Opinion
NO. 2016 CA 1103
04-12-2017
ELLIOTT R. JAMES v. LAKEVIEW REGIONAL MEDICAL CENTER, DINAH JUSTILIAN, R.N., BRYAN DAILEY, R.N., ABC INSURANCE COMPANY AND XYZ INSURANCE COMPANY
Scott A. Cannon Shannon M. Livermore Ryan P. Gregoire Slidell, Louisiana Counsel for Plaintiff/Appellant Elliott R. James Aldric C. Poirier, Jr. Elizabeth S. Sconzert Mandeville, Louisiana Counsel for Defendants/Appellees Lakeview Regional Medical Center Bryan Dailey, R.N.
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Case No. 2014-14557 The Honorable Allison H. Penzato, Judge Presiding Scott A. Cannon
Shannon M. Livermore
Ryan P. Gregoire
Slidell, Louisiana Counsel for Plaintiff/Appellant
Elliott R. James Aldric C. Poirier, Jr.
Elizabeth S. Sconzert
Mandeville, Louisiana Counsel for Defendants/Appellees
Lakeview Regional Medical Center
Bryan Dailey, R.N. BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. THERIOT, J.
The plaintiff/appellant, Elliott R. James, appeals the Twenty-Second Judicial District Court grant of summary judgment in favor of the defendant/appellee, Lakeview Medical Center, LLC d/b/a Lakeview Regional Medical Center (Lakeview). For the following reasons, we affirm.
The other defendants named in the petition are not parties to this appeal.
FACTS AND PROCEDURAL HISTORY
Mr. James was a patient of Lakeview on October 28, 2010, for an exploratory laparotomy. The procedure was completed with no complications. In the days following the procedure, during recovery, Mr. James began experiencing nausea and vomiting. Mr. James was attended to by Nurse Dinah Justilian, who attempted to place a nasogastric (NG) tube through Mr. James's nose to reach his stomach. Mr. James alleges that Nurse Justilian did not contact Dr. Darren Rowan, his treating physician, before attempting to insert the tube. Nurse Justilian had difficulty inserting the tube, so she called Nurse Bryan Dailey for assistance. Nurse Dailey encountered some resistance while sliding the tube down Mr. James's throat, but managed to successfully insert the tube. During the process, Mr. James alleges he felt severe pain in his throat. When the NG tube was removed a few days later, Mr. James claims he still experienced pain in his throat, along with hoarseness.
Nurse Dailey's name is also spelled as "Daley" throughout the record. Although we cannot confirm the proper spelling, we will use the spelling represented by the appellee's counsel throughout this opinion.
Mr. James was discharged from Lakeview on November 4, 2010, but continued to complain of throat pain and hoarseness. Based on the advice of Dr. Rowan, Mr. James sought a second opinion from ENT specialist Dr. Sophia Omoro. Dr. Omoro examined Mr. James on January 17, 2011 and found damage to his right vocal cord. The right vocal cord appeared to be paralyzed. Dr. Omoro further advised that the damage could take at least a year to heal or could be permanent. Dr. Omoro examined Mr. James's throat again on September 2, 2011 and discovered that the damage to his right vocal cord had not healed, and discussed the possibility of surgery with Mr. James. Mr. James alleges the injury to his throat has never healed.
A Medical Review Panel (MRP) rendered an opinion on July 16, 2014. Its findings were that: based on Mr. James's nausea, the placement of the NG tube was reasonable; there was no evidence that the NG tube was the likely cause of Mr. James's injury, as there were contributing factors; vocal cord paralysis from an acute insertion placement of an NG tube is unlikely; discomfort from the placement of an NG tube is not indicative of injury; and the medical records indicate that the NG tube was properly placed. The MRP's conclusion was that the evidence did not support Mr. James's assertion that Lakeview failed to meet the applicable standard of care. All three reviewing physicians on the MRP concurred in the opinion.
Subsequent to the MRP's opinion, Mr. James filed a petition for damages against Lakeview, the nurses, and others, claiming that negligent treatment caused damage to his vocal cord and resulted in his pain and suffering, as well as the necessity for surgery. Mr. James proceeded to trial. Lakeview requested the identity of Mr. James's expert(s) in its interrogatories, but Mr. James only responded with the names of the doctors and nurses who treated him. As a result, Lakeview filed a motion for summary judgment, claiming that Mr. James had no evidence to establish a deviation from the standard of care.
