Judgment rendered January 29, 2020 Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,220-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
CHYRISSE STATEN, Plaintiffs-Appellants INDIVIDUALLY, AND O/B/O DECEASED MOTHER, MARGARET STATEN
versus
GLENWOOD REGIONAL Defendants-Appellees MEDICAL CENTER, DR. ROBIN SHARP, DR. ARTHUR RICHERT, DR. CHRISTOPHER ERIKSON, AND ALL OTHER UNKNOWN DEFENDANTS
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2017-2384
Honorable Alvin R. Sharp, Judge
S. DOUGLAS BUSARI & ASSOCIATES, LLC Counsel for Appellants By: Sule Douglas Busari
BREAZEALE, SACHSE & WILSON, LLP Counsel for Appellee, By: Laura S. Achord IASIS Glenwood Regional Harry M. Moffett, IV Medical Center, Inc.
NELSON, ZENTNER, SARTOR Counsel for Appellee, & SNELLINGS, LLC Dr. Robin Sharp By: David H. Nelson HUDSON, POTTS & BERNSTEIN, LLP Counsel for Appellee, By: Margaret H. Pruitt Dr. Arthur Richert
Before WILLIAMS, COX, and McCALLUM, JJ.
WILLIAMS, C.J., dissents with written reasons. COX, J.
This medical malpractice appeal arises out of Ouachita Parish,
Louisiana. The plaintiff, Chyrisse Staten (hereinafter referred to as
“Chyrisse”), appeals the district court’s granting of summary judgment in
favor of the defendants, Glenwood Regional Medical Center (“Glenwood”),
Dr. Robin Sharp, and Dr. Arthur Richert, and the denial of her motion for
new trial. For the following reasons, we affirm.
FACTS
On April 19, 2015, Margaret Staten (Chyrisse Staten’s mother), who
was 73 years old, arrived at the emergency room at Glenwood with
complaints of abdominal pain. Her medical history included ovarian cancer.
She received a CT scan of her abdomen and pelvis and was subsequently
admitted to Glenwood. While admitted at Glenwood, Ms. Staten was
examined by Dr. Sharp. Ms. Staten recited her medical history to Dr. Sharp,
he examined her, and he reviewed her tests results. Her CT scan was also
reviewed by Dr. Christopher Erikson, a radiologist. Her CT scan revealed
the possibility of acute pancreatitis and an abnormal mesenteric studding.
Dr. Sharp ordered medications to treat the possibility of pancreatitis and
ordered further testing and workup for other possible causes of Ms. Staten’s
abdominal pain. Dr. Sharp consulted Dr. Richert, a gastroenterologist, who
examined Ms. Staten on April 20, 2015.
Dr. Richert performed an EGD with biopsy. Dr. Richert did not find
anything to explain Ms. Staten’s abdominal pain or abnormal imaging found
on the CT scan. Dr. Sharp ordered an MRI/MRCP of Ms. Staten’s abdomen.
The radiologist noted the possible pancreatitis and a patchy infiltration of the mesentery, which would be considered suspicious for metastic disease, but
the radiologist also noted that these findings are poorly evaluated on MRCP
imaging. Ms. Staten had a cancer antigen 19-9 drawn which returned with a
slightly elevated reading of 66. The medical review panel (“MRP”) noted
that even though this CA 19-9 was slightly elevated, it was too low to be of
any diagnostic significance.
Ms. Staten’s abdominal pain improved during her hospitalization, and
Dr. Sharp discharged her on April 24, 2015. Dr. Sharp’s discharge summary
stated that Ms. Staten was aware that she might have an occult malignancy,
even though testing at Glenwood was unable to detect any malignancy. Ms.
Staten was scheduled to have a follow-up appointment with Dr. Richert in
two weeks to evaluate whether she had an occult malignancy. After
discharge, Dr. Sharp had no further contact with Ms. Staten.
Ms. Staten was seen by Dr. Richert at his office on May 6, 2015, with
complaints of persistent abdominal pain. Dr. Richert scheduled Ms. Staten
for a CT angiogram of her abdomen and follow up lab work including
another CA 19-9. The CT results were interpreted by Dr. Erikson. Dr.
