Opinion
NUMBER 2022 CA 0398.
11-04-2022
Timothy John METHVIEN v. OUR LADY OF THE LAKE HOSPITAL, Dr. Jennifer Davidson, and ABC Insurance Company.
GUIDRY, J.
In this medical malpractice case, plaintiffs/appellants, Donna Methvien on behalf of Timothy Michael Methvien and Felicia Ballard on behalf of Brandon Ballard (collectively "plaintiffs"), appeal a trial court judgment granting summary judgment in favor of defendant, Timothy Joel Stern, NP, and dismissing their claims against him with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On August 11, 2017, Timothy John Methvien sought medical treatment at the emergency department at Our Lady of the Lake Hospital in Livingston for pain and vision loss in his right eye. (R. 285) Methvien was examined and treated by Stern, who diagnosed Methvien with acute bacterial conjunctivitis or "pink eye" and prescribed an antibiotic ointment. Methvien was also instructed to follow-up with his primary care physician in three days. (R. 293) However, three days following his visit, Methvien sought treatment from North Oaks Hospital in Hammond, Louisiana (North Oaks) due to the onset of severe pain in his right eye. After his initial exam at North Oaks, an ophthalmology consultation was ordered, and Methvien was transferred to Ochsner Hospital in New Orleans. Methvien was treated at Ochsner from August 14, 2017, to September 8, 2017, during which time he received intravenous antibiotics and had surgery to correct a detached retina.
Thereafter, Methvien filed several petitions for damages, naming as defendants Our Lady of the Lake Hospital Walker/Livingston (OLOL), Dr. Jennifer Davidson, ABC Insurance Company, and Stern. Methvien alleged that Stern, who was under the supervision of Dr. Davidson, failed to properly diagnose his condition, failed to refer him to an ophthalmologist, and failed to consult with an ophthalmologist and that the alleged breaches in the standard of care caused him damages. On October 22, 2020, Stern filed a motion for summary judgment, asserting that Methvien had failed to produce any expert opinions, reports, or testimony in support of a cause of action against him as required by La. R.S. 9:2794 and therefore, was entitled to judgment dismissing Methvien's claims as a matter of law. Stern attached a copy of the medical review panel opinion dated April 20, 2020, which found that the evidence did not support a conclusion that Stern failed to meet the applicable standard of care, and Methvien's answers to interrogatories indicating that he had no expert at this time.
Following the death of Methvien on January 30, 2021, Donna Methvien on behalf of Timothy Michael Methvien and Felicia Ballard on behalf of Brandon Ballard filed an ex parte motion to substitute requesting that they be substituted as proper party plaintiffs on behalf of Methvien, which the trial court granted. Due to the substitution of parties, the motion for summary judgment was subsequently continued and reset for September 20, 2021.
Meanwhile, on September 13, 2021, plaintiffs filed an opposition to Stern's motion for summary judgment indicating that they had an expert, Dr. Mitchell Weikert, who will provide expert testimony that OLOL and its staff, including Stern, breached the standard of care applicable to Methvien's eye/vision causing delay in proper ophthalmology consultation and increasing the likelihood of permanent damage to Methvien's vision. Plaintiffs attached a copy of Dr. Weikert's report and curriculum vitae. Stern filed a reply memorandum objecting to the admissibility of plaintiffs' evidence and asserting that plaintiffs' expert, an ophthalmologist, is not qualified to give an opinion as to the standard of care for emergency medicine. The matter was set for hearing on September 20, 2021, but was subsequently continued to November 15, 2021, due to the effects of Hurricane Ida.
On October 29, 2021, plaintiffs fax-filed another opposition to Stern's motion for summary judgment, attaching Dr. Weikert's affidavit in addition to his expert report. In his reply, Stern requested that plaintiffs' supplemental exhibits be stricken for failure to comply with the time limitations and requirements for admissible evidence set forth in La. C.C.P. art. 966. Stern also alleged that the evidence, even if admissible, does not create a genuine issue of material fact.
According to the record, the original of this fax-filed pleading was not filed until November 15, 2021, following the hearing on Stern's motion for summary judgment.
At the November 15, 2021 hearing on Stern's motion for summary judgment, the trial court acknowledged that there was a basis to strike the plaintiffs' evidence but ruled to allow the evidence. However, the trial court found that the expert offered by plaintiffs did not address the standard of care applicable in this case, being that of a nurse practitioner in an emergency room setting, and because plaintiffs failed to otherwise establish the standard of care, breach, and causation, granted summary judgment in favor of Stern. The trial court subsequently signed a judgment denying Stern's evidentiary objections, granting summary judgment in favor of Stern, and dismissing plaintiffs' claims against Stern with prejudice.
Plaintiffs now appeal from the trial court's judgment. Additionally, Stern answered the appeal seeking reversal of the portion of the trial court's judgment denying its evidentiary objections.
DISCUSSION
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751.
The Code of Civil Procedure places the burden of proof on the party filing a motion for summary judgment. La. C.C.P. art. 966(D)(1). The mover can meet its burden by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with its motion for summary judgment. La. C.C.P. art. 966(A)(4). The mover's supporting documents, as well as the motion and memoranda, must prove the essential facts necessary to carry the mover's burden. See La. C.C.P. art. 966(A)(3).
