DIANA DERUISE-PIERCE, SURVIVING SPOUSE OF ROY T. PIERCE
UNIVERSITY HEALTHCARE SYSTEM, L.C. D/B/A TULANE UNIVERSITY HOSPITAL AND CLINIC, UNIVERSITY MEDICAL CENTER MANAGEMENT CORPORATION D/B/A UNIVERSITY MEDICAL CENTER NEW ORLEANS, DAVIS WENDELL OGITANI, M.D., BRIAN CONKERTON, R.N. AND DANIELLE WILLIAMS-JOHNSON, R.N.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-08218,
DIVISION "G" Honorable Robin M. Giarrusso, Judge
Suzanne Montero Warren A. Forstall, Jr. LAW OFFICES OF CHIP
FORSTALL John D. Sileo Casey W. Moll LAW OFFICE OF JOHN D.
SILEO, LLC COUNSEL FOR PLAINTIFF/APPELLANT
Christopher M. Moody Albert D. Giraud MOODY LAW FIRM Jeff
Landry Attorney General Scott G. Jones Special Assistant
Attorney General LAW OFFICE OF SCOTT G. JONES COUNSEL FOR
N. ATKINS JUDGE
Diana Deruise Pierce ("Plaintiff"), appeals two
summary judgments dismissing her medical malpractice action
against defendants, University Medical Center New Orleans,
University Medical Center Management Corporation, Dr. Davis
Wendell Ogitani, Brian Conkerton, R.N., and Danielle Johnson,
R.N. (collectively, "Defendants"), with
prejudice. For the following reasons, we reverse and
AND PROCEDURAL BACKGROUND
a medical malpractice case that arises as a result of
treatment rendered to the decedent, Roy Pierce ("Mr.
Pierce"), at University Medical Center in New Orleans in
late December of 2012 and early January 2013.
Pierce originally presented to LSU Interim Public Hospital on
December 27, 2012, for an outpatient EGD. On admission, he
was awake, alert, and able to communicate and give consent
for medical treatment. He complained of abdominal pain,
fatigue, dark urine, and shortness of breath. The initial
workup of Mr. Pierce showed that he was anemic, in renal
failure, hyponatremiac,  and had elevated BUN/creatinine levels.
A CT of his abdomen and pelvis showed a large mass in his
bladder with a fistula (tunnel) to his colon. Rather than
immediately performing the EGD, Mr. Pierce was admitted for a
comprehensive workup and placed under the care of Defendant
Dr. Ogitani. As part of this comprehensive medical workup, he
was referred to Interventional Radiology for placement of a
Perm-A-Cath (central line) for hemodialysis, which was
scheduled for the morning of January 3, 2013.
deposition testimony of Dr. Benjamin Cooper ("Dr.
Cooper"), an Interventional Radiology Fellow, reflects
that on the evening before the procedure was scheduled, Dr.
Cooper was advised that Mr. Pierce was medically stable and
able to consent to the treatment. However, overnight, from
January 2, 2013 through January 3, 2013, Mr. Pierce's
vital and mental status severely deteriorated. Medical
records indicate that Mr. Pierce's blood pressure dropped
by over 20 points from 4:46 p.m. on January 2, when it was
93/64, pulse 112, to 5:57 a.m. on January 3, when it was
71/46, pulse 83. He was also unable to walk without
assistance, and at one point he fell while being assisted
from the bathroom to the bed. He was assisted to the floor by
the nurse, and then back to bed with the aid of three nurses
and one transport employee. The nurse's notes reflect
that the physician was on the unit and present while Mr.
Pierce was assisted back to bed.
this acute change in status, the Defendants did not change
the treatment plan or render different treatment, such as a
transfer to the Critical Care unit, but instead adhered to
the original plan to go forward with the central line. Thus,
on the morning of January 3, 2013, Mr. Pierce was sent on a
gurney to the Radiology Department with a hospital escort
(described as "Transport," essentially a porter),
who was neither a registered nurse nor a doctor.
happened next is unclear from the record. Plaintiff alleges
that Mr. Pierce was parked and left alone and unattended in
the hallway-acutely hypotensive and in an altered mental
state, until he was found by Dr. Cooper, alone and
unattended, at approximately 8:00 a.m. on January 3, 2013.
