Opinion
2022 CA 0496
11-04-2022
PAMELA E. PIOTH v. ST. TAMMANY PARISH HOSPITAL, ET AL
Jeff Bratton Covington, Louisiana Counsel for Plaintiff/Appellant Pamela E. Pioth Bradley R. Belsome Crystal E. Domreis Christopher R. Handy C. William Bradley John B. Stanton New Orleans, Louisiana Counsel for Defendant/Appellee St. Tammany Parish Hospital Service District No. 1 d/b/a St. Tammany Parish Hospital
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Case No. 2017- 10809, Division F The Honorable Vincent J. Lobello, Judge Presiding
Jeff Bratton Covington, Louisiana Counsel for Plaintiff/Appellant Pamela E. Pioth
Bradley R. Belsome Crystal E. Domreis Christopher R. Handy C. William Bradley John B. Stanton New Orleans, Louisiana Counsel for Defendant/Appellee St. Tammany Parish Hospital Service District No. 1 d/b/a St. Tammany Parish Hospital
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
THERIOT, J.
Plaintiff-appellant, Pamela E. Pioth ("Pioth"), appeals the trial court's February 24, 2022 judgment, which granted the Re-urged Motion for Summary Judgment filed by defendant-appellee, St. Tammany Parish Hospital Service District No. 1 d/b/a St. Tammany Parish Hospital ("STPH"), and dismissed Pioth's civil action with prejudice. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Following an incident whereby Pioth became entangled with two dogs and fell, while walking her dog, she was admitted to STPH on May 4, 2013. While Pioth was there, Dr. Jason Rolling ("Dr. Rolling") performed a left hip hemiarthroplasty with bipolar implant, and on May 9, 2013, Pioth was discharged to inpatient rehabilitation at STPH.
On May 10, 2013, Dr. Gollamudi Reddy ("Dr. Reddy") recommended physical therapy to include stair climbing, noting that Pioth lived in a private house with a 12-step entry. Pioth's treatment plan included physical therapy at 1.5 hours/5 days a week with stairs listed in her goals. On May 10, 2013, Pioth began attending physical therapy sessions twice a day.
During her morning physical therapy session on May 15, 2013, Pioth ascended and descended eight steps using both handrails, a gait belt, and with contact guard assistance. After the last step, she was on a firm surface. Per a Hospital Occurrence Report, Pioth was turning to perform an activity again, and the physical therapist could tell she was struggling with the turn. The physical therapist reported Pioth was able to slightly advance her right lower extremity but was refusing to move her left lower extremity. The physical therapist offered assistance, but Pioth reportedly refused stating, "I'm going to do this myself." Per various STPH records, Pioth's right knee "slightly buckled." At this point, Pioth was standing with both lower extremities bent. The physical therapist encouraged Pioth to come to an erect standing posture to try to perform the activity again, but she refused. Physical therapy notes reflect that, when Pioth refused to continue with activity, her wheelchair was brought to her, and she was transferred to sitting and refused to participate further with physical therapy.
At the afternoon physical therapy session, on May 15, 2013, Pioth agreed to ambulate and stood and ambulated 16 feet with a rolling walker and contact guard assistance. Pioth began complaining of a "pulling sensation" in her left hip and refused to ambulate further. The physical therapy session then ended. That same day, Dr. Reddy ordered x-rays, which showed a fracture of the lesser trochanter that appeared new from the previous exam. After a consultation, Dr. Rolling recommended Pioth continue with therapy. A physical therapy progress note on May 17, 2013, states Pioth reported, "I don't know what I'll be able to do today, haven't been up in 2 days since the fall. I'm in a lot of pain today, and my right leg really isn't that strong. But I have to move forward, I have to be able to transfer and walk." On May 25, 2013, Pioth was discharged with home health services.
Pioth filed a complaint against Dr. Reddy and STPH with a Medical Review Panel ("MRP"). In its Opinion and Reasons dated August 23, 2016, the MRP found "[t]he evidence does not support the conclusion that the defendants, DR. GOLLAMUDI REDDY and [STPH], failed to meet the applicable standard of care as charged in the complaint." As to STPH, the MRP found "[i]npatient Rehab was appropriate for this patient considering her presenting condition and recent surgery," and "[t]here is nothing in the record presented to the panel to review that indicates that the hospital and/or its employees deviated from the standard of care."
