HERBERT BOLONEY AND ALICE BOLONEY NO. 23-CA-188
VERSUS FIFTH CIRCUIT
OCHSNER CLINIC FOUNDATION AND COURT OF APPEAL OCHSNER CLINIC, L.L.C. STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 791-101, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
January 31, 2024
JUDE G. GRAVOIS JUDGE
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
AFFIRMED JGG SMC SJW COUNSEL FOR PLAINTIFF/APPELLANT, HERBERT BOLONEY AND ALICE BOLONEY Ralph L. Fletcher Ryan J. Chenevert
COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER CLINIC FOUNDATION AND OCHSNER CLINIC, L.L.C. Don S. McKinney GRAVOIS, J.
Plaintiffs/appellants, Herbert Boloney and Alice Boloney, appeal the trial
court’s December 12, 2022 judgment which granted a motion for summary
judgment filed by defendants, Ochsner Clinic Foundation and Ochsner Clinic,
L.L.C. (“Ochsner”), and dismissed all claims against Ochsner with prejudice. For
the reasons that follow, we affirm the judgment under review.
FACTS AND PROCEDURAL HISTORY
In January 2017, plaintiffs filed a request for a medical review panel with
the Louisiana Division of Administration against Dr. Victor Garcia-Prats and
Ochsner. In their complaint, plaintiffs alleged that on the morning of March 19,
2016, Mr. Boloney, then 69 years old, presented to the emergency department at
Ochsner Medical Center with complaints of acute exacerbation of his chronic
pancreatitis, nausea, vomiting, loose stools, and lightheadedness. After informing
the medical staff that he felt weak and had previously fallen, a fall risk assessment
was performed. Plaintiffs claimed that Mr. Boloney scored a 16 on the assessment,
and a score greater than four required that Ochsner’s trauma/injury guidelines be
implemented. Mr. Boloney was then given an injection of six milligrams of
morphine. Over three hours later, Mr. Boloney was discharged. He was pushed in
a wheelchair by a hospital staff member to just outside of the emergency
department. After the hospital staff member left, Mr. Boloney attempted to stand
and walk to the bus stop and allegedly tripped over the wheelchair foot pedals, fell,
and hit his head. He returned to the emergency department where he was
diagnosed with a scalp contusion and eventually discharged.
Plaintiffs claimed that Dr. Garcia-Prats and Ochsner breached the standard
of care by discharging Mr. Boloney too soon after he received the morphine, by
failing to order another fall risk assessment prior to Mr. Boloney’s discharge, and
by failing to perform a proper exam after he fell. Further, plaintiffs alleged that
23-CA-188 1 Ochsner deviated from the standard of care by negligently leaving Mr. Boloney
alone outside of the hospital in a wheelchair, by leaving the wheelchair’s foot
pedals down, and by failing to develop and enforce protocols for proper discharge
of a patient who is a fall risk and under the influence of narcotics.
The medical review panel issued its opinion on August 14, 2018. The panel
found that the evidence did not support the conclusion that Dr. Garcia-Prats failed
to meet the applicable standard of care. In its reasons, the panel noted that the
treatment provided to Mr. Boloney was within the standard of care, and the amount
of morphine given was appropriate for Mr. Boloney’s presenting complaints.
Further, the length of time Mr. Boloney was in the emergency room and his
discharge were appropriate. Additionally, the panel found that the evidence
presented supported the conclusion that Ochsner failed to comply with the
applicable standard of care since Mr. Boloney expressed a statement that could be
construed as suicidal ideation and no action was taken. However, the panel found
that this conduct “was not a factor of the resultant damages.”
Thereafter, on January 10, 2019, plaintiffs filed a petition for damages,
naming Ochsner as a defendant. Plaintiffs alleged that Mr. Boloney has continued
to suffer from neck and back pain, headaches, and memory loss as a result of his
fall. In addition to the same claims raised before the medical review panel,
plaintiffs also alleged that “assuming” Mr. Boloney relayed any suicidal ideation to
a member of Ochsner’s nursing staff and was thereafter left unattended, Ochsner
deviated from the applicable standard of care by failing to follow and enforce
suicide prevention protocols and precaution guidelines, by not documenting the
suicidal declaration, by leaving Mr. Boloney alone, and by not having him
admitted for psychiatric evaluation.
