Howard v. Vincent

88 So. 3d 1219, 2011 La.App. 4 Cir. 0912, 2012 WL 1037919, 2012 La. App. LEXIS 427
CourtLouisiana Court of Appeal
DecidedMarch 28, 2012
DocketNo. 2011-CA-0912
StatusPublished
Cited by3 cases

This text of 88 So. 3d 1219 (Howard v. Vincent) 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
Howard v. Vincent, 88 So. 3d 1219, 2011 La.App. 4 Cir. 0912, 2012 WL 1037919, 2012 La. App. LEXIS 427 (La. Ct. App. 2012).

Opinion

TERRI F. LOVE, Judge.

| iThis is a medical malpractice complaint. Plaintiff, Lucien Howard, appeals the summary judgment granted in favor of the defendants, Dr. Delmar Caldwell, Dr. John Ghobrial, and The Administrators of the Tulane Educational Fund, d/b/a Tulane University Health Sciences Center.

The trial court granted summary judgment based on its finding that the plaintiffs expert, Dr. Matthew Goren, was unqualified to render an opinion about the standard of care in the treatment of glaucoma. However, our review of the record revealed that Dr. Goren stated he possessed the requisite qualifications to testify about the standard of care for glaucoma. He also testified that Dr. Caldwell breached the standard of medical care in regards to his treatment of Mr. Howard. We find this testimony created genuine issues of material fact that preclude summary judgment relief. However, he identified no [1220]*1220breach of the standard of care by Dr. Ghobrial. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

| .FACTS AND PROCEDURAL HISTORY

Plaintiff, Lucien Howard, went to the emergency room of the Medical Center of Louisiana at New Orleans (MCLNO) with complaints of right eye irritation, inability to focus, and redness in the eye in November 2000. He returned to the emergency room with similar complaints, at which time Dr. Jared Vincent diagnosed him with a corneal ulcer. Mr. Howard ultimately underwent two corneal transplants, one in December 2000 and another one in August 2001.

Mr. Howard’s eye problems continued. He developed glaucoma with an increased right eye intraocular pressure. He transferred his treatment to Tulane University Hospital Clinic (TUHC) on October 8, 2001. He was treated at TUHC by Dr. Delmar Caldwell and Dr. John Ghobrial, a resident, for intraocular eye pressure and glaucoma between October 8, 2011 and February 25, 2002. On October 8, 2001, Dr. Caldwell performed an Ahmed valve placement in Mr. Howard’s right eye; and on February 5, 2002, Dr. Caldwell performed a laser procedure on Mr. Howard’s right eye to relieve a blockage in the Ahmed valve. Mr. Howard chose not to return to TUHC after February 25, 2002.

In the interim, Mr. Howard initiated a medical review panel proceeding on November 20, 2001, against TUHC, Dr. Caldwell, and Dr. Ghobrial.1 He alleged that their negligence caused him severe and permanent visual impairment and |,.¡enormous suffering. The medical review panel found that the defendants complied with the standard of care for ophthalmology. Thereafter, Mr. Howard filed suit against TUHC, Dr. Caldwell, and Dr. Gho-brial in the Civil District Court for the Parish of Orleans based on the same allegations in the medical review panel complaint.

TUHC, Dr. Caldwell, and Dr. Ghobrial filed a Motion for Summary Judgment. The trial court granted the motion, finding that the plaintiff lacked favorable expert testimony to support plaintiffs claim that the defendants breached the applicable duty of care. This appeal followed.

STANDARD OF REVIEW

In Descant v. Herrera, this Court outlined the standard of review for an appellate court to review a trial court’s decision to grant summary judgment:

Appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Potter v. First Federal Savings & Loan Association of Scotlandville et al., 615 So.2d 318, 325 (La.1993). The Motion for Summary Judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). [1221]*1221The burden of proof remains with the movant; however, if the movant will not bear the burden of proof at trial on the matter, the movant’s burden on the motion requires him only to point out the absence of factual support for one or more elements essential to the adverse party’s claims, action or defense. Davis v. Board of Supervisors of Louisiana State University and Agricultural Mechanical College, 97-0382, p. 7 (La.App. 4 Cir. 3/18/98), 709 So.2d 1030, 1033.

403-0953, pp. 8-9 (La.App. 4 Cir. 12/22/04), 890 So.2d 788, 793. However, if qualifying evidence is submitted in opposition to a motion for summary judgment which creates a dispute as to a genuine issue of material fact, the motion for summary judgment should be denied. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 19 (La.2/29/00), 755 So.2d 226, 237.

TESTIMONY OF PLAINTIFF’S EXPERT RE: BREACH OF DUTY OF CARE

Mr. Howard’s only assignment of error contends that the trial court erred in granting the defendants’ motion for summary judgment when it was presented with the testimony of his expert, Dr. Matthew Goren.

Dr. Goren criticized the treatment that Mr. Howard received from TUHC between October 2001 and February 2002. He testified that following Dr. Caldwell’s placement of the Ahmed valve in August 2001, Mr. Howard retained dangerously high pressures that were allowed to exist for four months without any surgical intervention. He advised that it was a breach of the standard of care not to do anything more for months to bring the pressures down. He testified that some surgical procedure needed to be performed to reduce the pressure. He added that he would defer to a glaucoma specialist as to the best procedure to reduce the pressure.

The trial court and the defendants considered Dr. Goren’s testimony that he would defer to a glaucoma specialist to select the best procedure to reduce Mr. Howard’s eye pressure as an acknowledgment on his part that he was unqualified to render an opinion about the standard of care in the treatment of glaucoma. We find this is a mischaracterization of Dr. Goren’s testimony.

| /When asked if he would defer to a glaucoma specialist regarding whether there was or was not a breach of the standard of care with regard to the management of Mr. Howard’s pressure between October 9, 2001 and February 2002, he answered, “no, I think I’m qualified to make the opinion that having pressures up in the 40s for months is a breach of the standard of care.” Dr. Goren also identified options for controlling Mr. Howard’s pressure. The options were additional cy-clodestructive surgery, trabeculectomy surgery, and additional valve surgery. Dr. Goren responded that he could testify to a reasonable degree of medical probability that “something would have worked” when questioned as to whether any of these procedure would have controlled Mr. Howard’s pressure between October 9, 2001 and February, 2002. He reiterated throughout his testimony that his deference to the glaucoma specialist/surgeon was only to select the appropriate surgical procedure. Our review of his testimony demonstrated that he consistently testified that the failure to select another surgical procedure for four months after the initial Ahmed valve placement surgery to reduce Mr. Howard’s pressure was below the standard of care.

Pursuant to La. R.S. 9:2794, in order to prevail in a medical malpractice claim, the plaintiff must prove 1) the degree of knowledge or skill possessed or the degree [1222]

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88 So. 3d 1219, 2011 La.App. 4 Cir. 0912, 2012 WL 1037919, 2012 La. App. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-vincent-lactapp-2012.