Opinion
NUMBER 2013 CA 2059
10-14-2014
PAM BEARD GAINEY, WIFE OF/AND RUSSELL GAINEY, JR. v. STATE OF LOUISIANA BY AND THROUGH LOUISIANA STATE UNIVERSITY HEALTH CARE SERVICES DIVISION AND/OR LEONARD J. CHABERT MEDICAL CENTER, DR. AMALIA DECOMAS, AND DR. JOHN SWEENEY
Patrick H. Hufft New Orleans, LA Counsel for Plaintiffs/Appellants Pam B. Gainey & Russell Gainey, Jr. James D. "Buddy" Caldwell Attorney General Lauren B. Reed Assistant Attorney General Baton Rouge, LA Counsel for Defendants/Appellees State of Louisiana by and through Louisiana State University Health Care Services Division and/or Leonard J, Chabert Medical Center, Dr. Amalia de Comas, and Dr. John Sweeney
NOT DESIGNATED FOR PUBLICATION
Appealed from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana
Suit Number 164096
Honorable George J. Larke, Jr., Presiding Patrick H. Hufft
New Orleans, LA
Counsel for Plaintiffs/Appellants
Pam B. Gainey & Russell Gainey, Jr.
James D. "Buddy" Caldwell
Attorney General
Lauren B. Reed
Assistant Attorney General
Baton Rouge, LA
Counsel for Defendants/Appellees
State of Louisiana by and through
Louisiana State University Health
Care Services Division and/or
Leonard J, Chabert Medical Center,
Dr. Amalia de Comas, and Dr. John
Sweeney
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
GUIDRY, J.
In this medical malpractice action, plaintiffs/appellants, Pam Beard Gainey wife of/and Russell Gainey, Jr., appeal from a judgment of the trial court granting a motion to strike the affidavit of plaintiffs' expert, Dr. Anthony Scarcella, granting summary judgment in favor of defendants, State of Louisiana by and through Louisiana State University Health Care Services Division and/or Leonard J. Chabert Medical Center, Dr. Amalia de Comas, and Dr. John Sweeney, and dismissing their action with prejudice. For the reasons that follow, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
Russell Gainey, Jr. presented at the Leonard J. Chabert Medical Center (Chabert) emergency room on November 30, 2008, with a serious infection in his left hand. Dr. de Comas and Dr. Sweeney, both orthopedic surgeons, performed an incision and drainage procedure on Mr. Gainey's left hand. Following the surgical procedure, Mr. Gainey was admitted to Chabert, where he received IV antibiotics for the infection. Mr. Gainey was discharged from Chabert on December 8, 2008, and was given prescriptions for antibiotics and pain medicine.
Mr. Gainey returned to Chabert on December 15, 2008, and December 22, 2008, for follow-up appointments. At these appointments, Mr. Gainey was continued on antibiotics and was instructed to return in two weeks for additional follow-up. However, Mr. Gainey did not return to Chabert until February 11, 2009, at which time it was noted that the wound had granulation tissue and that there was no sign of infection. Accordingly, Mr. Gainey was directed to return for follow-up care in two months, and his next appointment was scheduled for April 20, 2009.
According to the record, Mr. Gainey was scheduled to return to Chabert for an appointment on January 5, 2009. However, the medical records indicate that Mr. Gainey did not return to Chabert until February 11, 2009.
However, the next time Mr. Gainey sought care from a medical provider regarding his left hand was on April 23, 2009. On that date, Mr. Gainey presented to Ochsner Medical Center—Westbank (Ochsner) with complaints of swelling and an abscess on his left hand. Mr. Gainey was placed on IV antibiotics and amputation of his left pinky finger was discussed. Thereafter, Mr. Gainey requested to undergo the amputation, which was performed on April 24, 2009.
On June 23, 2011, Mr. Gainey and his wife, Pam, filed a petition for damages, naming Dr. de Comas, Dr. Sweeney, and the State of Louisiana by and through the Louisiana State University Health Care Services Division and/or Chabert as defendants. Mr. Gainey asserted that the defendants were negligent in failing to identify the infection on February 11, 2009, failing to prescribe additional antibiotics, and failing to follow-up with Mr. Gainey in a timely manner. Pam also asserted claims for loss of consortium as a result of the injury to her husband.
