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Raborn v. Albea

Court of Appeals of Louisiana, First Circuit

May 11, 2017

FRANK RABORN
v.
JEFFREY R. ALBEA, M.D., SHAWN G. DUNN, M.D., THE NEUROMEDICAL CENTER(A PROFESSIONAL MEDICAL CORPORATION) EBI, LP AND SYNTHES USA SALES, LIMITED LIABILITY COMPANY

         Appealed from the 21st Judicial District Court ""'' In and for the Parish of Tangipahoa State of Louisiana Case No. 538, 675 The Honorable Timothy E. Kelley, Judge Presiding

          Stephen M. Irving Baton Rouge, Louisiana and Martin K. Maley, Sr. Baton Rouge, Louisiana Counsel for Plaintiff/ Appellant Frank Raborn

          Tara S. Bourgeois Garrett S. Callaway Baton Rouge, Louisiana Counsel for Defendant/ Appellee Shawn G. Dunn, M.D.

          BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.

          THERIOT, J.

         In this medical malpractice case, the plaintiff-appellant, Frank Raborn, appeals the ruling of the trial court granting summary judgment in favor of the defendant-appellee, Shawn G. Dunn, M.D., and ordering the dismissal, with prejudice, of Mr. Raborn's claims against Dr. Dunn. For the following reasons, we affirm.

         FACTS AND PROCEDURAL BACKGROUND

         In or around June of 2006, Mr. Raborn underwent a posterior lumbar vertebral fusion surgery at The NeuroMedical Center in Baton Rouge, Louisiana. Mr. Raborn's surgery was performed by Jeffrey R. Albea, M.D., who subsequently left practice with The NeuroMedical Center and moved out-of-state. Dr. Albea turned over post-operative care of Mr. Raborn to Paul Waguespack, M.D., another physician associated with The NeuroMedical Center. Dr. Waguespack treated Mr. Raborn for several months, but ultimately referred Mr. Raborn to the appellee, Dr. Dunn, to address Mr. Raborn's persistent post-operative complaints of lower back pain, buttocks pain, leg pain, and difficulty sitting.

         Dr. Dunn is now, and has been at all operative times herein, a licensed physician, employed by The NeuroMedical Center, practicing in the field of neurology and pain management. Dr. Dunn first evaluated Mr. Raborn on October 9, 2006, approximately four months after Mr. Raborn's surgery. Dr. Dunn recommended that Mr. Raborn undergo a discogram to determine the source of Mr. Raborn's post-operative pain. Dr. Dunn performed a discogram on Mr. Raborn on March 9, 2007, after which Mr. Raborn began experiencing severe headaches, diminished bladder and bowel function, and worsening pain in his lower extremities. Mr. Raborn was then diagnosed with a spinal fluid leak. Dr. Dunn performed autologous lumbar blood patches on Mr. Raborn to address the spinal fluid leak on March 12, 2007, and March 16, 2007, respectively. Mr. Raborn claims he experienced medical complications as a result of the blood patches, had difficulty communicating with Dr. Dunn, and was forced to visit the emergency room at Our Lady of the Lake Hospital on April 3, 2007, whereupon he was diagnosed with corda equina syndrome.

         Thereafter, in accordance with the Louisiana Medical Malpractice Act ("LMMA"), La. R.S. 40:1299.41, et seq., [1] Mr. Raborn filed a medical malpractice claim against several health care providers, including Dr. Dunn, with the Patient's Compensation Fund. See La. R.S. 40:1299.47. A medical review panel was convened and met to review the malpractice claim on July 21, 2009. That same day, the medical review panel rendered a unanimous decision finding "no deviation from the appropriate standard of medical care by [the defendants]." The medical review panel further determined that "[t]he discogram had a known complication that was addressed and the procedure led to meaningful surgery."

         On October 19, 2009, Mr. Raborn filed the underlying civil suit against several named defendants, including Dr. Dunn. Mr. Raborn claimed Dr. Dunn was negligent in his failure to take precaution to prevent a spinal fluid leak; failure to attend to Mr. Raborn's medical needs, despite the seriousness of such needs; failure to use reasonable care or diligence; failure to respond to calls and faxes; failure and delay in diagnosing; and any and all other acts of negligence that may be proven through discovery and trial. Mr. Raborn therefore prayed that judgment be entered in his favor and against Dr. Dunn.

