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Medical Review Panel Kevin Jordan v. Community Care Hospital

Court of Appeals of Louisiana, Fourth Circuit

July 24, 2019


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-12198, DIVISION "M" Honorable Paulette R. Irons, Judge



          Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Tiffany G. Chase


         This is a medical malpractice case. Kevin Lawrence and Denise Jordan Lawrence (collectively the "Lawrences") commenced this case individually and on behalf of their deceased son, Kevin Jordan ("Mr. Jordan").[1] Two sets of defendants were named in this case: (i) the hospital defendants[2]-Community Care, LLC, d/b/a Community Care Hospital ("CCH"); and Evanston Insurance Company, CCH's insurer; and (ii) the physician defendants-Dr. J. Robert Barnes; Dr. Anwar Ismail; and LAMMICO, Dr. Barnes' and Dr. Ismail's insurer. Both sets of defendants filed "no-expert" motions for summary judgment. See Winding v. Bryan, 14-0388, p. 1, n. 1 (La.App. 4 Cir. 9/17/14), 148 So.3d 956, 957.[3] From the trial court's judgment granting both motions, the Lawrences appeal. We affirm.


         In August 2013, the Lawrences filed a medical malpractice complaint with the Louisiana Division of Administration ("DOA"), under the Louisiana Medical Malpractice Act (the "MMA"), [4] against three qualified health care providers-a hospital, CCH; and two physicians, Dr. Barnes, and Dr. Ismail-seeking to invoke a medical review panel. In their complaint, the Lawrences alleged that the malpractice occurred in August 2012 when Mr. Jordan was receiving mental health treatment as an in-patient at CCH. Mr. Jordan allegedly was under the direct care and supervision of the physicians. The only drug the physicians were prescribing to Mr. Jordan was Invega Sustenna. According to the complaint, the physicians were negligent in administering, or allowing to be administered, the drug, which resulted in Mr. Jordan's death. The complaint further alleged the following:

Specifically, it is believed that on or about August 20, 2012, Kevin Jordan was administered the drug Invega Sustenna too soon after receiving a more recent injection of Invega Sustenna. It is believed that this negligent administration of the drug caused Kevin Jordan to experience distress and cardiac arrest. In addition to the negligent administration of the drug, [CCH] and Doctors Barnes and Ismail failed to properly respond and render appropriate care to Kevin Jordan while he experience[d] distress as a result of the negligent administration of the drug which included cardiac arrest. [CCH] failed to ensure that it had the appropriate equipment and properly trained personnel to respond to medical situations which are foreseeable in a hospital that administers drugs such as Invega Sustenna. As a result of not having the appropriate equipment and trained personnel, [CCH] had to call for a City of New Orleans Emergency Medical Services (EMS) unit to administer emergency care to an in-patient resident of its facility.

For these reasons, the Lawrences alleged that the hospital and the physician providers were liable for Mr. Jordan's death.

         While the panel proceeding was pending, CCH commenced a discovery proceeding in the trial court.[5] Thereafter, in December 2015, the Medical Review Panel (the "MRP"), consisting of three board-certified psychiatrists, unanimously found in favor of the hospital and the physician providers, concluding that the evidence did not support a finding that any of them failed to meet the applicable standard of care.

         As to CCH, the MRP made the following three findings:

1. There is nothing in the record presented to the panel to indicate that the hospital and/or its employees deviated from the standard of care.
2. Medications were administered in a timely and appropriate manner. All physician orders were followed appropriately.
3. The patient was properly monitored throughout his hospital course. 911 was timely called.

As to Dr. Ismail, the MRP made the following two findings:

1. The records indicate that the patient was only given one (1) dose of Invega Sustenna, which was reasonable for the patient's condition. The patient took this medication previously with no history of a reaction.
2. There is nothing in the medical literature to indicate that there is any adverse reaction between Invega Sustenna and the development of a pulmonary embolism. There is no evidence to suggest a causative relationship between the patient's pulmonary embolism and Invega Sustenna.

As to Dr. Barnes, the MRP found the record devoid of any evidence he treated the patient.[6]

         In March 2016, the Lawrences commenced this suit against the physician and the hospital defendants. In their petition, the Lawrences tracked the allegations that they made in their complaint to the DOA. After answering the petition, both sets of defendants filed a "no-expert" motion for summary judgment. The physician defendants filed their motion on July 3, 2017;[7] the hospital defendants filed their motion on July 31, 2017.[8]

         The trial court set the summary judgment motions for hearing five times. First, the motions were set for September 29, 2017. Thereafter, the Lawrences filed a motion to transfer and consolidate the malpractice case with the earlier-filed discovery proceeding. Both sets of defendants consented to the transfer and consolidation. In October 2017, the physician defendants re-filed their summary judgment motion in the consolidated case to obtain a new hearing date; the hospital defendants filed a motion to reset their summary judgment motion. Both summary judgment motions were reset for November 30, 2017.