Defendants argue that there is no evidence that Mr. Pierce
was left unattended, and in support of this, reference
portions of Dr. Cooper's deposition testimony that were
not included in the record on appeal. Thus, whether or not Mr.
Pierce was left unattended in his severely deteriorated state
is simply not clear from the record.
deposition testimony does establish that upon finding Mr.
Pierce, Dr. Cooper called for Defendant Davis Ogitani, M.D.,
the primary care doctor assigned to Mr. Pierce, and had an
emergency consent executed to place the central line so that
Mr. Pierce could receive treatment for his deteriorating
condition. Mr. Pierce went into cardio-pulmonary arrest as
they were transferring him to the radiology table, and heroic
efforts to resuscitate him were futile. Mr. Pierce died on
the table in the radiology suite.
deposition, Dr. Cooper also testified that it was unusual for
someone incapable of consenting to be sent to radiology, that
the change in the patient's condition overnight had not
been conveyed to him, and as a result the patient was
"not in the place where that patient should [have been]
in that moment." Dr. Cooper also testified that he
agreed with the statement that Mr. Pierce should not have
been transported to the radiological suite in the condition
he was in, because he was unstable, and further testified
that Mr. Pierce's blood pressure reflected a dangerously
hypotensive state. He also stated that he could not say one
way or the other whether Mr. Pierce would have had a better
chance of surviving if he had been in the ICU rather than the
radiology suite. As well, he acknowledged that the medical
record doesn't indicate that Mr. Pierce was transported
or attended by anyone other than a standard escort (transport
to Mr. Pierce's death, a request for review of the
Plaintiff's malpractice claims was filed before a medical
review panel. An opinion was rendered by the medical
review panel on April 20, 2016, concluding that none of the
Defendants deviated below the standard of care, and that the
decedent was properly monitored, and all physician orders
were timely and appropriately followed.
August 16, 2016, Plaintiff (Mr. Pierce's widow) filed a
petition for damages. On October 18, 2016, Defendants,
University Medical Center New Orleans and University Medical
Center Management, filed for summary judgment. Shortly
thereafter, Defendants Ogitani, Conkerton, and Johnson also
filed a motion for summary judgment. The motions were
originally set for hearing on December 2, 2016, but were
continued at Plaintiff's request to March 3, 2017, and
then to May 19, 2017. They were then continued without date
to allow Plaintiff to conduct further discovery. On October
23, 2017, the summary judgments were re-set for December 1,
2017. Prior to that hearing, on November 29, 2017, Plaintiff
filed a motion to continue the summary judgment hearing, as
well as a statement of material facts in dispute, asserting a
single material fact in dispute, as follows: "Whether
the defendants…breached the standard of care when they
transported and abandoned Roy Pierce in the hallway outside
of the Radiology suite when he was in an acutely
decompensated, mentally altered hypotensive
state." On November 30, 2017, one day before the
hearing, Plaintiff filed an opposition to the motions. It is
undisputed that no Independent Medical Expert testimony was
provided in support of Plaintiff's opposition.
Court, ruling from the bench, denied the motion to continue,
and granted both summary judgment motions, signing the
judgment as to the hospital defendants on December 1, 2017,
and as to the remaining practitioner defendants on December
19, 2017. The December 19, 2017 judgment also denied the
motion to continue. This timely appeal followed.
has asserted the following assignments of error on appeal.
First, that the district court erred in ruling that an
independent medical expert is necessary to establish the
standard of care in a medical malpractice case when the
breach is objective and apparent and negligence can be
reasonably inferred. Second, that the district court erred in
ruling that Dr. Cooper was not a medical expert who
established the standard of care and its breach, and in
ruling that no genuine issue of material fact existed
regarding whether or not the Defendants breached their
standard of care. Third, Plaintiff ...