FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-02728,
DIVISION "E-7" Honorable Ellen M. Hazeur, Judge
Bernard J. Bagert, Jr. THE BAGERT LAW FIRM COUNSEL FOR
Stephen M. Pizzo Bert J. Miller BLUE WILLIAMS, L.L.P Guy C.
Curry CURRY, CAVINESS & WEBB Karen M. Fontana Young KEAN
MILLER, LLP COUNSEL FOR DEFENDANTS/APPELLEES
composed of Chief Judge James F. McKay, III, Judge Edwin A.
Lombard, Judge Rosemary Ledet
ROSEMARY LEDET JUDGE
a medical malpractice suit. The plaintiff, Jean McKeogh,
filed this suit against the following five defendants: (i)
Michael O'Brien ("Dr. O'Brien"), an
orthopedic surgeon; (ii) The Administrators of the Tulane
Educational Fund, d/b/a Tulane University School of Medicine
("Tulane EDU"), Dr. O'Brien's employer;
(iii) Robin Silverman ("Ms. Silverman"), a licensed
physical therapist; (iv) University Healthcare System, L.C.,
d/b/a Tulane University Hospital & Clinic
("TUHC"), Ms. Silverman's employer; and (v)
Health Care Indemnity, Inc., Ms. Silverman's insurer. Two
of the defendants, Dr. O'Brien and Tulane, filed a motion
for summary judgment. The trial court granted the motion.
From that judgment, Ms. McKeogh appeals. For the reasons that
follow, we affirm.
AND PROCEDURAL BACKGROUND
March 5, 2014, Dr. O'Brien performed a total shoulder
arthroplasty on Ms. McKeogh's left
shoulder. Dr. O'Brien saw Ms. McKeogh for her
office visits, including her post-operative care, at the
Tulane Institute of Sports Medicine ("TISM"), an
uptown satellite clinic of TUHC located on Tulane
University's campus. As part of her post-operative care,
Dr. O'Brien prescribed physical therapy. For convenience,
Dr. O'Brien's patients frequently opted to have such
prescribed therapy at TUHC's Physical Therapy Department
(the "PT Department"), which was located in the
same building as the TISM but in a separate suite. Ms.
McKeogh opted to do so.
9, 2014, Ms. McKeogh returned to Dr. O'Brien and reported
that she believed she was injured during physical therapy
four days earlier. Dr. O'Brien ordered a CT Arthrogram of
Ms. McKeogh's left shoulder, which was performed ten days
later. The CT Arthrogram revealed a non-displaced fracture
involving the coracoid process anteriorly. Ultimately, Ms.
McKeogh developed a "frozen shoulder" and underwent
a second surgical procedure on April 1, 2015.
McKeogh filed a complaint requesting a medical review panel
("MRP"). In her complaint, Ms. McKeogh's
allegations regarding Dr. O'Brien were as follows:
• Failure to properly communicate with and monitor
SILVERMAN in the methods of physical therapy that she was
applying to PETITIONER;
• Failure to ascertain that SILVERMAN was qualified to
perform physical therapy manipulations on a person with a
condition such as that which afflicted PETITIONER;
• Failure to exercise reasonable care to inform,
instruct and train SILVERMAN in proper physical therapy
methods to be applied to petitioner who had under gone a
complex shoulder replacement procedure; and
• Failure to use reasonable care and diligence in
ascertaining the condition of PETITIONER post-surgery and
determining [the] proper course of action in treating
February 23, 2016, the MRP rendered its opinion. As to Ms.
Silverman, the MRP found the evidence supported the
conclusion that she failed to meet the applicable standard of
care, as alleged in the complaint. As to Dr. O'Brien,
Tulane EDU, and TUHC, the MRP found that the evidence did not
support the conclusion that they failed to meet the
applicable standard of care, as alleged in the
complaint. Ms. McKeogh then commenced this suit. In
her petition, she repeated the allegations she made before
the MRP, including that Dr. O'Brien and Tulane EDU were
vicariously liable for Ms. Silverman's actions.
October 4, 2016, Dr. O'Brien and Tulane EDU filed a
motion for summary judgment. Dr. O'Brien's motion for
summary judgment was premised on the following two grounds:
(i) Ms. McKeogh's lack of an expert to establish medical
malpractice; and (ii) her lack of evidence of an
employer-employee relationship between him and Ms. Silverman
to establish vicarious liability for Ms. Silverman's
alleged malpractice. In opposing the motion, Ms. McKeogh
acknowledged that she was not contending Dr.
O'Brien's active negligence (medical malpractice)
caused her injuries; however, she contended that there was a
genuine issue of material fact as to Dr. O'Brien's
right to control Ms. Silverman, precluding summary judgment
on her vicarious liability claim against them.
In support of their position that Ms. Silverman was not an
employee of Tulane EDU, Dr. O'Brien offered the affidavit
of Patricia Bethancourt, Tulane EDU's associate general
counsel, and Dr. O'Brien's deposition testimony. In
her affidavit, Ms. Bethancourt attested to the following
facts regarding the legal relationships between the parties:
• [Tulane EDU] owns and operates the Tulane University
School of Medicine.
• [Tulane EDU] does not own or operate Tulane University
Hospital and Clinic [the "Hospital"]. In 1995, the
Hospital was sold to [TUHC]. Since 1995, [TUHC] has been a
separate legal entity not under the control of [Tulane EDU].
• Dr. Michael O'Brien is employed by [Tulane EDU].
• [Tulane EDU] does not own or operate [TUHC's PT
Department] and does not employ the physical therapists. The
physical therapists working at [TISM] are employed by [TUHC].
• Neither Dr. O'Brien nor [Tulane EDU] has any
authority to hire, fire, train, or supervise employees of
[TUHC] working in the [PT Department].
deposition, Dr. O'Brien echoed Ms. Bethancourt's
attestations regarding the parties' legal relationships.
Dr. O'Brien testified that he has an office where he sees
patients both at Tulane Medical School downtown and at the
TISM uptown. Dr. O'Brien explained that the TISM is owned
opposition to the motion for summary judgment, Ms. McKeogh
offered the following evidence: two affidavits by Ms.
McKeogh; an affidavit by an orthopedic surgeon, Dr. Thomas
Lyons; an affidavit by a physical therapist, Dr. T. Kirk
Nelson; and an affidavit by her attorney, Bernard Bagert,
Jr. In response, Dr. O'Brien filed a
motion to exclude Ms. McKeogh's affidavits. As discussed
elsewhere in this opinion, the only affidavit the trial court
examined at the hearing was Dr. Lyons' affidavit, which
the trial court excluded in part.
the hearing, the trial court granted the motion for summary
judgment, giving the following oral reasons:
Louisiana Civil Code Article 2320 imposes liability on the
employer only for those acts of its employee which it might
have prevented, not the acts of third parties.
The affidavit of Patricia Bethancourt, which was submitted,
confirmed that [Tulane EDU] do[es] not operate TUHC.
Miss McKeogh has not offered any evidence to rebut the
testimony or the affidavit of Mrs. Bethancourt and Dr.
O'Brien that the physical therapist Silverman ...