At the July 23, 2015 hearing on the motion for summary judgment, the district court found that Mr. James had not secured an expert witness for trial, and granted him an additional ninety days to do so. Mr. James first approached Dr. Andrew McWhorter, one of the physicians who participated in the MRP, as a possible expert witness. Dr. McWhorter examined Mr. James, but Mr. James ultimately chose not to use Dr. McWhorter as his expert witness. The hearing on the motion was reset to March 17, 2016. That same day, Mr. James filed a supplemental memorandum in opposition to the motion for summary judgment, attaching to it a document purportedly authored by Sharon Miller, RN, but the document was not signed by Nurse Miller, was not dated, and was not executed in proper affidavit form. Lakeview objected to the admission of the document as untimely, pursuant to District Court Rule 9.9.
District Court Rule 9.9(c) states: "A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum so it is received at least eight calendar days before the scheduled hearing, except for motions for summary judgment, which delays are established by La. Code Civ. Proc. art. 966." La. Code Civ. Proc. art. 966(B)(1) has adopted the time limits of District Court Rule 9.9.
Louisiana Code of Civil Procedure article 966 was amended and reenacted by La. Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article in this case. See La. Acts 2015, No. 422, §§ 2 and 3.
The district court found that Mr. James's opposition was untimely filed, and that the attached document was not in affidavit form and thus not admissible as evidence in the motion for summary judgment. The district court granted the motion for summary judgment, dismissing Mr. James's claims against Lakeview with prejudice. Mr. James's motion for new trial was also denied. Mr. James now appeals the district court's judgment.
Mr. James proffered the document.
ASSIGNMENTS OF ERROR
Mr. James alleges two assignments of error:
1. The district court erred in granting the motion for summary judgment;
2. The district court erred in denying the motion for new trial.
STANDARD OF REVIEW
Appellate courts review summary judgments de novo under the same criteria governing the district court's consideration of whether summary judgment is appropriate. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file show there is no genuine issue of material fact that the mover is entitled to judgment as a matter of law. Banister v. Day, 2008-0835 (La. App. 5 Cir. 5/26/09), 13 So.3d 229, 232, writ denied, 2009-1529 (La. 10/9/09), 18 So.3d 1286.
In a medical malpractice suit, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician's alleged negligence and the plaintiff's injuries resulting therefrom. Pfiffner v. Correa, 94-0963 (La. 10/17/94), 643 So.2d 1228, 1233. Although expert testimony is often persuasive in medical malpractice claims, it is not always controlling. Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body, from which a lay person can infer negligence. Id.
DISCUSSION
The Louisiana Medical Malpractice Act (LMMA) defines "malpractice" as "any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient." La. R.S. 40:1231.1(A)(13) The cause of action alleged by Mr. James would constitute medical malpractice; he therefore must provide sufficient evidence to prove the Defendants breached the standard of care, and that this breach caused his injury.
La. R.S. 40:1299.41 to 1299.49, the former location of the LMMA, has been redesignated as La. R.S. 40:1231.1 to 1231.10 by H.C.R. No. 84 of the 2015 Regular Session.
Mr. James relies heavily on the deposition testimonies of his treating physicians. Specifically, he cites the following testimony of Dr. Rowan:
Q. Can you give us what the standard or how to place an NG tube? Is there more than one way?
A. No....
The way I do it, I have patients swollen [sic] some ice chips to get it to go down.
If for some reason there is resistance or there is a problem or if it looks like it is in the wrong position, then I would stop.
Now, if this nurse was running into trouble and just didn't take the precaution and rammed it down, then, yes, that would be a breach of the standard of care. But if [the nurse] placed it in a reasonable fashion, then I would say, no.
* * *
Q. ... So let's assume for the purposes of this question that the [endotracheal] tube was inserted on the 28th, and as of the 31st, before insertion of the NG tube, there was no complaint of hoarseness, soreness, or pain, and let's assume after the 31st, sometime after the insertion and after the removal of the NG tube, there [were] complaints of hoarseness and pain and discomfort. Isn't it more likely than not that if the vocal cord was damaged, it was during the insertion of the second tube, the NG tube?
