Opinion
2018 CA 1212
04-17-2019
THELMA CRYER, INDIVIDUALLY AND ON BEHALF OF HER DECEASED FATHER, JOHN D. CRYER, SR. v. TANGI PINES NURSING CENTER, ET AL
Willie G. Johnson, Jr. Jennifer O. Robinson Sophia Riley Derek E. Elsey Baton Rouge, Louisiana Attorneys for Plaintiff/Appellant, Thelma Cryer, Individually and on Behalf of her Deceased Father, John D. Cryer, Sr. Douglas R. Kraus Susannah C. McKinney New Orleans, Louisiana Attorneys for Defendants/Appellees, Tangi Pines Nursing Center and Rebecca Moore, RN
NOT DESIGNATED FOR PUBLICATION On Appeal from the 21st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana
No. 2016-0000505 Honorable Charlotte Foster, Judge Presiding Willie G. Johnson, Jr.
Jennifer O. Robinson
Sophia Riley
Derek E. Elsey
Baton Rouge, Louisiana Attorneys for Plaintiff/Appellant,
Thelma Cryer, Individually and on
Behalf of her Deceased Father,
John D. Cryer, Sr. Douglas R. Kraus
Susannah C. McKinney
New Orleans, Louisiana Attorneys for Defendants/Appellees,
Tangi Pines Nursing Center and
Rebecca Moore, RN BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
Plaintiff, Thelma Cryer, individually and on behalf of her deceased father, John D. Cryer, Sr., appeals a summary judgment dismissing her medical malpractice action against the defendants, Tangi Pines Nursing Center, LLC ("Tangi Pines") and Rebecca Moore, Nursing Director of Tangi Pines. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
John D. Cryer, Sr. died on October 13, 2012, at North Oaks Health System ("North Oaks"). He was seventy four years old. His daughter, Thelma Cryer, instituted this medical malpractice action against Tangi Pines and Ms. Moore ("Defendants") on October 8, 2013, by filing a petition to impanel a medical review panel. According to the petition to impanel, Mr. Cryer resided at Tangi Pines prior to his death and at plaintiff's insistence, was transferred to Hood Memorial Hospital ("Hood") and ultimately North Oaks. At North Oaks, Mr. Cryer was diagnosed with severe dehydration, malnutrition, and a urinary tract infection and was suffering from sores, all of which plaintiff attributed to the lack of care Mr. Cryer received from defendants. Plaintiff concluded that as a result of negligence, breach of contract for services to be provided, breach of duties, and violation of rights, defendants caused Mr. Cryer to suffer from dehydration, a urinary tract infection, malnutrition, and sores, which ultimately led to his untimely death.
Nicholas Stevens, Medical Director of Tangi Pines, was also named in the petition to impanel. However, the claims against him are not before us in the present appeal. --------
The medical review panel was formed and issued an opinion on January 11, 2016. The unanimous opinion of the panel was that the evidence did not support the conclusion that defendants breached standards of care in their treatment of Mr. Cryer. Specifically, the panel found that it is not unusual for an elderly person with multiple underlying medical problems to rapidly develop infection, water loss, and dehydration even with good care; the medical evidence showed that the defendants adequately assessed, evaluated, monitored, provided follow-up, and addressed Mr. Cryer; no evidence was presented that defendants failed to adequately supervise staff; the evidence showed that defendants adequately contacted the physician regarding changes in Mr. Cryer's condition; and as to the decubitis ulcer, Mr. Cryer had chronic and recurrent ulcers, the defendants properly addressed his skin issues, and the ulcers did not cause Mr. Cryer's demise.
