Opinion
2014 CA 1730
09-21-2015
JAMES LEBOEUF, GLORIA KEY, MARGIE OLLIS, SHANE LEBOEUF, FRANK LEBOEUF v. HOSPITAL SERVICE DISTRICT NO. 1 OF THE PARISH OF TERREBONNE, STATE OF LOUISIANA, THE OWNER AND OPERATOR OF TERREBONNE GENERAL MEDICAL CENTER, DR. BRETT CASEY, DR. CHARLES LASALLE, HOUMA ORTHOPEDIC CLINIC (A MEDICAL CORPORATION)
James E. Cazalot, Jr. Madisonville, LA Attorney for Plaintiffs/Appellants James LeBoeuf, Gloria Key, Margie Ollis, Shane LeBouef, Frank LeBoeuf Barry J. Boudreaux John D. Schoonenberg Houma, LA Attorney for Defendants/Appellees Dr. Brett Casey, Dr. Michael LaSalle, Houma Orthopedic Clinic Daniel L. Hoychick Houma, LA Attorney for Defendant/Appellant Hospital Service District No. 1, Owner/Operator Terrebonne General Medical Center
NOT DESIGNATED FOR PUBLICATION On Appeal from the Thirty Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana
No. 164825
The Honorable Randall L. Bethancourt, Judge Presiding James E. Cazalot, Jr.
Madisonville, LA
Attorney for Plaintiffs/Appellants
James LeBoeuf, Gloria Key, Margie
Ollis, Shane LeBouef, Frank
LeBoeuf
Barry J. Boudreaux
John D. Schoonenberg
Houma, LA
Attorney for Defendants/Appellees
Dr. Brett Casey, Dr. Michael LaSalle,
Houma Orthopedic Clinic
Daniel L. Hoychick
Houma, LA
Attorney for Defendant/Appellant
Hospital Service District No. 1,
Owner/Operator Terrebonne
General Medical Center
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
The trial court granted summary judgment in favor of defendants and dismissed plaintiffs' suit with prejudice. Plaintiffs have appealed. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Plaintiffs filed this medical malpractice suit based on allegedly negligent medical treatment rendered to their mother, Mary LeBoeuf. Ms. LeBoeuf was a sixty-five-year old woman who suffered from a plethora of health conditions including, but not limited to, diabetes mellitus, peripheral vascular disease, cardiomyopathy, coronary artery disease, atrial fibrillation, end-stage renal failure requiring hemodialysis three times a week, osteopenia, hypertension, and chronic obstructive pulmonary disease (COPD). In spite of her poor health, Ms. LeBoeuf continued to smoke one to two packs of cigarettes a day.
On October 11, 2008, Ms. LeBoeuf injured her left leg as a result of a fall at her home. She was transported by ambulance to the emergency room (ER) at Terrebonne General Medical Center (TGMC) where it was determined she had fractured her left tibia. Ms. LeBoeuf was subsequently admitted to TGMC for treatment of the fracture. Dr. Fadi Abou-Issa, Ms. LeBoeuf's attending physician, requested an orthopedic consultation.
The ER record noted a faint dorsalis pedis pulse. The dorsalis pedis artery supplies blood to the foot. See Ida G. Dox, et al., Attorney's Illustrated Medical Dictionary A53, A60 (1997). The ER record also indicates that Ms. LeBoeuf reported that her lower left extremity, although able to feel palpitation, was "numb" and that this was a "chronic problem."
The following day, Dr. Brett Casey, an orthopedic surgeon with Houma Orthopedic Clinic (HOC), examined Ms. LeBoeuf. He noted that her left foot was cold, indicating poor blood profusion. He questioned the need for a possible amputation; however, Ms. LeBoeuf rejected this. Ms. LeBoeuf was not a candidate for surgery due to her various health conditions, such as her diabetes and peripheral vascular disease. Peripheral vascular disease manifests as a narrowing of the blood vessels (usually from atherosclerosis) that carry blood to peripheral body parts, particularly the legs and feet, thus resulting in decreased blood supply to those areas. According to Dr. Casey, poor profusion inhibits proper healing. Therefore, Dr. Casey opted to treat Ms. LeBoeuf's fracture with a cast. Because she was a diabetic with poor profusion, he maintains that he ordered extra padding to be placed in the cast. Dr. Casey instructed Ms. LeBoeuf to return if she experienced pain, a foul smell, or any discomfort due to the cast.
Atherosclerosis is a "degenerative arterial disease characterized by deposition of complex lipids in the inner layer of the arterial wall, which results in thickening of the wall and narrowing of the vessels.... Atherosclerosis causes death when it involves the blood supply of vital organs (e.g. heart, brain)." Dox, Attorney's Illustrated Medical Dictionary at A80.
