Donna Turner and Paul Turner Versus Bosley Medical Institute, Inc. and Dr. Frank Campisi

• Court: Louisiana Court of Appeal
• Decided: October 16, 2019
• Docket: 19-CA-131
• Status: Unknown

Opinion

DONNA TURNER AND PAUL TURNER NO. 19-CA-131

VERSUS FIFTH CIRCUIT

BOSLEY MEDICAL INSTITUTE, INC. AND COURT OF APPEAL DR. FRANK CAMPISI STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 774-458, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

October 16, 2019

JUDE G. GRAVOIS JUDGE

Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Hans J. Liljeberg

AFFIRMED JGG MEJ HJL COUNSEL FOR PLAINTIFF/APPELLANT, DONNA TURNER AND PAUL TURNER Carl J. Rachal

COUNSEL FOR DEFENDANT/APPELLEE, BOSLEY MEDICAL INSTITUTE, INC. AND DR. FRANK CAMPISI Stephen M. Pizzo Ashley R. Wilmore GRAVOIS, J.

In this medical malpractice action, plaintiffs, Donna and Paul Turner, seek

reversal of the trial court’s October 18, 2018 judgment which granted summary

judgment in favor of defendants, Dr. Frank Campisi and Bosley Medical Institute,

Inc., and dismissed all claims against defendants with prejudice. For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In a petition for damages filed on July 27, 2017, plaintiffs stated that on

August 3, 2016, Dr. Campisi performed a hair restoration procedure on Ms.

Turner. As part of the procedure, Dr. Campisi removed and transplanted 1,771

hair follicles/grafts upon Ms. Turner’s scalp. Plaintiffs alleged that Dr. Campisi

failed to properly sanitize and close the wound site, and thus the wound site

became infected immediately following the procedure. Additionally, in their

petition, plaintiffs alleged that Dr. Campisi failed to take any corrective action to

treat the infected wound. This caused the infection to worsen and forced Ms.

Turner to undergo treatment for wound care.

On August 23, 2018, defendants filed a motion for summary judgment

arguing that plaintiffs failed to produce expert testimony to establish a breach of

the standard of care, causation, and damages. In support of their motion,

defendants attached responses to discovery requests issued to plaintiffs on

November 3, 2017 and answered on April 17, 2018. One interrogatory asked that

plaintiffs name the expert who would testify as to the applicable standard of care

and the specific breach that occurred. In response, plaintiffs stated that the request

was premature since discovery was ongoing. Plaintiffs noted that their expert

witness list was incomplete at that time, and no determination had been made as to

which expert, if any, they intended to call. They reserved their right to supplement

and amend their response at a later date. Thus, defendants argued that the record is

19-CA-131 1 devoid of any evidence to establish that there was a breach of the standard of care

or that any alleged breach caused injury to plaintiffs.

The record reflects that plaintiffs were served with the motion for summary

judgment on September 5, 2018. Plaintiffs did not file an opposition to the motion

for summary judgment.

At the hearing on the motion for summary judgment on October 9, 2018,

after defendants informed the trial court that no opposition had been filed, the trial

court granted the motion for summary judgment “after having received no

opposition.”1 A judgment was signed on October 18, 2018 granting the motion for

summary judgment and dismissing all claims against defendants with prejudice.

This appeal followed.

On appeal, plaintiffs argue that the trial court erred in granting the motion

for summary judgment when defendants failed to meet their burden to

affirmatively prove the absence of genuine issues of material fact. Plaintiffs

believe that summary judgment was granted solely because no opposition was filed

by plaintiffs’ counsel. They argue that no evidence was introduced into the record

to support defendants’ assertions by way of affidavit, deposition testimony, or

certified medical records. Further, plaintiffs argue that the filing of the motion was

premature. Plaintiffs note that at the time the discovery was answered, Ms. Turner

had not yet completed her medical treatment related to the injury. Plaintiffs

contend that they planned to hire an expert after taking Dr. Campisi’s deposition,

which they claim they never had the opportunity to do.

