July 30, 2015
CAREPOINT PARTNERS OF LOUISIANA, L.L.C. AND/OR THE INFUSION NETWORK OF LOUISIANA, INC. DBA CAREPOINT PARTNERS
Appeal from the 19th Judicial District Court, In and for the
Parish of East Baton Rouge, State of Louisiana. Trial Court
No. C606417. Honorable Timothy Kelley, Judge Presiding.
R. Jackson, Jeffery F. Speer, Lafayette, LA, for
Plaintiff-Appellant, Danny Penn.
K. Williams, Jordan L. Faircloth, Cullen J. Dupuy, Thomas R.
Temple, Jr., Baton Rouge, LA, for Defendant-Appellee, Our
Lady of the Lake Regional Medical Center.
McCLENDON, HIGGINBOTHAM, AND THERIOT, JJ. McClendon, J.
concurs with the result reached by the majority.
1621 La.App. 1 Cir. 2] HIGGINBOTHAM, J.
medical malpractice action, plaintiff, Danny Penn, appeals
the district court's grant of a motion to strike and
motion for summary judgment in favor of the defendant, Our
Lady of the Lake Regional Medical Center (" OLOL"
AND PROCEDURAL HISTORY
October 28, 2010, plaintiff consulted Dr. Carl Luikart due to
fever and night sweats after a colonoscopy performed on
September 30, 2010. Plaintiff was admitted to OLOL on October
29, 2010, and treated for possible Enterococcal Endocarditis.
Plaintiff was treated with antibiotics, including Gentamicin,
and he was discharged on November 1, 2010. After discharge,
CarePoint Partners of Louisiana, L.L.C. ("
CarePoint" ) administered plaintiff's home infusion
treatments of Gentamicin.
Plaintiff complained of dizziness, nausea, and symptoms of
vertigo from November 17, 2010, through December 3, 2010. Dr.
Luikart and CarePoint were notified of plaintiff's
complaints, and his Gentamicin was discontinued on December
3, 2010. On December 20, 2010, plaintiff was readmitted to
OLOL and observed by Drs. John McLachlan and William Gladney.
After his discharge on December 23, 2010, he began treatment
with Dr. Moises Arriaga and was diagnosed with Dandy's
2011, plaintiff filed a medical malpractice complaint with
the Patient Compensation Fund alleging malpractice and
contending that his injuries would not have occurred but for
the negligence of Dr. Luikart, OLOL, and CarePoint and that
there were " serious deviations in the standards of care
relating [to] the prescribing, administering, and monitoring
of Gentamicin, which were done by Dr. Luikart as well as
[CarePoint], the dispensing pharmacists."
1621 La.App. 1 Cir. 3] On October 31, 2011, plaintiff filed a
petition for damages against CarePoint and/or The Infusion
Network of Louisiana, Inc. d/b/a CarePoint to recover damages
sustained while he was under its care. In January 2013, a
medical review panel found that the evidence did not support
the conclusion that Dr. Luikart and OLOL failed to meet the
applicable standard of care as charged in plaintiff's
complaint. As to OLOL, the panel found no fault with the care
rendered by the nurses nor any other employees of the
hospital. On April 11, 2013, plaintiff filed a supplemental
and amending petition adding as defendants Dr. Luikart and
OLOL and alleging that Dr. Luikart was at fault for, among
other things, treating plaintiff with an excessive dose of
Gentamicin. The supplemental petition further alleged:
The sole and proximate cause of the above-described injuries
is the grossly negligent acts and/or inactions of Defendant,
OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER, is specifically
but not exclusively, averred to be as follows:
1.) Failure of [OLOL], and [its] staff and employees, through
its administration, to properly monitor the actions and
abilities of its staff and employees;
2.) Failure to have adequate written policy and implemented
it, in order to insure coordination of the care of the
discharging physician and the primary physician[; ]
3.) Failure to closely and timely assess, monitor, implement
and evaluate a plan of care for client;
4.) Failure to communicate plan of care, lab results, and
planned interventions to physicians;
5.) Failure to ensure patient safety.
to plaintiff, OLOL was vicariously liable and/or strictly
liable for the negligence that occurred during the course and
scope of employment of its employees.
29, 2013, OLOL filed a motion for summary judgment, pointing
out to the court that there was an absence of factual support
for one or more elements essential to plaintiff's claims.