See MDGuidelines, "Diabetes with Peripheral Circulatory Disorders," http://www.mdguidelines.com/diabetes-with-peripheral-circulatory-disorders/definition (last visited on August 21, 2015). See also Morris v. Astrue, 11-0251, (N.D.I11. 12/20/12), 2012 WL 6680287, *2, n.13 ("Peripheral vascular disease (also known as peripheral arterial disease) is atherosclerosis of the lower extremities causing ischemia—a deficiency of blood supply due to the obstruction of circulation—in the legs. The Merck Manual of Diagnosis and Therapy, supra note 3, at 748; 6 Attorney's Textbook of Medicine, supra note 2, at ¶ 21.50.").
On October 14, 2008, a notation was made in the nurse's chart indicating that Ms. LeBoeuf's toes were slightly purple and that she had a very weak pulse, again indicating poor blood profusion. Dr. Casey's fellow orthopedist at HOC, Dr. William Kinnard, was made aware of Ms. LeBoeuf's condition.
On October 15, 2008, Ms. LeBoeuf was believed to be stable enough for discharge. Following her discharge by Dr. Abou-Issa, Ms. LeBoeuf received in-home healthcare services. Her toes continued to remain purple. According to Ms. LeBoeuf's son, James, a home health nurse named "Holly" (last name unknown) told the family this was caused by the cast cutting off the circulation to Ms. LeBoeuf's foot and suggested that they have the cast removed. Consequently, James believed that any problem Ms. LeBoeuf had regarding blood supply to her foot was caused by the cast as opposed to her peripheral vascular disease, the fracture, and/or any of her other serious medical conditions.
In his discharge summary, Dr. Abou-Issa specifically noted the use of a cast to treat the fracture. Thus, despite plaintiffs' insinuations to the contrary, Dr. Abou-Issa was clearly aware that a cast had been placed on Ms. LeBoeuf's leg.
On October 24, 2008, Ms. LeBoeuf went to HOC with James, and her long-term partner and James' father, Lawrence Pitre, Jr. According to James, the purpose of the appointment was to have the cast removed as suggested by Holly. On that date, Ms. LeBoeuf was seen by Dr. Casey's fellow orthopedist, Dr. Michael LaSalle. When Dr. LaSalle asked Ms. LeBoeuf the reason for her visit, James told the doctor that they wanted the cast removed. When Dr. LaSalle purportedly indicated that he was addressing Ms. LeBoeuf as opposed to him, James averred that he was speaking for his mother because of her lack of education. James then informed Dr. LaSalle about Holly's opinion. According to James, Dr. LaSalle stated that he was the doctor, that he knew why the cast was needed, and that he would be responsible if anything went wrong. Dr. LaSalle then allegedly asked James to leave the room while he continued to examine and treat Ms. LeBoeuf. During the examination, Dr. LaSalle noted a skin blister on Ms. LeBoeuf's left big toe. The cast was then removed. Dr. LaSalle saw no other blisters in the areas covered by the cast. After x-rays were taken, a new cast was placed on Ms. LeBoeuf, and she was instructed to follow-up in one week for additional x-rays. When Ms. LeBoeuf and Mr. Pitre exited, James learned, to his dismay, that a new cast had been placed on Ms. LeBoeuf's leg.
Dr. LaSalle was incorrectly referred to in plaintiffs' petition as "Dr. Charles Lasalle."
Ten days later, Ms. LeBoeuf presented to the ER complaining of shortness of breath and was again admitted to TGMC by Dr. Abou-Issa. It was discovered that Ms. LeBoeuf had missed at least one, perhaps two, of her dialysis treatments, thus causing fluid retention and an exacerbation of her respiratory symptoms. It was determined that she had pulmonary edema, and hemodialysis was swiftly initiated. Due to the missed dialysis treatments and the resultant swelling, the cast on Ms. LeBoeuf's leg had become tight and had to be removed to relieve the pressure. Upon examination, ischemia (or lack of blood flow) was noted in Ms. LeBoeuf's left forefoot. As a result, she developed gangrene making an amputation necessary. According to Dr. Casey, the ischemia and gangrene were caused by Ms. LeBoeuf's "horrific" peripheral vascular disease and were in no way caused by the cast.
Ischemia is defined as a "[l]ack of blood in circumscribed area of the body due to mechanical obstruction or functional constriction of a blood vessel." Dox, Attorney's Illustrated Medical Dictionary at 134.
Gangrene is the "[d]eath and decomposition of body tissue due to inadequate blood supply." Dox, Attorney's Illustrated Medical Dictionary at G5.