LAW AND ANALYSIS

A motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue as to

1 In brief, plaintiffs’ counsel stated that the motion for summary judgment was unopposed “due to a calendaring mistake by plaintiff’s [sic] counsel.”

19-CA-131 2 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 rests with the mover. La. C.C.P. art.

966(D). However, if 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, action, or defense, but rather to point out to the court the

absence of factual support for one or more elements essential to the adverse party’s

claim, action, or defense. Id. The burden is on 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.;

Dillenkofer v. Marrero Day Care Ctr., Inc., 16-713 (La. App. 5 Cir. 5/24/17), 221

So.3d 279, 282. The only documents that may be filed in support or opposition to

the motion are pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and admissions. La.

C.C.P. art. 966(A)(4).

A motion for summary judgment, even if unopposed, requires the trial court

to determine that there are no genuine issues of material fact and that the mover is

entitled to judgment as a matter of law. Caceres v. United Auto. Ins. Co., 14-0418

(La. App. 4 Cir. 11/5/14), 154 So.3d 584, 590.

Appellate courts review summary judgments de novo using the same criteria

applied by trial courts to determine whether summary judgment is appropriate.

Pizani v. Progressive Ins. Co., 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086,

1087. A de novo review or an appeal de novo is an appeal in which the appellate

court uses the trial court’s record, but reviews the evidence and law without

deference to the trial court’s rulings. Sarasino v. State Through Department of

Public Safety and Corrections, 16-408 (La. App. 5 Cir. 3/15/17), 215 So.3d 923,

928. The decision as to the propriety of a grant of a motion for summary judgment

19-CA-131 3 must be made with reference to the substantive law applicable to the case. Muller

v. Carrier Corp., 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

In a medical malpractice action, such as the present case, a plaintiff must

prove, by a preponderance of the evidence: (1) the standard of care applicable to

the defendant; (2) that the defendant breached that standard of care; and (3) that

there was a causal connection between the breach and the resulting injury. La.

R.S. 9:2794. Because of the complex medical and factual issues involved, a

plaintiff will likely fail to sustain his burden of proving his claim under La. R.S.

9:2794’s requirements without medical experts. Pfiffner v. Correa, M.D., 94-0924

(La. 10/17/94), 643 So.2d 1228. Only in cases of obvious negligence, where the

trier of fact does not need an expert to assess the standard of care, breach, and

causation, is expert testimony unnecessary. Hastings v. Baton Rouge General

Hosp., 498 So.2d 713, 719 (La. 1986).

In the present case, plaintiffs argue that defendants failed to meet their

burden to affirmatively prove the absence of genuine issues of material fact and

failed to provide supporting evidence such as medical records, an affidavit, or

deposition testimony.

In Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, the defendant filed

a motion for summary judgment in a medical malpractice case, contending that the

plaintiffs lacked the expert medical testimony necessary to support their claims

against him. In support of his motion, the defendant attached a certified copy of

the medical review panel opinion in which the panel found no deviation from the

standard of care; an affidavit of correction to the panel opinion by the attorney

chair of the medical review panel; and a copy of the plaintiffs’ answers to

interrogatories and a request for production of documents. The trial court granted

the motion for summary judgment. Id. at 881. The court of appeal reversed the

trial court ruling and found that the defendant did not properly support his motion

19-CA-131 4 for summary judgment with either an affidavit or deposition from an expert

medical provider to prove that his medical treatment was not below the applicable

standard of care. Id. at 881-82. The court found that without this evidence, the

defendant could not meet his initial burden of showing that he was entitled to

summary judgment as a matter of law. Id. at 882.

The Louisiana Supreme Court disagreed and reversed the ruling of the court

of appeal. It found that the defendant did not bear the burden of proof at trial on

the issue of whether he committed medical malpractice, and thus he was under no

burden to present expert medical testimony. Id. at 887. The court found that the

defendant only had the burden of raising as the basis of his motion that plaintiffs

could not support their claim, and he did so by filing the motion and attaching the

plaintiffs’ discovery responses. Once the plaintiffs’ lack of proof was claimed and

supported by the plaintiffs’ answers to interrogatories, the burden shifted to the

plaintiffs to produce evidence sufficient to establish that they would be able to

satisfy their burden at trial. Id. at 887-88.

