Mazella Shahan Flournoy v. Our Lady of Lourdes Regional Medical Center

• Court: Louisiana Court of Appeal
• Decided: May 2, 2018
• Docket: CA-0017-0081
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

17-81

ON REHEARING

MAZELLA SHAHAN FLOURNOY

VERSUS

OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC. AND KEITH COLOMB, M.D.

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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20094550 HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

CANDYCE G. PERRET JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, Shannon J. Gremillion, John E. Conery, and Candyce G. Perret, Judges.

Saunders, J., dissents. Gremillion, J., dissents and assigns written reasons.

REVERSED AND REMANDED. Jason M. Welborn Joseph F. Garr, Jr., APLC Post Office Drawer 2069 Lafayette, LA 70502-2053 (337) 233-3185 COUNSEL FOR PLAINTIFF/APPELLANT: Mazella Shahan Flournoy

Douglas K. Williams Kelsey A. Clark Breazeale, Sachse & Wilson, L.L.P. P. O. Box 3197 Baton Rouge, LA 70821-3197 (225) 387-4000 COUNSEL FOR DEFENDANT/APPELLEE: Our Lady of Lourdes Regional Medical Center PERRET, Judge.

This medical malpractice action was originally heard by a panel of this court

consisting of Judge Shannon J. Gremillion, Judge John E. Conery and Judge David

E. Chatelain, Judge Pro Tempore. 1 In that opinion, Judges Chatelain and

Gremillion affirmed the trial court’s judgment that granted summary judgment in

favor of defendant, Our Lady of Lourdes Regional Medical Center, Inc., and Judge

Conery dissented, finding genuine issues of fact that warranted a trial.

On June 1, 2017, an application for rehearing was filed on behalf of Plaintiff.

At that time, Judge Candyce G. Perret, who was elected to the bench on April 29,

2017, replaced Judge Chatelain on the panel. The panel granted the rehearing on

August 9, 2017. After oral argument, two judges proposed to reverse the judgment

of the trial court and one judge proposed to dissent from that decision. Thus, the

case was resubmitted and argued to a panel of five judges prior to rendition of

judgment. La.Const. art. 5, § 8(B).

Upon rehearing, and after a further review of the affidavits and depositions

of Dr. Christopher Chaput and Dr. Donald Breech, the majority of the five-judge

rehearing panel adopts as its opinion the dissenting opinion on the original hearing,

which found that “at minimum, there are questions of material fact as to whether

the hospital personnel in both the ER and Intensive Care Unit . . . promptly and

correctly reported the severity and intensity of Ms. [Niki Lynn] Gannard’s

headaches and deteriorating condition to her attending physician, Dr. [Keith]

Colomb.” Accordingly, we agree with Judge Conery that, “in a case such as this, it

1 Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. will be up to the jury to assess credibility and weigh the evidence, decide the facts,

and assign liability, if any, to the doctor and hospital.”

DECREE

The trial court judgment that granted summary judgment in favor of Our

Lady of Lourdes Regional Medical Center, Inc. is reversed and the matter is

remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

2 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC. AND KEITH COLOMB, M.D.

Gremillion, J., dissents.

A properly constituted panel of this court agreed with the trial court, and

correctly found that the claims against the hospital and its nurses should be

dismissed on summary judgment. This majority reverses the ruling of that panel

based on “a further review of the affidavits and depositions of Dr. Christopher

Chaput and Dr. Donald Breech.” From this explanation, one could infer that these

two doctors had offered testimony to help a jury answer the only important

questions here; namely, whether the hospital or its nurses breached any standard of

care and whether such a breach caused Ms. Gannard’s death. But, they did not.

On the contrary, neither the report of Dr. Chaput nor the report of Dr. Breech

contains “any reference whatsoever to the standard of care for hospitals or nurses

or whether any such standards were breached by OLOL, much less an opinion on

causation.” See Flournoy v. Our Lady of Lourdes Regional Medical Ctr., Inc., 17-

81 (La.App. 3 Cir. 8/9/17), 222 So.3d 103. Moreover, both doctors testified that

they were not experts in the fields of nursing care and/or hospital

standards/procedures, and thus could not provide expert opinions on those issues. Instead, the doctors responded to hypothetical questions posed by plaintiff’s

counsel. Some of those questions were only partly consistent with the facts at issue

and others were wholly inconsistent. The majority finds this evidence creates

genuine issues of material fact. I disagree. Witnesses who concede that they are

not experts cannot provide material expert testimony, and answers to hypothetical

questions not based entirely on fact cannot create a genuine issue of fact. If that

were the case, any witness could opine on subject matter for which she has no

expertise and that testimony would suffice to survive summary judgment. And

worse, that witness could do so without being tethered to the facts being litigated.

Our task as a reviewing court is clear and simple: we review the record to

determine the applicable standard of care, and whether there is any evidence

suggesting that the standard of care was breached. A review of this record

manifests two truths. First, multiple experts in the field of nursing care

unanimously found that these defendants did not fall below the standard of care.

Second, no experts empaneled or tendered in the field of nursing care provided any

evidence that these defendants breached the standard of care.

For these reasons, as well as the reasons provided in the unanimous medical

review panel decision of May 11, 2009, in Judge Patrick Louis Michot’s minutes

of October 31, 2016, and in Judge David E. Chatelain’s excellent majority opinion,

I would affirm the trial court and grant the defendant’s motion for summary

judgment. I respectfully dissent.