A. Logic would say yes. Again, I would have to defer to somebody that sees that problem a lot to determine whether or not vocal cord paralysis or problems can be delayed or is instantaneous.
Mr. James also cites the following testimony by Dr. Omoro:
Q. Have you ever seen a vocal cord damaged by the placement of an NG tube?
A. Very early on as a resident elsewhere, yes. It is extremely rare, but not impossible though.
* * *
Q. Assuming that before he had placement of the NG tube—I mean, immediately before he was conversing with his wife and voiced no complaints ever before that, and then immediately upon vocalizing after the NG tube event he was, is it more probable than not that it would be the insertion of the NG tube?
A. In that case that would be more probable absolutely.
We note that both Drs. Rowan and Omoro were asked to assume certain things. Neither Dr. Rowan nor Dr. Omoro were present when the NG tube was inserted, and Mr. James's complaints of pain were not included in his chart. Drs. Rowan and Omoro were presented with essentially hypothetical situations and asked to determine whether the standard of care was breached in those situations. In his answer, Dr. Rowan stated he would defer to someone more familiar with the problem. Dr. Omoro stated she had only seen vocal cord damage from an NG tube once, early in her career. She further stated that she first heard Mr. James's complaints about his throat pain two months after the incident occurred, and that since an endotracheal tube was placed before the NG tube, she could not say with certainty which tube caused the pain.
We agree with the district court that the doctors' testimony alone fails to establish the elements of medical malpractice. Due to the prior insertion of an endotracheal tube, the absence of any complaints of pain in Mr. James's chart, and the two month delay in the examination by Dr. Omoro, this incident is not an obviously careless act by a health care provider, as was illustrated in Pfiffner. Without expert testimony, there is no issue of genuine fact in the instant case.
The proffered document by Nurse Miller was inadmissible on two grounds. First, Mr. James's opposition memorandum, to which the document was attached, was untimely. District Court Rule 9.9 establishes the delay for which to file an opposition to a motion for summary judgment. With the motion hearing set for March 17, 2016, Mr. James's opposition memorandum should have been filed no later than March 9, 2016, but it was filed on the day of the hearing. See Dimattia v. Jackson Nat. Life Ins. Co., 2004-1936 (La. App. 1 Cir. 9/23/05), 923 So.2d 126, 130. Neither the district court nor Lakeview had time to narrow the issues in dispute or prepare for an argument at the hearing. See Harris v. Louisiana Medical Mutual Ins. Co., 2015-1584 (La. App. 1 Cir. 4/15/16) (2016 WL 1535067) (unpublished), writ denied, 2016-1161 (La. 10/10/16), 207 So.3d 408. Affidavits not timely filed can be ruled inadmissible and properly excluded by the district court. Buggage v. Volks Constructors, 2006-0175 (La. 5/5/06), 928 So.2d 536 (per curiam).
Rule 9.9 of the Louisiana District Court Rules applies to a motion for summary judgment. See District Court Rule 9.10(1); Dimattia v. Jackson Nat. Life Ins. Co., 2004-1936 (La. App. 1 Cir. 9/23/05), 923 So.2d 126, 129 n. 2. --------
The second basis for not admitting Nurse Miller's document was that it was not produced in proper affidavit form. The document is not signed by Nurse Miller, not dated, and not notarized. Basically, it is a letter, which cannot substitute for an affidavit. See Peters v. Hortman, 2003-2597 (La. App. 1 Cir. 10/29/04), 897 So.2d 131, 135, writ denied, 2004-2923 (La. 2/4/05), 893 So.2d 885. If the document were in the form of a sworn affidavit, it could have been ruled admissible, notwithstanding any other defects. See Simmons v. Berry, 98-0660 (La. App. 1 Cir. 12/22/00), 779 So.2d 910, 916. Because the document is both in improper form and untimely, it was correctly ruled inadmissible.
DECREE
The summary judgment of the Twenty-Second Judicial District in favor of the appellee, Lakeview Medical Center, LLC d/b/a Lakeview Regional Medical Center, dismissing with prejudice the petition of the appellant, Elliott R. James, is affirmed. All costs of this appeal are assessed to the appellant, Elliott R. James.
AFFIRMED.