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Crockerham v. Louisiana Medical Mutual Insurance Co.

Court of Appeals of Louisiana, First Circuit

June 21, 2018


          On Appeal from the Nineteenth District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. 606, 186 The Honorable William A. Morvant, Judge Presiding

          Robert W. Hallack Attorney for Plaintiff/Appellant, Baton Rouge, Louisiana Cherlyn Denise Crockerham

          Randall L. Champagne William A. Fell Baton Rouge, Louisiana Attorneys for Defendant/Appellee, Woman's Hospital Foundation


          PENZATO, J.

         Appellant, Cherlyn Denise Crockerham, [1] appeals the trial court's judgment granting summary judgment in favor of Appellee, Woman's Hospital Foundation (Woman's Hospital), and dismissing her claims against Woman's Hospital. For the reasons that follow, we amend the summary judgment and reverse, in part, and affirm, in part, the judgment as amended.


         On May 8, 2009, Ms. Crockerham underwent a robotic-assisted laparoscopic hysterectomy (robotic procedure) performed by Dr. Ryan Dickerson and Dr. Jacob Estes at Woman's Hospital. Ms. Crockerham claims that as a result of this procedure, she lost bladder function, and in accordance with the Louisiana Medical Malpractice Act, [2] she submitted her claim to the Medical Review Panel. With regard to Woman's Hospital, the Medical Review Panel determined that the evidence did not support the conclusion that Woman's Hospital failed to comply with the appropriate standard of care. The Medical Review Panel also found that there was a material issue of fact with regard to Woman's Hospital as to whether Dr. Dickerson had the proper credentials to perform the surgery.

         Ms. Crockerham filed a lawsuit on October 20, 2011, and named as defendants, Louisiana Medical Mutual Insurance Company, Dr. Dickerson, Dr. Estes, and Woman's Hospital. Ms. Crockerham alleged that Woman's Hospital was negligent in permitting Dr. Dickerson to perform the robotic procedure without the proper credentials and failing to obtain informed consent because Dr. Dickerson did not disclose that he had never operated using the robotic device nor seen it used on a live human being.

         After discovery took place, Woman's Hospital filed a motion for summary judgment asserting that Ms. Crockerham had no evidence that Dr. Dickerson was negligently credentialed and that there was no expert testimony that Woman's Hospital had breached the standard of care. Attached to the motion was a memorandum in support with several exhibits: a position paper of Woman's Hospital submitted to the Medical Review panel; a copy of Ms. Crockerham's complaint; the Medical Review Panel opinion and other documents filed with the Medical Review Panel; the petition in this matter; the deposition of Dr. Dickerson; the deposition of Dr. James M. Wheeler, expert for Ms. Crockerham; the deposition of Ms. Crockerham; and the affidavit of Creighton Abadie, the attorney representative on the Medical Review Panel, summarizing the findings of the Medical Review Panel.[3]

         Both parties maintain that by clerk of court notice dated November 30, 2016, the hearing on the motion for summary judgment was originally set for May 8, 2017. Both parties further agree that they then received a second notice from the clerk of court resetting the hearing for March 20, 2017.[4] Counsel for Ms. Crockerham admits he received the second notice, but asserts that he misunderstood it. As a result, Ms. Crockerham filed no opposition to the motion for summary judgment prior to the March 20, 2017 hearing date. On that date, only counsel for Woman's Hospital appeared, and the trial court granted the summary judgment. The trial court signed the judgment in accordance with his oral ruling on the same date, dismissing Ms. Crockerham's lawsuit against Woman's Hospital.

         Unaware that the hearing had taken place on March 20, 2017, Ms. Crockerham filed an opposition to the motion for summary judgment on April 27, 2017. The March 20, 2017 judgment was not served on Ms. Crockerham's counsel until August 1, 2017. On August 11, 2017, Ms. Crockerham filed a motion for new trial, which the trial court summarily denied without a hearing on August 16, 2017. In its denial, the trial court stated:

Mover acknowledges that the Dec. 2, 2016 notice moved the hearing from 5/8/17 to 3/20/17. For whatever reason mover did not file an opposition until April 27, 2017 after scheduled hearing. Therefore, by admission the [motion for summary judgment] was not opposed.

         Ms. Crockerham filed this appeal from the March 20, 2017 judgment granting the motion for summary judgment and dismissing her claims. She assigns as error that the trial court committed error in failing to find a genuine issue of material fact based on the Medical Review Panel opinion and the deposition of Dr. Wheeler. Ms. Crockerham asserts that even though the motion for summary judgment was unopposed, the exhibits submitted by mover created a genuine issue of material fact.


         Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action .... and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2).[5] In reviewing the trial court's decision on a motion for summary judgment, this court applies a de novo standard of review using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750.

         The initial burden of proof is on the mover. If the mover will not bear the burden of proof at trial, the mover's burden does not require him to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim. Thereafter, the burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

         "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.

Jackson v. City of New Orleans, 2012-2742 (La. 1/28/14), 144 So.3d 876, 882, cert, denied, ____U.S.____, 135 S.Ct. 197, 190 ...

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