Attached to OLOL's motion were the plaintiff's
original and supplemental petitions for damages and the
medical review panel's opinion.
1621 La.App. 1 Cir. 4] Plaintiff filed an opposition to
OLOL's motion for summary judgment and a supporting
memorandum wherein he argued that OLOL, Dr. Luikart, and Dr.
Giarusso deviated from the standard of care.
Plaintiff included his medical records, excerpts from Dr.
Giarusso's deposition, excerpts
from Dr. Luikart's deposition, the affidavit of Dr.
Hue-Teh Shih, and the affidavit of pharmacist Gary McGarity,
to support his contention that OLOL and Dr. Giarusso breached
the applicable standard of care.
filed a reply memorandum to the plaintiff's opposition
arguing that plaintiff's allegations of negligence by Dr.
Giarusso pertaining to the Gentamicin dosage were not heard
before the medical review panel or raised in subsequent
pleadings. According to OLOL, plaintiff's patient
compensation fund complaint did not raise any issue that Dr.
Giarruso negligently prescribed home infusion dosing of
Gentamicin contrary to OLOL pharmacy recommendations, and
plaintiff failed to properly amend his pleadings to include
that allegation. OLOL also argued that Dr. Shih's report
should be " struck and excluded" because Dr. Shih,
a cardiologist, was not qualified to offer opinions regarding
the standard of care for Dr. Giarusso, a hospitalist, and
because his report raised no genuine issues of material fact.
OLOL further contended that Dr. Shih's report lacked a
scientific basis to establish that the discharge order of Dr.
Giarruso caused plaintiff's injuries.
hearing was held on June 23, 2014. At the outset of the
hearing, the district court addressed OLOL's motion to
strike. OLOL sought to strike plaintiff's opposition to
the motion for summary judgment, arguing that it was an
improper expansion of the pleadings and went beyond the scope
of that presented before the medical review panel, which
included only " generic care" by the [2014 1621
La.App. 1 Cir. 5] hospital without mention of Dr. Giarusso.
OLOL also complained that Dr. Shih's affidavit was
inadequate in that Dr. Shih was not a hospitalist, and he
failed to state the standard of care for a hospital internal
medicine doctor. The plaintiff argued that the primary issue
relative to OLOL was the adjusting of his dosage of
Gentamicin. The district court pointed out plaintiff's
argument regarding the appropriate dosages raised an entirely
new claim and expanded the pleadings beyond that which was
presented to the medical review panel. According to the
court, plaintiff's argument was related to physician
standards, rather than a hospital's standard of care, and
he was " expanding the pleadings by making those
allegations." For those reasons, the district court
struck the arguments raised in plaintiff's opposition to
OLOL's motion for summary judgment and excluded the
evidence attached to the opposition, specifically allegations
of Dr. Giarusso's improper reinstatement of Gentamicin.
The court also found that Dr. Shih was " not
qualified" and that his opinion was "
immaterial." The court struck Dr. Shih's report,
noting that it was " irrelevant" and lacked a
support of his argument that the motion for summary judgment
filed by OLOL should be denied, plaintiff argued that
testimony of OLOL employees established that the incorrect
discharge prescription was used. According to the district
court, the issue was whether the hospital breached its duty,
not whether a physician breached his duty by changing the
plaintiff's medication. Plaintiff responded that Dr.
Giarusso was an employee of OLOL, and thus, OLOL was
vicariously liable for her actions. OLOL responded that the
arguments raised by plaintiff's opposition had been
stricken, and even if they had not, none of the testimony
established that Dr. Giarusso breached the standard of care.
Finding that the plaintiff failed to set forth specific facts
showing that there was a genuine issue for trial, the
district court granted OLOL's motion for summary
1621 La.App. 1 Cir. 6] The district court signed a judgment
on July 17, 2014, granting OLOL's motion to strike the
affidavits of plaintiff's experts and plaintiff's
opposition to OLOL's motion for summary judgment to the
extent that it alleged liability issues not set forth in the
original or amended petitions. The judgment also granted
OLOL's motion for summary judgment and dismissed
plaintiff's claims against OLOL with prejudice. It is
from this judgment that the plaintiff appeals.
motion for summary judgment is a procedural device used to
avoid a full-scale trial when there is no genuine issue of
material fact. All Crane Rental of Ga., Inc. v.
