United States District Court, E.D. Louisiana
SECTION "L" (4)
ORDER & REASONS
the Court is Defendant United States of America's Motion
for Summary Judgment. R. Doc. 16. Plaintiff opposes the
Motion. R. Doc. 20. Defendant timely replies. R. Doc. 23.
Having reviewed the parties' arguments and applicable
law, the Court now issues this Order and Reasons.
case involves the denial of an Administrative Claim and
written demand under the Federal Torts Claim Act. R. Doc. 1
at 1. Plaintiff, Anthony Lucas (“Lucas”),
underwent a surgical procedure known as a superior rectus
recession on his left eye while a patient at the Veterans
Administration Medical Center. R. Doc. 1 at 3. Lucas alleges
that the medical providers were negligent in their
performance of the superior rectus recession and severed or
damaged muscle tissue in Lucas's left eye, leaving him
unable to open his eye. R. Doc. 1 at 3.
alleges that at all material times, the medical providers at
the Veterans Administration Medical Center were acting in the
course and scope of their employment. R. Doc. 1 at 2.
According to Lucas, the medical care provided by the Veterans
Administration deviated from the appropriate standard of
care. Lucas seeks damages for physical pain and suffering,
emotional distress, loss of enjoyment of life, medical bills,
loss of physical function, disfigurement, post-judgment
interest, and fees and costs. R. Doc. 1 at 4.
United States of America timely answered on July 25, 2016. R.
Doc. 7 at 1. The United States asserts a number of
affirmative defenses dependent on the Federal Torts Claim Act
to limit Lucas's possible relief. R. Doc. 7 at 4. The
United States also contends that relief should be limited to
Louisiana's medical malpractice cap, and that Lucas
failed to mitigate his damages. R. Doc. 7 at 4. Furthermore,
the United States asserts that the injury arose from a
non-connected accident or pre-existing condition, or, in the
event that the United States is found negligent, superseding
and intervening negligence of third parties broke any causal
connection between the United States' negligence and
Lucas's injuries. R. Doc. 7 at 6.
Defendant's Motion for Summary Judgment (R. Doc.
now moves for summary judgment and argues that without an
expert witness, Plaintiff cannot satisfy the necessary
elements to prevail on his medical malpractice claim under
Louisiana law. R. Doc. 16 at 1. In particular, Defendant
contends that expert testimony is necessary to establish the
applicable standard of care and whether Defendant breached
that standard. R. Doc. 16 at 1. Defendant explains the
initial deadline for submitting expert reports or disclosures
in this case was March 13, 2017. R. Doc. 16 at 2. Plaintiff
moved for a 30-day extension, which the Court granted. R.
Doc. 16 at 2. Despite the extension, Plaintiff has been
unable to produce an expert report, and has not indicated he
will be able to do so. R. Doc. 16 at 2.
argues that to prevail on a claim for medical malpractice
under Louisiana law, Plaintiff must establish the applicable
standard of care, that the provider breached the standard of
care, and that the breach was the causal connection of
Plaintiff's injury. R. Doc. 16 at 5 (citing Pfiffner
v. Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228,
1233). Generally, expert medical testimony is required to
meet these elements, particularly “when the medical and
factual issues are complex and outside the province of a lay
juror's common knowledge.” R. Doc. 16 at 5 (quoting
Thomas v. United States, 2005 WL 757268, *9 (E.D.
La. March 31, 2005)). Defendant argues that the alleged
medical malpractice in this case is not so egregious that it
would be obvious to a lay person, and therefore Plaintiff
must provide expert witness testimony to prevail on his
claim. R. Doc. 16 at 6. In particular, Defendant contends
that without expert testimony it is impossible to establish
that his eye injury was caused by negligence, as opposed to
some non-negligent occurrence. Further, Defendant avers that
Plaintiff cannot prove the injury was a result of this
particular procedure, rather than a result of his ongoing
treatment for a degenerative eye condition. R. Doc. 16 at 6.
Plaintiff's Response (R. Doc. 20)
opposes the Motion and argues expert testimony is not
necessary in this case, as the average lay person “may
easily infer negligence” without expert testimony. R.
Doc. 20 at 4. Plaintiff explains that before the July 2014
surgery, he could fully open his left eye. R. Doc. 20 at 4.
After the surgery, he was no longer able to do so. R. Doc. 20
at 4. According to Plaintiff, “such a drastic and
unexpected outcome could only have occurred as a result of
substandard care provided by the VA medical staff.” R.
Doc. 20 at 4. Further, Plaintiff contends that he has
identified several medical providers on his witness list that
will establish the applicable standard of care. R. Doc. 20 at
support of his argument, Plaintiff provides two photographs
of himself. One is marked “before” and shows
Lucas standing with both eyes fully open. R. Doc. 20-2. The
second is marked “after” and shows Lucas standing
with one eye slightly swollen and completely closed. R. Doc.
20-3. According to Plaintiff, these photos “easily
permit a lay person to infer” that Defendant was
negligent while performing the surgery. R. Doc. 20 at 4.