In the present case, defendants filed their motion for summary judgment,

claiming that plaintiffs failed to produce expert testimony to establish a breach of

the standard of care, causation, and damages. In support of their motion, they

attached plaintiffs’ answers to interrogatories and requests for production. In the

answers to interrogatories, plaintiffs stated that no determination had been made as

to which expert witnesses, if any, they intended to call. Therefore, upon our de

novo review, we find that defendants satisfied their initial burden on summary

judgment by filing the motion for summary judgment on the basis that plaintiffs

could not support their claim and attaching thereto the corresponding discovery

responses. The burden then shifted to plaintiffs to produce evidence sufficient to

establish that they would be able to satisfy their evidentiary burden of proof at trial.

19-CA-131 5 As shown above, plaintiffs failed to produce evidence sufficient to establish that

they would be able to satisfy their evidentiary burden of proof at trial.

Plaintiffs also argue on appeal that the motion was premature, and they did

not have adequate time for discovery. A defendant’s motion for summary

judgment may be made at any time. La. C.C.P. art. 966(A)(1). The trial court has

the discretion to render summary judgment, if appropriate, or to allow further

discovery. Sibert v. National Oilwell Varco, L.P., 48,789 (La. App. 2 Cir.

2/26/14), 136 So.3d 283, 291. The parties must be given the opportunity to

conduct “adequate discovery” to present their claims. Id.; La. C.C.P. art.

966(A)(3). However, there is no absolute right to delay action on a motion for

summary judgment until discovery is complete. Flowers v. Wal-Mart Stores, Inc.,

12-140 (La. App. 5 Cir. 7/31/12), 99 So.3d 696, 702. The only requirement is that

the parties be given a fair opportunity to present their claims, and unless a plaintiff

shows probable injustice, a suit should not be delayed pending discovery when it

appears at an early stage that there is no genuine issue of material fact. Johnson v.

Littleton, 45,323 (La. App. 2 Cir. 5/19/10), 37 So.3d 542, 548. The mere

contention of an opponent that he lacks sufficient information to defend a summary

judgment motion and that he needs additional time to conduct discovery is

insufficient to defeat the motion. Williams v. A Day to Remember Invitations,

L.L.C., 06-757 (La. App. 5 Cir. 3/13/07), 956 So.2d 30, 33.

In the present case, the record is devoid of any request by plaintiffs seeking

additional time to conduct discovery. At the time the motion for summary

judgment was filed, over two years had elapsed since the alleged incident occurred

and over one year had elapsed since suit was filed. There is no indication in the

record that plaintiffs attempted to conduct discovery since both the suit and the

motion for summary judgment were filed.

19-CA-131 6 Based upon our de novo review of the record, plaintiffs failed to establish

that they will be able to satisfy their evidentiary burden of proof at trial. Therefore,

defendants are entitled to judgment as a matter of law.

CONCLUSION

For the forgoing reasons, we affirm the trial court’s judgment which granted

summary judgment in favor of defendants, Dr. Frank Campisi and Bosley Medical

Institute, Inc., and dismissed all claims against defendants with prejudice.

AFFIRMED

19-CA-131 7 SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY OCTOBER 16, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-131 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE DANYELLE M. TAYLOR (DISTRICT JUDGE) ASHLEY R. WILMORE (APPELLEE)

MAILED CARL J. RACHAL (APPELLANT) STEPHEN M. PIZZO (APPELLEE) ATTORNEY AT LAW ATTORNEY AT LAW 103 TIMBERLAND RIDGE BOULEVARD 3421 NORTH CAUSEWAY BOULEVARD LAFAYETTE, LA 70507 SUITE 900 METAIRIE, LA 70002