Vincent, 2010-0116 (La.App. 1st Cir. 9/10/10), 47 So.3d
1024, 1027, writ denied, 10-2227 (La. 11/19/10), 49 So.3d
387. The motion should be granted only if the pleadings,
depositions, answers to interrogatories, and admissions,
together with any affidavits, show that there is no genuine
issue as to material fact and that mover is entitled to
judgment as a matter of law. La. Code Civ. P. art. 966(B)(2).
burden of proof on a motion for summary judgment is on the
movant. However, if the movant will not bear the burden of
proof at trial on the matter that is before the court on the
motion, the movant's burden on the motion does not
require him to negate all essential elements of the adverse
party's claim, but rather to 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.
Thereafter, if the adverse party fails to produce factual
evidence 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
summary judgment. La. Code Civ. P. art. 966(C)(2); All
Crane, 47 So.3d at 1027.
1621 La.App. 1 Cir. 7] In ruling on a motion for summary
judgment, the district court's role is not to evaluate
the weight of the evidence or to determine the truth of the
matter, but instead to determine whether there is a genuine
issue of material fact. Id. Because
it is the applicable substantive law that determines
materiality, whether a particular fact in dispute is material
for summary judgment purposes can only be seen in light of
the substantive law applicable to the case. Pumphrey v.
Harris, 2012-0405 (La.App. 1st Cir. 11/2/12), 111 So.3d
medical malpractice action against a physician, the plaintiff
must establish by a preponderance of the evidence the
applicable standard of care, a violation of that standard of
care, and a causal connection between the alleged negligence
and the plaintiff's injuries. See La. R.S. 9:2794(A).
Likewise, in a medical malpractice action against a hospital,
the plaintiff must prove that the hospital caused the injury
when it breached its duty. Cangelosi v. Our Lady of Lake
Regional Medical Center, 564 So.2d 654, 661 (La. 1989).
Expert testimony is generally required to establish the
applicable standard of care and whether that standard of care
was breached, except where the negligence is so obvious that
a lay person can infer negligence without the guidance of
expert testimony. See Pfiffner v. Correa, 94-0924,
94-0963, 94-0992 (La. 10/17/94), 643 So.2d 1228, 1233-34.
petitions show that the medical malpractice alleged by
plaintiff is not of the type that is so egregious that
malpractice would be obvious to a lay person. See
Pfiffner, 643 So.2d at 1233-34. Thus, expert medical
testimony was necessary to prove his claims.
support of its motion for summary judgment, OLOL offered the
opinion of the medical review panel, which concluded that the
evidence did not support the conclusion that Dr. Luikart and
OLOL failed to meet the applicable standard of [2014 1621
La.App. 1 Cir. 8] care as charged in plaintiff's
complaint. The panel also concluded that as to OLOL, there
was no fault with the care rendered by its nurses and
employees. Thus, because OLOL met its burden of proof, the
burden of proof shifted to the plaintiff to produce factual
support sufficient to establish that he would be able to
satisfy his evidentiary burden of proof at trial. See La.
Code Civ. P. art. 966(C)(2).
opposing the defendant's motion for summary judgment,
plaintiff submitted his medical records, excerpts from Dr.
Giarusso's deposition, excerpts from Dr. Luikart's
deposition, the affidavit of Dr. Shih, and the affidavit of
pharmacist Gary McGarity. Following a hearing on OLOL's
motion to strike, the district court ruled that it was "
going to strike those allegations and exclude evidence that
is attached to [plaintiff's] opposition, specifically the
allegations of [Dr. Giarusso's] improper reinstatement of
[Gentamicin] at 350 milligrams every 24 hours." The
court noted that it was also striking Dr. Shih's
admission of expert testimony is governed by Louisiana Code
of Evidence article 702:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.
district court is accorded broad discretion in determining
whether expert opinion evidence should be held admissible,
and its decision will not be overturned absent an abuse of
discretion. See MSOF Corporation v. Exxon
Corporation, 2004-0988 (La.App. 1st Cir. 12/22/05), 934
So.2d 708, 717, writ denied, 2006-1699 (La. 10/6/06), 938
Louisiana Revised Statutes 9:2794(A) provides that in a
medical malpractice action, the plaintiff has the burden of
(1) The degree of knowledge or skill possessed or the degree
of care ordinarily exercised by physicians ... licensed to
practice in the state [2014 1621 La.App. 1 Cir. 9] of
Louisiana and actively practicing in a similar community or
locale under similar circumstances; and where the defendant
practices in a particular specialty and where 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.
