SHELLY N. BENJAMIN
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 760-455, DIVISION
"P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, SHELLY N. BENJAMIN J.
Michael Daly, Jr.
COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER HOSPITAL Don S.
McKinney Diana C. Surprenant
composed of Judges Susan M. Chehardy, Jude G. Gravois, and
Marc E. Johnson
G. GRAVOIS, JUDGE
medical malpractice suit, plaintiff, Shelly Benjamin, appeals
a trial court judgment which granted a motion for summary
judgment filed by defendant, Ochsner Clinic
Foundation (hereinafter "Ochsner"), finding
that she failed to bear her burden of proof that Ochsner
breached the standard of care when treating her for pelvic
fractures. For the following reasons, we affirm.
AND PROCEDURAL HISTORY
November 30, 2012, Shelly Benjamin was involved in a one-car
accident and was transported to St. Tammany Hospital for
medical care. Thereafter, on December 1, 2012, Ms. Benjamin
was transferred to Ochsner Medical Center in Jefferson,
Louisiana, where she was treated for, among other things,
pelvic fractures. After physical therapy and ambulation, and
assessment via x-rays, Ms. Benjamin's physicians
determined that no operative treatment would be pursued
because her pelvis remained stable. She remained at Ochsner
for three weeks until she was transferred back to St. Tammany
Hospital for one week of rehab. On January 31, 2013, Ms.
Benjamin sought treatment from Dr. Paul Gladden at Tulane
Hospital regarding complaints of hip pain. According to Ms.
Benjamin, Dr. Gladden advised her that her hip had been
dislocated in the accident, but too much time had since
passed and nothing could be done to correct her anatomical
abnormality. She was told that more damage was caused when
she was allowed to ambulate on her leg.
on December 23, 2013, Ms. Benjamin filed a medical
malpractice claim with the Louisiana Division of
Administration, Patient's Compensation Fund, against
"Ochsner Hospital and its employed physicians,"
alleging that Ochsner breached the applicable standard of
care and caused Ms. Benjamin's damages. On February 11,
2016, the medical review panel issued a unanimous opinion
finding that Ochsner did not breach the applicable standard
2, 2016, Ms. Benjamin filed this civil suit against Ochsner
for the alleged negligent treatment of her pelvic fractures
by its employed physicians and/or staff. Nearly two years
later, on March 27, 2018, Ochsner filed a motion for summary
judgment seeking to have the claims against it dismissed.
Ochsner asserted that Ms. Benjamin could not prevail at trial
because she could not offer expert testimony to meet her
burden of proof against Ochsner. In response to discovery
propounded by Ochsner seeking information as to Ms.
Benjamin's expert, Ms. Benjamin named her treating
physician, Dr. Gladden, as her expert witness. However,
Ochsner asserted in its motion for summary judgment that in
Dr. Gladden's deposition, he did not opine as to any
breach in the standard of care, but rather opined that it was
a judgment call as to whether to treat Ms. Benjamin
operatively or non-operatively. In support of its motion,
Ochsner introduced the opinion of the medical review panel
that had previously considered Ms. Benjamin's claims and
had found no breach in the standard of care. Ochsner also
introduced the affidavit of Dr. Robert Shackleton, an
orthopedic surgeon and member of the medical review panel,
who opined that although Dr. Gladden recommended a different
treatment approach from Ochsner's, both treatment
approaches were within the standard of care and both
treatment approaches had their own risks.
response, Ms. Benjamin filed a motion to continue
Ochsner's motion for summary judgment and/or opposition
to summary judgment. In her response, Ms. Benjamin argued
that she had produced an expert in this matter - Dr. Gladden.
She argued that Dr. Gladden opined that Ochsner breached the
applicable standard of care by allowing Ms. Benjamin to
ambulate, thus applying pressure to her hip, and that this
expert testimony is sufficient to deny Ochsner's motion
for summary judgment. She further argued that she has always
contended that the Ochsner staff violated the instructions
given by the treating physicians by allowing Ms. Benjamin to
ambulate and place too much weight on her hip. Though given a
list of numerous nurses who were involved in Ms.
Benjamin's overall care, Ms. Benjamin continuously
requested the specific names of the nursing staff who
assisted her when ambulating. Without knowing the identity of
these individuals and without taking their depositions, she
argued that this matter could not move forward. Therefore,
Ms. Benjamin requested that the motion for summary judgment
be denied and/or continued until such time that these
depositions could be taken.
response, the trial court continued the hearing on the motion
for summary judgment from May 7, 2018 to July 3, 2018. After
the hearing on July 3, 2018, the trial court rendered a
written judgment on July 31, 2018, granting Ochsner's
motion for summary judgment and dismissing Ms. Benjamin's
claims with prejudice. In its written reasons for judgment,
the trial court found there to be an absence of factual
support that Ochsner's conduct fell below the applicable
standard of care. The trial court stated that Ms. Benjamin
could not offer expert testimony to meet her burden of proof
against Ochsner. The trial court found that Ochsner had
carried its burden of proof as required by law. This appeal
appeal, Ms. Benjamin first argues that the trial court erred
in granting Ochsner's motion for summary judgment because
she identified an expert, Dr. Gladden, who testified that if
in fact Ms. Benjamin was allowed to put too much weight on
her leg, this could ...