On November 10, 2008, Ms. LeBoeuf underwent a left above-knee amputation. According to the pathology report, a gross examination of the amputated limb revealed areas of gangrene in the foot, and a microscopic examination revealed sections of artery with thickening of the wall with calcification. The diagnosis was "atherosclerotic gangrene." The pathologist's diagnosis thus comported with Dr. Casey's opinion.
See note 2, supra.
Approximately three days later after the amputation, an area of gangrene was noted in Ms. LeBoeuf's left lateral thigh. Therefore, Ms. LeBoeuf was scheduled for a second amputation, this time a left hip disarticulation. According to Dr. Casey, this is an extremely serious and rarely-performed surgery that is usually only undertaken as a "last ditch effort" to save the patient. Ms. LeBoeuf's surgery was scheduled for November 17, 2008. Although she was taking the medication Plavix, Dr. Casey was willing to perform the surgery as scheduled, pending clearance by Dr. Abou-Issa. However, Dr. Abou-Issa chose instead to request a consultation with Ms. LeBoeuf's cardiologists on November 18, 2008 regarding the discontinuation of Plavix.
Ms. LeBoeuf was eventually cleared for surgery, and the left hip disarticulation was performed by Dr. Kinnard on November 24, 2008. Dr. Kinnard's pre-operative diagnosis was "[n]on-viable left lower extremity, peripheral vascular disease." The subsequent pathology report indicated early gangrenous change with accompanying peripheral vascular disease. The prognosis for Ms. LeBoeuf was considered bleak. Sadly, Ms. LeBoeuf passed away on December 10, 2008.
Thereafter, Ms. LeBoeuf's children alleged various acts of medical malpractice by Dr. Casey, Dr. LaSalle, and HOC and presented their claims to a medical review panel. The panel met and issued an opinion on June 21, 2011. All three orthopedists concluded that the "defendants" did not breach the applicable standard of care as had been "charged in the complaint." In their "Reasons for Opinion," the panel noted that Ms. LeBoeuf was a high risk, sick patient who continued to smoke and suffered multiple medical problems, one of which was vascular compromise complicated by the fracture. The panel further opined that the trauma of the fracture along with her medical condition led to the need for amputation, not any treatment rendered by the defendants. According to the panel, timely and appropriate treatment was given to Ms. LeBoeuf, the application of a hard cast was a reasonable way to treat the fracture, and there was no deviation from the standard of care.
On September 23, 2011, plaintiffs filed the instant medical malpractice suit against Dr. Casey, Dr. LaSalle, and HOC, and on April 4, 2012, plaintiffs filed a supplemental and amending petition. Therein, they alleged various incidents of negligence/malpractice by Dr. Casey and Dr. LaSalle including: the decision to treat Ms. LeBoeuf's fracture with a cast; the decision to replace the cast after the family requested its removal; the decision to not amputate higher despite a visible sore on the thigh above the amputation site; and, the delay in performing the hip disarticulation surgery. In addition, plaintiffs alleged that Dr. LaSalle's comments "that he would be responsible for anything that happened" to Ms. LeBoeuf amounted to a "warranty and created a contract with [Ms. LeBoeuf] and the family." They further alleged that "Dr. LaSalle breached that warranty and/or contract when [Ms. LeBoeuf] died due to complications caused by the cast."
Also named as a defendant was TGMC. In July 2012, TGMC filed a motion for summary judgment alleging that plaintiffs lacked necessary medical expert testimony needed to satisfy their evidentiary burden of proof at trial. Following a hearing, the trial court granted summary judgment in favor of TGMC dismissing plaintiffs' claim against it with prejudice. Plaintiffs' subsequent motion for new trial was denied. Plaintiffs did not appeal.
Plaintiffs' claims against HOC are apparently based on its vicarious liability for the acts of its employees, Drs. Casey and LaSalle.
In December 2013, Dr. Casey, Dr. LaSalle, and HOC filed a motion for summary judgment based on plaintiffs' lack of any expert medical opinion to prove their medical malpractice claims. In support of their motion, defendants submitted the medical review panel opinion as well as the panel's reasons for the opinion. Thus, defendants averred that the only expert opinion before the trial court was that of the medical review panel members, who unanimously found that there was no breach of the applicable standard of care, and that plaintiffs lacked the necessary expert medical testimony to counter it. Defendants contended that plaintiffs were required to offer medical expert testimony because this was not a case of obvious negligence from which malpractice could be inferred.
Plaintiffs acknowledged in their opposition that they lacked an expert witness. Nonetheless, they asserted the summary judgment was improper for a number of reasons. Specifically, they asserted that: pursuant to La. R.S. 9:2794B, medical malpractice cases cannot be disposed of on summary judgment; expert testimony is not required in all malpractice cases; Dr. Casey's deposition set forth the standard of care regarding Mary's request of Dr. LaSalle to not replace the cast and Dr. Casey's failure to amputate high enough; expert testimony was not necessary due to the relaxed burden of proof for lost chance of survival cases; there are genuine issues of material fact; and the defendants did not request summary judgment on plaintiffs' breach of contract claim. In conjunction with their opposition, plaintiffs submitted: portions of Ms. LeBoeuf's medical record; the affidavit of Shane LeBoeuf, Ms. LeBoeuf's son; and the depositions of James LeBoeuf and Dr. Casey.