Subsequently, on February 19, 2016, plaintiff filed a petition for damages containing the same allegations as the petition to impanel a medical review panel, including plaintiff's allegation that defendants caused Mr. Cryer to suffer from dehydration, a urinary tract infection, malnutrition, and sores, which ultimately led to his untimely death. On October 21, 2016, defendants filed a motion for summary judgment, asserting that plaintiff had no expert to support her medical malpractice claims and was therefore unable to satisfy her burden of proof on either breach of the standard of care or causation. In opposition, the plaintiff provided an affidavit of Ronald Andrews, M.D. By judgment signed December 8, 2016, the trial court granted defendants' motion for summary judgment and dismissed defendants, with prejudice. Plaintiff filed a motion for new trial and provided a supplemental affidavit of Dr. Andrews. The trial court denied the motion for new trial, indicating that it had reviewed Dr. Andrews' supplemental affidavit and found that it failed to establish a breach of the standard of care. Plaintiff appealed, and this court reversed the summary judgment, finding that an unsigned, uncertified, and unsupported medical review panel opinion was insufficient to meet the defendants' initial burden of proof on a motion for summary judgment. Cryer v. Tangi Pines Nursing Center, 2017-0697 (La. App. 1 Cir. 12/21/17), 240 So. 3d 975, 979.
Defendants filed a second motion for summary judgment on March 13, 2018, again asserting that plaintiff could not support her medical malpractice claims. In support of the motion, defendants filed an executed copy of the January 11, 2016 medical review panel opinion. In opposition, plaintiff filed the affidavits of Dr. Andrews previously filed in connection with the first motion for summary judgment, dated November 7, 2016, and February 1, 2017, and a supplemental affidavit dated April 5, 2018. In addition, plaintiff filed a motion to compel the depositions of Ms. Moore and a corporate representative of Tangi Pines Nursing Center.
Following a hearing, the trial court signed a judgment on May 7, 2018, granting defendants' motion for summary judgment and dismissing defendants, with prejudice. The judgment further denied plaintiff's motion to compel.
Plaintiff appeals, contending that the trial court erred in granting defendants' motion for summary judgment by finding that neither the November 7, 2016, February 1, 2017, nor the April 5, 2018 affidavit by plaintiff's expert, Dr. Andrews, comports with the formal requirements of La. R.S. 9:2794. Plaintiff also argues that she was not allowed to conduct proper and adequate discovery.
LAW AND 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. 966A(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966A(2).
The burden of proof is on the mover. La. C.C.P. art. 966D(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Rather, the mover must 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, the adverse party must 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. La. C.C.P. art. 966D(1). If, however, the mover fails in his burden to show an absence of factual support for one or more of the elements of the adverse party's claim, the burden never shifts to the adverse party, and the mover is not entitled to summary judgment. Succession of Hickman v. State Through Bd. of Supervisors of Louisiana State Univ. Agricultural and Mechanical College, 2016-1069 (La. App. 1 Cir. 4/12/17), 217 So. 3d 1240, 1244.
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. Reynolds v. Bordelon, 2014-2371 (La. 6/30/15), 172 So.3d 607, 610. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Succession of Hickman, 217 So. 3d at 1244.
The motion for summary judgment at issue herein arises in the context of a suit for medical malpractice. To establish a claim for medical malpractice, a plaintiff has the burden of proving: (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. La. R.S. 9:2794; Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So. 3d 1002, 1006. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Id. at 1006-07.
In support of their motion for summary judgment, defendants submitted an executed copy of the January 11, 2016 opinion of the medical review panel that concluded that the defendants did not breach the applicable standards of care in their treatment of Mr. Cryer. The burden thus shifted to plaintiff to come forward with evidence to support her allegations. La. C.C.P. art. 966D(1); Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So. 2d 880, 887-88.
In response, plaintiff filed an opposition to the motion for summary judgment, attaching as exhibits the affidavits of Dr. Andrews dated November 7, 2016, February 1, 2017, and April 5, 2018; the deposition of Ms. Cryer; plaintiff's answers to discovery, including the certified records of Hood and Acadian Ambulance Service; and Mr. Cryer's death certificate.
