Opinion
CIVIL ACTION NO. 02-616, SECTION "K" (2)
December 2, 2003
MINUTE ENTRY
Before the Court is a Motion for Summary Judgment filed by plaintiff Ronald Michael Lewis (Rec. Doc. No. 120). Having reviewed the pleadings, memoranda, exhibits, and relevant law, the Court finds that material facts exist here which preclude summary judgment and therefore DENIES the motion.
BACKGROUND
Plaintiff's father Charles C. Lewis ("Mr. Lewis"), a World War II veteran, was scheduled to receive prostate surgery at the New Orleans Veterans Administration Hospital (the "VA") on January 5, 1999. The VA staff postponed this surgery, however, upon discovering an elevated potassium level in Mr. Lewis's blood, sending Mr. Lewis to the ICU until his level stabilized. On January 8, 1999, the potassium level in Mr. Lewis's blood was under control, and his VA physician wrote an order transferring him out of the ICU and ordered 5,000 units of Heparin to be administered to Mr. Lewis every 12 hours. There is no indication in the VA's documentation that Mr. Lewis received these doses of Heparin. On October 9, 1999, at approximately 2:23 p.m., Mr. Lewis developed acute dyspnea and suffered cardiac arrest. Mr. Lewis was pronounced dead at 3:31 p.m., January 9, 1999.
The lawsuit arising out of Mr. Lewis' death presents a torturous procedural history discussed at length in this Court's Minute Entry dated December 1, 2003 (Rec. Doc. No. ___). Prior to considering this motion, the Court granted partial summary judgment in favor of plaintiff as to standard of care and breach ((Rec. Doc. No. 51) and denied defendant's request for summary judgment as to causation and damages (Rec. Doc. No. — ___). Plaintiff filed the instant Motion for Summary Judgment (Doc. No. 120) on October 16, 2003, seeking summary judgment regarding the issue of causation of Mr. Lewis' loss of a chance of survival as a result of medical malpractice.
MEDICAL MALPRACTICE/WRONGFUL DEATH STANDARD
In actions brought pursuant to the Federal Tort Claims Act, the state law where the alleged negligence occurred is controlling. Marcuni v. United Suites, 621 F.2d 142, 144 (5th Cir. 1980). The standard in a medical malpractice suit under Louisiana law requires a plaintiff to prove:
1. The degree or knowledge or skill possessed or the degree of care ordinarily exercised by physicians . . . within the involved medical specialty.
2. The defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
3. That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have bee incurred.
La. Rev. Stat. 9:2794(A). In the instant dispute, the Court has previously resolved the first two prongs of this medical malpractice claim in favor of the plaintiff by granting partial summary judgment as to standard of care and breach. The third prong, causation, is a question of fact. Miles v. Dolese Concrete Co., 518 So.2d 999 (La. 1988). The test for proving medical malpractice causation is "whether the plaintiff proved through medical testimony that it is more probably than not that the injuries were caused by the substandard care." Leblanc v. Barry, 790 So.2d 75, 79 2000-709 (La.App. 3rd Cir 2/28/01); see also Gordon v. Louisiana State University Board of Supervisors, 669 So.2d 736, 740 (La.App. 2nd Cir 1996). Medical malpractice plaintiff's "need not show that the defendant's conduct was the only cause of harm, nor must [they] negate all other possibilities." Leblanc, 790 So.2d at 79; Gordon, 669 So.2d at 740.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id.
When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of-fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Service Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
ANALYSIS
Plaintiff argues that Mr. Lewis died from a pulmonary embolism that more likely than not resulted from the VA's failure to administer heparin as ordered by the deceased's doctor. In support of this contention plaintiff offers Mr. Lewis' death certificate, the decedent's medical records, the notification of claim denial written by the Department of Veterans' Affairs, and the expert medical testimony of Dr. Alan Margolin. Defendant disputes plaintiff's cause of death claims with the testimony of its own medical expert, Dr. Lawrence O'Meallie.
As in the case of defendant's Motion for Summary Judgment (Rec. Doc. No. 110), this motion presents the Court with a classic "battle of experts." Although plaintiff offers numerous exhibits in support of its cause of death claim, the Court finds defendant's expert testimony sufficient to create a genuine dispute as to material fact. Plaintiff's expert, Dr. Margolin, opined that Mr. Lewis "died because of a classic case of pulmonary embolism," observing that "had the heparin been administered as ordered, there is more likely than not a chance that Mr. Lewis would not have developed pulmonary embolism and survived." Dr. O'Meallie, for defendant, testified that the prescribed dose of heparin "never would have prevented [Mr. Lewis'] pulmonary embolism." Plaintiff's reference to the portion of Dr. O'Meallie's testimony that recognized the low possibility that the prescribed heparin could have prevented the embolism are ineffective here. A careful reading of Dr. O'Meallie's deposition as a whole clearly shows that he did not believe the heparin ordered would have prevented Mr. Lewis' death. This conflicting medical expert testimony creates a genuine issue of material fact as to causation. As such, plaintiff's motion must fail. Accordingly,
IT IS ORDERED that plaintiff's Motion for Summary Judgment (Rec. Doc. No. 120) is hereby DENIED.