On September 6, 2022, Ochsner filed a motion for summary judgment,
arguing that plaintiffs will be unable to meet their burden of proof at trial through
23-CA-188 2 expert testimony. In support of its motion, Ochsner attached a copy of the medical
review panel opinion and a pretrial order, in which plaintiffs did not name any
expert witnesses other than the medical review panel doctors. Ochsner argued that
plaintiffs have not produced an expert to establish the standard of care, a breach in
the standard of care, and causation. Ochsner argued that the allegations in this case
are not so obvious that malpractice can be inferred from the facts presented, and
expert testimony is necessary to establish the applicable standard of care regarding
Mr. Boloney’s discharge, specifically the timing of Mr. Boloney’s discharge after
being administered six milligrams of morphine and any failure in not ordering a
fall risk assessment before discharge.
Additionally, Ochsner asserted that plaintiffs never alleged, and are unable
to prove, that Mr. Boloney fell as a result of any failure on Ochsner’s part to report
or act upon his alleged suicidal ideation. In support, Ochsner submitted excerpts
from Mr. Boloney’s deposition. In his deposition, Mr. Boloney stated that he has
never been treated for depression or anxiety, never attempted suicide, and was not
having mental health issues when he went to the emergency department on March
19, 2016. At the time of the incident, Mr. Boloney was discharged and a nurse
pushed him in his wheelchair to outside of the emergency department to catch the
bus. He recalled asking her to stay out there, and said to her, “I’m under this
medicine and when I go across the street, … I could get dizzy and a bus or car
could hit me.” The nurse did not stay, and Mr. Boloney sat there for 15 minutes.
When he tried to get up, he tripped over the foot pedals of the wheelchair and hit
his head on the concrete. The wheelchair flipped over and hit him in the back. He
explained in his deposition that he did not want to get hit by a bus, did not want to
commit suicide when he left the hospital, and did not tell anyone at the hospital
that he wanted to commit suicide that day. He believed that Ochsner was at fault
23-CA-188 3 because he was left outside after being given six to eight milligrams of morphine,
and they knew he was still “under the medicine.”
In opposition, plaintiffs asserted that genuine issues of material fact remain
regarding liability and causation that preclude the granting of summary judgment.
They asserted that the medical records show that Ochsner operated below the
standard of care, and Mr. Boloney’s treating physicians can provide causation
testimony.
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HERBERT BOLONEY AND ALICE BOLONEY NO. 23-CA-188
VERSUS FIFTH CIRCUIT
OCHSNER CLINIC FOUNDATION AND COURT OF APPEAL OCHSNER CLINIC, L.L.C. STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 791-101, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
January 31, 2024
JUDE G. GRAVOIS JUDGE
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
AFFIRMED JGG SMC SJW COUNSEL FOR PLAINTIFF/APPELLANT, HERBERT BOLONEY AND ALICE BOLONEY Ralph L. Fletcher Ryan J. Chenevert
COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER CLINIC FOUNDATION AND OCHSNER CLINIC, L.L.C. Don S. McKinney GRAVOIS, J.
Plaintiffs/appellants, Herbert Boloney and Alice Boloney, appeal the trial
court’s December 12, 2022 judgment which granted a motion for summary
judgment filed by defendants, Ochsner Clinic Foundation and Ochsner Clinic,
L.L.C. (“Ochsner”), and dismissed all claims against Ochsner with prejudice. For
the reasons that follow, we affirm the judgment under review.
FACTS AND PROCEDURAL HISTORY
In January 2017, plaintiffs filed a request for a medical review panel with
the Louisiana Division of Administration against Dr. Victor Garcia-Prats and
Ochsner. In their complaint, plaintiffs alleged that on the morning of March 19,
2016, Mr. Boloney, then 69 years old, presented to the emergency department at
Ochsner Medical Center with complaints of acute exacerbation of his chronic
pancreatitis, nausea, vomiting, loose stools, and lightheadedness. After informing
the medical staff that he felt weak and had previously fallen, a fall risk assessment
was performed. Plaintiffs claimed that Mr. Boloney scored a 16 on the assessment,
and a score greater than four required that Ochsner’s trauma/injury guidelines be
implemented. Mr. Boloney was then given an injection of six milligrams of
morphine. Over three hours later, Mr. Boloney was discharged. He was pushed in
a wheelchair by a hospital staff member to just outside of the emergency
department. After the hospital staff member left, Mr. Boloney attempted to stand
and walk to the bus stop and allegedly tripped over the wheelchair foot pedals, fell,
and hit his head. He returned to the emergency department where he was
diagnosed with a scalp contusion and eventually discharged.
