Allen Broussard, O/B/O Rudell Broussard (D) v. University Hospital & Clinics

• Court: Louisiana Court of Appeal
• Decided: November 17, 2021
• Docket: CA-0021-0153
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

21-153

ALLEN BROUSSARD, O/B/O RUDELL BROUSSARD (D)

VERSUS

UNIVERSITY HOSPITAL & CLINICS, ET AL.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20194145 “A” HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE

SHARON DARVILLE WILSON JUDGE

Court composed of Candyce G. Perret, Jonathan W. Perry, and Sharon Darville Wilson, Judges.

REVERSED AND REMANDED. Sera H. Russell, III Jamie S. Thistlewaite LAW OFFICES OF SERA H. RUSSELL, III 111 Mercury Street Lafayette, LA 70503 (337) 769-3260 COUNSEL FOR PLAINTIFF/APPELLANT: Allen Broussard on behalf of Rudell Broussard (Deceased)

Bonnie Christie Attorney at Law 1944 Norfolk Street Houston, TX 77098 (832) 317-6587 COUNSEL FOR PLAINTIFF/APPELLANT: Allen Broussard on behalf of Rudell Broussard (Deceased)

Daniel Charles Palmintier Attorney at Law 556 Jefferson Street, 4th Floor Lafayette, LA 70501 (337) 262-1700 COUNSEL FOR DEFENDANT/APPELLEE: Board of Supervisors of Louisiana State University & Agricultural & Mechanical College

Adam Paul Gulotta JUDICE & ADLEY P. O. Drawer 51769 Lafayette, LA 70505 (337) 235-2405 COUNSEL FOR DEFENDANT/APPELLEE: Dr. Richard Vanbergen

Nicholas Gachassin, Jr. Gary Delahoussaye Chelsea Carroll GACHASSIN LAW FIRM (A Limited Liability Company) 200 Corporate Boulevard, Suite 103 Lafayette, LA 70598-0369 (337) 235-4576 COUNSEL FOR DEFENDANT/APPELLEE: University Hospital & Clinics WILSON, Judge.

Plaintiff, Allen Broussard (Mr. Broussard), appeals the grant of summary

judgment dismissing the medical malpractice claim against Defendant, University

Hospital & Clinics (UH&C), in connection with the death of his wife, Rudell

Broussard (Mrs. Broussard). For the following reasons, we reverse the trial court’s

decision and remand this matter for further proceedings.

I.

ISSUES

The medical review panel changed its opinion based on deposition testimony

of nurses taken after the panel proceedings. Mr. Broussard contends that he should

be able to present this “changed” testimony to the jury to weigh whether the

medical records or the nurses’ testimony is correct. Mr. Broussard also contends

that the report of his expert oncologist, Dr. Tyler Curiel (Dr. Curiel), was ignored

by the trial court.

II.

FACTS AND PROCEDURAL HISTORY

Mrs. Broussard was diagnosed with Stage III triple negative invasive ductal

carcinoma of the left breast, with no evidence of metastatic disease, on January 11,

2017. She was fifty-six years old. Her treating oncologist, Dr. Kelvin Raybon (Dr.

Raybon), recommended chemotherapy treatment with Adriamycin and Cytoxan

every two weeks for four cycles, followed by twelve-week doses of Taxon. After

the chemotherapy regime was completed, Mrs. Broussard would be considered for

a mastectomy.

On January 20, 2017, Dr. Aimee Hymel (Dr. Hymel) performed a procedure

to insert the Mediport through which Mrs. Broussard would receive her chemotherapy treatments.1 The procedure was performed without complication.

Dr. Hymel’s notes from the procedure indicate that the Mediport drew back easily

and flushed easily, indicating that there was blood return and that the Mediport was

functioning properly. Dr. Richard Vanbergen (Dr. Vanbergen), a radiologist,

reviewed an x-ray taken following the placement of the Mediport and concluded

that the Mediport was properly placed.

On January 26, 2017, Mrs. Broussard presented to University Hospital and

Clinics Oncology and Fusion Clinic (UH&C) for her first chemotherapy treatment.

Despite noting that she was not getting any blood return from the Mediport, Nurse

Michelle Briscoe (Nurse Briscoe) administered the full round of chemotherapy.

