STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-540
JOAN MARIE POLLOCK
VERSUS
MDA CONSULTANTS, L.L.C., ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20214247 HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE
CANDYCE G. PERRET JUDGE
Court composed of Shannon J. Gremillion, Candyce G. Perret, and Sharon Darville Wilson, Judges.
AFFIRMED. Tonya R. Smith Tonya R. Smith, L.L.C. 200 Travis Street, Suite 166 Lafayette, LA 70503 (337) 504-7765 COUNSEL FOR PLAINTIFF/APPELLANT: Joan Marie Pollock
Adam P. Gulotta Judice & Adley Post Office Drawer 51769 Lafayette, LA 70505-1769 (337) 235-2405 COUNSEL FOR DEFENDANTS/APPELLEES: Dr. Maximo B. Lamarche Dr. Stuart A. Begnaud MDA Consultants, L.L.C. LAMMICO
Julie Savoy Michael A. Dalman Gachassin Law Firm Post Office Box 80369 Lafayette, LA 70598-0369 (337) 235-4576 COUNSEL FOR DEFENDANTS/APPELLEES: Dr. James D. Hlavacek, III Dr. Blaine T. Walton Nurse Practitioner Matthew Blanchard Lafayette General Orthopaedic Hospital Ochsner Lafayette General Orthopaedic Hospital Lafayette General Health Systems, Inc. Lafayette General Medical Center, Inc., d/b/a Ochsner Lafayette General Medical Center, Inc. PERRET, Judge.
In this medical malpractice action, Plaintiff, Joan Marie Pollock
(“Plaintiff”), appeals the trial court’s June 23, 2022 judgment that granted
summary judgment in favor of Defendants, Dr. James D. Hlavacek, III, Dr. Blaine
T. Walton, Dr. Maximo B. Lamarche, Dr. Stuart A. Begnaud, Nurse Practitioner
Matthew Blanchard, Lafayette General Medical Center, Inc. d/b/a Ochsner
Lafayette General Medical Center, Ochsner Lafayette General Orthopaedic
Hospital, Lafayette General Orthopaedic Hospital, Lafayette General Health
System, Inc., MDA Consultants, L.L.C., and LAMMICO (hereinafter collectively
referred to as “Defendants”), and sustained Defendants’ objections to Plaintiff’s
Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 14, and 15. For the following reasons, we
affirm.
PROCEDURAL HISTORY AND FACTS:
On May 9, 2018, Plaintiff fell and injured her right ankle and foot while
walking in her yard. Plaintiff went to the emergency room at Ochsner Lafayette
General Medical Center (“Ochsner Lafayette General”) where she received X-rays
identifying fractures in her ankle. 1 Ochsner Lafayette General referred Plaintiff to
Dr. Hlavacek, who saw Plaintiff the next day and recommended surgery, to which
Plaintiff agreed. The surgery was performed by Dr. Hlavacek on May 11, 2018, at
Ochsner Lafayette General, and Plaintiff remained hospitalized until May 16,
2018, during which time she was cared for by Dr. Hlavacek, Dr. Walton, and
Nurse Practitioner Blanchard.
Plaintiff was then transferred to Acadiana Rehabilitation for therapy and was
treated by Dr. Lamarche and Dr. Begnaud until May 23, 2018, when she was
discharged to her home. Plaintiff’s discharge summary dated May 23, 2018, 1 Specifically, Plaintiff’s preoperative/postoperative diagnoses was: (1) a closed right trimalleolar ankle fracture; and (2) a syndesmotic disruption of the right ankle. stated, in pertinent part: “At discharge, both of the incisions were noted. Sutures
were intact. Some redness and bruising was noted with no signs or symptoms of
infection.”
In the weeks following her discharge, Plaintiff complained of foot pain and
developed a superficial infection at her surgical incision, for which she was
readmitted to Ochsner Lafayette General from June 8 through June 12, 2018.
