Hff7Y`7 - Louisiana Court of Appeal, First Circuit

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2013 CA 2059
PAM BEARD GAINEY, WIFE OF/AND RUSSELL GAINEY, JR.
VERSUS
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STATE OF LOUISIANA BY AND THROUGH LOUISIANA STATE
UNIVERSITY HEALTH CARE SERVICES DIVISION AND/OR
LEONARD J. CHABERT MEDICAL CENTER, DR. AMALIA DECOMAS,
AND DR. JOHN SWEENEY
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Judgment Rendered: OCT 1 4 2014
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Appealed from the
Thirty-Second Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Suit Number 164096
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Honorable George J. Larke, Jr., Presiding
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Patrick H. Hufft
New Orleans, LA
Counsel for Plaintiffs/Appellants
Pam B. Gainey & Russell Gainey, Jr.
James D. "Buddy" Caldwell
Attorney General
Counsel for Defendants/Appellees
State of Louisiana by and through
Louisiana State University Health
Care Services Division and/or
Leonard J, Chabert Medical Center,
Dr. Amalia de Comas, and Dr. John
Sweeney
Lauren B. Reed
Assistant Attorney General
Baton Rouge, LA
***** *
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
GUIDRY, J.
In this medical malpractice action, plaintiffs/appellants, Pam Beard Gainey
wife of/and Russell Gainey, Jr., appeal from a judgment of the trial court granting a
motion to strike the affidavit of plaintiffs' expert, Dr. Anthony Scarcella, granting
summary judgment in favor of defendants, State of Louisiana by and through
Louisiana State University Health Care Services Division and/or Leonard J.
Chabert Medical Center, Dr. Amalia de Comas, and Dr. John Sweeney, and
dismissing their action with prejudice. For the reasons that follow, we reverse and
remand.
FACTS AND PROCEDURAL HISTORY
Russell Gainey, Jr. presented at the Leonard J. Chabert Medical Center
(Chabert) emergency room on November 30, 2008, with a serious infection in his
left hand. Dr. de Comas and Dr. Sweeney, both orthopedic surgeons, performed an
incision and drainage procedure on Mr. Gainey's left hand. Following the surgical
procedure, Mr. Gainey was admitted to Chabert, where he received IV antibiotics
for the infection. Mr. Gainey was discharged from Chabert on December 8, 2008,
and was given prescriptions for antibiotics and pain medicine.
Mr. Gainey returned to Chabert on December 15, 2008, and December 22,
2008, for follow-up appointments.
At these appointments, Mr. Gainey was
continued on antibiotics and was instructed to return in two weeks for additional
follow-up.
However, Mr. Gainey did not return to Chabert until February 11,
2009, 1 at which time it was noted that the wound had granulation tissue and that
there was no sign of infection. Accordingly, Mr. Gainey was directed to return for
follow-up care in two months, and his next appointment was scheduled for April
20, 2009.
According to the record, Mr. Gainey was scheduled to return to Chabert for an appointment on
January 5, 2009. However, the medical records indicate that Mr. Gainey did not return to
Chabert until February 11, 2009.
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However, the next time Mr. Gainey sought care from a medical provider
regarding his left hand was on April 23, 2009. On that date, Mr. Gainey presented
to Ochsner Medical Center--Westb ank (Ochsner) with complaints of swelling and
an abscess on his left hand.
1\i1r. Gainey was placed on IV antibiotics and
amputation of his left pinky finger was discussed.
Thereafter, Mr. Gainey
requested to undergo the amputation, which was performed on April 24, 2009.
On June 23, 2011, Mr. Gainey and his wife, Pam, filed a petition for
damages, naming Dr. de Comas, Dr. Sweeney, and the State of Louisiana by and
through the Louisiana State University Health Care Services Division and/or
Chabert as defendants. Mr. Gainey asserted that the defendants were negligent in
failing to identify the infection on February 11, 2009, failing to prescribe
additional antibiotics, and failing to follow-up with Mr. Gainey in a timely manner.
Pam also asserted claims for loss of consortium as a result of the injury to her
husband.
Thereafter, the defendants filed a motion for summary judgment, asserting
that the plaintiffs had failed to identify an expert witness to testify at trial that the
defendants had breached the standard of care in their treatment of Mr. Gainey
and/or caused the plaintiffs' alleged damages.
In support of their motion, the
defendants submitted a copy of the medical review panel opinion and plaintiffs'
answers to interrogatories and requests for production.
Plaintiffs filed their
opposition to the motion for summary judgment on July 11, 2013, four days before
the scheduled hearing. Plaintiffs asserted that expert 'testimony was not necessary
to establish the negligence of the defendants. However, out of an abundance of
caution, the plaintiffs attached the affidavit of Dr. Anthony Scarcella, an
emergency room physician licensed to practice medicine in California and Florida.
Plaintiffs also submitted copies of Mr. Gainey's medical records from Chabert and
Ochsner.