Thereafter, the defendants filed a motion for summary judgment, asserting that the plaintiffs had failed to identify an expert witness to testify at trial that the defendants had breached the standard of care in their treatment of Mr. Gainey and/or caused the plaintiffs' alleged damages. In support of their motion, the defendants submitted a copy of the medical review panel opinion and plaintiffs' answers to interrogatories and requests for production. Plaintiffs filed their opposition to the motion for summary judgment on July 11, 2013, four days before the scheduled hearing. Plaintiffs asserted that expert testimony was not necessary to establish the negligence of the defendants. However, out of an abundance of caution, the plaintiffs attached the affidavit of Dr. Anthony Scarcella, an emergency room physician licensed to practice medicine in California and Florida. Plaintiffs also submitted copies of Mr. Gainey's medical records from Chabert and Ochsner.
In a reply memorandum, defendants asserted that plaintiffs' opposition memorandum and referenced attachments were untimely and therefore were inadmissible and should be stricken. Additionally, defendants argued that the affidavit of Dr. Scarcella is inadmissible, regardless of timing, because: he is not an orthopedic surgeon; the affidavit does not state on what basis he, as an emergency room physician, can establish the standard of care of an orthopedic surgeon; and the affidavit fails to set forth an adequate basis for his medical opinions.
Following a hearing on defendants' motion for summary judgment, the trial court signed a judgment: denying defendants' motion to strike plaintiffs' opposition and attached documents as untimely; granting defendants' motion to strike the affidavit of Dr. Scarcella; and granting summary judgment in favor of the defendants and dismissing plaintiffs' claims against them with prejudice. The plaintiffs now appeal from the trial court's judgment.
DISCUSSION
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. Lieux v. Mitchell, 06-0382, p. 9 (La. App. 1st Cir. 12/28/06), 951 So. 2d 307, 314, writ denied, 07-0905 (La. 6/15/07), 958 So. 2d 1199. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).
On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, 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 evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2).
In ruling on a motion for summary judgment, the trial court'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 material fact. Hines v. Garrett, 04-0806, p. 1 (La. 6/25/04), 876 So. 2d 764, 765 (per curiam). 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. Smith v. Kopynec, 12-1472, p 4 (La. App. 1st Cir. 6/7/13), 119 So. 3d 835, 837.
In a medical malpractice action, the plaintiff must establish by a preponderance of the evidence the applicable standard of care, a violation of that standard of care, and a causal connection between the alleged negligence and the plaintiff's injuries. See La. R.S. 9:2794(A); McGregor v. Hospice Care of Louisiana in Baton Rouge, LLC, 09-1357, p. 6 (La. App. 1st Cir. 2/12/10), 36 So. 3d 272, 276, writ denied, 10-0701 (La. 5/28/10), 36 So. 3d 253. An expert witness is generally necessary as a matter of law to meet the burden of proof on a medical malpractice claim. Lieux, 06-0382 at p. 11, 951 So. 2d at 314. Although the jurisprudence has recognized exceptions in instances of obvious negligence, those exceptions are limited to 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. Pfiffner v. Correa, 94-0924, p. 9 (La. 10/17/94), 643 So. 2d 1228, 1234.
Ordinarily, when alleged acts of negligence raise issues peculiar to a particular medical specialty, then only those qualified in that specialty may offer evidence of the applicable standards. Bias v. Del Toro, 11-291, p. 6 (La. App. 3rd Cir. 10/5/11), 77 So. 3d 993, 996, writ denied, 11-2410 (La. 2/3/12), 79 So. 3d 1026. However, because it is the specialist's knowledge of the requisite subject matter, rather than the specialty within which the specialist practices, that determines whether a specialist may testify as to the degree of care that should be exercised, where medical disciplines overlap, a specialist in one field can testify as to the standard of care applicable to those areas of the practice of medicine that are common to both disciplines, where there is no proof that the standard of care is different in each discipline. See Ricker v. Hebert, 94-1743, p. 4 (La. App. 1st Cir. 5/5/95), 655 So. 2d 493, 495; Corlev v. State, Department of Health and Hospitals, 32,613, pp. 7-8 (La. App. 2nd Cir. 12/30/99), 749 So. 2d 926, 932.