At the hearing on the motion, plaintiffs' counsel admitted that they had no expert nor did they have any intention of obtaining one. He further conceded that they would be unable to prove that the actions of defendants caused Ms. LeBoeuf's death; however, he asserted that a lost chance of survival claim was viable. Finally, he agreed that plaintiffs did not have a written warranty guaranteeing a positive result; however, he claimed that their breach of contract claim was not based on such a warranty.
After argument, the trial court took the matter under advisement. On February 4, 2014, the trial court issued reasons for judgment. In light of the particular facts of this case, the trial court concluded that expert opinion was necessary for plaintiffs to meet their burden of proof and thus summary judgment was proper. In addition, the court noted that plaintiffs' contract claim failed as a matter of law because there was no signed, written document memorializing any contractual agreement or assurances. Accordingly, the trial court granted summary judgment in favor of defendants and signed a judgment dismissing plaintiffs' claims against them with prejudice. After the trial court denied plaintiffs' motion for new trial, they lodged the instant appeal challenging the dismissal of their suit against defendants.
LAW AND DISCUSSION
In their first assignment of error, plaintiffs argue that the trial court improperly granted summary judgment on their medical malpractice claims. As an appellate court, we review a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, admitted for the purposes of the motion, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B(2).
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense. Rather, he need only 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, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966C(2). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material for purposes of summary judgment can be seen only in light of the substantive law applicable to the case. Gaspard v. Graves, 05-1042 (La.App. 1 Cir. 3/29/06), 934 So.2d 158, 160, writs denied, 06-0882, 06-0958 (La. 6/16/06), 929 So.2d 1286, 1289.
The Louisiana Medical Malpractice Act (MMA) 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." La. R.S. 40:1299.41A(13). Pursuant to La. R.S. 9:2794, in order to establish a medical malpractice claim against a physician, a plaintiff must establish by a preponderance of the evidence the applicable standard of care, a breach of that standard of care, and a causal connection between the breach and the resulting injuries. See La. R.S. 9:2794A. Although there are exceptions, an expert witness is generally necessary as a matter of law to meet the burden of proof on a medical malpractice claim. Lieux v. Mitchell, 06-0382 (La.App. 1 Cir. 12/28/06), 951 So.2d 307, 315, writ denied, 07-0905 (La. 6/15/07), 958 So.2d 1199.
When the defendant practices in a particular specialty and the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty. La. R.S. 9:2794A(1); LeBlanc v. Landry, 08-1643 (La.App. 1 Cir. 6/24/09), 21 So.3d 353, 360 writ denied, 09-1705 (La. 10/2/09), 18 So.3d 117.
With regard to expert testimony, La. R.S. 9:2794B provides, in pertinent part:
Any party to an action shall have the right to subpoena any physician ... for a deposition or testimony for trial, or both, to establish the degree of knowledge or skill possessed or degree of care ordinarily exercised as described in Subsection A ... without obtaining the consent of the physician ... who is going to be subpoenaed only if that physician ... has or possesses special knowledge or experience in the specific medical procedure or process that forms the basis of the action. The fee of the physician ... called for deposition or testimony, or both, under this Subsection shall be set by the court.
In support of their first assignment of error, plaintiffs argue that this provision, La. R.S. 9:2794B, gives them an absolute right to satisfy their burden of proof at trial, and thus prohibits any medical malpractice claims from being decided on a motion for summary judgment.
Although plaintiffs concede that the Louisiana Supreme Court and all Louisiana Appellate Courts have rendered decisions in medical malpractice claims in the context of a motion for summary judgment, they claim this has been done in error given the clear language of La. R.S. 9:2794B and the rules of statutory interpretation.
Specifically, plaintiffs rely on that portion of the provision which states that a "party ... shall have the right to subpoena any physician ... for a deposition or testimony at trial, or both, to establish the degree of knowledge or skill possessed, or degree of care ordinarily exercised" as described in La. R.S. 9:2794A. Because the word "shall" is mandatory, they posit that La. R.S. 9:2:2794B grants parties in a medical malpractice case the absolute right to proceed to trial and once there, the right to subpoena a physician to satisfy their burden of proof. Accordingly, they argue that the summary procedure cannot be utilized to deprive them of this absolute right.
