Opinion
NUMBER 2016 CA 1662
06-29-2017
GEORGETTA ROY, EDNA HARVEY, AUDREY HUNTER, JUNIUS ROY SPENCER, DEBRA RICARD, JOHN ROY, OSCAR ROY, ANNIE GRIFFIN, CHARLES ROY, WADELL ROY, JOSEPH ROY, AND GEORGE ROY v. BATON ROUGE GENERAL MEDICAL CENTER, MID CITY HEALTH CENTER AND JOHN AND JANE DOES I-X
John D. Sileo Casey W. Moll New Orleans, Louisiana Attorneys for Appellants Plaintiffs - Georgetta Roy, et al. Craig Sabottke Michael M. Remson N. Courtenay Simmons Baton Rouge, Louisiana Attorneys for Appellee Defendant - Baton Rouge General Medical Center
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 574435 Honorable Donald R. Johnson, Judge John D. Sileo
Casey W. Moll
New Orleans, Louisiana Attorneys for Appellants
Plaintiffs - Georgetta Roy, et al. Craig Sabottke
Michael M. Remson
N. Courtenay Simmons
Baton Rouge, Louisiana Attorneys for Appellee
Defendant - Baton Rouge General
Medical Center BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. WELCH, J.
The plaintiffs/appellants, Georgetta Roy, Edna Harvey, Audrey Hunter, Junius Roy Spencer, Debra Ricard, John Roy, Oscar Roy, Annie Griffin, Charles Roy, Wadell Roy, Joseph Roy, and George Roy ("plaintiffs"), appeal the granting of a motion for summary judgment in favor of the defendant, Baton Rouge General Medical Center ("Baton Rouge General"). The trial court's judgment dated August 1, 2016, resulted in the dismissal of the plaintiffs' claims with prejudice. For the reasons set forth below, we affirm the judgment of the trial court.
FACTUAL BACKGROUND
The instant matter arises out of a medical malpractice action brought by the plaintiffs on behalf of their deceased husband and father, Junius Roy. The following facts are undisputed. On September 28, 2006, Mr. Roy, age 84, underwent a left femoral head substitution at Natchez Regional Medical Center after sustaining a hip injury at his home. At the time of his admission to Natchez Regional Medical Center, Mr. Roy's medical diagnoses included: atrial fibrillation, left cerebral vascular accident, diabetes mellitus, hypertension, gout, and dementia. On October 6, 2006, Mr. Roy was transferred to Baton Rouge General's Bluebonnet location for corrective surgery to his left hip, which was performed on October 9, 2006. Mr. Roy remained at Baton Rouge General-Bluebonnet until October 16, 2006, at which time he was transferred to Baton Rouge General's skilled nursing facility at the Mid City location. Mr. Roy was discharged from the Mid City facility on November 10, 2006.
Following his discharge from Baton Rouge General, Mr. Roy was immediately admitted to Manhattan Nursing Home in Jackson, Mississippi. Mr. Roy reported to the emergency room at St. Dominic Hospital on November 27, 2006, exhibiting severe sepsis, a sacral wound, and right and left heel decubiti. Mr. Roy was again transferred on December 12, 2006, this time from St. Dominic Hospital to Regency Specialty Hospital, where he remained until January 7, 2007. Mr. Roy died of cardiac arrest and respiratory failure as a result of sepsis on January 8, 2007.
Medical Review Panel:
At the plaintiffs' request, a medical review panel consisting of three physicians was formed. On October 7, 2008, the medical review panel unanimously found that "[t]he evidence does not support the conclusion that the defendant failed to meet the [applicable] standard of care as charged in the complaint." The medical review panel explained:
Reasons as to defendant Baton Rouge General [M]edical Center - Bluebonnet/Mid City Health Center: The beginnings of early pressure [sores] existed at the time the patient entered the Baton Rouge General Hospital. The patient's multiple medical problems predisposed him to worsening of his ulcers and despite the reasonable efforts of the staff of the hospital his ulcers continued to deteriorate. With [patients] with these types of co-morbidities, pressure [sores] are extremely difficult, if not impossible to prevent.