Section 2794 makes a distinction between the specialist and
those physicians not practicing in a particular specialty.
The non-specialist's duty requires that degree of skill
or care " exercised by physicians" "
practicing in a similar community or locale and under similar
circumstances[.]" La. R.S. 9:2794(A)(1). The specialist,
on the other hand, is held under the statute to the degree of
care ordinarily practiced by physicians within his medical
specialty. Ardoin v. Hartford Acci. & Indem. Co.,
360 So.2d 1331, 1340 (La. 1978). Dr. Giarusso treated
plaintiff as a hospitalist, and must be held to the standard
of care of those physicians practicing in hospital medicine.
affidavit, Dr. Shih is identified as a board-certified
cardiologist and expert in cardiology and clinical cardiac
electrophysiology licensed to practice in Taiwan,
R.O.C., Massachusetts, Michigan, California, Texas, Indiana,
and Florida. The affidavit claims that Dr. Shih had clinical
experience, provided consultation relating to clinical
practice and/or taught medicine in " Defendants'
specialty or related field of healthcare or in the field of
health care in which the Defendants provided care or
treatment to DANNY PENN." Dr. Shih concluded that there
were violations of the standard of care by defendants, and
had the defendants acted in accordance with the standards of
care, plaintiff would not have suffered the ototoxicity
allegedly caused by incorrect dosing of Gentamicin. He stated
that the pharmacists at OLOL correctly adjusted the
Gentamicin regimen based on the 2008 American College of
Cardiology/American Heart Association Guidelines, namely 3
mg/kg per twenty-four hours in equally divided doses (i.e.,
every eight hours) for four to six weeks. However, plaintiff
was discharged on a higher dose [2014 1621 La.App. 1 Cir. 10]
to be given every twenty-four hours, 3.7 mg/kg. According to
Dr. Shih, plaintiff developed neurologic deficits as the
result of overdose of Gentamicin, and Drs. Giarusso and
Luikart should have used the correct total daily dose and
correct dosing schedule to minimize the toxicity. He further
argued that CarePoint should have reviewed the Gentamicin
order and communicated with the physician in charge of home
infusion to optimize the therapy.
district court found that Dr. Shih lacked the requisite
knowledge of accepted standards of medical care involved in
plaintiff's claim, as well as the qualifications on the
basis of training or experience to offer an expert opinion
regarding those accepted standards of care. In coming to this
conclusion, the district court specified that Dr. Shih was a
cardiologist and did " not have the qualifications in
hospital medicine." Additionally, the court opined that
Dr. Shih failed to provide a scientific foundation for his
Shih's affidavit indicates that he is an expert in
cardiology and clinical cardiac electrophysiology and offered
his expert opinion in cardiology relative to the appropriate
standard of care. However, his report fails to offer an
opinion as to the standard of care to be exercised by a
hospitalist, such as Dr. Giarusso, or a general hospital,
such as OLOL. Thus, his testimony would not assist the trier
of fact in determining whether Dr. Giarusso or OLOL breached
their standard of care. Therefore, based on our review of the
record before us, we cannot say that the district court
abused its discretion in ruling that Dr. Shih's affidavit
we find that the district court did not abuse its discretion
in excluding Dr. Shih's affidavit from evidence, and
plaintiff produced no other evidence to establish the
applicable standard of care as to OLOL or that the standard
of care was breached, we likewise find that plaintiff failed
to establish [2014 1621 La.App. 1 Cir. 11] that he would be
able to satisfy his evidentiary burden of proof at trial, and
the district court was correct in granting summary judgment
in favor of OLOL.
foregoing reasons, we affirm the judgment of the district
court granting Our Lady of the Lake's motion to strike,
granting summary judgment in favor of Our Lady of the Lake,
and dismissing plaintiff's claims against them with
prejudice. All costs of this appeal are to be borne by the
plaintiff, Danny Penn.
Dr. Giarusso was the hospitalist treating
plaintiff after he was admitted to OLOL.