Swillie v. St. Francis Medical Center

48 So. 3d 317, 2010 La. App. LEXIS 1258, 2010 WL 3664001
CourtLouisiana Court of Appeal
DecidedSeptember 22, 2010
DocketNo. 45,543-CA
StatusPublished
Cited by5 cases

This text of 48 So. 3d 317 (Swillie v. St. Francis 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
Swillie v. St. Francis Medical Center, 48 So. 3d 317, 2010 La. App. LEXIS 1258, 2010 WL 3664001 (La. Ct. App. 2010).

Opinion

MOORE, J.

hThe surviving spouse and major children of Myrtis Swillie filed a survival and wrongful death action against St. Francis Specialty Hospital (“SFSH”) and other defendants, alleging that they breached the standard of medical care which resulted in the death of the decedent. The claim against SFSH was dismissed by summary judgment. Plaintiffs appealed; we affirm.

FACTS

Mrs. Swillie, age 69, died on April 11, 2004, while undergoing medical treatment at SFSH. She had been admitted to SFSH seven weeks earlier on February 18, 2004, with diagnoses including congestive heart failure, diabetes, pulmonary edema, a recent myocardial infarction (heart attack), renal failure, sepsis, and a host of other medical problems. Prior to her admission to SFSH, Mrs. Swillie had spent three weeks in St. Francis Medical Center.

Mrs. Swillie was originally admitted to the SFSH by Dr. Emile Barrow who, as treating physician, was initially in charge of her care; however, several other specialists were involved, including Dr. Stephen Beene, a specialist in internal medicine. On April 1, 2004, the family asked Dr. Beene to take charge of Mrs. Swillie’s care. Dr. Beene had “signed off’ the case a week earlier, stating that “there is nothing new internal medicine has to offer,” after a CT scan of her brain revealed “a new ischemic infarct on the right.” Dr. Beene complained that the CT scan results were not telephoned to him, and he did not obtain the results until the next day.

Mrs. Swillie’s husband and three daughters, one an R.N. and the other a P.A., R.N., apparently implored Dr. Beene to-sign back on and take charge Lof the case. According to Dr. Beene, they felt that they had been kept out of the communication loop on the condition and treatment of Mrs. Swillie. Dr. Beene stated that “they told me I was the only one that would sit down and talk to them, examine their mother and go over what was going on[.]” On April 2, when Dr. Beene agreed to take charge of Mrs. Swillie’s care, he wrote on her chart the following order:

Transfer to Dr. Beene; discontinue all previous orders prior to now and proceed with the following: “All orders on this patient must be approved by Dr. Beene per family request[.]”

Dr. Beene complains that the nursing staff continued to follow other physician orders without his approval, one of which included giving Mrs. Swillie diuretics after gall bladder surgery, which, according to Dr. Beene, caused her to become “volume depleted,” i.e., dehydrated, and required dialysis on April 9 and 10, which he was [319]*319trying to avoid. Her condition worsened and she died on April 11.

Dr. Beene completed the death certificate and indicated the causes of death as (1) sepsis; (2) stroke; (3) myocardial infarction; and (4) congestive heart failure.

The plaintiffs subsequently filed a complaint with the Patients Compensation Fund against SFSH; Dr. Charles Morgan, chief of staff; St. Francis Medical Center; St. Francis Ambulatory Services; and Dr. Emile Barrow. The review panel unanimously found that the allegations against SFSH and Dr. Morgan were without merit. They concluded that Dr. Beene attended Mrs. Swillie only part-time, it was not practical for the staff to take everything through Dr. Beene because there were so many consultants on |sthe case, and Dr. Beene did not make any effort to correct this problem.

The plaintiffs then sued the same defendants, all of whom filed motions for summary judgment. The trial court granted all motions and dismissed all claims. The plaintiffs appeal only the dismissal of the claim against SFSH.

DISCUSSION

The appellate court’s review of a grant or denial of a summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 1999-2181, (La.02/29/00), 755 So.2d 226; Hinson v. Glen Oak Retirement Home, 34,281 (La.App. 2 Cir. 12/15/00), 774 So.2d 1134. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B.

The burden of proof on a motion for summary judgment remains with the mov-ant. Samaha v. Rau, 2007-1726 (La.02/26/08), 977 So.2d 880. When the movant, however, will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, he is not required to negate all the essential elements of the adverse party’s claim, action or defense. Id.; Hinson, supra. Rather, the movant need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Samaha, supra; Hinson, supra. Then, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, 14there is no genuine issue of material fact and movant is entitled to summary judgment. La. C.C.P. art. 966 C(2).

The plaintiff bears the burden of proving that a healthcare provider committed malpractice. Wiley v. Lipka, 42,794 (La.App. 2 Cir. 02/06/08), 975 So.2d 726, writ denied, 2008-0541 (La.05/02/08), 979 So.2d 1284. Any medical malpractice claimant must establish, by a preponderance of the evidence: (1) the defendant’s standard of care; (2) the defendant’s breach of that standard of care; and, (3) a causal connection between the breach and the claimant’s injuries. La. R.S. 9:2794 A; Pfiffner v. Correa, 94-0924, 0992 (La.10/17/94), 643 So.2d 1228; Wiley, supra.

Expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. In Pfiffner, supra, the supreme court explained, “Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a [320]*320lay person can infer negligence.” Samaha, supra; Vinson v. Salmon, 34,582 (La.App. 2 Cir. 05/09/01), 786 So.2d 913. In most cases, however, because of the complex medical and factual issues involved, a plaintiff who does not present medical expert testimony will likely fail to sustain his burden of proof under the requirements of La. R.S. 9:2794.

The plaintiffs raise two assignments of error: (1) the trial court erred in concluding that there was not sufficient evidence of liability and causation in light of the testimony of Mrs. Swillie’s treating physician, Dr. |sBeene, in that regard, and (2) the trial court erred in granting SFSH’s motion for summary judgment based on causation.

We have carefully reviewed the entire record and particularly the deposition testimony of Dr. Beene, the plaintiffs’ expert. Dr. Beene acknowledged therein that his two main complaints regarding SFSH were the hospital staffs failure to promptly report the results of the CT scan performed on March 26, 2004, and the administration of diuretics on April 9, 2004. Dr. Beene also generally criticized SFSH, complaining that there was never a nurse to discuss the case with, there were never results on the chart, and nurses frequently did not follow orders that were written on the chart.

Dr. Beene recalled that he was contacted on a Friday afternoon by a nurse who reported that Mrs.

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Bluebook (online)
48 So. 3d 317, 2010 La. App. LEXIS 1258, 2010 WL 3664001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swillie-v-st-francis-medical-center-lactapp-2010.