We first address plaintiff's assertion that she was not allowed to conduct proper and adequate discovery because defendants refused to provide available deposition dates for Ms. Moore and a corporate representative of Tangi Pines.
There is no absolute right to delay action on a motion for summary judgment until discovery is completed. Simoneaux v. E.I. du Pont de Nemours & Co., Inc., 483 So. 2d 908, 912 (La. 1986). Under La. C.C.P. art. 967, a trial judge has the discretion to issue a summary judgment after the filing of affidavits, or the judge may allow further affidavits or discovery to take place. Id. The only requirement is that the parties be given a fair opportunity to present their claim. Unless plaintiff shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact. Id. at 913.
Under the facts of this case, plaintiff had the opportunity for "adequate discovery." See La. C.C.P. art. 966A(3). Her initial petition to impanel a medical review panel was filed in 2013, and her petition for damages was filed on February 19, 2016. Defendants' first motion for summary judgment was filed on October 21, 2016. According to plaintiff's motion to compel, plaintiff first requested available deposition dates for Ms. Moore by e-mail dated February 15, 2018. At that same time, plaintiff indicated that she would be requesting a corporate deposition. However, there is no evidence that such a request was made, nor is there evidence that plaintiff ever noticed Ms. Moore's deposition. Plaintiff did not file a motion to continue the hearing on the motion for summary judgment and failed to comply with the provisions of La. C.C.P. art. 967C, which require that she file an affidavit stating the reasons why she could not present by affidavit facts essential to justify her opposition to the motion for summary judgment, thus allowing the court to order a continuance or to allow discovery.
Accordingly, we find that there is no merit to plaintiff's assertion that she was not provided the opportunity to conduct fair and adequate discovery, and we now address the merits of the summary judgment.
Ms. Cryer testified that she is a certified nursing assistant and worked as a home health aide. She does not consider herself an expert in medicine or in the standard of care applicable to nurses, physicians, or nursing homes. She testified that her father began residing at Tangi Pines in 2011. According to Ms. Cryer, she visited her father on October 10, 2012, and at that time he was dehydrated and had lost a lot of weight since the last time that she had visited him on September 16, 2012. She requested that he be transported to Hood by ambulance. After a few hours at Hood, Mr. Cryer was transferred to North Oaks. Ms. Cryer testified that she was advised by a doctor at North Oaks that her father was dying of dehydration, but that she was not told what caused the dehydration. No doctor or health care provider at either Hood or North Oaks attributed his dehydration to negligent or bad care at Tangi Pines. Ms. Cryer did not identify any specific criticism of the care her father received at Tangi Pines other than her opinion that the nursing staff was "incompetent" and the nurses "were not doing what they were supposed to do."
The Acadian Ambulance records indicate that Mr. Cryer was transferred from Tangi Pines to Hood on October 11, 2012. The staff at Tangi Pines advised that they noticed Mr. Cryer was having difficulty swallowing and had not been eating or drinking much. The records further indicate that Mr. Cryer was transported from Hood to North Oaks on October 11, 2012.
The records from Hood reveal that Mr. Cryer was admitted on October 11, 2012, at 12:25 p.m. with a diagnosis of dehydration, and was transferred to North Oaks around 3:00 p.m. to obtain a level of care not available at Hood. His diagnosis on discharge was dehydration and leukocytosis. The death certificate lists as causes of death leukemia, stroke, and hypotension.
In Dr. Andrews' initial affidavit of November 7, 2016, he listed what he judged to be the key elements pertaining to Mr. Cryer's death: he was severely dehydrated by the time Ms. Cryer demanded his transfer to an acute care facility/hospital; he was severely malnourished upon his transfer to the acute care facility; he had a sacral decubitus ulcer; he was diagnosed with a urinary tract infection and possible sepsis upon admission to North Oaks; and he died within thirty-six hours after being discharged and transferred from Tangi Pines to the acute care facility at the urging and demand of Ms. Cryer. Dr. Andrews also noted that Mr. Cryer was diagnosed with chronic lymphocytic leukemia ("CLL"), but his disease did not require treatment or contribute to his death. Dr. Andrews stated that "[t]he only evidence in the medical record provided that contributed to his death were his severe dehydration with kidney infection and injury and his sacral decubitus ulcer."