Plaintiffs claimed that Dr. Garcia-Prats and Ochsner breached the standard
of care by discharging Mr. Boloney too soon after he received the morphine, by
failing to order another fall risk assessment prior to Mr. Boloney’s discharge, and
by failing to perform a proper exam after he fell. Further, plaintiffs alleged that
23-CA-188 1 Ochsner deviated from the standard of care by negligently leaving Mr. Boloney
alone outside of the hospital in a wheelchair, by leaving the wheelchair’s foot
pedals down, and by failing to develop and enforce protocols for proper discharge
of a patient who is a fall risk and under the influence of narcotics.
The medical review panel issued its opinion on August 14, 2018. The panel
found that the evidence did not support the conclusion that Dr. Garcia-Prats failed
to meet the applicable standard of care. In its reasons, the panel noted that the
treatment provided to Mr. Boloney was within the standard of care, and the amount
of morphine given was appropriate for Mr. Boloney’s presenting complaints.
Further, the length of time Mr. Boloney was in the emergency room and his
discharge were appropriate. Additionally, the panel found that the evidence
presented supported the conclusion that Ochsner failed to comply with the
applicable standard of care since Mr. Boloney expressed a statement that could be
construed as suicidal ideation and no action was taken. However, the panel found
that this conduct “was not a factor of the resultant damages.”
Thereafter, on January 10, 2019, plaintiffs filed a petition for damages,
naming Ochsner as a defendant. Plaintiffs alleged that Mr. Boloney has continued
to suffer from neck and back pain, headaches, and memory loss as a result of his
fall. In addition to the same claims raised before the medical review panel,
plaintiffs also alleged that “assuming” Mr. Boloney relayed any suicidal ideation to
a member of Ochsner’s nursing staff and was thereafter left unattended, Ochsner
deviated from the applicable standard of care by failing to follow and enforce
suicide prevention protocols and precaution guidelines, by not documenting the
suicidal declaration, by leaving Mr. Boloney alone, and by not having him
admitted for psychiatric evaluation.
On September 6, 2022, Ochsner filed a motion for summary judgment,
arguing that plaintiffs will be unable to meet their burden of proof at trial through
23-CA-188 2 expert testimony. In support of its motion, Ochsner attached a copy of the medical
review panel opinion and a pretrial order, in which plaintiffs did not name any
expert witnesses other than the medical review panel doctors. Ochsner argued that
plaintiffs have not produced an expert to establish the standard of care, a breach in
the standard of care, and causation. Ochsner argued that the allegations in this case
are not so obvious that malpractice can be inferred from the facts presented, and
expert testimony is necessary to establish the applicable standard of care regarding
Mr. Boloney’s discharge, specifically the timing of Mr. Boloney’s discharge after
being administered six milligrams of morphine and any failure in not ordering a
fall risk assessment before discharge.
Additionally, Ochsner asserted that plaintiffs never alleged, and are unable
to prove, that Mr. Boloney fell as a result of any failure on Ochsner’s part to report
or act upon his alleged suicidal ideation. In support, Ochsner submitted excerpts
from Mr. Boloney’s deposition. In his deposition, Mr. Boloney stated that he has
never been treated for depression or anxiety, never attempted suicide, and was not
having mental health issues when he went to the emergency department on March
19, 2016. At the time of the incident, Mr. Boloney was discharged and a nurse
pushed him in his wheelchair to outside of the emergency department to catch the
bus. He recalled asking her to stay out there, and said to her, “I’m under this
medicine and when I go across the street, … I could get dizzy and a bus or car
could hit me.” The nurse did not stay, and Mr. Boloney sat there for 15 minutes.
When he tried to get up, he tripped over the foot pedals of the wheelchair and hit
his head on the concrete. The wheelchair flipped over and hit him in the back. He
explained in his deposition that he did not want to get hit by a bus, did not want to
commit suicide when he left the hospital, and did not tell anyone at the hospital
that he wanted to commit suicide that day. He believed that Ochsner was at fault
23-CA-188 3 because he was left outside after being given six to eight milligrams of morphine,
and they knew he was still “under the medicine.”