Proceedings in District Court and Motion for Summary Judgment:
On January 16, 2009, the plaintiffs filed suit against Baton Rouge General, seeking damages for Mr. Roy's ulcers and wrongful death. On August 28, 2015, Baton Rouge General filed a motion for summary judgment, asserting that the plaintiffs had failed to retain and produce a medical expert witness to prove that any alleged breach of the standard of care by the Baton Rouge General caused Mr. Roy's injuries. Attached to Baton Rouge General's motion were the oaths of the panel chairman and panel members, the original opinion of the medical review panel, an invoice from the attorney chairman of the panel, and the plaintiffs' responses to interrogatories and request for production of documents dated May 14, 2009. The plaintiffs' interrogatories identified Susan Lofton, RNC, CNS PhD, as a witness "expected to testify regarding the treatment and condition of Junius Roy prior to his death, the cause of death of Junius Roy, the standard of care and the injuries sustained by Junius Roy as a result of the defendant's breach of the applicable standard of care." Attached to the plaintiffs' discovery responses was a report by Susan Lofton, dated June 15, 2008. Based on her review of Mr. Roy's medical records, Nurse Lofton opined that Baton Rouge General had failed to meet the standard of care related to nutrition, hydration, turning schedule, and nursing actions required to prevent skin break down. Nurse Lofton concluded as follows:
During patient Roy's stay at Baton Rouge General Medical Center, he experienced significant skin breakdown, edema, a serious and severe urinary tract infection, pneumonia, dehydration and malnourishment. I believe that by the time Mr. Roy left Baton Rouge General Medical Center, his protein stores were so depleted that further skin breakdown was probably inevitable. The pneumonia he experienced was not surprising in an elderly patient that is malnourished, left in bed, not consistently turned and not provided adequate fluid. I did not find that the nurses developed and followed a comprehensive plan of care to minimize the patient's risk for negative outcomes.
In an opposition dated November 25, 2015, the plaintiffs maintained that summary judgment was inappropriate because they had identified experts to testify as to causation. The plaintiffs argued that they had previously identified Nurse Lofton as being prepared to testify as to causation in their May 14, 2009 discovery responses. Additionally, the plaintiffs attached supplemental discovery responses, identifying, for the first time, Dr. Terry Shaneyfelt as an expert witness on the "applicable standard of care and the causation of the injuries and death sustained by Mr. [Junius] Roy as a result of the defendant's breach of the applicable standard of care." The plaintiffs did not attach Dr. Shaneyfelt's affidavit to their opposition, but requested "leniency" from the trial court in order to conduct further discovery concerning Dr. Shaneyfelt's expert medical opinion. To date, the plaintiffs have failed to come forward with either a report or affidavit from Dr. Shaneyfelt, or any other physician on the issue of causation.
The hearing on Baton Rouge General's motion for summary judgment was held on June 13, 2016. Prior to the hearing, Baton Rouge General filed a supplemental memorandum to its motion asserting that Nurse Lofton was not an expert qualified to testify as to the element of causation, because Mr. Roy's pre-existing medical conditions rendered the determination of causation a complex medical determination beyond the expertise of a nurse. Alternatively, the defendants maintained that Nurse Lofton's report contained no affirmative opinion regarding the causal connection between Baton Rouge General's treatment and Mr. Roy's injuries.
The hearing on the defendant's motion for summary judgment was delayed due to the trial court's consideration and later reconsideration of a motion by Baton Rouge General to dismiss the action due to the plaintiffs' alleged failure to timely post a bond to cover the costs expended in connection with the medical review panel. Shortly after filing its motion for summary judgment, on October 16, 2015, Baton Rouge General also filed a motion to dismiss the action on the basis that the plaintiffs had failed to post a bond to cover the cost of the medical review panel as required by La. R.S. 40:1231.8(I)(2)(c). The motion to dismiss asserted that the plaintiffs had failed to comply with the trial court's order signed August 25, 2015, ordering the plaintiffs to post a bond in the amount of $3,173.55, within thirty days. The hearing on Baton Rouge General's motion for summary judgment was originally set for October 13, 2015, but was moved to November 30, 2015, the same date as the motion to dismiss was granted. The trial court granted the motion to dismiss at the November 30, 2015 hearing, and the summary judgment was not heard at that time. The plaintiffs filed a motion for new trial, which was granted and the suit was reinstated by order signed March 28, 2016. On April 7, 2016, the trial court signed an order re-setting the hearing on the motion for summary judgment for June 13, 2016.