         Thereafter, the Lawrences filed an unopposed motion to reset the hearing to February 8, 2018, for two reasons-counsel's failure to receive timely notice of the reset hearing and the Lawrences' need for additional time to respond to the motions for summary judgment. The motion to reset was granted.

         On January 24, 2018, the Lawrences filed an opposition to the defendants' motions for summary judgment. Attached to their opposition were CCH's discovery responses and Mr. Lawrence's affidavit. In his affidavit, Mr. Lawrence attested as follows:

I have retained Dr. Edward Fann [a board-certified psychiatrist] who will testify in the above consolidated action as an expert witness.
As evidence of my retaining Dr. Edward Fann, attached to this affidavit please find . . . a letter from my attorney to Dr. Fann's representative [an expert broker], a copy of the contract for representation by and between the plaintiffs and Dr. Fann and a copy of the certified check for payment to Dr. Fann.

         Two days before the scheduled February 8, 2018 hearing date, the Lawrences filed a motion to continue and reset based on their counsel's temporary illness. The defendants objected to the continuance. Over the defendants' objections, the trial court granted the motion and reset the hearing for April 5, 2018.

         Counsel for all parties appeared at the April 5, 2018 hearing (the "April Hearing").[9] At the April Hearing, the trial court judge posed the following question to the Lawrences' counsel: "The issue is that they ruled-the panel finding was in 2016, and it was against you and you (the plaintiffs) need an expert in order for you to go forward, if I'm not mistaken." In response, the Lawrences' counsel replied: "You're absolutely correct and we have retained an expert." At that hearing, the Lawrences' counsel conceded that he had not yet obtained an expert report, stating: "I'm not going to sugar coat it. . . . We have not obtained a written report from the expert." The Lawrences' counsel then requested that the trial court exercise its discretion and grant the Lawrences an extension to file one.

         Although the trial court at the April Hearing characterized this as a "pretty old case," involving alleged malpractice that occurred in 2012, the trial court granted the Lawrences' counsel an additional forty-five days to obtain an expert's report. The trial court orally ordered that the defendants' motions be reset for May 17, 2018. The trial court, however, ordered that if the Lawrences failed to secure an expert report by that date, the defendants' summary judgment motions would be granted on May 17, 2018. The trial court expressly warned the Lawrences' counsel that if Dr. Fann was unable to provide a report, the Lawrences were to obtain a report from another expert by the same deadline. The Lawrences' counsel voiced no objection to the trial court's order.

         On May 17, 2018, the defendants' counsel appeared for the hearing; the Lawrences' counsel did not appear. The defendants' counsel informed the trial court that they had not heard from the Lawrences' counsel on that date and that they had not received any opposition or expert's report from the Lawrences' counsel. Given these circumstances, the trial court, for the reasons stated at the April Hearing, granted both motions for summary judgment and dismissed the Lawrences' claims with prejudice.

         At some time on the day of the hearing, the Lawrences filed a motion for extension of time to submit an expert report. In the motion, the Lawrences represented as follows:

• [The trial court] previously set a deadline o[f] Thursday, May 17th to submit its expert's report in opposition to Defendants' Motion for Summary Judgment.
• The Plaintiffs['] retained expert, Dr. Joyce Davidson, is unable to provide her expert's report in this matter on or before the expiration of the current deadline, Thursday, May 17, 2018.

Based on those representations, the Lawrences' counsel requested a fourteen-day extension of the deadline to file the expert's report. On May 30, 2018, the trial court signed an order granting the motion for extension of time, extending the deadline to May 31, 2018. Meanwhile, on May 23, 2018, notice of the signing of the judgment granting both motions for summary judgment was mailed. This appeal followed.


         Although the Lawrences assign five errors on appeal, [10] we organize our analysis into three parts-summary judgment, continuance, and reasons for judgment. We separately address each part.

         Summary Judgment

         Appellate courts review the granting of a summary judgment motion de novo. Sislo v. New Orleans Ctr. for Creative Arts, 16-0178, p. 4 (La.App. 4 Cir. 8/17/16), 198 So.3d 1202, 1205 (citing Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83). In so doing, appellate courts apply "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.