On February 21, 2017, Pioth filed a Petition for Damages, naming Dr. Reddy and STPH as defendants. Pioth alleged that, during a physical therapy session at STPH, she asked for a walker or wheelchair, while in pain, and was advised to continue her movements. Pioth asserted that she attempted to comply with instructions but fell to the floor. Pioth alleged she was told she was alright and should return to her room, which she did; she later returned to the rehabilitation room, where STPH personnel insisted that she was fine and that she resume exercises. Pioth alleged a subsequent x-ray revealed a left femur fracture. Pioth alleged "[t]he negligence of the defendants consists of failure to respond to the distress of petitioner, failure to prevent petitioner's fall, failure to recognize the severity of the injury caused by [sic] subject fall, insisting the petitioner had not been injured by [sic] subject fall, and insisting that petitioner continue to engage in physical therapy movements despite the injury caused by [sic] subject fall; all of which said negligence is beneath the standard of professional care required under the circumstances."
Dr. Reddy filed a Motion for Summary Judgment, on March 5, 2018, seeking dismissal of Pioth's claims against him. Dr. Reddy's Motion for Summary Judgment was granted, on June 8, 2018, and Pioth's claims against him were dismissed with prejudice.
On January 9, 2018, STPH filed a Motion for Summary Judgment, arguing expert testimony is a necessary component of Pioth's burden of proof, she had no such expert evidence, and, thus, she cannot meet her evidentiary burden at trial. In support of its motion, STPH filed the affidavit of Guy Leland, chairman for the MRP, attaching the MRP Opinion and Reasons, and the oaths of the MRP members.
Pioth filed an Opposition to Motion for Summary Judgment, arguing defendants allowed her to fall and she can avail herself of a judicial remedy without regard to the action of the MRP. Attached to Pioth's Opposition was her own affidavit, which in essence attested to the allegations set forth in her Petition for Damages.
STPH's Motion for Summary judgment was heard by Judge Martin E. Coady on March 21, 2018 and denied.
Thereafter, on November 8, 2021, STPH filed a Re-urged Motion for Summary Judgment, seeking dismissal of Pioth's claims and maintaining expert testimony is mandatory in this medical malpractice action. STPH asserted Pioth never responded to its discovery requests and did not identify an expert; thus, where she has no expert evidence against it, she cannot meet her evidentiary burden at trial. Attached to STPH's Re-urged Motion for Summary Judgment were the following: STPH medical records; the affidavit of Guy Leland, chairman for the MRP, attaching the MRP Opinion and Reasons; oaths of the MRP members; the Petition for Damages; STPH's Interrogatories and Requests for Production to Plaintiff, seeking identification of any expert witness; the transcript of the hearing on STPH's first Motion for Summary Judgment; and the Hospital Occurrence Report.
Pioth filed an Opposition to the "Re-Urged" Motion for Summary Judgment, arguing that allowing the "re-urged" motion was the equivalent of allowing an impermissible appeal to the same court which already had ruled against STPH on the issue. Attached to Pioth's Opposition was a copy of the trial court's judgment denying STPH's first Motion for Summary Judgment.
STPH's Re-Urged Motion for Summary Judgment was heard on February 24, 2022, before Judge Vincent J. Lobello, who granted the Re-Urged Motion for Summary Judgment finding the motion could be re-urged and the facts and circumstances of the case were not the type of medical malpractice suit which would not require expert testimony. On February 24, 2022, the trial court signed a judgment, granting STPH's Re-urged Motion for Summary judgment and dismissing Pioth's civil action with prejudice.
Pioth appeals the trial court's February 24, 2022 judgment, assigning the following as error: (1) the trial court's permitting the defendant to "re-urge" a matter that had been adjudicated in the trial of its first motion for summary judgment, and in doing so, provided the defendant with an impermissible "appeal" to the same court (speaking through a different organ), resulting in a ruling contrary to Judge Coady's earlier holding; and (2) the trial court's finding in the defendant's second ("re-urged") motion for summary judgment that there is no factual issue in the plaintiffs case.
SUMMARY JUDGMENT AND THE STANDARD OF REVIEW
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Murphy v. Savannah, 2018-0991, p. 6 (La. 5/8/19), 282 So.3d 1034, 1038 (per curiam). 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. Code Civ. P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. Code Civ. P. art. 966(A)(4). However, the court shall consider any documents filed in support of or in opposition to the motion for summary judgment to which no objection is made. See La. Code Civ. P. art. 966(D)(2).
The burden of proof on a motion for summary judgment rests with the mover. See La. Code Civ. P. art. 966(D)(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 for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. Code Civ. P. art. 966(D)(1).
Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Leet v. Hospital Service District No. 1 of East Baton Rouge Parish, 2018-1148, p. 7 (La.App. 1st Cir. 2/28/19), 274 So.3d 583, 587. In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether or not there is a genuine issue of material fact. Collins v. Franciscan Missionaries of Our Lady Health System, Inc., 2019-0577, p, 4 (La.App. 1st Cir. 2/21/20), 298 So.3d 191, 194, writ denied. 2020-00480 (La. 6/22/20), 297 So.3d 773. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Id. at 194-195. A fact is "material" when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Id. at 195. Simply put, a "material" fact is one that would matter at a trial on the merits. Id. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Id.
DISCUSSION
As to Pioth's first assignment of error regarding the procedural propriety of STPH's Re-urged Motion for Summary Judgment, her brief includes no argument, in violation of Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4(A)(9).Nevertheless, the initial denial of summary judgment on an issue does not bar a second motion for summary judgment on the same issue, as the initial denial of summary judgment is interlocutory in nature and the second motion must be decided upon the facts presented when it is heard. See State ex rel. Division of Administration, Office of Risk Management v. National Union Fire Insurance Co. of Louisiana, 2010-0689, p. 15 (La.App. 1st Cir. 2/11/11), 56 So.3d 1236, 1247, n. 7, writ denied, 2011-0849 (La. 6/3/11), 63 So.3d 1023. Accordingly, where STPH's first Motion for Summary judgment was denied, we find STPH was not precluded from filing its Re-urged Motion for Summary Judgment, and this assignment of error lacks merit.
We further note appellant's statement of facts fails to provide references to the specific page numbers in the record, in violation of Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4(A)(7).
As to her second assignment of error, Pioth argues the issue of whether STPH's agents and employees allowed her to fall is not a matter requiring the application of any particular expertise. She further points to her affidavit filed in opposition to STPH's first Motion for Summary Judgment and appears to argue her affidavit creates a triable genuine issue of material fact.
Although these arguments were not raised in her Opposition to the Re-Urged Motion for Summary Judgment, Pioth's counsel argued, at the hearing, that there was a genuine issue of material fact, and this case falls outside of the purview of requiring an expert witness.
It is well established that a hospital can be liable for the negligence of its employees under the doctrine of respondeat superior. Grimes v. Louisiana Medical Mutual Insurance Company, 2009-0292, p. 5 (La.App. 1st Cir. 9/11/09), 29 So.3d 505, 508. In a medical malpractice claim against a hospital, the plaintiff must prove by a preponderance of the evidence that the hospital owed the plaintiff a duty to protect against the risk involved (or the applicable standard of care), that it breached that duty (or the applicable standard of care), and that the breach caused plaintiffs injury. Id.; see also La, R.S. 9:2794. Expert testimony generally is 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. Schultz v. Guoth, 2010-0343, p. 7 (La. 1/19/11), 57 So.3d 1002, 1006-07.
For example, 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. Pfiffner v. Correa, 94-0924, p. 9 (La. 10/17/94), 643 So.2d 1228, 1233-34. Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician's fault. Id. at 1234.
As the mover, STPH had the initial burden of proving its entitlement to summary judgment as a matter of law. See La. Code Civ. P. art. 966(D)(1). STPH pointed out that the MRP unanimously concluded that there was no breach of the standard of care by STPH. Breach of the standard of care is an essential element of a medical malpractice action. Jones v. Baton Rouge General Medical Center-Bluebonnet, 2020-1250, p. 5 (La.App. 1st Cir. 6/4/21), 327 So.3d 512, 516. Thus, the burden shifted to Pioth to produce factual support sufficient to establish the existence of a genuine issue of material fact regarding a breach of the standard of care that caused her alleged injuries. See La. Code Civ. P. art. 966(D)(1); see also Jones, 2020-1250, p. 5, 327 So.3d at 516. Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Id.
As previously stated, STPH seeks summary judgment because Pioth has no expert testimony and cannot meet her evidentiary burden at trial. Pioth argues no expert testimony is required. However, contrary to her assertions, the instant case is not one of obvious negligence where a lay person can infer negligence without expert guidance. Pioth presented to STPH with a past medical history including hypertension, chronic pain secondary to thoracic compression fractures, asthma, a prior right knee percutaneous fixation and eventual screw removal for a tibial plateau fracture, and chronic moderate osteoarthritis. Normally, in cases involving a patient with a complicated medical history and complex medical conditions, breach of the standard of care and causation are simply beyond the province of a lay person to assess without the assistance of expert medical testimony. See Jones, p. 6,327 So.3d at 517.
