Bias v. Del Toro

77 So. 3d 993, 2011 WL 4579132
CourtLouisiana Court of Appeal
DecidedOctober 5, 2011
DocketNo. 11-291
StatusPublished
Cited by1 cases

This text of 77 So. 3d 993 (Bias v. Del Toro) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bias v. Del Toro, 77 So. 3d 993, 2011 WL 4579132 (La. Ct. App. 2011).

Opinion

PAINTER, Judge.

^Plaintiffs in this medical malpractice suit appeal the grant of summary judgment in favor of one of the multiple healthcare-provider defendants and his insurer as well as the denial of their motion to continue. For the reasons that follow, we reverse the grant of summary judgment in favor of Dr. Steven Snatic and his insurer, Louisiana Medical Mutual Insurance Company (LAMMICO), and remand that matter to the trial court.

FACTS AND PROCEDURAL HISTORY

The present matter arises out of a medical malpractice claim brought by Plaintiffs, Clayton Bias, individually and as administrator of the minor child, Courtney Bias, and Danielle Bias, and Jeremy Bias, against Dr. Federico Del Toro (a physician practicing in the field of internal medicine), Dr. Steven Snatic (a neurologist), Dr. Rolando Saenz (an infectious disease physician), Dr. Akshey Gupta (a nephrologist), and LAMMICO (which insured each of the named healthcare providers). Defendants treated the decedent, Ruby Bias, who was the wife of Clayton and the mother of Courtney, Danielle, and Jeremy, at Our Lady of Lourdes Regional Medical Center in Lafayette, Louisiana, from February 4, 2007, until her death on February 23, 2007. Mrs. Bias had a history of lupus and was taken to the emergency room at Opelousas General Hospital on February 4, 2007, after her husband was unable to awaken her from a nap. She was transferred to Our Lady of Lourdes later that day. She was eventually diagnosed with cryptococcal meningitis. Plaintiffs claim that Defendants failed to provide appropriate care, that her underlying medical condition was misdiagnosed, and that Mrs. Bias died as a result thereof.

[995]*995A medical review panel, comprised of Dr. Julio E. Figueroa, II (a specialist in the field of infectious disease), Dr. Kevin R. Hargrave (a neurologist), and Dr. |4Leo P. Blaize (a specialist in internal medicine), found that the care administered by the named healthcare providers was appropriate and within the standard of care because Mrs. Bias was appropriately diagnosed with membranous glomerulonephri-tis and that when she presented with encephalopathy. The panel further found that it was appropriately assumed and diagnosed, based on MRI and CT findings, that she had cerebritis, and treatment of this presumptive diagnosis did result in improvement of her condition. The panel specifically noted that it is well established in the literature that a diagnosis of crypto-coccal meningitis is difficult to make and even more so in an immunocompromised patient.

Following the medical review panel’s April 5, 2010 opinion, Plaintiffs filed this suit. Dr. Del Toro, Dr. Saenz, and LAM-MICO filed a motion for summary judgment based on the panel opinion. Dr. Snatic, Dr. Gupta, and LAMMICO also filed a motion for summary judgment. The motions alleged that despite the lapse of over two years from the filing of the complaint, Plaintiffs failed to identify any experts to testify to as to a breach in the standard of care. The motions for summary judgment were set for hearing on December 13, 2010. Plaintiffs moved for a continuance based on their allegation that their expert physician, Dr. David Pitrak, had advised them that he would be unable to provide an affidavit until after the first week of December 2010. The motion to continue was addressed by telephone conference and denied by the trial court. The hearing on the motions for summary judgment went forward as scheduled, with Plaintiffs re-urging their motion to continue, which was again denied. Plaintiffs submitted the affidavit of Dr. Paul O. War-shawsky, a cardiologist and board certified internist, in opposition to the motions for summary judgment. The trial court then denied the motion for summary judgment as to Dr. Del Toro and LAMMICO as his insurer. The trial court granted the motion for summary judgment in favor of Dr. Saenz, Dr. Snatic, |fiDr. Gupta, and LAM-MICO as the insurer of these physicians. As Plaintiffs had no opposition to the motions of Dr. Saenz and Dr. Gupta, this appeal concerns only the trial court’s grant of summary judgment in favor of Dr. Snatic and his insurer, LAMMICO, and the denial of Plaintiffs’ motion to continue.

DISCUSSION

In Djorghi v. Glass, 09-461, pp. 2-3 (La.App. 3 Cir. 11/4/09), 23 So.3d 996, 998, writ denied, 09-2614 (La.2/5/10), 27 So.3d 306, this court discussed the standard of review applicable to summary judgments in medical malpractice cases:

A motion for summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria as the trial court to determine whether summary judgment is appropriate; whether there is a genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880. A motion for summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law.” La. Code Civ.P. art. 966(B). Louisiana Code of Civil Procedure Article 966(C)(2) provides:
The burden of proof remains with the movant. However, if the movant [996]*996will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action or defense, but rather to 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 defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
In the present case, the defendant, who is the movant in the Motion for Summary Judgment, does not bear the burden of proof at trial on the issue of whether medical malpractice was committed. Louisiana Revised Statutes 9:2794(A) provides “that a medical malpractice plaintiff must establish the following elements by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached the standard of care; and (3) that there was a causal connection between the breach and the | f,resulting injury.” See Brown v. Riverland Med. Ctr., 06-1449, p. 4 (La.App. 3 Cir. 3/7/07), 952 So.2d 889, 892, writ denied 07-0740 (La.6/1/07), 957 So.2d 177. Expert testimony is generally required for a medical malpractice plaintiff to establish the applicable standard of care and breach of that standard of care. Samaha, 977 So.2d 880. Thus, the defendant is only required to point out that there is an absence of factual support for one or more elements essential to the plaintiffs claim to support that there is no genuine issue of material fact. Id.

Here, Dr. Snatic will not bear the burden of proof at trial on the issue of whether medical malpractice was committed. Plaintiffs must prove the three aforementioned things. La.R.S. 9:2794(A). Dr. Snatic met his initial burden of proof on his motion for summary judgment based on the panel’s opinion that there was no breach in the applicable standard of care, which is an essential element of Plaintiffs’ claim. Thus, the burden shifted to Plaintiffs. In an attempt to meet that burden, Plaintiffs submitted the affidavit of Dr. Warshawsky.

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77 So. 3d 993, 2011 WL 4579132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bias-v-del-toro-lactapp-2011.