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
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
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
Cherlyn Denise Crockerham,  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
AND PROCEDURAL HISTORY
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,  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.
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.
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
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. 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.
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
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.
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.
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). 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.
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.
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 ...