JOHN A. MONTALBANO AND HIS WIFE PHYLLIS MONTALBANO
NICHOLAS J. PERSICH, M.D., CHRISTOPHER N. BARRILLEAUX, M.D., ET AL PHYLLIS MONTALBANO, ET AL
NICHOLAS J. PERSICH, M.D., CHRISTOPHER N. BARRILLEAUX, M.D., ET AL
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 699-966 C/W 723-208,
DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR.,
COUNSEL FOR PLAINTIFF/APPELLANT, PHYLLIS MONTALBANO, LISA M.
PECQUET AND JOHN A. MONTALBANO, JR., INDIVIDUALLY AND IN
THEIR CAPACITY AS THE SUBSTITUTED PLAINTIFFS FOR THE CLAIM OF
JOHN MONTALBANO Thomas B. Calvert
COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH HOSPITAL
SERVICE DISTRICT NO. 2 FOR THE PARISH OF JEFFERSON, STATE OF
LOUISIANA D/B/A EAST JEFFERSON GENERAL, THE LOUISIANA
PATIENT'S COMPENSATION FUND AND THE LOUISIANA
PATIENTS' COMPENSATION FUND OVERSIGHT BOARD Conrad Meyer
Charles O. Taylor Sarah H. Christakis
composed of Judges Marc E. Johnson, Robert A. Chaisson, and
Stephen J. Windhorst
STEPHEN J. WINDHORST JUDGE
Phyllis Montalbano, Lisa M. Pecquet, and John A. Montalbano,
Jr., appeal the trial court's February 19, 2019 judgment
granting summary judgment in favor of appellee/defendant, the
Louisiana Patient's Compensation Fund ("the
PCF"), on behalf of nominal defendant, East Jefferson
General Hospital ("EJGH"), dismissing
appellants' medical malpractice and wrongful death claims
against the PCF with prejudice. For the reasons stated herein, we
reverse and remand for further proceedings.
AND PROCEDURAL HISTORY
November 28, 2008, John Montalbano, Sr. was admitted to EJGH
by Dr. Christopher N. Barrilleaux after complaining of severe
mid-epigastric abdominal pain with a history of nausea and
vomiting. On November 29, 2008, an MRI showed that Mr.
Montalbano had a 1.5 cm stone in his common bile duct in the
head of the pancreas. On November 30, 2008, Dr. Barrilleaux
performed an emergency endoscopic retrograde
cholangiopancreatography (ERCP) procedure on Mr. Montalbano.
Prior to the beginning of the procedure, Mr. Montalbano was
diagnosed with sepsis. Dr. Barrilleaux performed a biliary
sphincterotomy and a large amount of sludge, debris and one
large stone was removed. Dr. Barrilleaux was unable to remove
another large stone due to Mr. Montalbano's instability
from bradycardia. A biliary stent was placed in the bile
duct. Once the endoscope was withdrawn "asystole was
noted," CPR was started, and after treatment and
intubation to improve ventilation, Mr. Montalbano was brought
to ICU. Unfortunately, Mr. Montalbano suffered an anoxic
encephalopathy with profound neurological deficits. Mr.
Montalbano remained at EJGH until January 6, 2009.
March 31, 2011, Mr. Montalbano and his wife Phyllis
Montalbano filed a medical malpractice lawsuit against several
defendants, including EJGH. As to EJGH, plaintiffs contended
that EJGH's nursing staff breached the standard of care
of hospitals rendering care and treatment to Mr. Montalbano
and this breach resulted in the alleged injuries to Mr.
Montalbano. Specifically, plaintiffs claimed that EJGH's
nursing staff failed to timely notify defendant, Dr.
Barrilleaux, "as to the signs and symptoms of severe
disease apparent from the presentation of Mr.
