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Benjamin v. Ochsner Hospital

Court of Appeals of Louisiana, Fifth Circuit

May 29, 2019

SHELLY N. BENJAMIN
v.
OCHSNER HOSPITAL

          ON 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

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson

          JUDE G. GRAVOIS, JUDGE

         In this medical malpractice suit, plaintiff, Shelly Benjamin, appeals a trial court judgment which granted a motion for summary judgment filed by defendant, Ochsner Clinic Foundation[1] (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.

         FACTS AND PROCEDURAL HISTORY

         On 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.

         Subsequently, 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 of care.

         On May 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.

         In 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.

         In 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 followed.

         LAW AND ANALYSIS

         On 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 ...


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