In opposition, plaintiffs asserted that genuine issues of material fact remain
regarding liability and causation that preclude the granting of summary judgment.
They asserted that the medical records show that Ochsner operated below the
standard of care, and Mr. Boloney’s treating physicians can provide causation
testimony. Noteworthy, plaintiffs submitted no evidence in support of their
opposition to the motion for summary judgment.
Following a hearing on November 29, 2022, the trial court signed a written
judgment on December 12, 2022 granting Ochsner’s motion for summary
judgment and dismissing all claims against Ochsner with prejudice. This timely
appeal followed.
On appeal, plaintiffs argue that the trial court erred in granting Ochsner’s
motion for summary judgment based on their failure to obtain an expert witness.
Plaintiffs argue that they named the medical review panel doctors as witnesses, and
the medical review panel opinion is admissible expert evidence that supports their
claims since the panel found that Ochsner breached the standard of care. Plaintiffs
acknowledge that the panel also found that Ochsner’s breach of the standard of
care was not the cause of Mr. Boloney’s damages; however, they argue that
opining on causation is not a proper function of a medical review panel, and
causation is a question of fact. Additionally, plaintiffs assert that they have made
claims under both the Medical Malpractice Act and general tort law. Plaintiffs
assert that a trier of fact could determine that Ochsner was negligent when it
violated its fall risk guidelines and left Mr. Boloney unattended outside in a
wheelchair.
23-CA-188 4 LAW AND ANALYSIS
A motion for summary judgment is a procedural device used to avoid a full-
scale trial when there is no genuine issue of material fact. Bryde v. Lakeview Reg’l
Med. Ctr., LLC, 19-166 (La. App. 5 Cir. 12/11/19), 284 So.3d 686, 691. The
summary judgment procedure is favored and is designed to secure the just, speedy,
and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). A
motion for summary judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as to 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)(1). However, if
the mover will not bear the burden of proof at trial on the issue before the trial
court on the motion for summary judgment, the mover is not required to negate all
essential elements of the plaintiff’s claim, but is only required to point out the
absence of factual support for one or more elements essential to the plaintiff’s
claim. Id. The burden then shifts to the plaintiff to produce factual support
sufficient to show the existence of a genuine issue of material fact or that the
mover is not entitled to judgment as a matter of law. Id.
Appellate courts review summary judgments de novo using the same criteria
that govern the trial court’s determination of whether summary judgment is
appropriate. Reed v. Landry, 21-589 (La. App. 5 Cir. 6/3/22), 343 So.3d 874, 880;
O’Krepki v. O’Krepki, 16-50, 16-51 (La. App. 5 Cir. 5/26/16), 193 So.3d 574, 577,
writ denied, 16-1202 (La. 10/10/16), 207 So.3d 406.
To establish a claim for medical malpractice, a plaintiff must prove by a
preponderance of evidence: 1) the standard of care applicable to the defendant; (2)
the defendant breached that standard of care; and (3) there was a causal connection
between the breach and the resulting injury. La. R.S. 9:2794. Generally, because
of the complex medical and factual issues involved, a plaintiff will likely fail to
23-CA-188 5 sustain his burden of proving his claim under La. R.S. 9:2794’s requirements
without expert testimony. Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.
10/17/94), 643 So.2d 1228, 1234. Unless the case involves some obviously
careless act from which a lay person can infer negligence, such as amputating the
wrong limb or leaving a sponge in a patient’s body, the absence of expert
testimony as to any of the essential elements of the plaintiff’s malpractice claim
will preclude the imposition of liability. Id. at 1233-34.
In the present case, plaintiffs claimed that Ochsner deviated from the
standard of care with regard to Mr. Boloney’s discharge from the emergency room,
as well as Ochsner’s failure to report or act upon Mr. Boloney’s “assumed”
suicidal ideation. Upon de novo review, we find that this is not a case of obvious
negligence; this case requires expert testimony. We find that Ochsner has shown
that plaintiffs have not put forth expert testimony to prove the standard of care that
applies to the administration of morphine and subsequent discharge of a patient
and whether Ochsner breached the standard of care. Further, plaintiffs failed to
provide expert testimony to prove that a breach in the standard of care by Ochsner
surrounding the alleged suicidal ideation was the cause of Mr. Boloney’s damages.
