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Montalbano v. Persich

Court of Appeals of Louisiana, Fifth Circuit

May 29, 2019

JOHN A. MONTALBANO AND HIS WIFE PHYLLIS MONTALBANO
v.
NICHOLAS J. PERSICH, M.D., CHRISTOPHER N. BARRILLEAUX, M.D., ET AL PHYLLIS MONTALBANO, ET AL
v.
NICHOLAS J. PERSICH, M.D., CHRISTOPHER N. BARRILLEAUX, M.D., ET AL

          ON 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., JUDGE PRESIDING

          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

          Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst

          STEPHEN J. WINDHORST JUDGE

         Appellants/plaintiffs, 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.[1] For the reasons stated herein, we reverse and remand for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         On 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.

         On March 31, 2011, Mr. Montalbano and his wife Phyllis Montalbano filed a medical malpractice lawsuit[2] 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 party plaintiff.

         On 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.[3] On April 3, 2013, the medical malpractice and wrongful death lawsuits were consolidated.

         On 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 remaining defendants.

         On June 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.[4]

         In 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.[5] 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 judgment.[6]

         The 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 ...


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