While plaintiffs' argument is certainly novel, based on the principles of statutory interpretation, we find it to be wholly without merit. At the outset, we observe that La. C.C.P. art. 966A(2) expressly provides that:
The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends. [Underlining added.]We note that there is nothing in La. C.C.P. art. 969, which deals with divorce and ancillary matters, that places medical malpractice actions beyond the ambit of summary judgment procedure. Nor do we find that La. R.S. 9:2794B, when properly interpreted, exempts medical malpractice cases from being considered on a motion for summary judgment.
With regard to the rules of statutory construction, the Louisiana Supreme Court noted in Colvin v. Louisiana Patient's Compensation Fund Oversight Bd., 06-1104 (La. 1/17/07), 947 So.2d 15, 19-20:
The fundamental question in all cases of statutory interpretation is legislative intent. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature.
The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law. A statute must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature.
Further, it is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect
is to be given to each such provision, and that no unnecessary words or provisions were employed. As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. Finally, it is presumed that the legislature acts with full knowledge of well-[settled] principles of statutory construction. [Internal citations omitted.]
Applying these precepts to La. R.S. 9:2794B, we find that it does not grant a party in a medical malpractice case the absolute right to satisfy his burden of proof at a trial, thereby prohibiting disposition by summary judgment. The plaintiffs' proposed interpretation is fatally flawed because it is based solely on the first half of the provision, while effectively rendering the latter half superfluous. Rather, when read as a whole, La. R.S. 9:2794B merely permits "[a]ny party" to subpoena a physician for a deposition or to testify at trial about the standard of care, without his or her consent but "only if that physician ... has or possesses special knowledge or experience in the specific medical procedure or process that forms the basis of the action." See Pfiffner v. Correa, 94-0963 (La. 10/17/94), 643 So.2d 1228, 1233 (noting that La. R.S. 9:2794B "grants any party to the suit the right to subpoena any physician without his consent for a deposition or testimony at trial to establish [the] standard of care"). There is nothing in this statutory provision that renders it incompatible with summary judgment procedure. Indeed, plaintiffs have offered no rationale to explain why any doctors that could be subpoenaed to testify at trial pursuant to this provision could not also be subpoenaed for a deposition in order to oppose a properly supported motion for summary judgment. Accordingly, we find this argument lacks merit.
Plaintiffs next assert that the trial court improperly granted summary judgment based on a lack of expert testimony. They contend that expert testimony is not necessary in this case.
Because of the complex medical and factual issues involved in most cases, we note that a plaintiff will likely fail to sustain his burden of proving his claim under La. R.S. 9:2794's requirements without medical experts. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached. See Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 884. Moreover, when a causal connection between the act and injury is not obvious, expert testimony is also required to establish whether a breach of the standard of care caused injury to the plaintiff. See Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002, 1009. Thus, an expert witness is generally necessary to satisfy the burden of proof on a medical malpractice claim. Lieux, 951 So.2d at 314-15. This requirement of producing expert 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. Lieux, 951 So.2d at 315.
However, in Pfiffner, 643 So.2d at 1234, the Louisiana Supreme Court recognized that expert testimony is not always required. There are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the physician's conduct as well as any expert can, or in which the physician testifies as to the standard of care and there is objective evidence, including the testimony of the physician, which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant's fault and the injury alleged. Id.
Examples of situations in which a lay person can infer negligence and where expert testimony is not necessary include where a 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, leaving a sponge in a patient's body, failure of an on-call physician to respond to an emergency where he knows or should know his presence is necessary, or where the alleged negligence consists of violating a statute and/or a hospital's bylaws. Pfiffner, 643 So.2d at 1233-34.
Considering Ms. LeBoeuf's complex and dire medical history, the instant case is not one of obvious negligence in which a lay person can simply infer negligence. We agree with the trial court that, in light of the issues presented in this case, expert testimony is required to prove the elements of plaintiffs' malpractice claims.
Plaintiffs contend that, pursuant to Pfiffner, the testimony of one of the defendants, Dr. Casey, established the standard of care regarding two of the alleged instances of malpractice. However, assuming solely for the sake of argument, that Dr. Casey's testimony established the standard of care for all of plaintiffs' claims and that the evidence further demonstrated those standards had been breached, plaintiffs were nonetheless required to show that they would be able to satisfy their evidentiary burden of proving a causal connection between the defendants' negligence and Ms. LeBoeuf's lost chance of survival. See Pfiffner, 643 So.2d at 1230, 1234. When a causal nexus is not obvious, expert testimony is required. See Schultz, 57 So.3d at 1009. We note that there was absolutely no expert testimony (necessary in this case) to establish that any injury had been caused as a result of the alleged negligence of Dr. Casey or Dr. LaSalle.