Mr. Broussard contends that the chemotherapy medications were incorrectly

delivered into Mrs. Broussard’s mediastinum.

Three days later, on January 29, 2017, Mrs. Broussard went to the

emergency department at UH&C with a complaint of shortness of breath. She was

admitted to the hospital with a diagnosis of pneumonia with right pleural effusion.

She was treated with antibiotics and underwent a thoracentesis.2 Mrs. Broussard

was discharged on February 7, 2017.

Mrs. Broussard presented to UH&C for her second round of chemotherapy

on February 20, 2017. Once again, the oncology nurse, Nurse Joni Acclis (Nurse

Acclis) had problems obtaining blood flow from the Mediport. Nurse Acclis called

the oncology nurse practitioner, who ordered Cathflo. According to her affidavit,

1 Dr. Hymel was assisted by Dr. Jarret Brashear (Dr. Brashear). Dr. Charles Chappuis, Jr. (Dr. Chappuis), was the attending physician when the procedure was performed. 2 Thoracentesis is a procedure in which a needle is inserted through the chest wall into the pleural space (the thin gap between the pleura of the lung and the inner chest wall) to remove fluid or air from around the lung.

2 which was obtained after the panel proceedings, Nurse Acclis allegedly

administered two rounds of Cathflo and was able to get blood flow through the

Mediport. The chemotherapy treatment was started, but approximately five to ten

minutes into the procedure, Mrs. Broussard became short of breath. The

chemotherapy treatment was discontinued, Dr. Raybon was notified, and Mrs.

Broussard was admitted to the hospital. Multiple x-rays were taken and showed a

large right pleural effusion. Radiologists opined that the Mediport was still in the

correct place.

Over the next two days, Mrs. Broussard underwent multiple thoracentesis

procedures to remove significant amounts of fluid and blood serum from the

pleural space on both sides of her lungs. CT scans were taken and reviewed by Dr.

Raybon and Dr. Mohammed Kahn, a radiologist, who both expressed concern that

the Mediport may have become displaced. On February 24, 2017, Dr. Hymel

injected contrast into the Mediport. This procedure showed that the tip of the

Mediport was not placed correctly. At that time, the Mediport was removed and

replaced. X-rays confirmed the placement of the Mediport tip within the junction

of superior vena cava with the right atrium. Mrs. Broussard was discharged on

March 3, 2017.

Mrs. Broussard received her third, fourth, and fifth cycles of chemotherapy

from March through April 18, 2017. Mrs. Broussard had some problems with

infection, and chemotherapy was discontinued. Mrs. Broussard was admitted to

UH&C but later transferred to Tulane Hospital, at her request, on May 12, 2017.

She had respiratory issues and metabolic disturbances. Mrs. Broussard died on

June 7, 2017, from cardiopulmonary arrest secondary to bilateral pleural effusions

3 with left lung empyema and hypoxia secondary to left breast ductal carcinoma,

Stage III.

Mr. Broussard requested the formation of a medical review panel to review

the treatment rendered by Dr. Vanbergen, Dr. Chappuis, Dr. Hymel, Dr. Brashear,

UH&C, and Louisiana State University Health Sciences Center (LSUHSC).3 The

panel rendered its decision in June 2019, finding no breach of the standard of care

by Dr. Vanbergen, Dr. Chappuis, Dr. Hymel, Dr. Brasher, or LSUHSC. The panel

did find that UH&C breached the standard of care because its employees used the

Mediport without ensuring that it was functioning properly. The panel, however,

was of the opinion that this breach in the standard of care did not affect Mrs.

Broussard’s cancer or impact her chance of survival.

Following the panel’s opinion, Mr. Broussard filed suit against Dr.

Vanbergen, UH&C, and LSUHSC in the Fifteenth Judicial District Court. All of

the claims against Dr. Vanbergen and LSUHSC were dismissed on summary

judgments that were not appealed by Mr. Broussard.