         The summary judgment procedure is "designed to secure the just, speedy, and inexpensive determination of every action," and the procedure is favored. La. C.C.P. art. 966(A)(2). The summary judgment procedure is used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. See La. C.C.P. art. 966(A)(3). The purpose of the summary judgment procedure is "to pierce the pleadings and to assess the proof in order to see whether there exists a genuine need for trial." Bridgewater v. New Orleans Reg'l Transit Auth., 15-0922, p. 4 (La.App. 4 Cir. 3/9/16), 190 So.3d 408, 411 (citing Hines v. Garrett, 04-0806, p. 7 (La. 6/25/04), 876 So.2d 764, 769).

         The rules governing the summary judgment procedure are codified in La. C.C.P. arts. 966 and 967. Winding v. Bryan, 14-0388, p. 6 (La.App. 4 Cir. 9/17/14), 148 So.3d 956, 960. Article 966 sets forth the standard for granting a summary judgment motion as follows: "[a]fter an opportunity for adequate discovery, 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).

         Article 966 also provides for a shifting burden of proof. La. C.C.P. art. 966(D)(1).[11] A moving party may discharge the moving party's burden of proof by "'pointing out to the district court that there is an absence of evidence to support the nonmoving party's case.'" Samaha, 07-1726, p. 9, 977 So.2d at 886 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986)).

         Article 967 addresses the non-moving party's response to a properly supported summary judgment motion. When a properly supported summary judgment motion is filed, the non-moving party may not rest on the mere allegations of his pleading; rather the non-moving party's response "must set forth specific facts showing that there is a genuine issue for trial." La. C.C.P. art. 967(B). If the non-moving party fails to respond, "summary judgment, if appropriate, shall be rendered against him." Id.

         "The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case." Lejeune v. Steck, 13-1017, p. 5 (La.App. 5 Cir. 5/21/14), 138 So.3d 1280, 1283; see also Maddox v. Howard Hughes Corp., 19-0135, p. 5 (La.App. 4 Cir. 4/17/19), 268 So.3d 333, 337 (observing that whether a fact is an essential or a material one is a determination that must be made based on the applicable substantive law). The substantive law applicable to this case is La. R.S. 9:2794, the statutory provision governing medical malpractice actions.[12]

          Under La. R.S. 9:2794, a plaintiff in a medical malpractice case is required to prove, by a preponderance of the evidence, the following three elements: (i) the standard of care applicable to the defendant; (ii) the defendant's breach of the standard of care; and (iii) the existence of a causal connection between the breach and the resulting injury. Samaha, 07-1726, p. 5, 977 So.2d at 883-84. When, as here, a plaintiff is seeking to impose liability on a hospital for the acts of its employees, the applicable standard of care as to both the hospital and the physician defendants is the same-the standard set forth in La. R.S. 9:2794. Williams v. Mem'l Med. Ctr., 03-1806, p. 16, n. 7 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1054. Moreover, "the plaintiff must prove that the hospital caused the injury when it breached its duty." Guardia v. Lakeview Reg'l Med. Ctr., 08-1369, p. 4 (La.App. 1 Cir. 5/8/09), 13 So.3d 625, 628.

         The Louisiana Supreme Court has observed that "by law, the report of the expert opinion reached by the medical review panel is admissible as evidence in any action subsequently brought by the claimant in a court of law" and that "[t]his undoubtedly includes a summary judgment proceeding in a medical malpractice lawsuit." Samaha, 07-1726, pp. 17-18, 977 So.2d at 891; see La. R.S. 40:1231.8(H).[13] Hence, it is well settled that a defendant-health care provider can use the medical review panel's favorable opinion to support a summary judgment motion. See Snelling v. LSU Health Sciences Ctr.-Monroe, 43, 332, pp. 6-7 (La.App. 2 Cir. 6/4/08), 986 So.2d 216, 220-21 (citing Samaha, supra).[14]

         A defendant-health care provider does not have the burden of disproving medical malpractice; rather, a defendant-health care provider only must point out that the plaintiff cannot support his claim. Once a defendant-health care provider has established an absence of factual support for an essential element of the plaintiff's claim, the plaintiff must come forth with evidence to preclude summary judgment. See La. C.C.P. art. 967(B).

         Given the complex factual and medical issues presented in a medical malpractice case, "a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794's requirements without medical experts." Pfiffner v. Correa, 94-0992, 94-0963, 94-0924, pp. 9-10 (La. 10/17/94), 643 So.2d 1228, 1234. Thus, the general rule is that "expert testimony is needed to establish the elements of [i] the applicable standard of care, [ii] whether the standard of care was breached by the defendant's conduct, and [iii] whether that breach resulted in any injuries to the plaintiffs." Edwards v. Raines, 35, 284, p. 7 (La.App. 2 Cir. 10/31/01), 799 So.2d 1184, 1188. Although a jurisprudentially-crafted exception for obvious negligence has been recognized, the exception is a narrow one that applies only to "instances in which the medical and ...

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