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Misty Price On Behalf of Her Minor Daughter v. Minden Medical Center

Court of Appeals of Louisiana, Second Circuit

February 27, 2019


          Appealed from the Twenty-Sixth Judicial District Court for the Parish of Webster, Louisiana Trial Court No. 72587 Honorable Jefferson R. Thompson, Judge.

          SINGLETON LAW FIRM By: W. James Singleton Brittany J. McKeel Erica N. Jackson, Counsel for Appellants.

          McNEW, KING & LANDRY, LLP By: Brady D. King, II, Counsel for Appellee-Intervenor, Louisiana Patient's Compensation Fund.

          Before WILLIAMS, STONE, and STEPHENS, JJ.

          WILLIAMS, C.J.

         The plaintiff, Misty Price, on behalf of her minor daughter, Tamia Price, appeals a district court judgment granting partial summary judgment and a motion to dismiss filed by the defendant, the Louisiana Patient's Compensation Fund. The plaintiff also appeals the trial court's denial of her motion for a new trial. For the following reasons, we affirm.


         On September 5, 2009, three-year-old Tamia Price was experiencing nausea, vomiting and abdominal pain. Her mother, Misty Price ("the plaintiff"), took Tamia to the emergency room at Minden Medical Center ("MMC"). When they arrived, Tamia was examined by Dr. Michael Ulich, who noted that her abdomen was not tender and laboratory tests were within normal range. Dr. Ulich diagnosed Tamia with gastritis and discharged her with a prescription for Phenergan.

         Tamia's condition did not improve; the plaintiff took her back to MMC on September 8, 2009. Tamia was experiencing abdominal pain, nausea, vomiting, and she had a fever of 101 degrees. Tamia was again examined by Dr. Ulich, who noted that she had "slight abdominal distension." She was admitted to the hospital with a diagnosis of dehydration and abdominal pain. She underwent a CT scan of her abdomen, which indicated that she had "questionable right appendicitis."

         The following day, Tamia's temperature rose to 103 degrees, and her heart rate and respiratory rate were markedly elevated. Dr. Iram Zando examined Tamia and noted that she had rebound tenderness of the abdomen. Tamia was transferred to Sutton Children's Hospital at Christus Schumpert in Shreveport. After reviewing Tamia's CT scan, the physicians determined that she had a perforated appendix with the presence of gangrene. Tamia underwent emergency surgery to remove her appendix and the resulting infection. Following the surgery, Tamia's condition deteriorated. As a result of complications, Tamia suffered a cerebral vascular accident and left-sided paralysis.

         On August 24, 2010, the plaintiff, acting on behalf of Tamia, filed a medical malpractice complaint with the Louisiana Patient's Compensation Fund ("PCF") requesting a Medical Review Panel ("MRP") proceeding pursuant to the Louisiana Medical Malpractice Act. The plaintiff alleged that MMC, its staff and Dr. Ulich breached the applicable standard of care. On June 25, 2012, the MRP rendered a decision opining that "the evidence does not support the conclusion that the defendants, Minden Medical Center and its staff and Dr. Michael Ulich, failed to meet the applicable standard of care as charged in the complaint."[1]

         On October 3, 2012, the plaintiff filed a lawsuit against MMC and Dr. Ulich alleging that the defendants failed to provide adequate medical care to Tamia. More specifically, the plaintiff alleged that Dr. Ulich and MMC failed to timely diagnose and treat Tamia's condition, failed to properly administer medical treatment, failed to adequately supervise personnel providing medical services, and failed to provide reasonable medical services under the circumstances.[2]

         Dr. Ulich filed a motion for summary judgment; the motion was granted on February 25, 2013, and the plaintiff's claims against Dr. Ulich were dismissed. Thereafter, the plaintiff reached a settlement with MMC for $50, 000, without MMC admitting fault. On January 6, 2015, the district court signed a judgment of dismissal, dismissing with prejudice all claims against MMC and reserving "all rights for excess damages [the plaintiff] may have in relation to the Louisiana Patients' Compensation Fund." Thereafter, PCF intervened and denied all claims with regard to the plaintiff's alleged entitlement to excess damages.