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In a reply memorandum, defendants asserted that plaintiffs' opposition
memorandum and referenced attachments were untimely and therefore were
inadmissible and should be stricken.
Additionally, defendants argued that the
affidavit of Dr. Scarcella is inadmissible, regardless of timing, because: he is not
an orthopedic surgeon; the affidavit does not state on what basis he, as an
emergency room physician, can establish the standard of care of an orthopedic
surgeon; and the affidavit fails to set forth an adequate basis for his medical
op1mons.
Following a hearing on defendants' motion for summary judgment, the trial
court signed a judgment: denying defendants' motion to strike plaintiffs'
opposition and attached documents as untimely; granting defendants' motion to
strike the affidavit of Dr. Scarcella; and granting summary judgment in favor of the
defendants and dismissing plaintiffs' claims against them with prejudice.
The
plaintiffs now appeal from the trial court's judgment.
DISCUSSION
In determining whether summary judgment is appropriate, appellate courts
review evidence de novo under the same criteria that govern the trial court's
determination of whether summary judgment is appropriate. Lieux v. Mitchell, 060382, p. 9 (La. App. 1st Cir. 12/28/06), 951 So. 2d 307, 314 1 writ denied, 07-0905
(La. 6/15/07), 958 So. 2d 1199. A motion for summary judgment is properly
granted if the pleadings, depositions, answers to interrogatories, and admissions,
together with affidavits, if any, admitted for purposes of the motion for summary
judgment, show that there is no genuine issue of material fact, and that mover is
entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).
On a motion for summary judgment, the burden of proof is on the mover. If,
however, the mover will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the mover's burden on the
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motion does not require that all essential elements of the adverse party's claim,
action, or defense be negated. Instead, the mover must point out to the court that
there is an absence of factual support for one or more elements essential to the
adverse party's claim, action, or defensee Thereafter, the adverse party must
produce factual evidence sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at triaL If the adverse party fails to meet this burden,
there is no genuine issue of material fact, and the rnover is entitled to summary
judgment. La. C.C.P. art. 966(C)(2).
In ruling on a motion for summary judgment, the trial court's role is not to
evaluate the weight of the evidence or to determine the truth of the matter but
instead to determine whether there is a genuine issue of material fact. Hines v.
Garrett, 04-0806, p. 1 (La. 6/25/04), 876 So. 2d 764, 765 (per curiam). Because it
is the applicable substantive law that determines materiality, whether a particular
fact in dispute is material can be seen only in light of the substantive law
applicable to the case. Smith v. Kopynec, 12-1472, p 4 (La. App. 1st Cir. 6/7/13),
119 So. 3d 835, 837.
In a medical malpractice action, the plaintiff must establish by a
preponderance of the evidence the applicable standard of care, a violation of that
standard of care, and a causal connection between the alleged negligence and the
plaintiffs injuries.
See La. R.S. 9:2794(A); McGregor v. Hospice Care of
Louisiana in Baton Rouge, LLC, 09-1357, p. 6 (La. App. 1st Cir. 2/12/10), 36 So.
3d 272, 276, writ denied, 10-0701 (La. 5/28/10), 36 So. 3d 253. An expert witness
is generally necessary as a matter of law to meet the burden of proof on a medical
malpractice claim. Lieux, 06-0382 at p. 11, 951 So. 2d at 314. Although the
jurisprudence has recognized exceptions in instances of obvious negligence, those
exceptions are limited to instances in which the medical and factual issues are such
that a lay jury can perceive negligence in the charged physician's conduct as well
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as any expert can. Pfiffner v. Correa 9 94-0924, p. 9 (La. 10/17/94), 643 So. 2d
1228, 1234.
Ordinarily, when alleged acts of negligence raise issues peculiar to a
particular medical specialty, then only those qualified in that specialty may offer
evidence of the applicable standards. Bias v. Del Toro, 11-291, p. 6 (La. App. 3rd
Cir. 10/5/11), 77 So. 3d 993, 996, writ denied, 11-2410 (La. 2/3/12), 79 So. 3d
1026. However, because it is the specialist's knowledge of the requisite subject
matter, rather than the specialty within which the specialist practices, that
determines whether a specialist may testify as to the degree of care that should be
exercised, where medical disciplines overlap, a specialist in one field can testify as
to the standard of care applicable to those areas of the practice of medicine that are
common to both disciplines, where there is no proof that the standard of care is
different in each discipline. See Ricker v. Hebert, 94-1743, p. 4 (La. App. 1st Cir.
5/5/95), 655 So. 2d 493, 495; Corley v. State, Department of Health and Hospitals,
32,613, pp. 7-8 (La. App. 2nd Cir. 12/30/99), 749 So. 2d 926, 932.
In the instant case, the defendants moved for summary judgment, asserting
that the plaintiffs had failed to identify an expert witness who would testify at trial
that the defendants breached the standard of care in their treatment of Mr. Gainey
and/or caused the plaintiffs' alleged damages.