During that time, the on-call orthopedist performed an incision and drainage while
Dr. Hlavacek consulted with Dr. Vitalis Okechukwu, an infectious disease
physician, and ordered antibiotics for the infection. Plaintiff continued to receive
treatment with Dr. Okechukwu for her Methicillin resistant Staphylococcus aureus
(“MRSA”) infection throughout July and August of 2018. On August 24, 2018,
Dr. Hlavacek removed some of the stabilizing hardware he had placed in
Plaintiff’s ankle to address her ongoing pain complaints. Plaintiff continued
physical therapy through October 8, 2018, and had periodic office visits with Dr.
Hlavacek and Nurse Practitioner Blanchard at the Ochsner Lafayette General
Orthopaedic Hospital.
On June 18, 2019, Plaintiff saw Dr. Hlavacek, who noted that she no longer
had any signs of infection. Plaintiff’s final visit with Dr. Hlavacek was on July 30,
2019, wherein he noted that “[Plaintiff] has been off antibiotics for 6 weeks and
shows no clinical sign of infection” and that “[g]iven her laboratory values off of
antibiotics for 6 weeks, her lack of redness[,] swelling[,] fevers[,] or other clinical
signs of infection, there is a [sic] strong clinical evidence to support the assumption
that her infection was successfully eradicated.”
Plaintiff filed a complaint with the Louisiana Patient’s Compensation Fund
on May 10, 2019, and the Medical Review Panel unanimously issued an opinion
2 on April 26, 2021, in favor of all Defendants upon finding “all health care
providers and facilities met the standard of care without deviation.”
On August 12, 2021, Plaintiff filed suit against Defendants alleging that they
were negligent in their care of her both during and after the May 11, 2018 surgery
for her ankle fracture and that Defendants failed to meet the standard of care
required to prevent a surgical site infection. Specifically, Plaintiff alleged that
“[her] MRSA infection was not discovered until June 8, 2018, by another
healthcare provider” and that she had to have “additional treatment that could have
been avoided if [D]efendants had followed the recommended guidelines to prevent
post-operative surgical site infection promulgated by the State of Louisiana,
Department of Health and Hospitals, and the [Centers] for Disease Control,
including additional surgeries and treatment by an infectious disease specialist.”
Thereafter, Defendants filed answers to the petition denying all allegations
of negligence, and affirmatively pleading that the care rendered to Plaintiff met the
applicable standards of care required by Louisiana medical malpractice law
pursuant to La.R.S. 9:2794. In January 2022, Defendants filed motions for
summary judgment on the grounds that Plaintiff failed to produce any admissible
expert evidence to support the position that any of the Defendants breached the
standard of care in their involvement in Plaintiff’s medical care and treatment.
Defendants argued that because Plaintiff cannot produce such evidence, there is no
genuine issue of material fact and that Defendants are entitled to judgment as a
matter of law. In support of their motions for summary judgment, Defendants
attached the following evidence: (1) the May 10, 2019 Medical Review Panel
Request; (2) the affidavits of the attorney chairperson of the Medical Review
Panel, Gina Rush Calogero, and the Medical Review Panelists, Dr. Edward L.
Morgan, Dr. Seth D. Rosenzweig, and Dr. Ricky D. Hendrix; (3) the opinions of 3 the panel signed by Ms. Calogero and the three physicians serving on the panel; (4)
Plaintiff’s petition for damages; (5) unanswered requests for admission dated
November 30, 2021; and (6) an October 13, 2021 exception of vagueness and
ambiguity, motion to strike and answer to petition for damages.
