Hinson v. Glen Oak Retirement Home

774 So. 2d 1134, 2000 WL 1838966
CourtLouisiana Court of Appeal
DecidedDecember 15, 2000
Docket34,281-CA
StatusPublished
Cited by26 cases

This text of 774 So. 2d 1134 (Hinson v. Glen Oak Retirement Home) 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
Hinson v. Glen Oak Retirement Home, 774 So. 2d 1134, 2000 WL 1838966 (La. Ct. App. 2000).

Opinion

774 So.2d 1134 (2000)

Francis HINSON and Beverly Martin, Individually and on Behalf of Their Mother, Lucille Irene Reagan, Plaintiffs-Appellants,
v.
The GLEN OAK RETIREMENT HOME, Defendant-Appellee.

No. 34,281-CA.

Court of Appeal of Louisiana, Second Circuit.

December 15, 2000.

*1135 Georgia P. Kosmitis, Shreveport, Counsel for Appellants.

Wiener, Weiss & Madison by John M. Madison, Jr., Shreveport, Counsel for Appellee, The Glen Oak Retirement Home.

Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell by Lawrence W. Pettiette, Jr., Elizabeth A. Lawrence, Shreveport, Counsel for Appellee, Alan J. Borne, M.D.

Before NORRIS, STEWART and GASKINS, JJ.

STEWART, J.

Francis Hinson and Beverly Martin (hereinafter the "plaintiffs"), individually and on behalf of their mother, Lucille Irene Reagan, filed a medical malpractice action against The Glen Oak Retirement Home ("Glen Oak") and Dr. Alan J. Borne. Dr. Borne filed a motion for summary judgment on the basis that the plaintiffs lacked expert testimony that his treatment of Ms. Reagan fell below the applicable standard of care. The trial court granted the motion. The plaintiffs then appealed the dismissal of their claims against Dr. Borne. We now affirm the trial court's judgment.

FACTS

In 1992, Ms. Reagan was admitted to Glen Oak, at which time Dr. Borne, an internist, became Ms. Reagan's treating physician. In their petition and depositions, the plaintiffs allege that during 1995 and 1996, Ms. Reagan complained of abdominal pain and exhibited symptoms of nausea, vomiting, constipation, and diarrhea. Plaintiffs allege that Dr. Borne failed to observe, monitor, or respond to these symptoms and that his failure to do so resulted in a delayed diagnosis of colon cancer. On July 3, 1996, Ms. Reagan was admitted to Schumpert Medical Center where she underwent a colonoscopy and surgery.

On December 11, 1996, the plaintiffs filed suit against Glen Oak. In an amended petition filed July 13, 1999, plaintiffs added Dr. Borne as a defendant, after receiving a medical review panel opinion favorable to him. On December 22, 1999, Dr. Borne filed a motion for summary judgment supported by the favorable medical review panel opinion and written reasons, along with his own affidavit and narrative statement summarizing his treatment of Ms. Reagan. Dr. Borne asserted that the plaintiffs had no competent expert testimony that his treatment of Mrs. Reagan fell below the applicable standard of care.

At the hearing on the motion for summary judgment, plaintiffs' counsel conceded that she needed expert testimony to establish that malpractice occurred and stated that she intended to use the defendant and the members of the medical review panel to prove her case. Plaintiffs' counsel declined the trial court's offer of extra time to procure an expert opinion. Instead, plaintiffs' counsel argued that genuine issues of material fact exist as to whether Ms. Reagan and the plaintiffs reported Ms. Reagan's complaints to the nursing staff or Dr. Borne, such that Dr. *1136 Borne failed to note the symptoms and act in a timely manner to diagnose her illness. According to plaintiffs' counsel, these issues of fact preclude summary judgment in favor of Dr. Borne. Noting the necessity for expert testimony to establish the plaintiffs' claim and the absence of any expert opinion favorable to the plaintiffs, the trial court granted Dr. Borne's motion for summary judgment. This appeal followed.

DISCUSSION

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action allowed by law. La.C.C.P. art. 966(A)(2); Lee v. Wall, 31,468, 31,469 (La.App.2d Cir.1/20/99), 726 So.2d 1044; Gardner v. Louisiana State University Medical Center in Shreveport, 29,946 (La.App.2d Cir.10/29/97), 702 So.2d 53. Our review of a grant or denial of a summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B).

When the moving party will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant is not required to negate all the essential elements of the adverse party's claim. Rather, the movant need only 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. Then, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and movant is entitled to summary judgment. La.C.C.P. art. 966(C)(2); Gardner v. LSUMC-Shreveport, supra.

The 1996 and 1997 amendments which altered the burden of proof in summary judgment proceedings leveled the playing field between the parties by providing that the supporting documentation submitted by the parties should be scrutinized equally and by removing the overriding presumption in favor of trial on the merits. Independent Fire Ins. Co. v. Sunbeam Corp., supra; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3d Cir.12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41.

La.R.S. 9:2794(A) provides that a plaintiff in a medical malpractice action shall have the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, ... under similar circumstances; and 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, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Stated briefly, the plaintiffs have the burden of proving the applicable standard of care, the physician's breach of the applicable standard of care, and the causal connection between the breach and the resulting injuries. Orea v. Brannan, 30,628 (La. App.2d Cir.6/24/98), 715 So.2d 108.

*1137 In two assignments of error, plaintiffs assert that Dr. Borne failed to sustain the burden of proving that summary judgment is warranted and that the trial court erred in granting summary judgment when genuine issues of material fact exist. As explained below, we find that these assignments of error lack merit.

The assertion that Dr. Borne failed to make a prima facie showing that summary judgment is warranted is premised on two arguments.

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Bluebook (online)
774 So. 2d 1134, 2000 WL 1838966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hinson-v-glen-oak-retirement-home-lactapp-2000.