         On April 25, 2016, following various pre-trial matters not at issue on appeal, Dr. Dunn filed a motion for summary judgment against Mr. Raborn. Dr. Dunn asserted that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law. Dr. Dunn specifically averred that Mr. Raborn could not bear his burden of proving the applicable standard of care or proving a breach of the applicable standard of care. Dr. Dunn attached several exhibits in support of his motion for summary judgment, including an affidavit from the attorney chairman of the medical review panel and excerpts from the depositions of Mr. Raborn's medical expert witness and treating physicians.

         On June 3, 2016, Mr. Raborn filed an opposition to the motion for summary judgment. Mr. Raborn argued that there were serious factual disputes regarding the occurrences between March 16, 2007, when he received the second blood patch, and April 3, 2007, when he was diagnosed with corda equina syndrome. In addition, Mr. Raborn claimed that even if Dr. Dunn's decision to perform the discogram fell within the applicable standard of care, Dr. Dunn breached the applicable standard of care in his failure to provide appropriate instructions, warning, and advice before performing the blood patches and in his response to the blood patch complications. Mr. Raborn specifically asserted he was not warned of the possibility that changes in bladder and bowel function and/or worsening lower extremity function could signal a dangerous complication resulting from the blood patches.

         Mr. Raborn submitted an affidavit from Mary Irving, who maintained the records for Mr. Raborn's counsel of record, along with the following attached exhibits in opposition to the motion for summary judgment:

• Exhibit A - excerpt from the deposition of Dr. Dunn;
• Exhibit B - March 12, 2007 records from The NeuroMedical Center;
• Exhibit C - March 16, 2007 records from The NeuroMedical Center;
• Exhibit D - affidavit of Walter Panis, M.D.;
• Exhibit E - affidavit of Mr. Raborn;
• Exhibit F - March 12, 2007 conditions of admission, patient informed consent, and post-procedure discharge instructions from The NeuroMedical Center;
• Exhibit G - March 16, 2007 conditions of admission, patient informed consent, and post-procedure discharge instructions from The NeuroMedical Center;
• Exhibit H - narrative of Dr. Dunn submitted to the medical review panel;
• Exhibit I - excerpt from the deposition of Ziya L. Gokaslan, M.D., a radiologist with Johns Hopkins Hospital who treated Mr. Raborn in 2009;
• Exhibit J - March 29, 2007 report and conclusions from the Baton Rouge Radiology Group, Imaging Center, regarding MRI of Mr. Raborn's lumbar spine; and
• Exhibit K - April 3, 2007 physician notes from the emergency room of Our Lady of the Lake Hospital.

         On June 14, 2016, Dr. Dunn filed a motion to strike Mr. Raborn's opposition and exhibits with an incorporated reply memorandum in support of the motion for summary judgment. Dr. Dunn first argued that Mr. Raborn's opposition and exhibits should be stricken in their entirety. Dr. Dunn claimed the opposition constituted an improper expansion of the pleadings, reasoning Mr. Raborn sought to create a genuine issue of material fact with respect to the warning and counseling provided to him by Dr. Dunn. In the alternative, Dr. Dunn argued that Exhibits B, C, F, G, H, I, J, and K should be stricken as improper evidence on a motion for summary judgment under La. C.C.P. art. 966. Furthermore, Dr. Dunn argued that Exhibit D should be stricken on grounds it did not satisfy the physician witness expert qualification requirements of La. R.S. 9:2794. Finally, Dr. Dunn claimed that even if Exhibit D were admitted for purposes of the motion for summary judgment, the document was insufficient to establish a genuine issue of triable fact.

         On June 20, 2016, the motion for summary judgment and motion to strike came before the trial court for a hearing. Prior to the hearing, however, Mr. Raborn attempted to file a sur-reply on the motion for summary judgment along with the complete and properly certified copy of his medical records from The NeuroMedical Center. Mr. Raborn also attempted to offer the medical records into evidence at the hearing on the motion for summary judgment. In open court, the trial court entertained and granted Dr. Dunn's oral motion to strike the sur-reply and attached opposition evidence, explaining it could not consider this evidence under the controlling summary judgment law.

         In addition, following the arguments of counsel on the remaining matters, the trial court orally denied Dr. Dunn's motion to strike, in part, with respect to Exhibits D and I, and orally granted Dr. Dunn's motion to strike, in part, with respect to Exhibits B, C, F, G, H, J, and K. The trial court further ruled that it could not consider any informed consent claims raised by Mr. Raborn and found that Dr. Dunn was entitled to judgment as a matter of law on Mr. Raborn's medical malpractice negligence claims. The trial ...


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