On February 7, 2022, Plaintiff filed an opposition arguing that “[t]he
applicable standards of care are available on official government websites” and
requested that the trial court take judicial notice of the standards of care as set forth
on the government websites, such as the website of the Louisiana Department of
Health and Hospitals (“LDH”), the website of the Center for Disease Control and
Prevention (“CDC”), the website of the National Center for Biotechnology
Information (“NCBI”), and the website of the Journal of American Medical
Association (“JAMA”). In support of her opposition, Plaintiff attached the
following evidence: Exhibit 1 - LDH Information on Methicillin Resistant
Staphylococcus aureus; Exhibit 2 - 1999 Guideline for Prevention of Surgical Site
Infection from the CDC; Exhibit 3 - 2017 Guidelines for Prevention of Surgical
Site from the CDC; Exhibit 4 - eAppendix 1. “Centers for Disease Control and
Prevention, Guideline for the Prevention of Surgical Site Infection 2017:
Background, Methods, and Evidence Summaries; Exhibit 5 - Table 1, Summary
Centers for Disease Control 2017 Evidence-Based Review Recommendations for
Prevention of Surgical Site Infection: Core Sections; Exhibit 6 - Table 2, Prosthetic
Joint Arthroplasty; Exhibit 7 - Table 3, Accepted Practices: Re-emphasis of Select
1999 CDC and HICPAC Recommendations for Prevention of SSI; Exhibit 8 -
“MRSA Guidelines,” Infectious Disease Epidemiology Section published by the
LDH; Exhibit 9 - “MRSA Guidelines for Long Term Care Facilities (LTCF),”
published by the LDH; Exhibit 10 - Certified medical records from Lafayette
General Heath System (only cited records attached); Exhibit 11 - Certified medical 4 records from Lafayette General Ortho Clinic (only cited records attached); Exhibit
12 - Certified medical records from MDA – Acadiana Rehab (only cited records
attached); Exhibit 13 - Certified medical records from Moreau Physical Therapy
(only cited records attached); and Exhibit 14 - Certified medical records from
Acadiana ID Associates, Dr. Okechukwu (only cited records attached). Although
Plaintiff cites to Exhibit 16 as her discovery responses and Exhibit 17 as being her
affidavit, she states that both of these exhibits will be supplemented. Alternatively,
Plaintiff moved to continue the hearing to afford her more time to conduct
discovery.
Thereafter, Defendants filed oppositions to Plaintiff’s motion to continue, a
motion to strike Plaintiff’s offered evidence, an opposition to Plaintiff’s request for
judicial notice, and a reply in support of the motions for summary judgment.
Following a hearing, the trial court signed a judgment on March 31, 2022, wherein
it denied Plaintiff’s request for judicial notice; granted a continuance on the
summary judgment hearing, which allowed Plaintiff “an additional [ninety] days to
obtain experts[;]” and reset the hearing on Defendants’ motions for summary
judgment for May 31, 2022.
In response to the March 31, 2022 judgment, both Plaintiff and Defendants
filed applications for supervisory writs with this court. Specifically, Defendants
sought review of the trial court’s continuance of the hearing on summary judgment
while Plaintiff sought review of the trial court’s rulings denying her request for
judicial notice, sustaining Defendants’ objections to her evidence, and requiring
her to provide expert evidence in opposition to the summary judgment motions.
On May 12, 2022, this court denied all three applications for supervisory writs as
well as Plaintiff’s request for a stay. At the end of the sentence, suggest inserting
the citations: See Pollock v. MDA Consultants, LLC, 22-268 (La.App. 3 Cir. 5 5/12/22) (unpublished writ decision), writ denied, 22-718 (La. 5/18/22), 338 So.3d
1186; Pollock v. MDA Consultants, LLC, 22-280 (La.App. 3 Cir. 5/12/22)
(unpublished writ decision); and Pollock v. MDA Consultants, LLC, 22-285
(La.App. 3 Cir. 5/12/22) (unpublished writ decision).
Simultaneously with her application to this court, Plaintiff also filed an
application for supervisory writ and request for stay with the Louisiana Supreme
Court, which was denied on May 18, 2022.
On May 16, 2022, Plaintiff filed a supplemental opposition to the motions
for summary judgment arguing that (1) La.R.S. 9:2794 does not explicitly require
expert testimony, and thus, she does not need expert testimony to prevail on her
medical malpractice claim, and (2) her allegations of negligence do not require
expert testimony, as they are allegations of “negligence as a matter of law.” As
previously argued, Plaintiff stated that the standard of care is set forth by the CDC,
LDH, and other governmental organizations and requested for the trial court to
reconsider its prior ruling that medical expert testimony is required to meet her
burden of proof. In support of her supplemental opposition, Plaintiff referenced,
and attached, Exhibits 5, 6, and 7 from her original opposition. However, although
Plaintiff referenced Exhibits 1, 2, 3, 8, and 9 that were filed with her original
opposition, she did not attach these exhibits to her supplemental opposition.