Additionally, regarding STPH's May 17, 2013 physical therapy note stating Pioth reported she had a "fall," this note is the sole evidence of a fall for purposes of STPH's Re-Urged Motion for Summary Judgment. Pioth's affidavit was not filed with her opposition to the Re-Urged Motion for Summary Judgment and cannot be considered. See La. Code Civ. P. art. 966(D)(2). The medical records indicate Pioth was ambulatory and had been participating in physical therapy. As outlined above, the records further reflect that, during her morning physical therapy session on May 15, 2013 when the injury allegedly occurred, Pioth ascended and descended steps using both handrails, a gait belt, and with contact guard assistance. As further noted above, when Pioth refused to continue activity, her wheelchair was brought to her, and she was transferred to sitting in the wheelchair. Nursing notes indicate Pioth was returned to her room to rest, Xanax was given, and her leg and hip were iced. At her May 15, 2013 afternoon physical therapy session, when Pioth agreed to ambulate, ambulated, complained of a "pulling sensation" in her left hip, and refused to ambulate further, her physician agreed that her physical therapy session could be ended. Physical therapy notes on May 15, 2013, indicate Pioth was "very inconsistent with pain," and after her "knee buckling," she stated her pain still was at a 6 out of 10, yet she was unable to participate in even less activity with physical therapy.
In Schilling v. Grace Health and Rehabilitation, 2007-0424 (La.App. 1st Cir. 11/2/07), 2007 WL 3227613, *3 (unpublished) and Repp v. Sherwood Manor Rehabilitation and Nursing Home Ltd. Partnership, 2009-0412 (La.App. 1st Cir. 12/23/09), 2009 WL 4981908, *5 (unpublished), this court concluded the failure of the non-ambulatory plaintiff-patients to produce expert medical testimony did not entitle the defendants to summary judgment, where the plaintiff-patients allegedly were dropped, as a lay jury could perceive negligence in that conduct as well as any expert could. Conversely, the summary judgment evidence herein reflects that Pioth was ambulatory and participating in physical therapy at the time of the incident.
Pioth cites to the Third Circuit's decision in Saddler v. Vermilion Parish Hosp. Service Dist. #2, 2020-255 (La.App. 3d Cir. 12/16/20), 310 So.3d 614, which reversed the granting of motions for summary judgment in favor of a hospital and nurse. In Saddler, the plaintiff was admitted to the hospital with extreme difficulty ambulating and confined to bed; however, she suffered a fall to the floor, while attempting to use the bedside commode. Id. at 615. In her disputed account, plaintiff asserted her warnings that she would fall and her requests for assistance to a nurse and others in the room were disregarded. Id. at 615-16, 619. After the MRP found none of the defendants deviated from the standard of care, plaintiff filed suit, and various defendants filed motions for summary judgment based on plaintiffs lack of expert testimony, which were granted. Id. at 616-17. Reversing the granting of the motions for summary judgment, the Third Circuit noted that, "acknowledging the disputed version of events in this matter, if the defendants acted as alleged by Plaintiff in refusing to offer assistance to a patient who had been confined to bed and was under fall precautions due to her extreme difficulty in ambulating, such is an example of obvious negligence that would not require expert testimony. Certainly, if Plaintiff s version of events is found to be true, Plaintiff would meet the last hurdle set out by Pfiffner to 'demonstrate by a preponderance of the evidence a causal nexus between the defendant's fault and the injury alleged.'" Id. at 620. We, however, find Saddler is distinguishable, as there is no summary judgment evidence herein indicating Pioth was confined to bed, warned anyone she was about to fall, or was refused assistance.
After a thorough review of the record and even assuming Pioth were able to prove at trial that she fell, we conclude that the circumstances of this case do not fall within the category of exceptions to the general rule requiring expert medical testimony to establish breach of the standard of care. Thus, Pioth was required to come forward with medical expert testimony sufficient to satisfy her evidentiary burden of proof at trial. She failed to do so. The unrebutted opinion of the MRP was that the evidence did not support the conclusion that STPH breached the applicable standard of care, inpatient rehabilitation was appropriate for Pioth considering her presenting condition and recent surgery, and there was nothing in the record presented to the panel to review indicating that STPH and/or its employees deviated from the standard of care. Accordingly, we find summary judgment was proper herein.
CONCLUSION
For the reasons set forth herein, the trial court's February 24, 2022 judgment, which granted the Re-urged Motion for Summary Judgment filed by defendant-appellee, St. Tammany Parish Hospital Service District No. 1 d/b/a St. Tammany Parish Hospital, and dismissed the civil action of plaintiff-appellant, Pamela E. Pioth, with prejudice, is affirmed. Costs of this appeal are assessed to plaintiff-appellant, Pamela E. Pioth.
AFFIRMED.