Erikson noted there was abnormal free fluid in the studding of the mesentery
which could possibly be related to a neoplastic process.1 Dr. Richert noted a
stable appearance of stranding and nodularity within the mesentery which
could represent a neoplastic process. The follow-up CA 19-9 reading was a
180.1.2 Dr. Richert reviewed the reports and lab results and scheduled Ms.
Staten to repeat the CA 19-9 test in one month.
1 The MRP noted in its opinion that there was not enough fluid to obtain a sample. 2 The MRP noted in its opinion that this increased CA 19-9 reading was more elevated than the previous reading of 66, but it was still not a reading which is diagnostic.
2 On June 8, 2015, before Ms. Staten’s scheduled follow-up CA 19-9,
she was admitted at St. Francis Hospital, and was diagnosed with peritoneal
carcinomatosis. Ms. Staten passed away on July 17, 2015.
Ms. Staten’s daughter, Chyrisse, requested the formation of a Medical
Review Panel (MRP) in April 2016 to review the actions of Dr. Sharp, Dr.
Richert, Dr. Erikson, and Glenwood. The MRP’s opinion, dated May 4,
2017, states that there was no breach of the applicable standard of care in the
treatment of Ms. Staten. Chyrisse, individually and on behalf of her mother,
filed a petition for damages in district court on July 24, 2017.
Each of the defendants filed a separate motion for summary judgment.
Glenwood filed its motion for summary judgment on September 19, 2017. It
attached the following documents:
• A certified copy of Ms. Staten’s medical records from Glenwood and St. Francis;
• Chyrisse’s complaint and request for an MRP;
• The MRP’s opinion along with the panel members’ oaths; and,
• Chyrisse’s petition for damages.
Dr. Erikson filed his motion for judgment on October 2, 2017, and attached
the following documents:
• His interrogatories and Chyrisse’s answers to those interrogatories and responses to request for production of documents; and,
• The MRP’s opinion along with the panel members’ oaths.
Dr. Sharp filed his motion for summary judgment on October 5, 2017, and
• His interrogatories and Chyrisse’s answers to those interrogatories and request for production of documents; and,
3 • The MRP’s opinion along with the panel members’ oaths.
Dr. Richert filed his motion for summary judgment on October 17, 2017,
and attached the following documents:
• The MRP’s opinion along with the panel members’ oaths and a letter from the MRP’s attorney member stating the original opinion was attached;
• Chyrisse’s petition for damages; and,
• His interrogatories.
Chyrisse dismissed her malpractice allegations against Dr. Erikson on
February 14, 2018. She filed an opposition to the remaining defendants’
motions for summary judgment on February 26, 2018. She stated that she
retained an expert, Dr. Andrew Schneider, who would testify as to the
standard of care, breach of that standard, and causation. Chyrisse attached
the “Affidavit RE: Margaret Staten Medical Opinion” of Dr. Andrew
Schneider.
The defendants filed replies to Chyrisse’s opposition and argued that
the affidavit was defective, and therefore inadmissible. They argued that the
affidavit fails to identify the information relied upon by Dr Schneider in
forming his opinions, fails to show how he is competent to render those
opinions, and is a conclusory statement. Chyrisse then filed a letter from her
attorney stating, “Please find enclosed, a copy of the curriculum vitae for
Andrew M. Schneider, M.D., plaintiff’s expert witness. Please file same
into the records of this proceedings.” Dr. Schneider’s two-page CV was
attached to the letter and filed in the record.
On April 16, 2018, the district court signed a judgment granting the
motion for summary judgment in favor of the defendants. On April 30,
4 2018, Chyrisse filed a motion for new trial. On May 3, 2018, Chyrisse filed
a first supplemental and amending motion for new trial. She attached
another affidavit of Dr. Schneider entitled, “Affidavit RE: Margaret Staten
Addedum [sic] to Medical Opinion.” In this affidavit, Dr Schneider attested
to his medical background and stated, “As previously outlined, Glenwood
Regional Medical Center, Dr. Rubin Sharp, and Dr. Arthur Richet [sic]
breached the standard of care.”
The defendants opposed the motion for new trial and first amending
motion for new trial, arguing there is no legal basis for granting a new trial
under La. C.C.P. art. 1972 or 1973. They argued that Chyrisse failed to
establish any mandatory or discretionary grounds for granting a new trial.