Once the mover properly establishes the material facts by its supporting documents, the mover does not have to negate all of the essential elements of the adverse party's claims, actions, or defenses if the mover will not bear the burden of proof at trial. La. C.C.P. art. 966(D)(1); Jenkins v. Hernandez, 19-0874, p. 4 (La. App. 1st Cir. 6/3/20), 305 So.3d 365, 371, writ denied, 20-00835 (La. 10/20/20), 303 So.3d 315. The moving party must only 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. La. C.C.P. art. 966(D)(1); Mercadel v. State Through Department of Public Safety and Corrections, 18-0415 (La. App. 1st Cir. 5/15/19) (unpublished), 2019 WL 2234404 *3. The burden then shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1); see also La. C.C.P. art. 966, Comments-2015, comment (j). If the non-moving party fails to produce sufficient factual support in its opposition which proves the existence of a genuine issue of material fact, Article 966(D)(1) mandates the granting of the motion for summary judgment. Babin v. Winn-Dixie Louisiana, Inc., 00-0078, p. 4 (La. 6/30/00), 764 So.2d 37, 40; Jenkins, 19-0874 at p. 5, 305 So. 3d at 371.
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Succession of Hickman v. State Through Board of Supervisors of Louisiana State University Agricultural and Mechanical College, 16-1069, p. 5 (La. App. 1st Cir. 4/12/17), 217 So.3d 1240, 1244.
In the instant case, plaintiffs filed a medical malpractice claim against Stern. As such, they were required to prove the following by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. See La. R.S. 9:2794(A); Schultz v. Guoth, 10-0343, p. 7 (La. 1/19/11), 57 So.3d 1002, 1006. In motions for summary judgment in the context of medical malpractice, the burden of proof does not require that the medical care provider disprove medical malpractice but only that the medical care provider raise as the basis of its motion that the plaintiff cannot support his burden of proof at trial to demonstrate medical malpractice. See Samaha v. Rau, 07-1726, p. 11 (La. 2/26/08), 977 So.2d 880, 887-88. Once the medical care provider has made a prima facie showing that the motion should be granted, then the burden shifts to the plaintiffs 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. See La. C.C.P. art. 966(D)(1); see also Samaha, 07-1726 at pp. 11-12, 977 So.2d at 887-88.
It is well established that to meet the burden of proof in a medical malpractice action, the plaintiff generally is required to produce expert medical testimony as a matter of law. Fagan v. LeBlanc, 04-2743, p. 6 (La. App. 1st Cir. 2/10/06), 928 So.2d 571, 575. The jurisprudence has held that this requirement of producing expert medical testimony is especially apt when the defendant has filed a motion for summary judgment and supported such motion with expert opinion evidence that the treatment met the applicable standard of care. Boudreaux v. Mid-Continent Casualty, 05-2453, p. 6 (La. App. 1st Cir. 11/3/06), 950 So.2d 839, 844, writ denied, 06-2775 (La. 1/26/07), 948 So.2d 171. The opinion of the medical review panel is admissible, expert medical evidence that may be used to support or oppose any subsequent medical malpractice suit. McGlothlin v. Christus St. Patrick Hospital, 10-2775 (La. 7/1/11), 65 So.3d 1218, 1226-27.
In moving for summary judgment, Stern submitted a copy of the medical review panel opinion finding that the evidence did not support a conclusion that he failed to meet the applicable standard of care. As such, the burden shifted to the plaintiffs to present medical evidence in the form of expert testimony establishing a genuine issue of material fact.
Where the defendant practices in a particular medical specialty and the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within that specialty. Vanner v. Lakewood Quarters Retirement Community, 12-1828, p. 6 (La. App. 1st Cir. 6/7/13), 120 So.3d 752, 755-56. In opposing Stern's motion for summary judgment, plaintiffs submitted the expert report and affidavit of Dr. Weikert, an ophthalmologist. However, Stern was a nurse practitioner who was practicing in an emergency room setting. As such, Dr. Weikert's affidavit and report fail to address the standard of care owed by someone within Stern's medical specialty and there is no evidence otherwise establishing any overlap between the medical specialties. Furthermore, Dr. Weikert's report fails to mention any standard of care owed by Stern (as opposed to OLOL) or that Stern breached any standard of care and likewise fails to establish that any alleged breach caused Methvien's damages. Therefore, we find plaintiffs failed to meet their burden in establishing a genuine issue of material fact, and Stern is entitled to judgment as a matter of law.
Stern filed an answer to plaintiffs' appeal, alleging that the trial court abused its discretion in denying his evidentiary objections regarding the admissibility of the affidavit and report submitted by plaintiffs. Because we find, regardless of admissibility, that the report and affidavit do not create a genuine issue of material fact, we pretermit discussion of Stern's alleged errors as to the trial court's evidentiary rulings.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to plaintiffs/appellants, Donna Methvien on behalf of Timothy Michael Methvien and Felicia Ballard on behalf of Brandon Ballard.
AFFIRMED.
Whipple, J., concurs.