On May 20, 2022, Defendants again filed objections to the Plaintiff’s
exhibits in her original and supplemental opposition arguing that the exhibits are
hearsay, impermissible under La.Code Civ.P. art. 966(A)(4), and are not properly
authenticated. Thus, Defendants objected and moved to strike all of Plaintiff’s
exhibits under La.Code Civ.P. art. 966(D)(2).
After the May 31, 2022 hearing, the trial court entered a judgment that
sustained Defendants’ objections to Plaintiff’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 6 14, and 15; ordered the exhibits stricken from the record; and granted Defendants’
motions for summary judgment upon finding that there are no genuine issues of
material fact. Plaintiff now appeals this judgment, alleging the following three
assignments of error (record citations omitted):
1. The trial court erred in finding that C.C.P. Art. 966(A)(4) prohibits the court from judicially noticing documents as required by C.E. Arts. 201 and 202;
2. The trial court erred in finding that a medical expert is required to interpret regulations available to the general public on cdc.gov and ldh.la.gov; and
3. The trial court erred in dismissing “all claims” against the hospitals and nurse practitioner when the only issue set forth in the Motions for Summary Judgment under consideration by the court was whether [Plaintiff] could meet the burden of proof required by La. R.S. 9:2794 without medical expert testimony.
STANDARD OF REVIEW:
The summary judgment procedure is expressly favored in the law and “is
designed to secure the just, speedy, and inexpensive determination of every
action[.]” La.Code Civ.P. art. 966(A)(2). Appellate courts review summary
judgments de novo under the same criteria that govern the trial court’s
consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A.
Ins. Co., 06-363, (La. 11/29/06), 950 So.2d 544. “After an opportunity for
adequate discovery, 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.Code Civ.P. art. 966(A)(3).
The burden of proof on a motion for summary judgment rests with the
mover: here, the Defendants. La.Code Civ.P. art. 966(D)(1). In this matter, the
Defendants will not bear the burden of proof at trial; the burden of proof rests with
the Plaintiff. Thus, once the Defendants properly support their motion for 7 summary judgment, then under La.Code Civ.P. art. 966(D)(1), they need only
“point out to the court the absence of factual support for one or more elements
essential” to the Plaintiff’s medical malpractice claim.
Thereafter, the burden shifts to the Plaintiff “to produce factual support
sufficient to establish the existence of a genuine issue of material fact or that the
[Defendants are] not entitled to judgment as a matter of law.” La.Code Civ.P. art.
966(D)(1). The Plaintiff “may not rest on the mere allegations or denials of [her]
pleading, but [her] response . . . must set forth specific facts showing that there is a
genuine issue for trial. If [she] does not so respond, summary judgment, if
appropriate, shall be rendered against [her].” La.Code Civ.P. art. 967(B).
DISCUSSION:
The first issue we will address is whether the trial court erred in finding that
La.Code Civ.P. art. 966(A)(4) prohibits the court from judicially noticing
documents as set forth by La.Code Evid. art. 2012 and 202.3 Plaintiff argues the
2 Louisiana Code of Evidence Article 201 states, in pertinent part, as follows:
A. Scope of Article. This Article governs only judicial notice of adjudicative facts. An “adjudicative fact” is a fact normally determined by the trier of fact.
B. Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
(1) Generally known within the territorial jurisdiction of the trial court; or
(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
C. When discretionary. A court may take judicial notice, whether requested or not.
D. When mandatory. A court shall take judicial notice upon request if supplied with the information necessary for the court to determine that there is no reasonable dispute as to the fact. 3 Louisiana Code of Evidence Article 202 states, in pertinent part, as follows:
A. Mandatory. A court, whether requested to do so or not, shall take judicial notice of the laws of the United States, of every state, territory, and other jurisdiction of the United States, and of the ordinances enacted by any political 8 trial court erred in granting Defendants’ motions to strike her Exhibits 1 through 9
that were attached to her opposition because “Louisiana courts have admitted
evidence from government websites without additional authentication for more
than twenty years” and her exhibits “evidence the legally required, undisputable
minimum standards of care that must be provided to individuals receiving care in a
hospital in the State of Louisiana.” Plaintiff alleges that “[t]he CDC and LDH
Guidelines are admissible per C.E. Art. 201 and 202, . . . [and] warrant proceeding
without a medical expert when the health care provider has a legal and contractual
duty to comply with CDC and LDH guidelines published on cdc.gov and
ldh.la.gov for the benefit of the public.” In support of her argument, Plaintiff cites
subdivision within the court’s territorial jurisdiction whenever certified copies of the ordinances have been filed with the clerk of that court.
B. Other legal matters. (1) A court shall take judicial notice of the following if a party requests it and provides the court with the information needed by it to comply with the request, and may take judicial notice without request of a party of:
(a) Proclamations of the President of the United States and the governor of this state.
(b) Rules of boards, commissions, and agencies of this state that have been duly published and promulgated in the Louisiana Register.
(c) Ordinances enacted by any political subdivision of the State of Louisiana.
(d) Rules which govern the practice and procedure in a court of the United States or of any state, territory, or other jurisdiction of the United States, and which have been published in a form which makes them readily accessible.
(e) Rules and decisions of boards, commissions, and agencies of the United States or of any state, territory, or other jurisdiction of the United States which have been duly published and promulgated and which have the effect of law within their respective jurisdictions.
(f) Law of foreign countries, international law, and maritime law.
(2) A party who requests that judicial notice be taken and the court, if notice is taken without request shall give reasonable notice during trial to all other parties.
C. Information by court. The court may inform itself of any of the foregoing legal matters in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information.
9 three cases: Horrell v. Alltmont, 19-945 (La.App. 1 Cir. 7/31/20), 309 So.3d 754;
State v. Carpenter, 00-436 (La.App. 3 Cir. 10/18/00), 772 So.2d 200, writ denied,
00-3152 (La. 1/25/02), 806 So.2d 665; and Daurbigney v. Liberty Pers. Ins. Co.,
18-929 (La.App. 3 Cir. 5/9/19), 272 So.3d 69. However, we find the Horrell case
is the only pertinent case to the issues before us as it was also decided on summary
judgment and discussed the language of La.Code Civ.P. art. 966(A)(4).
In Horrell, 309 So.3d 754, the first circuit found that the trial court erred in
granting summary judgment in favor of defendants because defendants had failed
to submit documents supporting their affirmative defense of res judicata.
Specifically, the first circuit found that “the trial court was in error in considering
or taking judicial notice of the decisions of various courts and not requiring the
defendants to attach or provide the necessary documents in order to properly grant
the defendants’ motion for summary judgment.” Id. at 761. The first court stated,
as follows:
[W]ithout the appropriate supporting documentation in the record, there is nothing for this Court to review. There is no provision in La. C.C.P. art[.] 966 which will allow a party to support or oppose factual issues without proper documentation. In this case, the record before this Court contains no evidence showing the proper facts which would allow a determination that the present suit was barred by res judicata.
Id. (footnote omitted).
Under La.Code Evid. art. 201(B), a trial court has discretion to take judicial
notice of a fact that is “not subject to reasonable dispute in that it is either: (1)
[g]enerally known within the territorial jurisdiction of the trial court; or (2)
[c]apable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Courts have held that if this standard is
satisfied, judicial notice may be taken of information obtained from the internet.
See State v. Bibbins, 14-971, p. 1 (La.12/8/14), 153 So.3d 419 (noting that “[w]e
10 may take judicial notice that the impending landfall of Hurricane Isaac in southeast
Louisiana led to the closure of the Orleans Parish Criminal District Court on
August 28, 2012, and prevented the state from bringing defendant to trial on that
date.[]).