They argued that a motion for new trial is not a proper procedural
mechanism to submit new evidence in opposition to a motion for summary
judgment. They pointed out that Dr. Schneider’s addendum was not new
evidence that was unavailable prior to the hearing on the motion for
summary judgment.
A hearing on the motion for new trial was held on September 5, 2018.
The district court found in favor of the defendants, denying Chyrisse’s
motions for new trial. The district court stated, “[A]fter considering the
arguments of counsel, as well as the state of the record as it exists today, the
court is going to find that the original affidavit of Dr. Schneider was
deficient at the original hearing and upon the showing today, the court finds
that the affidavit is still deficient as of this hearing.” Chyrisse now appeals.
5 DISCUSSION
Motion for summary judgment
Chyrisse appeals the district court’s granting of the defendants’
motions for summary judgment. She argues that the defendants only
attached a copy of the MRP opinion without any certification or affidavits.
She asserts that she presented the sworn affidavit of Dr. Schneider, who
outlined the applicable standard of care, the breach of that standard, and that
the substandard of care lessened Ms. Staten’s chances of survival. She
argues that Dr. Schneider’s affidavit creates a genuine issue of material fact.
The court may consider only those documents filed in support of or in
opposition to the motion for summary judgment and shall consider any
documents to which no objection is made. Any objection to a document
shall be raised in a timely filed opposition or reply memorandum. La.
C.C.P. art. 966(D)(2). In the case before us, Chyrisse failed to object to the
MRP opinion during the motion for summary judgment proceedings. She
cannot, at this juncture, object to the attachment of the MRP opinion.
A de novo standard of review is required when an appellate court
considers rulings on motions for summary judgment, and the appellate court
uses the same criteria that governed the district court’s determination of
whether summary judgment was appropriate. Creek Mgmt., L.L.C. v.
Unopened Succession & Unknown Heirs or Legatees of Williams, 51,392
(La. App. 2 Cir. 5/17/17), 223 So. 3d 1194, writ denied, 2017-1252 (La.
10/27/17), 228 So. 3d 1222. A motion for summary judgment shall be
granted if the motion, memorandum, and supporting documents show that
6 there is no genuine issue as to a material fact and that the mover is entitled to
judgment as a matter of law. La. C.C.P. art. 966(A)(3).
The burden of proof on a summary judgment motion remains with the
movant. However, if the moving party will not bear the burden of proof on
the issue at trial and points out that there is an absence of factual support for
one or more elements essential to the adverse party’s claim, action, or
defense, then the nonmoving party must produce factual support sufficient to
establish that he will be able to satisfy his evidentiary burden of proof at
trial. If the opponent of the motion fails to do so, there is no genuine issue
of material fact and summary judgment should be granted. La. C.C.P. art.
966(D)(1); J & L Oil Co. v. KM Oil Co., LLC, 51,898 (La. App. 2 Cir.
2/28/18), 247 So. 3d 147.
In a medical malpractice action, the plaintiff has the burden of
proving: (1) the applicable standard of care, (2) that the standard of care was
breached, and (3) that as a proximate result of the breach, the plaintiff
sustained injuries that would not otherwise have been incurred. La. R.S.
9:2794(A); Johnson v. Tucker, 51,723 (La. App. 2 Cir. 11/15/17), 243 So. 3d
1237, writs denied, 2017-2075 (La. 2/9/18), 236 So. 3d 1262, and 2017-
2073 (La. 2/9/18), 236 So. 3d 1266. Expert testimony is generally required
to establish the applicable standard of care and whether or not that standard
was breached, except where the negligence is so obvious that a lay person
can infer negligence without the guidance of expert testimony. Johnson v.
Bhandari, 52,545 (La. App. 2 Cir. 2/27/19), 266 So. 3d 961, writ denied,
2019-0658 (La. 6/17/19), 274 So. 3d 572. The requirement of producing
expert medical testimony is especially apt when the defendants have filed
7 summary judgment motions and supported such motions with expert opinion
evidence that their treatment met the applicable standard of care. Jordan v.
