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McKeogh v. Healthcare Indemnity, Inc.

Court of Appeals of Louisiana, Fourth Circuit

July 11, 2018

JEAN MONTEDONICO MCKEOGH
v.
HEALTHCARE INDEMNITY, INC., UNIVERSITY HEALTHCARE SYSTEMS, LC, ROBIN A. SILVERMAN, THE ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND, AND MICHAEL J. O'BRIEN

          APPEAL 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 PLAINTIFF/APPELLANT

          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

          Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Rosemary Ledet

          ROSEMARY LEDET JUDGE

         This is 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On March 5, 2014, Dr. O'Brien performed a total shoulder arthroplasty on Ms. McKeogh's left shoulder.[1] 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.

         On May 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.

         Ms. McKeogh filed a complaint requesting a medical review panel ("MRP").[2] 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 PETITIONER post-surgery.

         On 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.[3] 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.[4] 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.

         On October 4, 2016, Dr. O'Brien and Tulane EDU filed a motion for summary judgment.[5] 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;[6] 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.[7] 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.[8]

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].

         In his 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 by TUHC.[9]

         In 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.[10] 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.

         Following 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 ...

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