Rod Russell Versus Riverlands Animal Hospital, Jennifer Crawford, Catherine Garon and Robert Vennen

• Court: Louisiana Court of Appeal
• Decided: January 31, 2024
• Docket: 23-C-510
• Status: Unknown

Opinion

ROD RUSSELL NO. 23-C-510

VERSUS FIFTH CIRCUIT

RIVERLANDS ANIMAL HOSPITAL, COURT OF APPEAL JENNIFER CRAWFORD, CATHERINE GARON AND ROBERT VENNEN STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 75,870, DIVISION "B" HONORABLE NGHANA LEWIS, JUDGE PRESIDING

January 31, 2024

JOHN J. MOLAISON, JR. JUDGE

Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.

REVERSED; JUDGEMENT RENDERED JJM MEJ SJW COUNSEL FOR PLAINTIFF/RESPONDENT, ROD RUSSELL Tanner D. Magee Robert J. Landry

COUNSEL FOR DEFENDANT/RELATOR, RIVERLANDS ANIMAL HOSPITAL, JENNIFER CRAWFORD, CATHERINE GARON AND ROBERT VENNEN Howard B. Kaplan MOLAISON, J.

The relators, Riverlands Animal Hospital, Jennifer Crawford, Catherine

Garon, and Robert Vennen, (hereinafter, referred to collectively as “the

defendants”), seek review of the trial court’s denial of their motion for summary

judgment. For the following reasons, this writ application is granted, the denial of

the summary judgment is reversed and summary judgment is granted.

FACTS AND PROCEDURAL HISTORY

On September 6, 2019, the plaintiff’s 12-year-old Chihuahua, Rico, was

taken to Riverlands Animal Hospital for “acute vomiting with blood.” Rico was

examined by Dr. Crawford and he was found to have a heart murmur, a tense

abdomen, and was weak. Lab work indicated that he was anemic and he was given

a blood transfusion. X-rays were normal. An ultrasound could not rule out the

possibility of a gastric mass. Rico was administered a radiopaque dye, barium, and

serial x-rays were taken. The gastric walls were identified and there was no

evidence of a gastric perforation based on the fact that there was no leakage of

barium outside of the gastrointestinal tract. Rico was admitted to the hospital in

order for his condition to be stabilized and a gastric endoscopy was scheduled for

September 10, 2019. On September 7, 2019, Rico was discharged by Dr. Garon.

On the evening of September 9, 2019, Rico was brought back to Riverlands

and was examined by Dr. Vennen. Rico had a heart murmur, was anemic, and

weak. He was admitted to the hospital and was given a blood transfusion. At

approximately 8 a.m. the next morning, Dr. Garon noted that Rico had respiratory

distress with coughing and crackles in all lung fields. X-rays indicated he had an

enlarged heart and pulmonary edema. He was given oxygen and medication to

treat these conditions, but he died on September 10, 2019. A necropsy was

23-C-510 1 performed which revealed, among other findings, a gastric perforation and mitral

valve endocarditis.

On October 9, 2020, the plaintiff filed a petition for damages alleging that

Rico was misdiagnosed and that the defendants failed to competently address,

assess, and diagnose the heart murmur, and failed to properly test to rule out a

stomach ulcer and stomach cancer. On March 28, 2023, the defendants filed a

motion for summary judgment that was supported by the affidavit of Dr. Crawford.

In the motion, the defendants argued that the plaintiff had not come forth with any

expert evidence to refute this affidavit or any evidence to show that the defendants

breached the standard of care that resulted in the death of Rico. The plaintiffs filed

an opposition to the motion accompanied by an affidavit of a veterinary student.

The trial court held a hearing on the motion for summary judgment and

denied the defendants’ motion for summary judgment. The defendants filed a

timely writ application in this Court. Pursuant to La. C.C.P. art. 966H, this court

set the matter for additional briefing and argument.

LAW AND DISCUSSION

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. C.C.P. art. 966(A)(3). If the mover will not

bear the burden of proof at trial on the issue that is before the court on the motion

for summary judgment, the mover’s burden on the motion does not require him to

negate all essential elements of the adverse party’s claim, action, or defense, but

rather to point out to the court the absence of factual support for one or more

elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art.

966(D)(1). The burden then shifts to the adverse party to produce factual support

23-C-510 2 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. Id. Factual inferences

reasonably drawn from the evidence must be construed in favor of the party

opposing a motion for summary judgment, and all doubt must be resolved in the

opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050

(per curiam). Supporting and opposing affidavits on a summary judgment shall be

made on personal knowledge, shall set forth such facts that would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify to the

matters stated therein. La. C.C.P. art. 967(A). The supporting and opposing

affidavits of experts may set forth such experts’ opinions on the facts as would be

admissible in evidence pursuant to La. C.E. art. 702, and shall show affirmatively

that the affiant is competent to testify as to the matters stated therein. In

determining whether summary judgment is appropriate, appellate courts review

evidence de novo under the same criteria that govern the trial court’s determination

of whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La.

2/26/08), 977 So.2d 880.

A decision as to the propriety of a grant of a motion for summary judgment

must be made with reference to the substantive law applicable to the case. Bach v.

Bd. of River Port Pilot Comm’rs, 15-765 (La. App. 5 Cir. 5/12/16), 193 So.3d 355,

362.

Under Louisiana law, medical malpractice standards are used to consider a

veterinary malpractice case. Ladnier v. Norwood, 781 F.2d 490, (5th Cir. 1986).