Cmty. Care Hosp., 2019-0039 (La. App. 4 Cir. 7/24/19), 276 So. 3d 564;
Henderson v. Homer Memorial Hosp., 40,585, (La. App. 2 Cir. 1/27/06),
920 So. 2d 988; Lee v. Wall, 31,468, (La. App. 2 Cir. 1/20/99), 726 So. 2d
1044.
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 v. Rau, 2007-1726 (La. 2/26/08,
14), 977 So. 2d 880; see La. R.S. 40:1231.8(H). 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. Jordan v. Cmty. Care
Hosp., supra.; Snelling v. LSU Health Sciences Ctr.-Monroe, 43,332, (La.
App. 2 Cir. 6/4/08), 986 So. 2d 216, (citing Samaha v. Rau, supra).
The only documents that may be filed in support of or in opposition to
a motion for summary judgment are pleadings, memoranda, affidavits,
depositions, answers to interrogatories, certified medical records, written
stipulations, and admissions. La. C.C.P. art. 966(A)(4). La. C.C.P. art.
967(A) states:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify
8 to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
La. C.C.P. arts. 966 and 967 do not permit a party to utilize unsworn
and unverified documents as summary judgment evidence. Thus, a
document that is not an affidavit or sworn to in any way, or is not certified or
attached to an affidavit, is not of sufficient evidentiary quality to be given
weight in determining whether there are remaining genuine issues of
material fact. Nettle v. Nettle, 2015-1875 (La. App. 1 Cir. 9/16/16), 212 So.
3d 1180, writ denied, 2016-1846 (La. 12/16/16), 212 So. 3d 1170; Williams
v. Peerless Ins. Co., 48,228 (La. App. 2 Cir. 8/7/13), 123 So. 3d 204, writ
denied, 2013-2158 (La. 12/6/13), 129 So. 3d 534.
As outlined above, the defendants all filed their own motions for
summary judgment. The documents attached included:
• A certified copy of Ms. Staten’s medical records from Glenwood and St. Francis;
• Chyrisse’s petition for damages;
• The MRP’s opinion along with the panel members’ oaths and a letter from the MRP’s attorney member stating the original opinion was attached; and,
• Interrogatories and Chyrisse’s answers to those interrogatories and request for production of documents.
As the defendants were not required to prove that they did not breach
their applicable standards of care, this evidence was sufficient to point out
the absence of factual support for the plaintiff’s claim. The burden was then
shifted to Chyrisse to produce factual support sufficient to establish that she
9 will be able to satisfy her evidentiary burden at trial, which in this case,
would be expert medical evidence. Chyrisse opposed the motions and filed
the “Affidavit RE: Margaret Staten Medical Opinion” of Dr. Andrew
Schneider. The affidavit states, in pertinent part:
Before me, the undersigned authority, personally came and appeared: Dr. Andrew Schneider
a person of the full age of majority and a resident of the Broward County, State of Florida, who upon being duly sworn by me, Notary, did depose and say that: I have reviewed the medical records of Margaret Staten including the submissions of the plaintiff and defendants. I have also reviewed the opinion of the Medical Review Panel in this case. I am familiar with the care received by Margaret Staten at Glenwood Regional Medical Center in April 2015, the care received from Dr. Richert and subsequent care received at St. Francis Medical Center. Upon information and belief, I am competent to testify in this matter given my familiarity with the standard of care which should be provided in the same or similar medical community to Glenwood Regional Medical Center and by Dr. Arthur Richert and Dr. Robin Sharp.
Dr. Schneider then gave his opinion that all of the defendants breached their
standards of care. Defendants objected to the affidavit and Chyrisse later
filed a letter from her attorney stating that Dr. Schneider’s CV was attached.
Other than his title of “Dr.,” there is no indication in the affidavit that
Dr. Schneider is a medical doctor. There is no mention of his education,
licenses, certifications, or experience. Therefore, there is no evidence that
he is competent to testify as to the standard of care and breach thereof. The
CV later filed is not sworn to or attested to in any way by Dr. Schneider.
These documents do not meet the requirements of La. C.C.P. articles 966
and 967, and therefore, are not considered on the motions for summary
judgment. Based on the evidence presented, Chyrisse did not show that she
would be able to satisfy her burden at trial. Due to Chyrisse’s failure to
10 prove she would be able to sustain her burden at trial, we affirm the trial
court’s granting of the defendants’ motion for summary judgment.