In the instant case, the defendants moved for summary judgment, asserting that the plaintiffs had failed to identify an expert witness who would testify at trial that the defendants breached the standard of care in their treatment of Mr. Gainey and/or caused the plaintiffs' alleged damages. In support of their motion, the defendants submitted a copy of the medical review panel opinion, finding no deviation from the appropriate standard of care by the defendants, and plaintiffs' answers to interrogatories and requests for production. In opposition to the defendants' motion, the plaintiffs argued that expert testimony was not necessary to establish the negligence of the defendants, but, out of an abundance of caution, the plaintiffs provided the affidavit of Dr. Scarcella. The defendants responded and moved for the court to strike Dr. Scarcella's affidavit.
In his affidavit, Dr. Scarcella, who, according to his curriculum vitae, is an attending emergency room physician, stated that he is a physician licensed to practice in California and Florida and that he is well versed in all aspects of wound care, including complications in post-surgical wounds, and he has treated this type of patient in the past. Dr. Scarcella stated that he had reviewed the medical records in this case, and according to those records, it was clear that Mr. Gainey was treated by Dr. de Comas and Dr. Sweeney at Chabert beginning on November 30, 2008, for a serious infection of his left hand. Dr. Scarcella detailed Mr. Gainey's subsequent follow-up appointments with the defendants, and stated that on Mr. Gainey's last visit on February 11, 2009, it was noted that he was still experiencing pain, hypersensitivity, and swelling, all of which are signs of a continued infection. However, Dr. Scarcella noted that, despite these signs of infection, Mr. Gainey was not prescribed any additional antibiotics, and he was not scheduled to return for a follow-up until April 20, 2009. Dr. Scarcella noted that Mr. Gainey thereafter presented at Ochsner in April 2009 with a severe infection of the same hand and underwent an amputation of the fifth finger as a result.
Accordingly, Dr. Scarcella opined that, based on his knowledge, education, and experience, and based on his review of the evidence, considering the continued signs of infection present on February 11, 2009, the standard of care required additional antibiotic treatment and scheduling of a follow-up appointment sooner than April 20, 2009, and that the defendants breached the standard of care. Dr. Scarcella further stated that in this particular case, the delay in treatment of this infection likely contributed to the severity of the infection, which ultimately led to amputation of Mr. Gainey's left, fifth finger. Finally, Dr. Scarcella stated that the standard of care for post-surgical wound care is the same in emergency medicine as it is in any other specialty.
From our review of the record, we find that the trial court erred in striking Dr. Scarcella's affidavit and in granting summary judgment in favor of the defendants. Dr. Scarcella stated that he was knowledgeable of all aspects of wound care, including complications in post-surgical wounds, that he had treated this type of patient in the past, and he gave a detailed factual recitation of the treatment received by Mr. Gainey, as derived from Mr. Gainey's medical records. Dr. Scarcella also specifically stated that the standard of care for post-surgical wound care is the same in emergency medicine as it is any other specialty, and the defendants did not present any evidence to refute that testimony. See McGregor, 09-1357 at p. 8, 36 So. 3d at 277. Considering the entirety of Dr. Scarcella's affidavit, we find that the plaintiffs produced sufficient factual support to show that they will be able to meet their evidentiary burden of proof at trial, and as such, the trial court erred in granting summary judgment in favor of the defendants.
We note that in filing the motion for summary judgment, the defendants' sole basis for bringing that motion was the lack of expert testimony. When plaintiffs filed their opposition, accompanied by the affidavit of Dr. Scarcella, the defendants moved to strike the affidavit as inadmissible. However, the defendants did not assert that the plaintiffs were unable to meet their burden of proof as to any element of their malpractice claim based on the information provided in the affidavit, nor did they object to the documents submitted in conjunction with the plaintiffs' opposition. See La. C.C.P. art. 966(F)(2) and (3). Rather, the defendants urged these specific arguments for the first time on appeal. A motion for summary judgment can be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art 966(F)(1). Accordingly, the defendants' argument on these issues is not properly before this court.
Because we find that Dr. Scarcella's affidavit was sufficient for plaintiffs to meet their burden of proof on the motion for summary judgment, we pretermit discussion of plaintiffs' argument that expert testimony was not necessary to establish the negligence of the defendants.
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CONCLUSION
For the foregoing reasons, we reverse the judgment of the trial court striking the affidavit of Dr. Scarcella and granting summary judgment in favor of the defendants, State of Louisiana by and through Louisiana State University Health Care Services Division and/or Leonard J. Chabert Medical Center, Dr. Amalia de Comas, and Dr. John Sweeney, and dismissing their action with prejudice. We remand this matter to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed equally among the defendants.
REVERSED AND REMANDED.