In this case, we find Plaintiff did not furnish the trial court with sufficient
information to permit the court to take judicial notice of the documents submitted
in opposition to the motions for summary judgment. Plaintiff failed to show the
reliability or authenticity of the documents and merely attached a variety of
documents printed out from a variety of internet websites. As stated in Wood v.
Hackler, 52,791, p. 8 (La.App. 2 Cir. 8/14/19), 276 So.3d 1136, 1141, writ denied,
19-1469 (La. 12/10/19), 285 So.3d 490: “[j]ust as a document or report from a
private investigator is not self-authenticated, the same is true for the Internet.
Stated perspicuously, the Internet is not self-proving.” Accordingly, we find the
trial judge was within her discretion in denying Plaintiff’s request to take judicial
notice of Exhibits 1 through 9 that Plaintiff attempts to use to satisfy her burden of
producing expert medical testimony as to the standard of care for each defendant in
this case.
Further, after reviewing the Louisiana Code of Evidence and the Louisiana
Code of Civil Procedure, we agree with Defendants’ argument that these two codes
“are not in conflict” and that “courts are empowered to take judicial notice as a
general principle.” However, as the Defendants correctly point out, “there are
some areas of the law, such as summary judgment, where the law provides
exceptionally clear evidentiary rules,” and, as such, Plaintiff’s documents do not
comply with the exclusive list under La.Code Civ.P. art. 966(A)(4).
Louisiana Code of Civil Procedure Article 966(A)(4) clearly states that
“[t]he only documents that may be filed in support of or in opposition to the 11 motion are pleadings, memoranda, affidavits, depositions, answers to
interrogatories, certified medical records, written stipulations, and admissions.”
Louisiana Code of Civil Procedure Article 966(D)(2) states that the trial “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.” If an objection to a document is raised, it “shall be raised in a
timely filed opposition or reply memorandum[,]” and the trial court “shall consider
all objections prior to rendering judgment . . . [and] shall specifically state on the
record or in writing which documents, if any, it held to be inadmissible or declined
to consider.” Id. “The abuse of discretion standard is applicable to the trial court’s
rulings on objections to documents filed in support of or in opposition to a
summary judgment motion that are raised by a party in a timely filed opposition or
reply memorandum in accordance with La. C.C.P. art. 966(D)(2).” Lucas v.
Maison Ins. Co., 21-1401, p. 6 (La.App. 1 Cir. 12/22/22) __ So.3d __, __.
At the February 22, 2022 hearing, the trial judge addressed Defendants’
objections and stated as follows: “I’m going to grant the motion to strike [Exhibits]
1 through 9, because those are not proper exhibits to a motion for summary
judgment. They are not authenticated. They are simply documents printed off of
the internet. The Court does not take judicial notice of such documents[.]” The
trial judge further stated, as follows:
THE COURT: And let me just say something else. Even if they’re authenticated -- which they are not -- you still have to have somebody to be able to present some evidence that these standards were not followed. And just putting a bunch of paper in doesn’t do that.
....
THE COURT: What we’re dealing with today is the lack of any expert opinion that any of these healthcare providers violated the standard of care. 12 This is not a res ipsa case. Okay? Because that’s not -- Everyone -- You know, the medical professionals and everyone have told us, in their opinion -- which is the only thing that we have -- that, number one, they can’t say that this actually occurred during the time of these people caring for [Plaintiff]; and, number two, that they see nothing in the records to indicate that they were in violation of the standard of care.
Following the hearing, the trial judge denied Plaintiff’s request to take
judicial notice of her exhibits one through nine in opposition to Defendants’
motions. However, the trial judge granted Plaintiff a continuance and allowed her
an additional ninety days to obtain an expert to satisfy her burden on summary
judgment.
At the hearing on May 31, 2022, the trial judge, again, addressed
Defendants’ objections made to Plaintiff’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 14,
15, 16 and 17, as well as Defendants’ motions for summary judgment and stated as
follows, in pertinent part:
THE COURT: Okay. Well, you know, as to those things that were printed out off the internet, I sustain your objection. Because none of that falls within the parameters of what Code of Civil Procedure Article 966 allows, in terms of documents in support of a motion for summary judgment.