Motion for new trial
Chyrisse also argues that the district court erred in denying her motion
for new trial. She asserts that under the facts of this case, a new trial should
have been granted on discretionary grounds to prevent a miscarriage of
justice. She argues that Dr. Schneider’s sworn addendum opinion addressed
all the essential elements of her claim. She asserts that the defendants’ reply
to her opposition for summary judgment was filed “last minute” and
deprived her of the opportunity to respond.
Unless the trial court abuses its discretion in ruling on a motion for
new trial, its decision will not be overturned. Cooper v. Patra, 51,182 (La.
App. 2 Cir. 2/15/17), 215 So. 3d 889, writs denied, 2017-0476 (La. 5/12/17),
219 So. 3d 1104, and, 2017-0481 (La. 5/12/17), 219 So. 3d 1105. A grant of
a new trial is not to be used to give the losing party a second bite at the apple
without facts supporting a miscarriage of justice that would otherwise occur.
Joseph v. Broussard Rice Mill, Inc., 2000-0628 (La. 10/30/00), 772 So. 2d
94; Ryan v. Case New Holland, Inc., 51,062 (La. App. 2 Cir. 12/22/16), 211
So. 3d 611.
A new trial shall be granted, upon contradictory motion of any party,
in the following cases: (1) When the verdict or judgment appears clearly
contrary to the law and the evidence; (2) When the party has discovered,
since the trial, evidence important to the cause, which he could not, with due
diligence, have obtained before or during the trial; and, (3) When the jury
was bribed or has behaved improperly so that impartial justice has not been
11 done. La. C.C.P. art. 1972. A new trial may be granted in any case if there
is good ground therefor, except as otherwise provided by law. La. C.C.P.
art. 1973.
In the case before us, La. C.C.P. art. 1972 does not apply. First, the
motion for summary judgment was not clearly contrary to the law and
evidence, based on our previous discussion of the motion for summary
judgment. Second, Chyrisse did not submit any new evidence that she could
not have submitted prior to trial. The documents she submitted were
insufficient for consideration in the summary judgment proceedings. Her
motion for new trial was based on the same doctor’s affidavit, only the
affidavit attempted to correct the previously pointed-out defects during the
motion for new trial. This was not evidence that she could not have obtained
prior to summary judgment proceedings. There was no jury trial, so the
third reason in article 1972 does not apply.
Therefore, we are presented with the question of whether Chyrisse’s
failure to file an adequate affidavit of Dr. Schneider is a good ground for
granting a new trial under article 1973. Chyrisse’s argument in her motion
for new trial was that “The judgment rendered … is clearly contrary to the
law and evidence[.]” We have already discussed this argument and find it to
be without merit. She also argued that because the defendants did not file
their replies to her February 26 opposition until April 9 and 10, she was
precluded from submitting “a detailed written response.” She also argued
that Dr. Sharp is an internist despite being portrayed as a hospitalist,
therefore Dr. Schneider is qualified to testify as to the standard of care.
12 These arguments do not warrant a finding that the trial court abused
its discretion in denying her motion for new trial. Dr. Schneider’s original
affidavit was dated December 4, 2017. Chyrisse filed her opposition to the
motions for summary judgment on February 26, 2018. Chyrisse’s attorney
had two and a half months to review Dr. Schneider’s affidavit before filing it
with her opposition. Therefore, the argument that she did not have time to
respond to the defendants’ replies pointing out the defect in the affidavit is
without merit. It is the responsibility of the filing party to file the
appropriate documents and not wait for the opposing party to point out the
defects in those documents. This argument does not warrant the reversal of
the district court’s discretion.
Finally, the argument that “Dr. Sharp is an internist despite being
portrayed as a hospitalist” is of no consequence. The affidavit was invalid,
regardless of the field of expertise. This motion for new trial is an attempt at
a second bite at the apple in order to remedy the deficient affidavit and
present evidence to oppose the motions for summary judgment. For these
reasons, the district court did not abuse its discretion in denying Chyrisse’s
motion for new trial.
CONCLUSION
For the reasons stated above, we affirm the district court’s granting of
defendants’ motion for summary judgment and denial of Chyrisse Staten’s
motion for new trial. Appellant bears the costs associated with this appeal.