Nevertheless, plaintiffs contend that since their claim is one for a lost chance of survival as opposed to wrongful death, they are excused from having to present expert testimony because they are held to a lesser burden of proof. We find this assertion to be without merit.
A plaintiff asserting a lost chance of survival claim is relieved of proving that the patient would have survived if properly treated. See Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, 1278 (La. 1991). Indeed, he need only prove that the patient had a chance of survival and that his chance of survival was lost as a result of the defendant/physician's negligence. See Smith v. State through Dept. of Health and Human Resources Admin., 523 So.2d 815, 820 (La. 1988). However, as noted in Smith v. State, Dept. of Health and Hospitals, 95-0038, (La. 6/25/96), 676 So.2d 543, 547:
Allowing recovery for the loss of a chance of survival is not ... a change or a relaxation of the usual burden of proof by a preponderance of the evidence. Rather, allowing such recovery is a recognition of the loss of a chance of survival as a distinct compensable injury caused by the defendant's negligence, to be distinguished from the loss of life in wrongful death cases, and there is no variance from the usual burden in proving that distinct loss.
Thus, in a medical malpractice case seeking damages for the loss of a less-than-even chance of survival because of negligent treatment of a pre-existing condition, the plaintiff must prove by a preponderance of the evidence that the tort victim had a chance of survival at the time of the professional negligence and that the tortfeasor's action or inaction deprived the victim of all or part of that chance, and must further prove the value of the lost chance, which is the only item of damages at issue in such a case.
Accordingly, plaintiffs' burden of proving causation was not lessened simply because they are claiming a lost chance of survival as opposed to wrongful death. Thus, at trial, plaintiffs would be required to prove, either through their "own experts, the defendants, or the defense experts," that the defendants' alleged breaches caused Ms. LeBoeuf to suffer a loss of a chance of survival. See Schultz, 57 So.3d at 1009 quoting Pfiffner, 643 So.2d at 1234.
Once defendants made a prima facie showing in their motion for summary judgment, it was incumbent on plaintiffs to produce medical expert testimony sufficient to demonstrate that they will be able to satisfy their evidentiary burden of proof at trial that any alleged malpractice by Dr. Casey or Dr. LaSalle caused Ms. LeBoeuf any injury or a loss of a chance of survival. Because they failed to do this, they have failed to establish a genuine issue of material fact. See Schultz, 57 So.3d at 1010. Thus, the trial court properly granted summary judgment in favor of defendants dismissing plaintiffs' malpractice claims. Plaintiffs' first assignment of error is without merit.
In their second assignment of error, plaintiffs argue that the trial court improperly dismissed their breach of contract claim since it was not addressed in defendants' motion for summary judgment. Plaintiffs purported contract claim arises out of the office visit with Dr. LaSalle. In their petition, plaintiffs alleged that Dr. LaSalle placed another cast on Ms. LeBoeuf's leg "over the family's specific objection" and told the family that "he would be responsible for anything that happened to [Ms. LeBoeuf]." Plaintiffs further alleged that:
Pursuant to La. C.C.P. art. 966 F(1), a summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.
Dr. LaSalle's comments amounted to a warranty and created a contract between [Ms. LeBoeuf] and the family. Dr. LaSalle breached that warranty and/or contract when [Ms. LeBoeuf] died due to complications caused by the cast.
In McGregor v. Hospice Care of Louisiana in Baton Rouge, Inc., 08-2029 (La.App. 1 Cir. 3/27/09), 2009 WL 838621, *5 (unpublished opinion), writ denied, 09-1232 (La. 9/18/09), 17 So.3d 980, this court stated:
As a general rule, when a health care provider undertakes the treatment of a patient, he does not guarantee a cure, nor is any promise to effect a cure or even a partial healing to be implied. Moreover, the law does not impose an implied undertaking to cure, but only an undertaking to use ordinary skill and care. See Phelps v. Donaldson, 243 La. 1118, 1123, 150 So.2d 35, 37 (1963). However, a health care provider may, by express contract, agree to effect a cure or warrant that a particular result will be obtained. In such instances, an action in contract may lie against the health care provider. See Sciacca v. Polizzi, 403 So.2d 728, 730 (La. 1981).However, La. R.S. 40:1299.41C limits such actions, as follows:
No liability shall be imposed upon any health care provider on the basis of an alleged breach of contract, whether by express or implied warranty, assuring results to be obtained from any procedure undertaken in the course of health care, unless such contract is expressly set forth in writing and signed by such health care provider or by an authorized agent of such health care provider.