Montalbano." During the litigation, Mr. Montalbano
passed away and Ms. Montalbano was substituted as the proper
January 24, 2013, Mrs. Montalbano and Mr. Montalbano's
natural children, Lisa M. Pecquet and John A. Montalbano, Jr.
filed a wrongful death lawsuit against the same defendants in
the medical malpractice lawsuit, including EJGH's nursing
staff. On April 3, 2013, the medical malpractice
and wrongful death lawsuits were consolidated.
September 8, 2016, plaintiffs, Mrs. Montalbano, Ms. Pecquet,
and Mr. Montalbano, Jr., entered into a settlement agreement
with EJGH, which was approved by the trial court, wherein
EJGH agreed to settle its liability with plaintiffs pursuant
to La. R.S. 40:1231.4, et seq. with a reservation of
rights to plaintiffs to proceed against the PCF and the
8, 2018, the PCF filed a motion for summary judgment arguing
that EJGH's nursing staff complied with the applicable
standard of care and that plaintiffs did not have the expert
testimony necessary to establish that EJGH's nursing
staff breached the standard of care, or that any alleged
breach caused any damages, in accordance with La. R.S.
9:2794. The PCF argued that the medical review panel opinion
was prima facie evidence of the panel's finding
that EJGH's nursing staff did not breach the standard of
care. Additionally, the PCF attached excerpts from several
medical experts' depositions, alleging that all of the
experts, including plaintiffs' expert, found that
EJGH's nursing staff did not breach the standard of care.
The PCF pointed out that in his deposition, plaintiffs'
expert, Dr. Peter Cotton, stated "I don't think
I've stated the nurses breached the standard of
care." Therefore, the PCF argued that it established
that there was an absence of factual support for one or more
elements essential to appellants' claims and accordingly,
it was entitled to judgment as a matter of law.
opposition, appellants argued that the evidence established
that EJGH's nursing staff breached the applicable
standard of care. Appellants contended that the original
allegations against EJGH's nursing staff were derived
from Dr. Barrilleaux's first deposition testimony in
2010, wherein he stated that based on a review of the medical
records, he disagreed with the nursing note that stated the
nurses called him on multiple occasions. In the 2010
deposition, Dr. Barrilleaux also testified that he was
unhappy with the nurses because "they called [him] at
08:45 about this patient who appeared to have been demented
and having low blood pressure issues throughout the early
part of the night or early morning hours." When asked
why he would have wanted to know about Mr. Montalbano's
condition earlier, Dr. Barrilleaux stated "so I could
get started doing things earlier." Dr. Barrilleaux
testified that he would have wanted to know earlier about Mr.
Montalbano's condition on November 29, 2008 when it was
noted that Mr. Montalbano was "confused and in bed"
because that would have made him "worry" that Mr.
Montalbano "had progressed in sepsis." He testified
that had he known earlier, he would have made "sure
he's in an ICU if he wasn't already. . . . And then
probably set up things to have the ERCP done earlier in the
morning." Appellants contended that Dr.
Barrilleaux's 2010 deposition testimony was highly
critical of the nursing staff and its failure to communicate
earlier to him critical information about Mr.
Montalbano's condition throughout the night and earlier
morning hours prior to Mr. Montalbano's emergency ERCP.
Appellants additionally submitted Dr. Cotton's expert
report, attached as an exhibit to his deposition, wherein he
stated that EJGH's nursing staff breached the applicable
standard of care by failing to communicate appropriate
information to Dr. Barrilleaux and that this was a
substantial factor in Mr. Montalbano's
demise. In anticipation of the PCF's argument
that Dr. Barrilleaux subsequently changed his former opinion
of the nursing staff in a second deposition in 2016 by
stating that the nursing staff did not breach any standard of
care, appellants argued that by its contradictory nature, Dr.
Barrilleaux's deposition testimony in 2010 and 2016
created a genuine issue of material fact precluding summary
trial court granted the PCF's motion for summary judgment
against plaintiffs, Phyllis Montalbano, Lisa Pecquet, and
John Montalbano, Jr., dismissing with prejudice all of
plaintiffs' claims against the PCF in the medical
malpractice and wrongful death ...