The plaintiffs argued at the hearing that under the Fourth Circuit's holding in Williams v. Metro Home Health Care Agency, Inc., 2002-0534 (La. App. 4th Cir. 5/8/02), 817 So.2d 1224, expert physician testimony is not necessary in a cases involving pressure sores/ulcers to establish that the defendant medical provider's negligence caused the injury to the plaintiff. The trial court granted Baton Rouge General's motion for summary judgment in a judgment signed August 1, 2016. In written reasons for judgment, the trial court stated: "[t]he Court finds that Baton Rouge General Medical Center is entitled to judgment as a matter of law as plaintiffs have not shown that they will be able to carry their burden of proof at trial, namely their burden regarding the causation element."
The plaintiffs appeal and assert that in light of the holding of Williams, the trial court erred in finding that expert medical testimony of a physician is necessary to determine whether the acts and/or omissions of the nurses or caretakers at Baton Rouge General were the cause of Mr. Roy's decubitus ulcers.
DISCUSSION
Summary Judgment in the Context of Medical Malpractice:
An appellate court reviews 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. In re Succession of Beard, 2013-1717 (La. App. 1st Cir. 6/6/14), 147 So.3d 753, 759-760. 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, 2005-1042 (La. App. 1st Cir. 3/29/06), 934 So.2d 158, 160, writs denied, 2006-0882, 2006-0958 (La. 6/16/06), 929 So.2d 1286, 1289. To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. See La. R.S. 9:2794(A); Hoot v. Woman's Hosp. Foundation, 96-1136 (La. App. 1st Cir. 3/27/97), 691 So.2d 786, 789, writ denied, 97-1651 (La. 10/3/97), 701 So.2d 209. The initial burden of proof is with the mover to show that no genuine issue of material fact exists. La. Code Civ. P. art. 966(C)(2).
Louisiana Code of Civil Procedure article 966 was amended by 2015 La. Acts, No. 422, § 1, effective January 1, 2016. Section 2 of the 2015 La. Acts, No. 422, provides that: "[t]he provisions of this Act shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date of this Act." Here, the pendency of the motion on the effective date of 2015 La. Acts, No. 422 results in the application of the prior version of La C.C.P. art. 966 to the instant matter.
In motions for summary judgment in the context of medical malpractice, the burden of proof does not require that the medical care provider disprove medical malpractice, but only that the medical care provider raise as the basis of its motion that the plaintiffs cannot support their burden of proof at trial to demonstrate medical malpractice. See Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 887. Once the medical care provider has made a prima facie showing that the motion should be granted, then the burden shifts to the plaintiffs to present evidence sufficient to establish that she will be able to meet their burden of proof at trial. See Id. at 887-888.
It is well established that to meet the burden of proof in a medical malpractice action, the plaintiff is generally required to produce medical expert testimony as a matter of law. Fagan v. LeBlanc, 2004-2743 (La. App. 1st Cir. 2/10/06), 928 So.2d 571, 575. Notably, the jurisprudence recognizes limited exceptions to the requirement of expert testimony in those instances where the claim arises out of an "obviously careless act" from which a lay person can infer negligence. Pfiffner v. Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228, 1233-1234. [Emphasis added.]
The Louisiana Supreme Court has listed the following examples of obviously careless acts: 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.
