Appeal from The 21st Judicial District Court,
Parish of Tangipahoa, State of Louisiana Trial Court No.
2014-0000770 The Honorable Elizabeth P. Wolfe, Judge
G. Cave Baton Rouge, Louisiana Attorney for
Plaintiffs/Appellants, Salvador and Elvie Faldetta
Deborah Deo Gracias Trahan Covington, Louisiana Attorney for
Defendants/Appellees, Mohamed A. Elkersh, M.D. and Advanced
Pain Institute, L.L.C.
BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
plaintiffs in this medical malpractice action appeal a
summary judgment dismissing all claims against the remaining
defendants. We affirm.
AND PROCEDURAL HISTORY
Faldetta was diagnosed with degenerative disc disease in his
lumbar spine and sought treatment for prolonged low back pain
with Dr. Mohamed A. Elkersh. At Dr. Elkersh's
recommendation, Faldetta underwent transforaminal epidural
steroid injections at L4, L5, and SI, administered by Dr.
Elkersh at his clinic, Advanced Pain Institute Treatment
Center. Post-procedure, Faldetta developed an infection in
his lumbar spine at L4-L5 and possibly at L5-Sl, referred to
as "discitis." Shortly thereafter, as a result of a
product recall, it was learned a solution used in the
procedure may have been contaminated.
and his wife, Elvie Faldetta, sued Main Street Family
Pharmacy, L.L.C., which provided the solution used in the
procedure. Faldetta also instituted a medical review panel
proceeding against Dr. Elkersh and Advanced Pain Institute,
L.L.C. After reviewing the evidence submitted, the medical
review panel concluded Dr. Elkersh did not deviate from the
standard of care in treating Faldetta. More specifically, the
panel found Dr. Elkersh performed the procedure in a strict,
sterile fashion; discitis is a known complication of a
transforaminal epidural steroid injection; and there was no
indication Dr. Elkersh deviated from the standard of care.
The Faldettas then amended the petition filed against Main
Street Family Pharmacy to include claims against Dr. Elkersh,
alleging he negligently failed to ensure sterile conditions
for the procedure, failed to ensure the medicine was not
contaminated, improperly handled and stored the medicine,
failed to train his staff to use the proper techniques for
epidural injections, and injected the contaminated solution
directly into, rather than outside, the lumbar
Elvie Faldetta was not a party to the medical review panel
proceeding, Dr. Elkersh and Advanced Pain Institute filed an
exception of prematurity as to her claims. That exception was
sustained, and Elvie Faldetta's claims were dismissed
without prejudice in a judgment signed August 24, 2015. The
Faldettas ultimately settled all their claims against Main
Street Family Pharmacy, which were then voluntarily
Elkersh and Advanced Pain Institute filed a motion for
summary judgment seeking dismissal of the remaining claims
and asserting Faldetta could not meet his burden of proof. In
support of the motion, movers submitted the opinion of the
medical review panel, authenticated by the affidavit of the
attorney chairman. At Faldetta's request, the hearing on
the motion was continued to allow an opportunity to depose
Dr. Chad Domangue, one of Faldetta's treating physicians.
Dr. Domangue was deposed, and both parties submitted excerpts
of his deposition in connection with the motion. Faldetta
also submitted excerpts of medical records produced during
hearing on the motion, the trial court found Faldetta failed
to produce sufficient evidence to establish a breach of the
standard of care and, in a judgment signed August 18, 2017,
dismissed the claims against Dr. Elkersh and Advanced Pain
Institute with prejudice. The Faldettas appeal, assigning as
error the trial court's granting of the motion for
summary judgment, and the trial court's August 24, 2015
judgment sustaining the exception of prematurity and
dismissing Elvie Faldetta's claims without prejudice.