On appeal, plaintiffs argue that they named the medical review panel doctors
as experts in their pretrial order. Also, they contend that the medical review panel
opinion is admissible evidence that supports their claim, and the medical review
panel’s conclusion did not allow for a ruling on causation.
A medical review panel opinion is admissible expert medical evidence that
may be used to support or oppose any subsequent medical malpractice suit. La.
R.S. 40:1231.8(H); Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 890.
Nevertheless, as with any expert testimony or evidence, the medical review panel
opinion is subject to review and contestation by an opposing viewpoint. Id.
Additionally, merely referring to an expert without an affidavit or deposition
23-CA-188 6 testimony in which the expert testifies under oath in a manner favorable to the
plaintiff’s position is insufficient to create an issue of fact. Jordan v. Cmty. Care
Hosp., 19-0039 (La. App. 4 Cir. 7/24/19), 276 So.3d 564, 582.
Concerning the panel’s duties, La. R.S. 40:1231.8(G) provides in pertinent
part:
G. The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions, which shall be in writing and signed by the panelists, together with written reasons for their conclusions:
(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
***
(4) When Paragraph (1) of this Subsection is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. … (Emphasis added.)
Thus, under this provision, the question of whether the negligent conduct was a
factor in causing the resultant damages is within the purview of the medical review
panel. Gibson v. Jefferson Par. Hosp. Serv. Dist. No 2, 19-283 (La. App. 5 Cir.
6/27/19), 275 So.3d 482, 491; see also McGlothlin v. Christus St. Patrick Hosp.,
10-2775 (La. 7/1/11), 65 So.3d 1218, 1229 (where the Supreme Court stated that
an expert opinion under La. R.S. 40:1231.8 is one rendered on the issues of
whether or not the evidence supports the conclusion that the defendants acted or
failed to act within the appropriate standards of care and to what degree any
substandard care contributed to the resultant damages).
In the present case, the medical review panel did indeed find that Ochsner
breached the standard of care when Mr. Boloney expressed a statement that could
be construed as suicidal ideation and took no action; however, the panel clearly
23-CA-188 7 noted in its Opinion and Reasons that it did not find this breach to be a factor in
Mr. Boloney’s resultant damages. While the medical review panel opinion is
admissible evidence, in this case it does not support plaintiffs’ claim. Accordingly,
we find that Ochsner has meet its burden of showing an absence of factual support
for an essential element of plaintiffs’ claim. La. C.C.P. art. 966(D)(1).
Thereafter, the burden of proof shifted to plaintiffs to produce factual
support sufficient to establish the existence of a genuine issue of material fact or
that Ochsner is not entitled to judgment as a matter of law. As established above,
plaintiffs have failed to provide any expert testimony to satisfy their burden of
proof.1
Further, plaintiffs argue for the first time on appeal that their claims were
raised under both the Medical Malpractice Act and general tort law. Under general
tort law, they argue that genuine issues of material fact remain surrounding
Ochsner’s violation of its guidelines when it left Mr. Boloney unattended outside
in a wheelchair. However, even considering this argument, plaintiffs have not put
forth any competent summary judgment evidence, including the alleged guidelines
that were purported violated, in support of their opposition to the motion for
summary judgment.
Accordingly, upon de novo review, for the foregoing reasons, we find that
plaintiffs failed to meet their burden of proof imposed by La. C.C.P. art.
966(D)(1)—“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”—and thus find no error in the trial court’s judgment which granted
1 Although plaintiffs also asserted in opposition to Ochsner’s motion for summary judgment that Mr. Boloney’s medical records will show that Ochsner operated below the standard of care, and that Mr. Boloney’s treating physicians can provide causation testimony in contradiction to the medical review panel’s finding of lack of causation, plaintiffs failed to provide any of Mr. Boloney’s medical records or any testimony or opinions, expert or otherwise, from Mr. Boloney’s treating physicians in opposition to Ochsner’s motion for summary judgment.
23-CA-188 8 Ochsner’s motion for summary judgment and dismissed all claims against Ochsner
with prejudice.
DECREE
For the foregoing reasons, we affirm the trial court’s judgment which
granted Ochsner’s motion for summary judgment and dismissed all claims against
Ochsner with prejudice.
AFFIRMED
23-CA-188 9 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL 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
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23-CA-188 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE) DON S. MCKINNEY (APPELLEE)
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