         On July 19, 2017, the plaintiff filed a notice of deposition and subpoena duces tecum seeking to conduct a deposition of Dr. Zando. In response, PCF filed a motion in limine to prohibit the deposition of Dr. Zando, arguing that she was not a party to the lawsuit. Thereafter, the plaintiff filed a motion for declaratory judgment, seeking a judgment "declaring that the sole issues before the Court are those of liability of Plaintiff's right to seek excess damages from the [PCF] stemming from the acts/omissions of Dr. Iram Zando and [MMC]."

         On September 22, 2017, PCF filed a motion for summary judgment, arguing that the plaintiff had failed to "identify any expert witness that may testify concerning the standard of care owed by the nursing staff of MMC to Tamia Price during the time period in question." Attached to the motion was the opinion of the MRP and an affidavit executed by the attorney chairman of the MRP.

         The plaintiff opposed the motion for summary judgment, attaching unsworn letters/reports from two emergency room physicians, Dr. AnhVu Nguyen and Dr. Kayur Patel. In his report, Dr. Nguyen opined that Dr. Zando breached the applicable standard of care as follows: failed to timely order a surgical consult; failed to timely administer intravenous fluids; and failed to administer antibiotics. Dr. Patel opined that MMC and its staff breached the applicable standard of care by failing to timely diagnose Tamia and by causing a "significant delay in obtaining a specialty consult which led to a further delay in the transfer to the tertiary hospital." Additionally, the plaintiff attached an affidavit from one of her attorneys, Brittany J. McKeel, who attested that she retained Dr. Nguyen and Dr. Patel to testify as expert witnesses. She further attested that she had received the reports from Dr. Nguyen and Dr. Patel, which were based on the medical records and treatment received by Tamia.

         A hearing to consider the motion for declaratory judgment, motion in limine, and motion for summary judgment was conducted on October 31, 2017. During the hearing, the plaintiff withdrew the motion for declaratory judgment in open court. At the conclusion of the hearing, the district court granted PCF's motion in limine, in part, allowing the plaintiff to depose Dr. Zando, but ordering that her testimony be limited to that of a fact witness.[3] With regard to the motion for summary judgment, the court heard arguments from counsel for both parties. During the hearing, counsel for the plaintiff offered a 2013 affidavit executed by Dr. Nguyen, which had been filed in opposition to Dr. Ulich's motion for summary judgment. Thereafter, the court placed the matter under advisement and requested that both parties provide the court with case law with regard to the admissibility of an affidavit from an attorney of record.

         On November 28, 2017, the court granted partial summary judgment in favor of PCF, stating:

The Court agrees with MMC and PCF that the unsworn reports of Dr. Nguyen and Dr. Patel are not proper summary judgment evidence under La. C.C.P. art. 966, and this defect is not cured by the Affidavit of Brittney McKeel or the Affidavit of Dr. Nguyen filed in opposition to another motion for summary judgment. Although the affidavit of Dr. Nguyen that was previously filed in the suit record and was brought forth by Plaintiff at the hearing is not sufficient to authenticate the report filed by Plaintiff, the Affidavit itself is competent evidence and the Court will consider it as a supplemental affidavit under La. C.C. art. 967.
MMC and PCF clearly provide evidence that Plaintiff lacks factual support for the claim that the nursing staff of MMC failed to meet the applicable standard of care in rendering care to Tamia Price. MMC and PCF submitted the Opinion and Written Reasons of the medical review panel which unanimously found MMC and its staff met the applicable standard of care. The only evidence submitted by Plaintiff to establish the existence of a genuine issue of fact is the 2013 Affidavit of Dr. Nguyen and the Affidavit of Brittany McKeel.
The Affidavit of Brittany McKeel is insufficient to establish the existence of a genuine issue of material fact because she only attest [sic] to the existence of expert reports; Brittany McKeel cannot attest to the authenticity of the reports or the truthfulness and competence of the reports. Additionally, the 2013 Affidavit of Dr. Nguyen is insufficient to establish the existence of a genuine issue of material fact because Dr. Nguyen does not attest to the standard of care provided by the nursing staff at MMC; Dr. Nguyen only attests to the standard rendered by Dr. Zando and Dr. Ulich.

         Thereafter, on February 5, 2018, the district court signed the judgment granting partial summary judgment in favor of PCF. The court concluded that "any and all claims based upon, arising from, or related to the provision or lack of provision of nursing care to Tamia Price ...

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