In the affidavit of February 1, 2017, Dr. Andrews stated that he was qualified to render an expert opinion by virtue of his education, training, and current practice in internal medicine; was familiar with the standard of care for office-based primary care, the diagnosis and treatment of urinary tract infections, dehydration, sepsis, pressure sores, and CLL; was familiar with the standard of care for acute inpatient hospitalization care of urosepsis, dehydration, acute kidney injury, and pressure sores; and was familiar with the standard of care for nursing home care with prompt detection, treatment, and transferring to an acute care facility when necessary for treatment of acute kidney injury, dehydration, and sepsis. The February 1, 2017 affidavit included Dr. Andrews' curriculum vitae and a letter to Ms. Cryer's counsel that stated that the findings outlined in the November 7, 2016 affidavit were the result of his review of the medical records of Mr. Cryer from North Oaks dated November 12-13, 2012 and from Ponchartrain Hematology Oncology from April 12, 2011 and May 25, 2012; the deposition of Mr. Cryer's family; and the deposition(s) of Tangi Pines staff.
Finally, in Dr. Andrews' affidavit of April 5, 2018, he repeats the key elements pertaining to Mr. Cryer's death, which he listed in his November 7, 2016 affidavit, but states that he disagrees with the opinions of the medical review panel. Specifically, Dr. Andrews states that he does not disagree with the medical review panel that it is not unusual for an elderly person with multiple underlying medical problems to rapidly develop infection, water loss, and dehydration even with good care, but he takes exception with the fact that Mr. Cryer was admitted to Tangi Pines, a twenty-four hour facility with trained staff, and "therefore his infectious condition and water loss/dehydration should have been detected, assessed, and evaluated timely which would have facilitated his transfer to an acute care facility without delay and at the urging of a family member since the chronically ill and elderly are fragile."
We find that Dr. Andrews' affidavits are insufficient to establish that plaintiff will be able to satisfy her evidentiary burden of proof at trial. Dr. Andrews never indicated that he reviewed the Tangi Pines medical records. He stated that he reviewed the deposition(s) of Tangi Pines staff, but no such depositions were introduced into the record. Although Dr. Andrews contends that Mr. Cryer's dehydration and sacral decubitus ulcer support plaintiff's claim that Mr. Cryer was not adequately assessed, evaluated, and monitored, he does not define the standard of care applicable to Tangi Pines and Ms. Moore in the instant case or state how the defendants breached any such standard. Moreover, the affidavits fail to establish the requisite medical causation in this case. Dr. Andrews stated that Mr. Cryer's severe dehydration with kidney infection and injury and his sacral decubitus ulcer contributed to his death, but he did not establish the necessary "temporal link" between the alleged malpractice of the defendants and Mr. Cryer's death. See Succession of Hickman, 217 So. 3d at 1246. Moreover, nothing contained in Ms. Cryer's deposition, her answers to discovery, the records of Hood and Acadian Ambulance Service, or Mr. Cryer's death certificate establishes the standard of care applicable to the defendants, how they breached that standard of care, or a causal connection between the breach and the resulting injury. Therefore, based on our review of the record, we find that plaintiff failed to establish that she will be able to satisfy her evidentiary burden of proof at trial, and defendants are entitled to summary judgment.
CONCLUSION
For the above and foregoing reasons, the May 7, 2018 judgment granting summary judgment in favor of Tangi Pines Nursing Center, LLC and Rebecca Moore, Nursing Director of Tangi Pines Nursing Center, is affirmed. Costs of this appeal are assessed to Thelma Cryer, individually and on behalf of her deceased father, John D. Cryer, Sr.
AFFIRMED.