Except for cases where the causal connection between a defendant's fault and the injury alleged is obvious, expert medical testimony is also necessary to establish causation. Jackson v. Suazo-Vasquez, 2012-1377 (La. App. 1st Cir. 4/26/13), 116 So.3d 773, 776. Normally, in cases involving patients with complicated medical histories and complex medical conditions, causation is simply beyond the province of lay persons to assess. Id.
ANALYSIS
The only issue in the instant appeal is whether the plaintiffs have met their burden of proof on the question of causation. The plaintiffs maintain that the sole basis for Baton Rouge General's motion for summary judgment is their assertion that the "plaintiffs cannot name an expert who can testify that the defendant's negligence caused Mr. Junius Roy's injuries (decubitus ulcers/pressure sores)." The plaintiffs do not contest that Nurse Lofton's report does not address the issue of causation. Rather, the plaintiffs argue that under Williams, expert medical testimony of a physician is not necessary to determine whether the nurse's or caretaker's negligence was the cause of a patient's pressure/sores ulcers. The plaintiffs also contend that causation is an issue of fact that is generally decided at the trial on the merits; therefore, it is not an issue properly considered in the context of a motion for summary judgment. However, both of these positions misinterpreted Williams and the law on summary judgment in the context of a medical malpractice case.
In Williams, the plaintiff, a paraplegic, developed an ulcer that required surgical intervention allegedly due to the neglect of his home healthcare nurse. Williams v. Metro Home Health Care Agency, Inc., 817 So.2d at 1226. There, as per physician's orders, a home health nurse was assigned to educate and assist the plaintiff in caring for decubitus ulcers on his hips three times per week. However, the nurse only attended to the plaintiff once per week, and allegedly falsified his notes to make it appear otherwise. Id. at 1226. The plaintiff filed suit after developing a new ulcer on his buttocks. Id. at 1226.
The defendants filed a motion for summary judgment asserting that the plaintiff had failed to produce an expert witness to establish the standard of care, a breach of the standard, and the causal connection between the breach and the resulting damage. The plaintiff in Williams countered that he did not need "his own expert to establish what is the standard of care, whether it was breached, and causation." Id. at 1229. [Emphasis added.] The Fourth Circuit agreed, pointing to evidence already in the record, to wit: the deposition testimony of two of the plaintiff's treating physicians, wherein the physicians opined that the ulcers were caused by the plaintiff's failure to timely and appropriately perform pressure releases; and the deposition testimony of the nurse admitting that his job was to "teach [the plaintiff] and monitor his wound care." Id.
The Fourth Circuit found that the testimony of the two physicians and the nurse was sufficient to create a genuine issue of material fact as to whether the nurse's failure to attend or to instruct the patient concerning the proper medical methods caused and contributed to plaintiff's condition. Id. The court then found that the testimony of the plaintiff's two treating physicians was sufficient to oppose the motion for summary judgment, thus, he was not required to produce additional expert testimony, to wit:
The question of whether or not [the nurse's] failure to attend or to instruct the patient concerning proper medical methods as required, contributed to the change in the plaintiff's condition, creates a genuine issue of material fact. Expert testimony is not mandated where the physician or caretaker does an obviously careless act from which a lay person can infer negligence. The trier of fact may determine whether or not [the nurse] was negligent for his lack of attention to the plaintiff as the cause or a contributing cause of the plaintiff's ulcer without the necessity of additional expert testimony under the circumstances. There is testimony upon which the plaintiff may rely to establish the standard of care, the breach, and causation to determine whether the nurse...was negligent. The trial court did not err in denying the defendants/relators' motion for summary judgment. Id. 1229-1230. [Emphasis added.]
The plaintiffs concede that Nurse Lofton's report does not address the issue of causation, but rely upon their reading of Williams to maintain that an expert is not needed to prove causation in connection with ulcers. However, as shown above, Williams does not stand for the general proposition that experts are not needed to evidence causation on the issue of ulcers, rather, it held that under the facts presented therein, the plaintiff did not need "additional" or independent expert testimony to defeat summary judgment, in light of the evidence already submitted. In contrast, here there is no evidence in the record sufficient to create a genuine issue of material fact as to causation. Moreover, the plaintiffs' rely on Williams for the position that ulcers are always the result of an obviously careless act from which a lay person can infer negligence. Yet, as demonstrated by the opinion of the medical review panel, the facts here evidence a more complicated set of circumstances, including, Mr. Roy's complicated medical history and pre-existing conditions, which we find render a determination of causation simply beyond the province of lay persons to assess. See Jackson v. Suazo-Vasquez, 116 So.3d at 776.
