Robertson v. Northshore Regional Medical Center

723 So. 2d 460, 1998 WL 798712
CourtLouisiana Court of Appeal
DecidedSeptember 25, 1998
Docket97 CA 2068
StatusPublished
Cited by30 cases

This text of 723 So. 2d 460 (Robertson v. Northshore Regional Medical Center) 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
Robertson v. Northshore Regional Medical Center, 723 So. 2d 460, 1998 WL 798712 (La. Ct. App. 1998).

Opinion

723 So.2d 460 (1998)

Tanya ROBERTSON, Individually and on Behalf of Minor Brendan Colby Bernard
v.
NORTHSHORE REGIONAL MEDICAL CENTER, Dr. Jeanne Eddington, and Dr. Robert Muller.

No. 97 CA 2068.

Court of Appeal of Louisiana, First Circuit.

September 25, 1998.

*461 Louis A. Gerdes, Joseph W. Thomas, New Orleans, Attorneys for Plaintiffs-Appellants, Tanya Robertson and Brendan Colby Bernard.

James R. Strain, Jr., Pamela L. Hershey, Slidell, Attorneys for Defendant-Appellee, Robert Muller, M.D.

BEFORE: LeBLANC, FOGG, and PARRO, JJ.

PARRO, J.

Tanya Robertson, individually and on behalf of her minor son, Brendan Colby Bernard, appeals the trial court's summary judgment in favor of Dr. Robert Muller, dismissing her medical malpractice petition *462 against him, with prejudice. For the following reasons, we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

This action originated as a medical malpractice complaint filed by Ms. Robertson with the Patient's Compensation Fund in September 1990. In that complaint, she alleged that Dr. Robert Muller, an obstetrician-gynecologist, was negligent in the care and treatment rendered to her and her son, Brendan, in connection with his birth in September 1989, causing Brendan to suffer nerve damage to his shoulder. The complaint also named NorthShore Regional Medical Center and Dr. Jeanne Eddington. To facilitate discovery, NorthShore filed a petition with the Twenty-second Judicial District Court for the Parish of St. Tammany, pursuant to LSA-R.S. 40:1299.47(D)(4). Following discovery, a medical review panel was convened to review the allegations and found unanimously that Dr. Muller, Dr. Eddington, and NorthShore did not fail to meet the applicable standard of care.

Ms. Robertson then filed an "Amended Petition" in the Twenty-second Judicial District Court, under the same suit number which had been assigned to the discovery proceedings. NorthShore filed a peremptory exception raising the objection of no cause of action, on the grounds that the discovery proceeding did not allow any such cause of action; the exception was sustained by the trial court. On appeal to this court, that judgment was reversed and the case was remanded for further proceedings. Robertson v. Northshore Regional Medical Center, 93-1375 (La.App. 1st Cir.10/7/94), 645 So.2d 727. The petition was eventually re-allotted and assigned a new docket number.

In April 1996, Dr. Muller answered the petition and propounded a set of interrogatories to the plaintiff, which included a request for the name and address of any medical person who had indicated that Dr. Muller had not met the required standard of care in his treatment of Ms. Robertson and Brendan, and a request for the names, addresses, and specialties of any other expert witnesses the plaintiff might use at trial. The interrogatories were not answered, and in June 1996, Dr. Muller filed a motion to compel responses. Immediately before the scheduled hearing on the motion on August 12, 1996, plaintiff's counsel produced a set of answers to the interrogatories. Those answers stated that Ms. Robertson did not yet have a physician to advise her concerning the standard of care applicable to Dr. Muller, nor did she have any expert witnesses to testify against him, but also stated that she would supplement her answers when that information was obtained. The trial court ordered Ms. Robertson to provide a full and complete response concerning the physician expert within thirty days, and to respond concerning any other experts as soon as that information became available.

NorthShore had also filed a motion to compel responses to its unanswered interrogatories, and also received a set of answers right before the hearing. In those answers, Ms. Robertson listed Dr. Howard Cohn of Washington, D.C., as a potential expert witness with respect to the hospital's negligence. However, at the hearing, plaintiff's counsel admitted Dr. Cohn was just in the process of reviewing the case and had not yet expressed any opinion. Therefore, in addition to ordering complete responses, the trial court ordered Dr. Cohn's name stricken from the answers. The judgment on the motions to compel also stated that "the failure of plaintiff to respond as ordered above may subject plaintiff to further sanctions of this Court, including, but not limited to, dismissal of this claim, with prejudice."

No supplemental answers were filed or provided to the defendants during the months following the hearing and the court's judgment. The plaintiff did not ask the court for additional time within which to provide answers or comply with the court's order. Dr. Muller had issued a second set of interrogatories to the plaintiff on August 26, 1996, which also went unanswered for several months. Accordingly, on December 2, 1996, Dr. Muller filed a motion to compel answers to the second set of interrogatories, a motion for sanctions or dismissal for plaintiff's failure to comply with the court's order concerning the first set of interrogatories, and a *463 motion for summary judgment. NorthShore also filed a motion for summary judgment. In support of their motions for summary judgment, both defendants submitted a copy of the opinion and reasons for decision of the medical review panel, plus portions of the record, including the defendants' interrogatories, the plaintiff's incomplete responses, and the court's judgment on the defendants' motions to compel.

The motions for summary judgment were heard on January 27, 1997. Ms. Robertson's attorneys did not appear at the hearing, and no opposition to the motions was filed before the hearing. NorthShore's counsel advised the court that plaintiff's attorneys had told him they had no opposition to its motion for summary judgment. After hearing a very brief statement of the issues from the defendants' attorneys, the court orally granted both motions for summary judgment, dismissing all of the plaintiff's claims against NorthShore and Dr. Muller with prejudice. The judgment in favor of NorthShore was signed January 27, 1997, and was not appealed.

After the hearing on the motions for summary judgment, but before the judgment in favor of Dr. Muller was signed, Ms. Robertson's attorneys filed an opposition to Dr. Muller's motion, accompanied by a letter to the court apologizing for being late and asking that her opposition be considered. Attached to the opposition memorandum was a handwritten report in the form of a letter from Dr. Cohn dated January 6, 1997. Ms. Robertson also filed supplemental answers to Dr. Muller's first set of interrogatories, stating Dr. Cohn would be her only expert and would testify at trial concerning Dr. Muller's breach of the standard of care. Without commenting on this late opposition and discovery response, the trial court signed a judgment in favor of Dr. Muller on February 19, 1997, dismissing Ms. Robertson's claims, with prejudice. Ms. Robertson appealed only this judgment.[1]

Because her opposition, her answers to interrogatories, and Dr. Cohn's report were submitted to the court before the judgment was signed, Ms. Robertson claims on appeal that it was error for the court to summarily dismiss her complaint, with prejudice. She also contends the court erred in granting the summary judgment in favor of Dr. Muller, because Dr. Cohn's report created an issue of material fact concerning Dr. Muller's breach of the standard of care, and alternatively, because she is not required to have an expert in order to sustain her burden of proof at the trial of a medical malpractice claim.

APPLICABLE LAW AND STANDARD OF REVIEW

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