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Tate v. Ochsner Clinic Foundation

Court of Appeals of Louisiana, Fifth Circuit

June 28, 2018

DELORIES TATE WIFE OF/AND ELVORN TATE
v.
OCHSNER CLINIC FOUNDATION

          ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 683-770, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/RESPONDENT, DELORIES TATE WIFE OF/AND ELVORN TATE Ivan A. Orihuela

          COUNSEL FOR DEFENDANT/RELATOR, OCHSNER CLINIC FOUNDATION Shelly S. Howat William K. Wright, IV

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

          ROBERT A. CHAISSON JUDGE

         In this medical malpractice suit, Ochsner Clinic Foundation seeks supervisory review of a May 3, 2018 judgment of the trial court denying its motion for summary judgment. For the following reasons, we grant Ochsner's writ application, reverse the trial court ruling, grant summary judgment and dismiss this matter with prejudice.

         FACTS AND PROCEDURAL HISTORY

         Delores Tate and her husband, Elvorn Tate, filed a petition for damages on February 19, 2010, against Ochsner Clinic Foundation ("Ochsner") in which they alleged that Ochsner staff negligently placed an IV in Mrs. Tate's left hand, thereby causing her injuries.[1] The Tates also alleged that because the staff failed to adequately disclose to Mrs. Tate the risks associated with the procedure, Ochsner failed to obtain her informed consent to the procedure.

         On March 6, 2018, more than eight years after commencement of this litigation, Ochsner filed a motion for summary judgment seeking to have all of the Tates' claims against it dismissed with prejudice. Ochsner argued that because the Tates had not identified any medical expert to testify as to their medical malpractice claim or failure to obtain informed consent claim, they would be unable to sustain their burden of proof on their claims. In support of its motion for summary judgment, Ochsner introduced the opinion of the medical review panel that had previously considered the Tates' claims regarding medical malpractice and found no breach of the applicable standard of care. The Tates submitted an untimely opposition to the motion for summary judgment in which they acknowledged that they did not have expert testimony but argued that expert testimony is not necessary with respect to some of their claims.[2] The Tates did not introduce any evidence in opposition to Ochsner's motion for summary judgment.

         After a hearing on the motion for summary judgment, the trial court found that expert testimony was not required to prove the Tates' claims and therefore denied the motion for summary judgment. Ochsner filed a writ application for supervisory review of that judgment by this Court. Pursuant to the recently enacted requirements of La. C.C.P. art. 966(H), we assigned the case for briefing by the parties and heard oral arguments.

         DISCUSSION

         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). The burden of proof rests with the mover. La. C.C.P. art. 966(D). However, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. 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. Id.; Dillenkofer v. Marrero Day Care Ctr., Inc., 16-713 (La.App. 5 Cir. 5/24/17), 221 So.3d 279, 282.

         In a medical malpractice claim, the plaintiff bears the burden of proving "… the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians …" that are "… actively practicing in a similar community or locale and under similar circumstances." La. R.S. 9:2794(A)(1). The plaintiff must also establish that "… defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill." La. R.S. 9:2794(A)(2).

         Because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under La. R.S. 9:2794's requirements without medical experts. Pfiffner v. Correa, M.D., 94-0924 (La. 10/17/94), 643 So.2d 1228. Only in cases of obvious negligence, where the trier of fact does not need an expert to assess the standard of care, breach, and ...


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