FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-12198,
DIVISION "M" Honorable Paulette R. Irons, Judge
A. Thibodeaux DAVILLIER LAW GROUP, LLC, COUNSEL FOR
Raymond R. Egan, III SCHROEDER & TRAHAN, Lorraine P.
McInnis E. John Litchfield BERRIGAN LITCHFIELD, LLC COUNSEL
composed of Judge Daniel L. Dysart, Judge Rosemary Ledet,
Judge Tiffany G. Chase
ROSEMARY LEDET, JUDGE
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"). Two sets of
defendants were named in this case: (i) the hospital
defendants-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. From the trial court's
judgment granting both motions, the Lawrences appeal. We
AND PROCEDURAL BACKGROUND
August 2013, the Lawrences filed a medical malpractice
complaint with the Louisiana Division of Administration
("DOA"), under the Louisiana Medical Malpractice
Act (the "MMA"),  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
the panel proceeding was pending, CCH commenced a discovery
proceeding in the trial court. 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.
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.
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; the hospital defendants filed their motion
on July 31, 2017.
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.
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
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.
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.
for all parties appeared at the April 5, 2018 hearing (the
"April Hearing"). 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.
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.
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.
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
the Lawrences assign five errors on appeal,  we organize
our analysis into three parts-summary judgment, continuance,
and reasons for judgment. We separately address each part.
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.
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).
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).
966 also provides for a shifting burden of proof. La. C.C.P.
art. 966(D)(1). 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)).
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."
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.
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.
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). 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,
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).
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 ...