ANTHONY SMITH, AS FATHER AND NATURAL TUTOR OF THE MINOR CHILD THERION WEST, AS WRONGFUL DEATH AND SURVIVAL BENIFICIARY OF FELICIA WEST, DECEASED
TOURO INFIRMARY, ET AL
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-02043,
DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
A. Bowling THE BOWLING LAW FIRM, APLC COUNSEL FOR
PLAINTIFF/APPELLANT, ANTHONY SMITH, AS FATHER AND NATURAL
TUTOR OF THE MINOR CHILD THERION WEST, AS WRONGFUL DEATH AND
SURVIVAL BENEFICIARY OF FELICIA WEST, DECEASED
Landry Attorney General Victoria J. Cvitanovic Assistant
Attorney General LOUISIANA DEPARTMENT OF JUSTICE COUNSEL FOR
DEFENDANTS/APPELLEES, STATE OF LOUISIANA THROUGH THE BOARD OF
SUPERVISORS OF LSU AND AGRICULATURAL AND MECHANICAL COLLEGE
ON BEHALF OF LSU HEALTH SCIENCES CENTER AT NEW ORLEANS, LSU
HEALTH CARE SERVICES DIVISION, AND MEDICAL CENTER OF
LOUISIANA AT NEW ORLEANS - UNIVERSITY HOSPITAL, CAROLINE
BURTON, M.D., AND STEPHEN A. MORSE, M.D.
composed of Chief Judge James F. McKay III, Judge Terri F.
Love, Judge Dale N. Atkins
F. LOVE JUDGE
appeal arises from the death of a hospital patient and the
resulting medical malpractice action, wherein the private
healthcare defendants settled prior to trial. The remaining
State health care defendants filed a motion for summary
judgment contending that plaintiff could no longer prove the
damages element of his claim because the settlement exhausted
the $500, 000.00 medical malpractice cap illuminated in La.
R.S. 40:1231.2 and La. R.S. 40:1237.1. The trial court
agreed, granted the motion for summary judgment, and
dismissed all of the State health care defendants.
appeals, alleging that the cap on medical malpractice
recovery was not intended to divest defendants of liability
or a plaintiff's right to a trial on the merits. We find
that one medical malpractice cap applies to singular acts of
negligence resulting in a singular, indivisible injury.
Further, employing the tenets of statutory interpretation and
applying the reasoning of previous jurisprudence, we find
that the medical malpractice cap is placed on the amount
recoverable/judgment rendered as opposed to the amount of
damages sustained or proven. Therefore, we find that medical
malpractice plaintiffs are entitled to proceed to a trial on
the merits against the remaining defendants following a
partial settlement that met the medical malpractice cap. The
judgment of the trial court is reversed and the matter
remanded for further proceedings consistent with this
BACKGROUND AND PROCEDURAL HISTORY
September 2012, Felicia West was approximately twenty-seven
weeks pregnant and was admitted to Touro Infirmary after
suffering a fall at her residence. Ms. West subsequently
underwent an emergency Caesarean section, birthing Therion
West. Ms. West was then transferred to the Intensive Care
Unit, where she was diagnosed with thrombotic
thrombocytopenic purpura ("TTP") by Dr. Milton
Seiler. Dr. Seiler ordered treatment based on his diagnosis.
On October 10, 2012, "Ms. West suffered a seizure which
was later attributed to a large intracranial
hemorrhage." She passed away following the
Smith, the father and tutor of Therion West, filed a
Complaint and Request for Formation of Medical Review Panel,
alleging that Ms. West's death was caused by the
negligence of Touro Infirmary; Milton Seiler, M.D.; Efrain
Reisen, M.D.; Stephen Morris, M.D.; Caroline Burton, M.D.;
and Janet Ross, M.D. The MRP found that all of the named
defendants performed according to the applicable standard of
care, with the exception of Dr. Seiler. The MRP determined
that Dr. Seiler "deviated from the standard of care in
his misdiagnosis and treatment of TTP," which "led
to the ultimate demise of" Ms. West.
the MRP opinion, Mr. Smith filed a Petition for Damages
against Touro Infirmary, Dr. Ross, Dr. Seiler, Dr. Burton,
Dr. Reisin, Dr. Morse, the State of Louisiana through Board
of Supervisors of Louisiana State University Agricultural and
Mechanical College ("LSU"), and DaVita entity d/b/a
DaVita New Orleans Uptown Dialysis based on the wrongful
death of Ms. West. The First Supplemental and Amended
Petition added Total Renal Care, Inc. as a subsidiary of
DaVita. While the matter was pending, Dr. Ross, Dr. Seiler,
Touro Infirmary, and Dr. Reisin were dismissed. Mr. Smith
entered into a confidential settlement agreement with Touro
Infirmary and Dr. Seiler.
confecting the partial settlement, the State defendants (LSU,
Dr. Burton, and Dr. Morse) filed a Motion for Summary
Judgment contending that the settlement exhausted the State
medical malpractice cap contained in La. R.S. 40:1237.1. The
trial court agreed, granted the Motion for Summary Judgment,
and dismissed all of the State defendants with prejudice,
finding that only one medical malpractice cap existed. Mr.
Smith's devolutive appeal followed.
summary judgment procedure is designed to secure the just,
speedy, and inexpensive determination of every action."
La. C.C.P. art. 966(A)(2). "The procedure is favored and
shall be construed to accomplish these ends."
Id. "[A] motion for summary judgment shall be
granted if the motion, memorandum, and supporting documents
show that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of
law." La. C.C.P. art. 966(A)(3).
burden of proof on a motion for summary judgment begins with
the mover. La. C.C.P. art. 966(D)(1). However, if the mover
does not bear the burden of proof at trial and demonstrates
"the absence of factual support for one or more elements
essential to the adverse party's claim, action, or
defense," then the burden shifts. Id. The
adverse party must then "produce factual support
sufficient to establish the existence of a genuine issue of
material fact or that the mover is not entitled to judgment
as a matter of law." Id.
courts review the granting of a motion for summary judgment
using the de novo standard of review. Mason v. T
& M Boat Rentals, LLC, 13-1048, p. 3 (La.App. 4 Cir.
3/19/14), 137 So.3d 741, 743. We utilize "the same
criteria governing the trial court's consideration of
whether summary judgment is appropriate." Wilson v.
Calamia Const. Co., 11-0639, p. 3 (La.App. 4 Cir.
9/28/11), 74 So.3d 1198, 1200.