In support of their motion, the
defendants submitted a copy of the medical review panel opinion, finding no
deviation from the appropriate standard of care by the defendants, and plaintiffs'
answers to interrogatories and requests for production. · In opposition to the
defendants' motion, the plaintiffs argued that expert testimony was not necessary
to establish the negligence of the
defendants~
but, out of an abundance of caution,
the plaintiffs provided the affidavit of Dr. Scarcella. The defendants responded
and moved for the court to strike Dr. Scarcella' s affidavit.
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In his affidavit, Dr. Scarcella, who, according to his curriculum vitae, is an
attending emergency room physician, stated that he is a physician licensed to
practice in California and Florida and that he is well versed in all aspects of wound
care, including complications in post-surgical wounds, and he has treated this type
of patient in the past. Dr. Scarcella stated that he had reviewed the medical records
in this case, and according to those records it was clear that Mr. Gainey was
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treated by Dr. de Comas and Dr. Sweeney at Chabert beginning qn November 30,
2008, for a serious infection of his left hand. Dr. Scarcella detailed Mr. Gainey's
subsequent follow-up appointments with the defendants, and stated that on Mr.
Gainey's last visit on February 11, 2009, it was noted that he was still experiencing
pain, hypersensitivity, and swelling, all of which are signs of a continued infection.
However, Dr. Scarcella noted that, despite these signs of infection, Mr. Gainey was
not prescribed any additional antibiotics, and he was not scheduled to return for a
follow-up until April 20, 2009.
Dr. Scarcella noted that Mr. Gainey thereafter
presented at Ochsner in April 2009 with a severe infection of the same hand and
underwent an amputation of the fifth finger as a result.
Accordingly, Dr. Scarcella opined that, based on his knowledge, education,
and experience, and based on his review of the evidence, considering the continued
signs of infection present on February 11, 2009, the standard of care required
additional antibiotic treatment and scheduling of a follow-up appointment sooner
than April 20, 2009, and that the defendants breached the standard of care.
Dr.
Scarcella further stated that in this particular case, the delay in treatment of this
infection likely contributed to the severity of the infection, which ultimately led to
amputation of Mr. Gainey's left, fifth finger. Finally, Dr. Scarcella stated that the
standard of care for post-surgical wound care is the same in emergency medicine
as it is in any other specialty.
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From our review of the record, we find that the trial court erred in striking
Dr. Scarcella)s affidavit and in granting summary judgment m favor of the
defendants.
Dr. Scarcella stated that he was knowledgeable of all aspects of
wound care, including complications in post-surgical wounds, that he had treated
this type of patient in the past, and he gave a detailed factual recitation of the
treatment received by Mr. Gainey, as derived from Mr. Gainey's medical records.
Dr. Scarcella also specifically stated that the standard of care for post-surgical
wound care is the same in emergency medicine as it is any other specialty, and the
defendants did not present any evidence to refute that testimony. See McGregor,
09-1357 at p. 8, 36 So. 3d at 277. Considering the entirety of Dr. Scarcella's
affidavit, 2 we find that the plaintiffs produced sufficient factual support to show
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that they will be able to meet their evidentiary burden of proof at trial, and as
such, the trial court erred in granting summary judgment in favor of the defendants.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the trial court striking
the affidavit of Dr. Scarcella and granting summary judgment in favor of the
defendants, State of Louisiana by and through Louisiana State University Health
Care Services Division and/or Leonard J. Chabert Medical Center, Dr. Amalia de
Comas, and Dr. John Sweeney, and dismissing their action with prejudice. We
We note that in filing the motion for summary judgment, the defendants' sole basis for bringing
that motion was the lack of expert testimony. When. plaintiffs filed their opposition,
accompanied by the affidavit of Dr. Scarcella, the defendants moved to strike the affidavit as
inadmissible. However, the defendants did not as.sert that the plaintiffs were unable to meet their
burden of proof as to any element of their malpractice claim based on the information provided
in the affidavit, nor did they object to the documents $Ubmitted in conjunction with the plaintiffs'
opposition. See La. C.C.P. art. 966(F)(2) and (3). Rather, the defendants urged these specific
arguments for the first time on appeal. A motion for summary judgment can be rendered or
affirmed only as to those issues set forth in the motion under consideration by the court at that
time. La. C.C.P. art 966(F)(l). Accordingly, the defendants' argument on these issues is not
properly before this court.
2
Because we find that Dr. Scarcella's affidavit was sufficient for plaintiffs to meet their burden
of proof on the motion for summary judgment, we pretermit discussion of plaintiffs' argument
that expert testimony was not necessary to establish the negligence of the defendants.
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remand this matter to the trial court for further proceedings consistent with this
opinion. All costs of this appeal are assessed equally among the defendants.
REVERSED AND REMANDED.
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