And I think that was the bulk of what you were objecting to, correct?
MS. SAVOY [Counsel for Defendants]: Yes, ma’am. Just to have the record clear, that was Plaintiff’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8, and 9. And, then, we objected as untimely, 13, 14 -- plaintiff actually skipped the number 15 -- and, then, 16 and 17.
THE COURT: Okay. And those were -- I'm trying to remember back from -- I know 1 through 9 were the items that were on the internet.
MS. SAVOY: Yes, ma’am.
THE COURT: Let’s see.
MS. SAVOY: 13 and 14 were medical records that weren’t attached, ever. And, to this date, have not been attached. But, out of an abundance of caution, we’re still objecting to it. 13 THE COURT: Okay.
MS. SAVOY: She skipped 15. 16, plaintiff’s discovery responses, which, to my knowledge, were never attached.
MR. GULOTTA [Counsel for Defendants]: I don’t recall.
MS. SMITH [Counsel for Plaintiff]: No, they weren’t.
MS. SAVOY: And 17 was the Plaintiff’s affidavit. That was untimely at the initial hearing. Admittedly --
THE COURT: It’s timely, now.
MS. SAVOY: -- we’re here, now, so it’s timely.
THE COURT: Yeah. It’s timely.
MS. SAVOY: Yes, ma’am. So that would be 13, 14, 15 that doesn’t exist, and 16, as well as -- are untimely.
THE COURT: Okay. Any response to that?
MS. SMITH: Your Honor, I maintain that the malpractice is as a matter of law and that expert testimony’s [sic] not necessary.
And it’s the same arguments that I made before, as well as what I laid out in my supplemental opposition, that the Louisiana Administrative Code and the title that governs hospitals - - [t]hey have to have an infection and control program that meets or exceeds the criteria established by the CDC.
And state and federal law require the CDC and the Louisiana Department of Health to post all of their requirements on government websites. And those requirements have been posted.
THE COURT: . . . All right. Well, again, I understand what your argument is. But the fact of the matter is that the existence of these regulations in and of themselves does not establish the standard of care for these healthcare providers.
The regs themselves have to be interpreted -- how they apply, when they apply, to whom they apply. I think Ms. Savoy pointed this all out in great detail in her memo.
As I told you the last time - - that’s why I gave you 90 days -- that you needed to go get an expert. And you haven’t gotten an expert.
14 So, at this time, the Court is going to grant both [Defendants’] motions for summary judgment. The Court finding that the plaintiff would not be able to carry her burden of proof at trial as to a breach of the standard of care, because there is no expert testimony that indicates that there was a breach.
After a review of Louisiana’s statutory law, we find no error in the trial
court’s ruling that sustained Defendants’ objections to Plaintiff’s Exhibits 1
through 9. Again, La.Code Civ.P. arts. 966 and 967 do not permit a party to utilize
unsworn and unverified documents as summary judgment evidence. As stated in
Unifund CCR Partners v. Perkins, 12-1851, p. 8 (La. App. 1 Cir. 9/25/13), 134 So.
3d 626, 632, “[i]n meeting the burden of proof, unsworn or unverified documents,
such as letters or reports, annexed to motions for summary judgment are not self-
proving and will not be considered; attaching such documents to a motion for
summary judgment does not transform them into competent summary judgment
evidence.” Accordingly, we find no merit to Plaintiff’s argument that the trial
court erred in failing to take judicial notice of documents obtained from various
government websites in support of her opposition to Defendants’ motions for
summary judgment.