AFFIRMED.
13 WILLIAMS, C.J., dissents.
I respectfully dissent. Because I conclude the medical expert’s
affidavit submitted by plaintiff creates a genuine issue of material fact as to
defendant physicians’ negligence, I would reverse the summary judgment
rendered in their favor.
The plaintiff contends the trial court erred in finding that the expert
affidavit she had submitted did not create a genuine issue of fact regarding
the negligence of defendants in treating Ms. Staten. Plaintiff argues in her
brief that the MRP opinion was not properly before the court because each
defendant submitted a copy of the MRP opinion that was not certified and
was not supported by an affidavit.
Any report of the expert opinion reached by the MRP shall be
admissible as evidence in any action subsequently brought by the claimant in
a court of law, but such opinion shall not be conclusive. La. R.S.
40:1231.8(H). An additional requirement is stated in Comment-2015(c) to
Article 966, which provides that an opinion of the MRP cannot be filed in
support of or in opposition to the motion for summary judgment unless it is
properly authenticated and attached to an affidavit or deposition. At
summary judgment, the court shall consider any document to which no
objection is made. An objection to a document shall be made in a timely
filed opposition or reply. La. C.C.P. art. 966(D)(2).
As the movers in this case, defendants pointed out the absence of
factual support for an element of plaintiff’s claim by showing that plaintiff
either did not respond to discovery or failed to identify an expert who would
testify that defendants had breached the applicable standard of care. To
1 further support their motions for summary judgment, defendants also
submitted copies of the MRP opinion that were not certified and not attached
to an affidavit or a deposition.
Such a filing would seem to be contrary to the above-cited comment
to Article 966. However, based upon the plaintiff’s failure to object in her
opposition to such lack of certification, the statutory provision providing that
the MRP opinion shall be admissible evidence in a subsequent action, and
the Louisiana Supreme Court’s finding in Samaha that Article 966 does not
require the mover to file an affidavit in support of the motion for summary
judgment, plaintiff has not shown that the trial court was precluded from
considering the MRP opinion at summary judgment. Thus, plaintiff’s
argument lacks merit.
The plaintiff contends the trial court erred in incorrectly stating that
she was required to present the opinion of an expert who practiced in the
same specialty as that of defendants. Plaintiff refers to the trial court’s
comments at the summary judgment hearing that “when you’re talking about
gastro medicine you don’t need to be talking to a pediatrician. You don’t
need to be talking to a podiatrist. You need to be talking to another gastro
person. . . . I am saying if that’s the rule then you’re toast as it relates to the
gastro” physician.
In a malpractice action based on the negligence of a physician where
the defendant practices in a particular specialty and where the alleged acts of
medical negligence raise issues peculiar to the particular medical specialty
involved, the plaintiff has the burden of proving the degree of care ordinarily
practiced by physicians within the involved medical specialty. La. R.S.
2 9:2794(A)(1). A specialist’s knowledge of the requisite subject matter,
rather than the specialty he practices, determines whether a specialist may
testify as to the applicable degree of care in a particular case. McLean v.
Hunter, 495 So.2d 1298 (La. 1986). This court has previously found that a
physician may offer an expert opinion on the standard of care owed by a
physician of another specialty provided he has adequate knowledge of the
subject matter. See Harper v. Minor, 46,871 (La. App. 2 Cir. 2/1/12), 86
So.3d 690.
At the hearing on summary judgment in this case, Dr. Richert’s
attorney argued that defendants should prevail because plaintiff had
submitted an affidavit from an oncologist, who was the “wrong specialist” to
testify as to whether there had been a breach of the standard of care
applicable to Dr. Richert, a gastroenterologist, and Dr. Sharp, a “hospitalist.”
The trial court’s comments noted above demonstrate that the court accepted
this argument even though the record indicates that the alleged acts of
negligence did not raise issues peculiar to the medical specialties involved.
The record shows that plaintiff alleges negligence in the defendants’
response to the abnormal imaging shown in the MRI and CT scans and the
lab results that together indicated the patient’s risk of cancer. Under such
circumstances, the statutory and case law do not require plaintiff to produce
the opinion of an expert who practices the exact same specialty as the
defendant physician to meet her evidentiary burden. Based on this record,
the trial court erred in determining that the affidavit of plaintiff’s expert was
inadequate because Dr. Schneider was the wrong type of specialist to render
an opinion in this case.