In the instant case, the trial court dismissed the plaintiffs' contract claim because they did not have a written contract memorializing any assurances. Plaintiffs concede that they have no written contract; however, they contend that, despite wording of their allegation in their petition, they have never argued that their contract was one of warranty. Although they lack a written contract of warranty, they contend that they nonetheless have a breach of contract claim, and that this claim is "in addition to and/or as an alternative to" their medical malpractice claims. We disagree. We find that the plaintiffs' alleged contract claim is a medical malpractice claim encompassed by the MMA. See Muse v Lane Memorial Hosp. Foundation, 04-0694 (La.App. 1 Cir. 5/13/05), 916 So.2d 231, 237.
As previously noted, the MMA 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." (Underlining added.) La. R.S. 40:1299.41A(13). The plaintiffs herein have alleged a "breach of contract" based on "health care ... services rendered" (the application of a new cast) by a "health care provider" (Dr. LaSalle) to a "patient" (Ms. LeBoeuf.) See Muse, 916 So.2d at 236-37. We have already determined that plaintiffs have failed to establish that they will be able to satisfy their evidentiary burden of proof at trial on their medical malpractice claims, including this particular claim.
In its reasons for judgment, the trial court cited not only La. R.S. 40:1299.41C, but also La. R.S. 40:1299.41A(13) in dismissing the plaintiffs' contract claim. It may be inferred, that absent a written contract required by La. R.S. 40:1299.41C, the trial court deemed the purported contract claim to be a malpractice claim.
On appeal, plaintiffs argue that Dr. LaSalle's comments that he would be responsible for anything that happened to Ms. LeBoeuf created "more of a contract of indemnity for any negative consequences" resulting from replacing the cast on Ms. LeBoeuf's leg "regardless of negligence and/or malpractice." Plaintiffs' claim clearly fails to exemplify a contract of indemnity, which, incidentally, by definition contemplates negligence. More importantly, plaintiffs have failed to provide any objective evidence that the replacement of the cast caused Ms. LeBoeuf to suffer any "negative consequences" or that Ms. LeBoeuf "died due to complications caused by the cast" as alleged in their petition.
As explained by Professor Saul Litvinoff: "An indemnity, or hold harmless, agreement is a contract whereby a party, called the indemnitor, agrees to protect another, called the indemnittee, against damages incurred by the latter as a result of his breach of a duty owed to a third party." 6 La. Civ. L. Treatise, Law of Obligations § 11.27 (1999.).
Finally, plaintiffs argue that implicit in their breach of contract claim is a lack of consent claim. However, lack of informed consent cases (which includes no consent cases) sound in medical malpractice, and consequently do not form the basis of an action in contract in addition to and/or as an alternative to plaintiffs' medical malpractice claims. See Baham v. Medical Center of Louisiana at New Orleans, 00-2022 (La.App. 4 Cir. 7/11/01), 792 So.2d 85, 87, citing Lugenbuhl v. Dowling, 96-1575 (La. 10/10/97), 701 So.2d 447, 453.
Nevertheless, it has been held that La. R.S. 9:2794 and Louisiana's Uniform Consent Law create two statutory duties and two different theories for establishing medical malpractice against a physician. See McGrew v. Waguespack, 14-0251 (La.App. 1 Cir. 12/30/14), 168 So.3d 690, 695. In McGrew, the plaintiff alleged, among various other acts of malpractice, the physician's failure to provide and obtain informed consent. Consequently, this court concluded that where the defendant's motion for summary judgment challenged the plaintiff's claim under La. R.S. 9:2794, but did not specifically challenge the plaintiff's ability to establish the elements of an informed consent claim, summary judgment was proper as to the former claim but was improper as to the latter. See McGrew, 168 So.3d at 697. However, McGrew is not controlling in the instant matter, as the plaintiffs have failed to allege a lack of informed consent claim.
The informed consent doctrine is based on the principle that every human being of adult years and sound mind has a right to determine what shall be done to his or her own body. Snider v. Louisiana Medical Mut. Ins. Co., 13-0579 (La. 12/10/13), 130 So.3d 922, 930. Pursuant to the applicable informed consent statute (now La. R.S. 40:1299.39.5), it is the patient that gives the consent unless the plaintiff lacks legal capacity. See also La. R.S. 40:1299.53A; La. R.S. 40:1299.56.
In their petition, the plaintiffs have not alleged that Ms. LeBoeuf did not consent to the cast; rather they allege that her family did not consent. Nor do they allege that Ms. LeBoeuf was incompetent or lacked legal capacity such that others would have the power to either consent or withhold consent on her behalf.
