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Pertuit v. Jefferson Parish Hospital Service District No. 2

Court of Appeals of Louisiana, Fifth Circuit

May 14, 2015

RAE CRANE PERTUIT, SURVIVING SPOUSE OF JAMES RICHARD PERTUIT, JR.
v.
JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, D/B/A EAST JEFFERSON GENERAL HOSPITAL AND DR. WILLIAM JOHNSTON, JR

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT. PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 679-071, DIVISION " E" . HONORABLE JOHN J. MOLAISON, JR., JUDGE PRESIDING.

A. REMY FRANSEN, JR., ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

AVERY L. GRIFFIN, ATTORNEY AT LAW, Covington, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

STEWART E. NILES, JR., MICHELLE A. BOURQUE, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson.

OPINION

Page 1107

ROBERT A. CHAISSON, J.

[14-752 La.App. 5 Cir. 2] This is a medical malpractice suit brought by Rae Crane Pertuit as a result of the death of her husband, James Richard Pertuit, Jr., while under the treatment and care of Dr. William Johnston, Jr., at East Jefferson General Hospital (" EJGH" ). Mrs. Pertuit appeals a summary judgment granted in favor of Dr. Johnston, dismissing him from the suit.[1] Upon de novo review, for the following reasons, we vacate the trial court's grant of summary judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

After suffering a traumatic brain injury in an accident at his farm on November 6, 2006, Mr. Pertuit came under the care of Dr. Johnston, a neurosurgeon, at EJGH.

Page 1108

On November 7, 2006, Dr. Johnston placed a right frontoventriculostomy drain tube in Mr. Pertuit's brain, which tube was replaced [14-752 La.App. 5 Cir. 3] on November 13, 2006, due to an obstruction. On November 22, 2006, at approximately 12:30 p.m., Mr. Pertuit's breathing tube was removed and he was removed from the ventilator. After performing a neurological assessment at 9:30 p.m. that evening, Dr. Johnston removed the frontoventriculostomy tube from Mr. Pertuit's brain. At some time during the night, Mr. Pertuit's condition deteriorated and he was found unresponsive at 7:00 a.m. on November 23, 2006. Dr. Johnston placed a new left frontoventriculostomy tube in Mr. Pertuit's brain; however, the brain damage was irreversible and Mr. Pertuit died on November 29, 2006.

On October 14, 2009, Mrs. Pertuit filed a petition for damages against both Dr. Johnston, for his alleged negligence, and against EJGH, for the alleged negligence of its nurses.[2] Dr. Joan Wojak, an expert obtained by Mrs. Pertuit to provide an opinion as to the negligence of Dr. Johnston, rendered a report on January 14, 2007, and was deposed by defendants on November 5, 2011. Two and one-half years later, on May 30, 2014, six weeks prior to a July 14, 2014 trial date, Dr. Johnston filed a motion for summary judgment in which he argued that Dr. Wojak, who is not a neurosurgeon, is not qualified to render standard of care opinions against him. After argument on the motion on June 13, 2014, but without an evidentiary hearing, the trial court found that Dr. Wojak was not qualified to render an expert opinion against Dr. Johnston, and that without an expert opinion as to Dr. Johnston's negligence, there was no genuine issue of material fact remaining regarding his lack of negligence. The trial court therefore granted Dr. Johnston's motion for summary judgment. The trial court also denied Mrs. Pertuit's instanter request for an extension of time to obtain a substitute expert opinion.

[14-752 La.App. 5 Cir. 4] On appeal, Mrs. Pertuit contends that the trial court erred in finding that Dr. Wojak is not qualified to render an expert opinion in this case. She further contends that the trial court erred by not following the appropriate procedure in making the determination regarding Dr. Wojak's qualifications.

Without reaching the merits of whether Dr. Wojak is qualified to render an opinion regarding any aspect of Dr. Johnston's treatment of Mr. Pertuit, we find that, under the facts of this case, the trial court erred in the procedure used to disqualify Dr. Wojak. Having found that the proper procedure was not used to disqualify Dr. Wojak, we conclude that it was premature for the trial court to rule on the motion for summary judgment. We ...


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