3 On summary judgment, the supporting and opposing affidavits of
experts may set forth such experts’ opinions on the facts as would be
admissible under La. C.E. art. 702 and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. La. C.C. P. art.
967(A). To establish medical malpractice, plaintiff must prove the standard
of care applicable to defendant, that defendant breached that duty and a
causal connection between the breach and the resulting injury. La. R.S.
9:2794; Samaha v. Rau, supra.
In opposition to summary judgment, plaintiff submitted the affidavit
of Dr. Andrew Schneider, an oncologist. In his affidavit, Dr. Schneider
testified that he had reviewed the medical records of Margaret Staten and
was familiar with the medical care she received at Glenwood in April 2015.
Dr. Schneider stated he had reviewed the MRP opinion and the parties’
submissions to the panel. Dr. Schneider testified that he was familiar with
the standard of care applicable to Dr. Richert, Dr. Sharp and Glenwood. Dr.
Schneider specified a number of medical records that he considered in
forming his opinion, including a CT scan of Staten’s abdomen and pelvis on
4/19/15 showing abnormal stranding and studding of the mesentery that did
not exclude a neoplastic process; the MRI of 4/22/15 showing patchy
infiltration of the mesentery considered suspicious for neoplasm; the
discharge summary of 4/24/15 stating that mesenteric inflammation was
secondary to pancreatitis; and the CT angiogram of the abdomen and pelvis
on 5/13/15 that continued to show studding in the mesentery suspicious for
neoplasm.
4 Dr. Schneider opined that based on the April 2015 imaging suggestive
of a neoplastic process, the applicable standard of care required Dr. Sharp
and Dr. Richert to refer the patient for a laparoscopy and biopsy of the
mesenteric lesions to check for cancer and also refer her to an oncologist,
but they failed to take those actions. Dr. Schneider also opined that Dr.
Sharp breached the standard of care in discharging the patient when Dr.
Sharp knew or should have known from the imaging and Staten’s history
that a cancer diagnosis could not be ruled out. Dr. Schneider concluded that
the defendants’ failure to diagnose the malignancy caused injury by reducing
the patient’s chance of survival.
The defendants assert in their briefs that Dr. Schneider’s affidavit
attached to plaintiff’s opposition is inadequate because he did not give
information about his medical training, his board certifications or his
experience and did not specify which medical records he relied on in
forming his opinion. However, I note that in the MRP opinion on which
defendants rely, the physician members of the MRP did not provide
information regarding their medical training, specialties or experience. In
addition, Dr. Schneider identified the specific MRI and CT scans that he
reviewed to form his opinion.
In reviewing this record, I do not find any indication that Dr.
Schneider is incompetent to testify about the matters discussed in his
affidavit. Further, Dr. Schneider adequately listed in his affidavit the
documentary evidence which he reviewed in arriving at his opinions.
In opposing summary judgment in this matter, plaintiff was required
to submit expert medical testimony to raise a genuine issue of material fact
5 as to whether the defendants breached the applicable standard of care and
caused injury to the patient. Plaintiff produced the affidavit of Dr.
Schneider, who testified that the MRI and CT angiogram scans displayed
abnormal imaging which did not exclude the risk of metastatic cancer and
that Dr. Sharp and Dr. Richert were notified of these results. Dr. Schneider
opined that Dr. Sharp and Dr. Richert failed to properly follow up on Ms.
Staten’s condition in light of these findings as required by the applicable
standard of care.
Based on the evidence presented, I conclude that the medical expert’s
affidavit submitted by plaintiff was sufficient to establish a genuine issue of
material fact regarding whether Dr. Sharp and Dr. Richert breached the
applicable standard of care thereby causing injury to Ms. Staten. However, I
note that Dr. Schneider did not specify in his affidavit the manner in which
Glenwood’s nurses and staff were negligent in treating Staten. Thus, I
would reverse the summary judgment in favor of Dr. Sharp and Dr. Richert,
but affirm the judgment in favor of Glenwood.