The same standards used to analyze medical malpractice cases are applicable in

veterinary malpractice cases, that is, “to exercise the degree of skill ordinarily

employed under similar circumstances by members of their profession in good

standing in the community.” Milke v. Ratcliff Animal Hosp., Inc. ex rel. Ratcliff,

23-C-510 3 48,130 (La. App. 2 Cir. 7/10/13), 120 So. d 343, 347; Dyess v. Caraway, 190 So.2d

666 (La. App. 2 Cir. 9/27/66). In a medical malpractice case, expert testimony is

generally required to establish the applicable standard of care and whether or not

that standard was breached, except where the negligence is so obvious that a lay

person can infer negligence without the guidance of expert testimony. Schultz v.

Guoth, 10-0343 (La.1/19/11), 57 So.3d 1002, 1006-07; Gabriel v. Tamimie, 12-

584 (La. App. 5 Cir. 3/13/13), 110 So.3d 717, 720, writ denied, 13-1169 (La.

8/30/13), 120 So. 3d 268. The Louisiana Supreme Court has recognized that in

cases of “obvious negligence that could be inferred by a lay person,” expert

testimony may not be required. Pfiffner v. Corea, 94-0924, 94-0963, 94-0992

(La.10/17/94), 643 So.2d 1228, 1234.

In the petition for damages, the plaintiff specifically alleged that the

defendants failed to competently address, assess, and diagnose the heart murmur,

and failed to properly test to rule out a stomach ulcer and stomach cancer. In

responses to discovery, the plaintiffs also state that the defendants failed to perform

an endoscopy and failed to diagnose a gastric perforation. In sum, the plaintiff

claims that the defendants failed to properly diagnose and failed to follow the

standard practice for diagnosis and treatment of Rico’s symptoms. We find that

whether the defendants breached the standard of care and whether such breach

caused Rico’s death will require expert testimony to establish the standard of care

for diagnosis and treatment of dog with the symptoms Rico had when he was

brought in for treatment.

In their motion for summary judgment, the defendants argued that the

plaintiff does not have factual support regarding the allegation of failing to

diagnose the heart murmur, pointing out that the medical records indicate that a

heart murmur was diagnosed. The defendants further pointed out that the

23-C-510 4 diagnostic testing performed on September 6, 2019 indicate that Rico did not have

a gastric perforation. The defendants further argued that the plaintiff does not have

the required expert testimony necessary to carry his burden of proof at trial.

In the instant case, the plaintiff has the burden of proving that the care

rendered by the defendants fell below the standard of care exercised by other

veterinarians under similar circumstances. In an effort to come forth with evidence

to show that he will be able to meet his evidentiary burden at trial, the plaintiff

attached an affidavit by Mary Russell, a veterinary student, who is the plaintiff’s

daughter. The plaintiff claims that Ms. Russell is “an expert in clinical veterinary

medicine.” In the opposition to the motion for summary judgment, the plaintiff

argued that “plaintiff has an expert who will testify that Riverlands breached the

standard of care, and the plaintiff has evidence that the defendants caused injury

and death to Rico.”

La. R.S. 9:2794 provides in pertinent part:

D. (1) In a medical malpractice action against a physician, licensed to practice medicine by the Louisiana State Board of Medical Examiners under R.S. 37:1261 et seq., for injury to or death of a patient, a person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who meets all of the following criteria: (a) He is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose. (b) He has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim. (c) He is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of care. (d) He is licensed to practice medicine by the Louisiana State Board of Medical Examiners under R.S. 37:1261 et seq., is licensed to practice medicine by any other jurisdiction in the United States, or is a graduate of a medical school accredited by the American Medical Association’s Liaison Committee on Medical Education or the American Osteopathic Association.

23-C-510 5 (2) For the purposes of this Subsection, “practicing medicine” or “medical practice” includes but is not limited to training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians. (3) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and is actively practicing in that area. (4) The court shall apply the criteria specified in Paragraphs (1), (2), and (3) of this Subsection in determining whether a person is qualified to offer expert testimony on the issue of whether the physician departed from accepted standards of medical care.

In this case, at the time this cause of action arose, at the time she signed her

affidavit, and at the time of the hearing on the defendants’ motion for summary

judgment, Mary Russell did not meet the criteria of La. R.S. 9:2794. Ms. Russell

had not graduated from an accredited school of veterinary medicine, was not

licensed to practice veterinary medicine, and was not practicing veterinary

medicine. In the written reasons for judgment filed by the trial judge, she

acknowledged that the defendants’ motion for summary judgment was supported

by the expert affidavit of Dr. Crawford. The trial judge went on to state that “Mary

Russell and Dr. Crawford are both competent to give a personal opinion on the

issues being disputed, given that both have the education and experience in such

discipline of veterinary medicine and animal health beyond the understanding of

the average layman.” The trial judge applied the incorrect burden on the plaintiff.

The plaintiff’s burden in this case is to establish that the defendants breached the

standard of care required by practitioners in the field of veterinary medicine. Ms.

Russell lacks the statutorily required qualifications to qualify as an expert to

establish the standard of care in veterinary medicine. The trial court erred in

finding that the affidavit of Ms. Russell was sufficient to refute the properly

23-C-510 6 supported motion for summary judgment filed by the defendants. The trial court

erred in denying the defendants’ motion for summary judgment when the plaintiff

failed to come forth with sufficient proof that he would be able to carry his

evidentiary burden at trial. These findings pretermit a discussion of the other

issues raised in the writ application.

CONCLUSION

For the foregoing reasons, the October 23, 2023 judgment of the trial court is

reversed. Summary judgment is hereby granted in favor of the defendants,

Riverlands Animal Hospital, Jennifer Crawford, Catherine Garon, and Robert

Vennen, and against the plaintiff, Rod Russell, dismissing the plaintiff’s claims

with prejudice, at the plaintiff’s cost.

REVERSED; JUDGMENT RENDERED

23-C-510 7 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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