The second issue we address is whether the trial court erred in finding that a
medical expert is required to interpret regulations available to the general public on
cdc.gov and ldh.la.gov. This court addressed the substantive law applicable to
medical malpractice cases in Simon v. Allen Oaks, LLC, 20-5, pp. 6-7 (La.App. 3
Cir. 6/10/20), 298 So.3d 881, 885-886, and stated as follows:
The requirements of establishing malpractice based on the negligence of a physician are found in La.R.S. 9:2794(A), which requires that a plaintiff establish: (1) the standard of care applicable to the doctor; (2) a violation by the doctor of that standard of care; and (3) a causal connection between the doctor’s alleged negligence and the plaintiff’s injuries. The standard of care is generally that degree of knowledge or skill possessed or the degree of care ordinarily exercised by doctors licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar 15 circumstances. La.R.S. 9:2794(A)(1). “However, emergency room physicians are held to the standard of care of specialists in emergency care.” Wright v. HCA Health Servs. of Louisiana, 38,427, p. 7 (La.App. 2 Cir. 6/23/04), 877 So.2d 211, 215.
“The plaintiff in a medical malpractice suit against a hospital has a burden of showing that the hospital personnel negligently departed from the recognized standard of care afforded by hospitals in the area for the particular malady involved.” Jones v. Rapides Gen. Hosp., 598 So.2d 619, 621-22 (La.App. 3 Cir. 1992); Miller v. Tulane Univ. Hosp., 09-1740 (La.App. 4 Cir. 5/12/10), 38 So.3d 1142.
Expert testimony is required to establish the standard of care of both the physician and hospital in a medical malpractice action, unless the negligence complained of is so obvious that a layperson can infer the negligence without the aid of expert testimony. Pfiffner v. Correa, 94-992 (La. 10/17/94), 643 So.2d 1228; Miller, 38 So.3d 1142.
Additionally, “[t]he jurisprudence has held that this requirement of
producing expert medical testimony is especially apt when the defendant has filed
a motion for summary judgment and supported such motion with expert opinion
evidence that the treatment met the applicable standard of care.” Methvien v. Our
Lady of the Lake Hosp., 22-398, pp. 6-7 (La.App. 1 Cir. 11/4/22) __ So.3d __, __.
In moving for summary judgment, Defendants submitted a copy of the
medical review panel opinion finding that the evidence did not support a
conclusion that any of the Defendants breached the applicable standard of care.
Specifically, the Reasons for Opinion stated:
It is the opinion of the Medical Review Panel that the [D]efendants . . . did not deviate from the standard of care which is required of health care providers, their staff and/or employees of the same specialty for the following reasons: [t]he health care providers appropriately identified the injury and treated correctly without deviation from standard of care for orthopedic surgery with appropriate surgical technique, wound care and follow up. There is no evidence in the records that indicates any deviation from the standard of care in the treatment of this patient. The post-operative care met standard of care without deviation. The appropriate antibiotic regimen was utilized with appropriate consultants. There was no deviation from the standard of care in the perioperative care following the surgery. In conclusion, all health care providers and facilities met the standard of care without deviation.
16 Thereafter, the burden shifted to Plaintiff to present medical evidence in the
form of expert testimony to establish a genuine issue of material fact. Since
Plaintiff presented no competent expert evidence in support of her medical
malpractice claims, we find the trial court properly granted summary judgment
dismissing Plaintiff’s malpractice claims.
We also find no merit to Plaintiff’s third assignment of error that “[t]he trial
court erred in dismissing ‘all claims’ against the hospitals and nurse practitioner
when the only issue set forth in the Motions for Summary Judgment under
consideration by the court was whether [Plaintiff] could meet the burden of proof
required by La.R.S. 9:2794 without medical expert testimony.” Plaintiff’s petition
alleges that the Defendants failed to meet the required standard of care in their
medical treatment of her throughout the repair of her right ankle fracture and
subsequent surgical site infection. However, in opposing the Defendants’ motions
for summary judgment, Plaintiff failed to present any evidence to establish the
standard of care and/or that there was a causal connection between the alleged
substandard care and her alleged injuries. Because Plaintiff failed to satisfy her
burden under La.Code Civ.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[,]” we find the trial court properly granted
Defendants’ motions for summary judgment and dismissed Plaintiff’s case.
For the foregoing reasons, we affirm the judgment of the trial court granting
Defendants’ motions for summary judgment and dismissing Plaintiff’s claims.
Costs of this appeal are assessed to Plaintiff, Joan Marie Pollock.
AFFIRMED.