Also following the panel opinion, counsel for UH&C deposed the oncology

nurses, Nurse Briscoe and Nurse Danielle Malveaux, who treated Mrs. Broussard

on January 26, 2017, after it was brought to their attention that pertinent

information was allegedly missing from the medical records reviewed by the

medical review panel. Nurse Briscoe testified that on January 26, 2017, she

contacted the nurse practitioner and UH&C to report that she was unable to get

blood return from Mrs. Broussard’s Mediport. According to Nurse Briscoe, the

nurse practitioner instructed her to contact Dr. Hymel, who ordered the

administration of Cathflo and told Nurse Briscoe that if she was able to get blood

3 LSUHSC employed Dr. Chappuis, Dr. Hymel, and Dr. Brashear.

4 flow from the Mediport after the administration of the Cathflo, then Nurse Briscoe

could proceed with the chemotherapy. Nurse Briscoe testified that by 9:25 a.m.,

she had administered the Cathflo and was able to get blood flow from the

Mediport. Nurse Briscoe then started Mrs. Broussard’s chemotherapy treatment.

Nurse Briscoe testified that she documented this in Mrs. Broussard’s chart. Nurse

Malveaux testified that she witnessed these actions by Nurse Briscoe.

This “newly acquired evidence” was presented to the medical review

panelists, Dr. James Burke (Dr. Burke), Dr. Julie Cupp (Dr. Cupp), and Dr. Charles

Lim (Dr. Lim). The panelists changed their opinions to reflect that: (1) it was

reasonable and appropriate for the oncology nurse to contact the surgeon who

installed the Mediport for further instructions; (2) it was reasonable and

appropriate for Dr. Hymel to order Cathflo; and (3) it was reasonable and

appropriate for the oncology nurses to proceed with the chemotherapy after using

Cathflo without ordering further testing to verify placement of the Mediport. The

panelists then signed affidavits stating that “[h]aving found that the administration

of chemotherapy was reasonable and appropriate once the oncology nurses were

able to get blood after giving Cathflo,” the panelists were “of the opinion that

[Mrs.] Broussard’s recurrent thoracentesis procedures, the progression of her

cancer, and her death were not caused by any breach of the standard of care

applicable to University Hospitals and Clinics, [the Louisiana State University

Health Sciences Center], or anyone affiliated with either institution” and “that

[Mrs.] Broussard did not lose any chance of survival from the substandard conduct

of University Hospitals and Clinics, the Louisiana State University Health Sciences

Center, or anyone affiliated with either institution.” (Emphasis added.)

5 Based on the depositions of Nurse Briscoe and Nurse Malveaux and the new

affidavits from the panelists, UH&C filed a motion for summary judgment and a

supplemental motion for summary judgment. UH&C alleged that Mr. Broussard

could not produce expert medical evidence that any of the nurses, employees, or

staff at UH&C breached the applicable standard of care under the then-existing

circumstances. The original medical review panel opinion was also attached to

UH&C’s motion for summary judgment.

In opposition to the motion, Mr. Broussard presented the report of his expert

oncologist, Dr. Curiel, and Mrs. Broussard’s medical records. Mr. Broussard also

filed a motion for summary judgment on the issue of liability and the necessity of

the thoracentesis procedures. Mr. Broussard alleged that the panel’s finding that

UH&C fell below the standard of care in using a nonfunctioning Mediport

necessitated a finding that the breach caused Mrs. Broussard to undergo multiple

thoracentesis procedures.

The trial court granted UH&C’s motion for summary judgment and

supplemental motion for summary judgment while denying Mr. Broussard’s

motion for summary judgment. This appeal by Mr. Broussard followed.4

III.

STANDARD OF REVIEW

“Appellate courts review summary judgment de novo using the same criteria

that governs the trial court’s determination of whether summary judgment is

appropriate, i.e., whether there is any genuine issue of material fact, and whether

4 Although Mr. Broussard’s brief to this court states that: “Alternatively, the summary judgment filed herein by the plaintiffs should be granted[,]” the denial of the motion is neither assigned as error nor briefed. Issues not briefed on appeal are deemed abandoned. Uniform Rules—Court of Appeal, Rule 2‒12.4.

6 the mover is entitled to judgment as a matter of law.” Dehart v. Jones, 19-789, p.

4 (La.App. 3 Cir. 12/16/20), 310 So.3d 658, 664.

IV.

LAW AND DISCUSSION

In a medical malpractice case, the plaintiff bears the burden of proving: (1)

the requisite standard of care; (2) a breach in the standard of care; (3) a causal

connection between the breach in the standard of care and the injury alleged.

