 2011, the decedent was cut on his left forearm and a ligament on his left wrist was damaged while a nurse cared for him. The plaintiffs also alleged that on October 16, 2011, the decedent's right arm/armpit was "caught in the gears of a cardiac chair" being operated by Ochsner nurses, causing a "deep laceration." The plaintiffs alleged that the negligence of Ochsner's employees and agents caused these injuries, and the decedent suffered "great pain" during his "final days of life" due to these injuries.
This petition was filed after the conclusion of a medical review panel proceeding on July 19, 2018.
Ochsner filed a motion asserting that they are entitled to summary judgment as a matter of law because the plaintiffs have not produced required expert testimony to prove the relevant standard of care, breach of the standard of care, and causation. In opposition, the plaintiffs argued that expert testimony is unnecessary to determine the appropriate standard of care, a violation of that standard, and causation because the injuries suffered by the decedent in October 2011 are "medical matters within common knowledge." The plaintiffs claimed that there are genuine issues of material fact regarding the standard of care, breach, and causation, mandating that the court deny the motion for summary judgment.
Ochsner's partial summary judgment on the issue of wrongful death was also granted. However, the plaintiffs have only appealed the grant of the motion for summary judgment on the survival action.
The trial judge heard arguments on the motion, thereafter finding that, in order to carry their burdens of proof, the plaintiffs were required to produce expert testimony addressing each of the three required elements. . The court granted the motion for summary judgment and dismissed the plaintiffs' claims with prejudice. After the court denied their motion for a new trial, the plaintiffs filed this devolutive appeal.
LAW AND DISCUSSION
A court shall grant a motion for summary judgment if the motion, memorandum, and supporting documents show that there is no genuine issue regarding material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The mover's burden on the motion is to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, if the mover does not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment. La. C.C.P. art. 966(D)(1). The adverse party then has to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id.
Appellate courts review summary judgments de novo, using the same criteria the trial court applies to determine whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. The court must decide a motion for summary judgment referencing the substantive law that applies to the case. Muller v. Carrier Corp., 07-770 (La.App. 5 Cir. 4/15/08), 984 So.2d 883, 885. A plaintiff in a medical malpractice action, such as the instant case, must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794. Expert testimony is generally required to establish the applicable standard of care and whether or not there was a breach of the standard, except where the negligence is so apparent that a lay person can infer negligence without the guidance of expert testimony. La. R.S. 9:2794. Therefore, liability will not be imposed on the defendant when there is no expert testimony regarding the essential elements of the plaintiff's malpractice claim unless the case involves an apparent act from which a lay person can infer negligence, such as amputating the wrong limb or leaving a sponge in a patient's body. Benjamin v. Ochsner Hosp., 19-12 (La.App. 5 Cir. 5/29/19), 274 So.3d 862, 865.
A defendant-health care provider does not have the burden of disproving medical malpractice. Instead, he must only point out that the plaintiff cannot support his claim. Jordan v. Cmty. Care Hosp., 19-0039 (La.App. 4 Cir. 7/24/19), 276 So.3d 564, 575. The plaintiff must come forth with evidence to preclude summary judgment once a defendant healthcare provider has established an absence of factual support for an essential element of the plaintiff's claim. Id.
In its motion, Ochsner attached excerpts from the deposition of the plaintiffs' expert nurse, Prodromos Dagoglou, to support its motion. Mr. Dagoglou opined that Ochsner did not exercise reasonable care in moving the decedent from his bed on October 2, 2011 and in causing or failing to prevent his injury on October 16, 2011. Mr. Dagoglou, however, could not say what the Ochsner nurses should have done differently on those dates. He also testified that he could not explain the standards that would have applied to the handling of Mr. Gibson on October 2, 2011 and October 16, 2011, because he was not present in the room. Specifically, he testified, "If I were in the room, then, we could discuss the standard of care applicable to Ochsner on October 2, 2011 and October 16, 2011." Mr. Dagoglou was not able to state "the things that needed to be done in order to satisfy the standard care" on October 2, 2011 and October 16, 2011. Mr. Dagoglou testified that a patient like the decedent could sustain skin tears when being moved even with reasonable care taken to prevent this from occurring. Mr. Dagoglou could not specify the standard of care that the nurse should have followed to avoid tears of skin on October 2, 2011, because he was not in the room. He could not state what should have been done to comply with the standard of care on October 16, 2011. Ochsner argued that Mr. Dagoglou could not establish the standard of care and/or how the Ochsner nurses breached the standard of care.
In opposition, the plaintiffs argued that the decedent's injuries were "medical matters within common knowledge." Plaintiffs claimed they "may not require the additional evidence of expert medical testimony to carry their burden of proof to show medical malpractice." They contend their burden is to "simply show, by a preponderance of the evidence, that Ochsner, through its nursing staff, violated the applicable standard of care and that this violation was the proximate cause" of the decedent's injuries.
The plaintiffs argued that they attached an expert nursing report by Prodromos Dagoglou, RN, to provide additional evidence of Ochsner's negligence, as well as the eyewitness testimony of Barbara Gibson, photos of the injuries, and the medical records produced by Ochsner to carry its burden of proof. The plaintiffs concluded that there are genuine issues of material fact regarding the standard of care, breach, and causation.
A party cannot utilize unsworn and unverified documents as evidence to support or oppose a motion for summary judgment. La. C.C.P. art. 966 and 967. Thus, a document that is not an affidavit or sworn to in any way, nor attached to an affidavit, is not competent evidence to be given weight in determining whether there are genuine issues of material fact. Staten v. Glenwood Regional Med. Ctr., 53,220 (La.App. 2 Cir. 1/29/20), 290 So.3d 280, 286, writ denied, 20-00591 (La. 9/23/20), 301 So.3d 1184. Hence, this court cannot consider the expert report attached to the plaintiffs' opposition to the motion for summary judgment.
We now address whether expert testimony is required in this case to establish the standard of care, a breach of that standard, and causation. The 91-year-old decedent had fragile skin, as evidenced by his medical records. In July 2011, the medical records noted several skin tears on his body. In October of 2011, at the time he sustained the skin tear (cut) and laceration complained of in the petition, the decedent had been bedridden for seven months, causing his overall condition, including his skin, to deteriorate. Establishing the standard of care for handling a fragile, geriatric patient, such as the decedent, explaining the actions required to prevent skin tears, and whether skin tears can occur despite compliance with the standard of care is not within the knowledge of lay persons. Specifically, lay persons do not know how the decedent should have been transferred, positioned in his bed, and placed in the cardiac chair. Whether the injuries sustained by the decedent on October 2 and 16, 2011, resulted from a breach of the standard of care is not within the knowledge of lay persons. The fact that the decedent sustained two injuries does not prove a breach of the standard of care. Thus, the plaintiffs must have expert testimony to establish the standard of care applicable to Ochsner, that Ochsner breached that standard of care, and that the breach injured the decedent. Because the plaintiffs have not come forth with competent evidence to show that they can carry their burden of proof at trial, there is no material issue of fact, and Ochsner is entitled to summary judgment as a matter of law.
CONCLUSION
For the preceding reasons, we affirm the trial court judgment granting summary judgment in favor of the defendant, Ochsner Foundation Clinic, dismissing the claims of the plaintiffs, Barbara Gibson and Thomas Gibson, Jr., individually and on behalf of their father, Thomas Gibson, with prejudice.
AFFIRMED
JJM
FHW
SJW
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MAY 29, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: