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Ogbebor v. Lafayette General Medical Center

Court of Appeals of Louisiana, Third Circuit

August 1, 2018

FESTUS OGBEBOR, INDIVIDUALLY AND ON BEHALF OF HIS DECEASED WIFE, MARY OGBEBOR
v.
LAFAYETTE GENERAL MEDICAL CENTER, ET AL.

          ON APPLICATION FOR SUPERVISORY WRITS FIFTEENTH JUDICIAL DISTRICT COURT LAFAYETE PARISH, LOUISIANA DOCKET NUMBER C-2016-3574 "I" HONRABLE THOMAS J. DUPLANTIER, DISTRICT JUDGE

          Charles J. Boudreaux, Jr., Louis Simon II, Jones Walker LLP, ATTORNEYS FOR DEFENDANTS/APPLICANTS, Dr. Louis Salvaggio, Dr. Nick Cavros

          S. Douglas Busari, S. Douglas Busari & Associates, LLC, ATTORNEYS FOR PLAINTIFF/RESPONDENT Festus Ogbebor, Individually and on behalf of his deceased wife, Mary Ogbebor

          Court composed of Shannon J. Gremillion, John E. Conery, and Van H. Kyzar, Judges.

          SHANNON J. GREMILLION JUDGE

         Defendants/Applicants, Dr. Louis A. Salvaggio and Dr. Nick G. Cavros (Applicants), seek supervisory review from the judgment of the district court granting a motion for new trial filed by Plaintiff, Festus Ogbebor, individually and on behalf of his deceased wife, Mary Ogbebor. For the reasons that follow, we grant the writ and make it peremptory.

         FACTS AND PROCEDURAL POSTURE

         On June 21, 2013, Mrs. Ogbebor presented to the emergency room of Lafayette General Medical Center (LGMC) in Lafayette with complaints of anterior chest discomfort with bilateral arm discomfort, shortness of breath, and sweating. Following an EKG and a chest x-ray, Dr. Salvaggio performed a procedure on Mrs. Ogbebor in the cardiac catheterization laboratory (cath lab) of LGMC. Later that same day, Mrs. Ogbebor was taken back to the cath lab at the direction of Dr. Cavros after she was found to have "a totally occluded first obtuse marginal, status post recent PCI of the vessel with drug[-]eluting stint [sic]." Dr. Cavros performed another procedure which included the placement of an aortic balloon pump. Dr. Cavros discharged Mrs. Ogbebor on July 2, 2013. On July 4, 2013, at 5:37 a.m., Mrs. Ogbebor returned to the LGMC emergency room with complaints of severe chest pain. The cath lab was not notified of her condition until 6:11 a.m. Mrs. Ogbebor passed away at 6:31 a.m.

         Festus Ogbebor, Mrs. Ogbebor's husband, timely filed a request for review by a medical review panel[1] regarding the care administered by Applicants. The medical review panel concluded that the evidence submitted in support of the claim did not show that Dr. Salvaggio or Dr. Cavros breached the applicable standards of care.

         On July 6, 2016, Mr. Ogbebor filed suit against Applicants, LGMC, and Dr. Phillip Ralidis, asserting medical malpractice claims on behalf of Mrs. Ogbebor and himself arising from her death. Applicants answered Mr. Ogbebor's suit on July 26, 2017, and thereafter filed a motion for summary judgment on August 16, 2017. Mr. Ogbebor filed an opposition to the motion for summary judgment to which he attached the curriculum vitae of his expert, Dr. David Korn. Three days before the hearing on the motion for summary judgment, Mr. Ogbebor filed a letter prepared by Dr. Korn in which he opined that Applicants breached the standard of care applicable to Mrs. Ogbebor's symptoms and medical condition.

         Applicants asserted in their motion that Mr. Ogbebor's claims against them should be dismissed because he did not have an expert witness to rebut the experts on the medical review panel. At the summary judgment hearing, counsel for Mr. Ogbebor argued that he did not have an affidavit from Dr. Korn because he did not believe the expert he initially retained could withstand a challenge of her credentials under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). At the conclusion of the hearing, the trial court granted summary judgment dismissing Mr. Ogbebor's claims against Applicants because he had failed to produce an affidavit by Dr. Korn supporting his claims.

         Mr. Ogbebor filed a motion for new trial, asserting that he had new evidence that warranted the grant of his motion as provided in La.Code Civ.P. art. 1972. At the hearing on the motion for new trial, Mr. Ogbebor produced an affidavit executed by Dr. Korn. Applicants argued that the affidavit was not new evidence because Mr. Ogbebor obtained and submitted a letter opinion by Dr. Korn before the hearing on the motion for summary judgment. Mr. Ogbebor argued to the trial court that he did not get an affidavit from Dr. Korn, because there "was a national disaster," "so much of [a] national event, everyone in the country knows about it." The trial court granted the new trial, finding Dr. Korn's affidavit "to be new evidence and that it was beyond [Mr. Ogbebor's] control . . . to provide that."

         ANALYSIS AND DISCUSSION

         "Our jurisprudence clearly establishes that the grant of a motion for new trial is a not a final, appealable judgment, but rather, an interlocutory judgment[.]" McGinn v. Crescent City Connection Bridge Auth., 15-165, p. 4 (La.App. 4 Cir. 7/22/15), 174 So.3d 145, 148. See also, La.Code Civ.P. arts. 1841, 1915. Generally, the proper procedural vehicle for the review of an interlocutory judgment is an application for supervisory writs. McGinn, 174 So.3d 145. The ...


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