La.R.S. 9:2794(A). In the context of a motion for summary judgment, “[t]he

burden of proof rests with the mover.” La.Code Civ.P. art. 966(D)(1). But, when

“the mover will not bear the burden of proof at trial on the issue that is before the

court on the motion for summary judgment, the mover’s burden on the motion

does not require him to negate all essential elements of the adverse party’s claim[.]”

Id. Instead, the mover must “point out to the court the absence of factual support

for one or more elements of the adverse party’s claim.” Id. Once this is

accomplished, the burden shifts to the adverse party to “produce factual support

sufficient to establish the existence of a genuine issue of material fact or that the

mover is not entitled to judgment as a matter of law.” Id.

In Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94),

639 So.2d 730, 751 (citations omitted), the Louisiana Supreme Court explained:

A fact is “material” when its existence or nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery. “[F]acts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.

7 Summary judgment “is not a substitute for trial on the merits, and it is

inappropriate for judicial determination of subjective facts, such as motive, intent,

good faith or knowledge that call for credibility evaluations and the weighing of

the testimony. In deciding a motion for summary judgment, the court must assume

that all of the affiants are credible.” Tillman v. Eldridge, 44,460, pp. 13-14 (La.

App. 2 Cir. 7/15/09), 17 So.3d 69, 78 (citations omitted).

According to UH&C, “[t]he crux of plaintiff’s claims against UHC is that

Rudell Broussard’s Mediport did not function properly because it did not aspirate

blood and [that] UHC employees and staff were negligent in administering

chemotherapy through the Mediport.” UH&C argues that the deposition testimony

of Nurse Briscoe and Nurse Malveaux along with the new affidavits from the

panelists take away the crux of claims against it because the testimonies establish

that the Mediport was functioning properly. UH&C asserts that the new affidavits

from the panelists shift the burden of proof to Mr. Broussard to show that there is a

genuine issue of material fact as to a breach.5

Mr. Broussard, on the other hand, contends that the conduct of the nurses

was the main reason that the panel found that UH&C breached the standard of care

but that after the nurses were deposed, the panel changed its opinion as to whether

there was a breach by UH&C. Mr. Broussard argues that he has “the right to

present this changed testimony to a jury for a jury to weigh whether the medical

records or the nurses’ new ‘recovered memory’ version of events is correct.”

The trial court focused on whether the absence of a note in Mrs. Broussard’s

chart that the nurse successfully got a blood return before administering the

5 This court notes that the applicable standard of care is established by the medical review panel opinion in this case and that this opinion was attached to UH&C’s motion for summary judgment.

8 chemotherapy was evidence that this did not happen so as to create an issue of fact

for the jury. The trial court extensively questioned UH&C’s counsel in this respect.

THE COURT: Is there evidence in the record prior to the . . . initial submission to the medical review panel – Was there evidence in the record of a successful blood return in February?

....

MR. DELAHOUSSAYE: The answer to that is no, and here’s why: Because none of the players in the case knew that the blood return was the issue. Read Mr. Russell’s complaint on behalf of the plaintiffs; nothing about the blood return.

Had we know that was the issue that the panel was going to focus on and that would sort of guide the outcome in their mind against the hospital, that evidence would have been submitted.

THE COURT: And wouldn’t you expect – [h]ad the successful blood return been achieved, wouldn’t you expect the record to have said so, that, “At such and such a time I successfully aspirated this blood and then administered the chemo”?

MR. DELAHOUSSAY: Maybe, maybe not. But the fact that it’s not in the record doesn’t undercut what is clear and directly in front of the [c]ourt, and those are the affidavits from the two nurses that were involved. I mean, the testimony is under oath, and it is not contradicted by anybody in the case.

THE COURT: But the record should show it[.]

MR. DELAHOUSSAY: . . . The record isn’t meant to be a chronicle of each and every step that each and every provider takes in the provision of healthcare[.]

THE COURT: And these nurses understood, according to their testimony and/or affidavits, the importance of getting a successful blood draw before administering the chemo.

9 And it just seems that that’s kind of a – [e]specially after two unsuccessful attempts to draw blood it would seem that the successful attempt, followed by the administration of chemo, would warrant inclusion in the chart.

The trial court then “reluctantly” granted UH&C’s motion for summary

judgment based on its finding that there was no evidence that UH&C breached the

applicable standard of care. Mr. Broussard asserts that the change in the panelists’

opinions and Dr. Curiel’s report establish that there are genuine issues of material

fact regarding whether UH&C breached the applicable standard of care. We agree.