We find no merit in the plaintiffs' suggestion that by limiting their claims to Mr. Roy's pain and suffering associated with the ulcers versus his alleged wrongful death, the burden of proof is somehow different. Regardless of whether the question at hand is whether the defendant's breach of the standard of care caused Mr. Roy's ulcers or death, Mr. Roy's complex medical diagnoses render the determination one that requires expert medical testimony to establish. --------
We note that while the question of causation is usually an issue for the factfinder's determination, it is possible to determine this issue on summary judgment if reasonable minds could not differ. Gaspard v. Safeway Ins. Co., 2014-1676 (La. App. 1st Cir. 6/5/15), 174 So.3d 692, 694, writ denied, 2015-1588 (La. 10/23/15), 184 So.3d 18; see also Rogers v. Hilltop Retirement & Rehabilitation Center, 2013-867 (La. App. 3rd Cir. 2/12/14), 153 So.3d 1053, 1060. Further, it is undisputed that establishing causation is an essential element in the plaintiffs' claims.
The record herein contains no medical records, no depositions, and no affidavits, only the report of Nurse Lofton and the unanimous opinion of the medical review panel. As Baton Rouge General points out, the report of Nurse Lofton does not offer an opinion as to causation. Further, the opinion of the medical review panel found that the beginnings of early ulcers existed when Mr. Roy entered the Baton Rouge General, that Mr. Roy's complex medical problems predisposed him to worsening of his ulcers, and that despite the reasonable efforts of the staff of the hospital his ulcers continued to deteriorate. The certified copies of the medical review panel opinion serve as evidence of expert medical testimony. See Samaha v. Rau, 977 So.2d at 888. Such evidence herein serves to negate the plaintiffs' claims and demonstrate that the plaintiffs are precluded from obtaining support from this source in their opposition to summary judgment. See Id. at 888-889. Moreover, the plaintiffs have submitted no evidence which serves to create a genuine issue of material fact on the issue of causation.
After Baton Rouge General asserted that the plaintiffs did not have sufficient evidence to prove causation, the plaintiffs were required to show that they would be able to meet their burden of proof at trial. See La. C.C.P. art. 966(C)(2). The plaintiffs failed to produce such evidence despite having sufficient time since the filing of this suit in 2009 to obtain a medical expert on the issue of causation. Accordingly, the trial court did not err in finding the plaintiffs made an insufficient showing that the actions of Baton Rouge General were the cause-in-fact of Mr. Roy's ulcers. See Henderson v. Homer Memorial Hosp., 40,585 (La. App. 2nd Cir. 1/27/06), 920 So.2d 988, 995, writ denied, 2006-0491 (La. 5/5/06), 927 So.2d 316; see also Rogers v. Hilltop Retirement & Rehabilitation Center, 153 So.3d at 1060-1061.
CONCLUSION
For the above reasons, we affirm the August 1, 2016 judgment of the trial court dismissing the claims of plaintiffs/appellants, Georgetta Roy, Edna Harvey, Audrey Hunter, Junius Roy Spencer, Debra Ricard, John Roy, Oscar Roy, Annie Griffin, Charles Roy, Wadell Roy, Joseph Roy, and George Roy against the defendant, Baton Rouge General Medical Center. All costs of this appeal are to be paid by the plaintiffs/appellants, Georgetta Roy, Edna Harvey, Audrey Hunter, Junius Roy Spencer, Debra Ricard, John Roy, Oscar Roy, Annie Griffin, Charles Roy, Wadell Roy, Joseph Roy, and George Roy.
AFFIRMED.