Moreover, we find that none of the evidence submitted by the plaintiffs has expanded the allegations set forth in the petition. See La. C.C.P. art. 1154 Plaintiffs' submitted the affidavit of Shane LeBoeuf, who was not present when the new cast was placed, wherein he averred that his mother told him after the fact that a new cast was put on without her consent. This allegation by Shane in his affidavit clearly indicates a lack of personal knowledge and is merely hearsay; thus, it fails to satisfy the requirements of La. C.C.P. art. 967 as to this issue. Plaintiffs also submitted the deposition of James LeBoeuf; however, his testimony merely establishes that he informed the doctor that he did not want a new cast put on his mother. James never definitively specified that his mother did not consent to the placement of a new cast. Moreover, he concedes that he was not even present when the new cast was put on. The only person with Ms. LeBoeuf at that time was her partner, Lawrence Pitre, Jr., but the plaintiffs did not submit any evidence from him suggesting that Ms. LeBoeuf did not give her consent. Finally, although there was some evidence that Ms. LeBoeuf was uneducated or illiterate, there was no evidence to indicate that she was incompetent or lacked legal capacity to consent on her own behalf. See La. C.C. art. 1918.
In response to the motion for summary judgment, plaintiffs' counsel made a single assertion in memorandum that Dr. LaSalle replaced the cast "without the consent of [Ms. LeBoeuf] or her family" and made one statement at the hearing pertaining to her consent. However, argument of counsel is not evidence. Buelle v. Periou, 04-2733 (La.App. 1 Cir. 12/22/05), 927 So.2d 1126, 1129, writ denied, 06-0160 (La. 4/24/06), 926 So.2d 542.
Furthermore, we note that lack of informed consent cases must be submitted to a medical review panel prior to suit being filed. See Banks v. Wright, 971869 (La.App. 1 Cir. 11/6/98), 721 So.2d 1063, 1064 writ denied, 983026 (La. 1/29/99), 736 So.2d 839. However, the plaintiffs' complaint to the medical review panel made no reference to a lack of consent on the part of either Ms. LeBoeuf or her family. Rather, the plaintiffs only asserted therein that the home health nurse wanted the cast removed. Had the plaintiffs' petition in the present suit actually alleged a lack of consent claim, the defendants would have been required to either raise a timely exception raising the objection of prematurity or else waive it.
Finally, we note that the jurisprudence has generally recognized two categories of lack of informed consent cases. The first, and most prevalent, category is that wherein the doctor fails to inform the patient of a material risk of the procedure to be performed. See Lugenbuhl v. Dow ling, 96-1575 (La. 10/10/97), 701 So.2d 447, 455; Richard v. Colomb, 04-1145 (La.App. 1 Cir. 6/29/05), 916 So.2d 1122, 1127-1128, writ denied, 05-1939 (La. 2/3/06), 922 So.2d 1182; Brown v. Mathew, 13-1974 (La.App. 1 Cir. 12/30/14), 2014 WL 7455038, at *5 (unpublished opinion), writ denied, 15-0206 (4/17/15), 168 So.3d 400. Clearly, plaintiffs' allegations do not implicate this category.
The second category occurs when the doctor fails to notify the patient of the type or the parameters of the procedure to be performed. Thus, these cases typically involve procedures or acts undertaken without the patient's knowledge. See Lugenbuhl, 701 So.2d at 452, 455 (where plaintiff learned after surgery that doctor did not use mesh to close wound despite his pre-surgery agreement to patient's express request that he use mesh); Richard, 916 So.2d at 1127-1129 (where doctor performed an unrelated and unnecessary stitch on patient during her surgery as a secondary or educational procedure without her knowledge or consent). See also Banks v. Wright, 97-1869 (La.App. 1 Cir. 11/6/98), 721 So.2d 1063, 1064 writ denied, 98-3026 (La. 1/29/99), 736 So.2d 839 (where patient was circumcised during his aorto-femeral bypass surgery without his knowledge or consent).
It certainly cannot be said that the replacement of the cast occurred without Ms. LeBoeuf's knowledge. See Richard, 916 So.2d at 1128 ("The essential element of informed consent is knowledge."). There has been no allegation that Ms. LeBoeuf was prohibited from leaving or was forcibly restrained while the cast was placed on her leg against her will. Indeed, there is no competent evidence to suggest that she did not consent, at least tacitly, in its placement. See La. C.C.P. art. 1927.
For all of the foregoing reasons, we find plaintiffs' second assignment of error lacks merit. Plaintiffs have not alleged an action in contract separate and apart from their medical malpractice claims. Moreover, with regard to their medical malpractice claims, they have not alleged a lack of informed consent claim.
Accordingly, we find no error on the part of the trial court in granting summary judgment in favor of defendants and dismissing plaintiffs' medical malpractice claims with prejudice.
CONCLUSION
For all of the reasons assigned, the judgment of the trial court granting summary judgment in favor of defendants and dismissing plaintiffs' suit with prejudice is affirmed. Plaintiffs, James LeBoeuf, Gloria Key, Margie Ollis, Shane LeBoeuf, and Frank LeBoeuf are cast with all costs of this appeal.
AFFIRMED.