In Tillman, 17 So.3d 69, two-year-old Brianna died after an undiagnosed

illness. Brianna was seen by Dr. Joel Eldridge (Dr. Eldridge) in the emergency

room with a history of fever and vomiting. Brianna had been seen by another

doctor and nurse practitioner earlier in the month. Dr. Eldridge did not order any

lab work or blood cultures and sent Brianna home with Phenergan and a Tylenol

suppository. Later that day, Brianna became unresponsive and died. A medical

review panel found that Dr. Eldridge’s conduct did not meet the standard of care

because he failed to order blood work and culture tests and did not admit Brianna

to the hospital, but the panel did not find that Dr. Elridge’s breach was a factor in

Brianna’s death from intracranial hemorrhages.

Brianna’s mother filed suit in district court, and Dr. Eldridge filed a motion

for summary judgment. The plaintiff’s expert, Dr. Terrance Baker, issued an

affidavit that Dr. Elridge’s failure to timely conduct medical tests caused a delay in

diagnosis that resulted in Brianna’s death. The trial court found that Dr. Baker’s

affidavit was conclusory and insufficient to overcome the motion for summary

judgment. The second circuit disagreed and found that the panel’s opinion finding

no causation was of a more conclusory nature than Dr. Baker’s affidavit: “The

10 MRP relied upon the absence of proof of a definitive causative agent for Brianna’s

cranial hemorrhages as its basis for finding no causal link between Dr. Eldridge’s

conduct and the child’s death.” Tillman, 17 So.3d at 79. The second circuit stated:

Based upon the same information available to the MRP, Dr. Baker reached an opposite conclusion concerning causation: that the delay in the diagnosis of Brianna’s condition, caused by Dr. Eldridge’s breach in the standard of care, was the proximate cause of the child’s death. The MRP opinion inexplicably omits any mention of the autopsy findings of multiple infections in this child. Dr. Achilihu cautioned that the stated cause of death could not be looked at in isolation from the infections, yet an isolated treatment of the cause of death appears to be the support for the MRP’s determination of no causation. Thus, this record as a whole shows that there remain disputed issues of fact concerning the causation issue. Further, if accepted by the trier of fact, Dr. Baker’s opinion alone would be sufficient proof of causation to allow the plaintiff to prevail on the merits.

Id. at 80.

The new affidavits from the panelists and the new depositions of the nurses

in this case, if anything, create issues of material fact regarding whether the nurses

at UH&C complied with the applicable standard of care. The panel opinion

specifically states that the nurses should have checked the Mediport, drawing back

until they got blood flow, each time they sought to administer the chemotherapy.

If no blood flow was obtained, this was an indicator that the Mediport was not

functioning. The opinion further notes that the staff used the Mediport without

requesting further investigation even after the medical oncologist was advised.

According to the panel opinion: “The standard of care called for the nursing staff

at UH&C to check and get blood back each time they sought to use the Mediport

and notice if it was not functioning and not use it if it was not functioning

properly.”

11 The depositions of Nurse Briscoe and Nurse Malveaux were admittedly

taken to cure deficiencies in Mrs. Broussard’s medical records that arguably would

have exonerated UH&C if such information had been contained in the medical

records submitted to the panel. In the converse situation, generally, “a

supplemental or subsequent affidavit in contradiction to prior deposition testimony

is not sufficient to create an issue of fact precluding summary judgment without

some explanation or support for the contrary statements.” Plant Performance

Servs., LLC v. Harrison, 17-1286, p. 12 (La.App. 1 Cir. 4/6/18), 249 So.3d 1, 8.

Under the present facts, this court finds that the subsequent deposition testimony of

the nurses and the panelists’ changed opinions are insufficient to establish that

there is no genuine issue of material fact regarding a breach in the standard of care

when countered with the medical records that do not support the nurses’ late

recollection of the events.

V.

CONCLUSION

For the foregoing reasons, the trial court’s judgment granting the motion for

summary judgment filed on behalf of UH&C and dismissing all claims against it is

hereby reversed. This matter is remanded to the trial court for further proceedings.

All costs of this appeal are assessed to the defendant/appellee, UH&C.

REVERSED AND REMANDED.