Ogbebor v. Lafayette Gen. Med. Ctr.

252 So. 3d 1019
CourtLouisiana Court of Appeal
DecidedAugust 1, 2018
Docket18-296
StatusPublished

This text of 252 So. 3d 1019 (Ogbebor v. Lafayette Gen. Med. Ctr.) 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
Ogbebor v. Lafayette Gen. Med. Ctr., 252 So. 3d 1019 (La. Ct. App. 2018).

Opinion

GREMILLION, Judge.

Defendants/Applicants, Dr. Louis A. Salvaggio and Dr. Nick G. Cavros (Applicants), seek supervisory review from the judgment of the district court granting a motion for new trial filed by Plaintiff, Festus Ogbebor, individually and on behalf of his deceased wife, Mary Ogbebor. For the reasons that follow, we grant the writ and make it peremptory.

FACTS AND PROCEDURAL POSTURE

On June 21, 2013, Mrs. Ogbebor presented to the emergency room of Lafayette General Medical Center (LGMC) in Lafayette with complaints of anterior chest discomfort with bilateral arm discomfort, shortness of breath, and sweating. Following an EKG and a chest x-ray, Dr. Salvaggio performed a procedure on Mrs. Ogbebor in the cardiac catheterization laboratory (cath lab) of LGMC. Later that same day, Mrs. Ogbebor was taken back to the cath lab at the direction of Dr. Cavros after she was found to have "a totally occluded first obtuse marginal, status post recent PCI of the vessel with drug[-]eluting stint [sic]." Dr. Cavros performed another procedure which included the placement of an aortic balloon pump. Dr. Cavros discharged Mrs. Ogbebor on July 2, 2013. On July 4, 2013, at 5:37 a.m., Mrs. Ogbebor returned to the LGMC emergency room with complaints of severe chest pain. The cath lab was not notified of her condition until 6:11 a.m. Mrs. Ogbebor passed away at 6:31 a.m.

Festus Ogbebor, Mrs. Ogbebor's husband, timely filed a request for review by a medical review panel1 regarding the care administered by Applicants. The medical *1021review panel concluded that the evidence submitted in support of the claim did not show that Dr. Salvaggio or Dr. Cavros breached the applicable standards of care.

On July 6, 2016, Mr. Ogbebor filed suit against Applicants, LGMC, and Dr. Phillip Ralidis, asserting medical malpractice claims on behalf of Mrs. Ogbebor and himself arising from her death. Applicants answered Mr. Ogbebor's suit on July 26, 2017, and thereafter filed a motion for summary judgment on August 16, 2017. Mr. Ogbebor filed an opposition to the motion for summary judgment to which he attached the curriculum vitae of his expert, Dr. David Korn. Three days before the hearing on the motion for summary judgment, Mr. Ogbebor filed a letter prepared by Dr. Korn in which he opined that Applicants breached the standard of care applicable to Mrs. Ogbebor's symptoms and medical condition.

Applicants asserted in their motion that Mr. Ogbebor's claims against them should be dismissed because he did not have an expert witness to rebut the experts on the medical review panel. At the summary judgment hearing, counsel for Mr. Ogbebor argued that he did not have an affidavit from Dr. Korn because he did not believe the expert he initially retained could withstand a challenge of her credentials under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). At the conclusion of the hearing, the trial court granted summary judgment dismissing Mr. Ogbebor's claims against Applicants because he had failed to produce an affidavit by Dr. Korn supporting his claims.

Mr. Ogbebor filed a motion for new trial, asserting that he had new evidence that warranted the grant of his motion as provided in La.Code Civ.P. art. 1972. At the hearing on the motion for new trial, Mr. Ogbebor produced an affidavit executed by Dr. Korn. Applicants argued that the affidavit was not new evidence because Mr. Ogbebor obtained and submitted a letter opinion by Dr. Korn before the hearing on the motion for summary judgment. Mr. Ogbebor argued to the trial court that he did not get an affidavit from Dr. Korn, because there "was a national disaster," "so much of [a] national event, everyone in the country knows about it." The trial court granted the new trial, finding Dr. Korn's affidavit "to be new evidence and that it was beyond [Mr. Ogbebor's] control ... to provide that."

ANALYSIS AND DISCUSSION

"Our jurisprudence clearly establishes that the grant of a motion for new trial is a not a final, appealable judgment, but rather, an interlocutory judgment[.]" McGinn v. Crescent City Connection Bridge Auth. , 15-165, p. 4 (La.App. 4 Cir. 7/22/15), 174 So.3d 145, 148. See also , La.Code Civ.P. arts. 1841, 1915. Generally, the proper procedural vehicle for the review of an interlocutory judgment is an application for supervisory writs. McGinn , 174 So.3d 145. The reversal of the trial court's grant of a new trial would result in dismissal of Mr. Ogbebor's claims against Applicants.

A plaintiff's burden of proof in a medical malpractice action is three-fold. He must present evidence establishing the applicable standard of care, a breach of the standard of care, and a causal connection between the breach and the injury. La.R.S. 9:2794 ; Pfiffner v. Correa , 94-924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228 . As a general rule, expert testimony is required to establish the applicable standard of care and whether that standard was breached, unless the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880 (citing Pfiffner , 643 So.2d 1228 ).

*1022In their motion for summary judgment, Applicants asserted that the opinions of the medical review panel established that Mr. Ogbebor could not meet his burden of proving the three elements of his malpractice claim without expert medical testimony. Applicants further asserted that although Mr. Ogbebor responded to year-old discovery requests in September 2017, he did not identify an expert or submit an expert opinion.

The hearing on the motion for summary judgment was held November 20, 2017. The trial court determined that because Mr. Ogbebor filed Dr. Korn's letter less than fifteen days before the hearing, it was not timely under La.Code Civ.P. art. 966(B)(2). The trial court further determined that Dr. Korn's letter opinion did not satisfy the evidentiary requirements of La.Code Civ.P. art. 966(A)(4), which provides, "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." Therefore, the trial court granted summary judgment in favor of Applicants and dismissed Mr. Ogbebor's claims against them.

Mr.

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252 So. 3d 1019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ogbebor-v-lafayette-gen-med-ctr-lactapp-2018.