Bozarth v. State Of La. Lsu Med. Ctr./chabert Med. Ctr.

35 So.3d 316

Joanna BOZARTH, Phyllis Garcia, Cynthia Berges, Stephanie Rosales, Mary Owen, Rachel Curtisv.STATE of Louisiana LSU MEDICAL CENTER/CHABERT MEDICAL CENTER, Dr. Jonah Ezieme, Dr. Joe Johnson, Dr. Mary Eschete, Dr. Daoling Zhang, Dr. Macsino-Bacuta, Dr. Thomas Ferguson, Dr. Donald DeGrange, Dr. Kathy Hebert, Dr. Kenneth Kellum, Dr. Phuong Vo, Dr. Ronald Marts, Dr. John King, Dr. David Sampognaro.

No. 2009 CA 1393.

Court of Appeal of Louisiana First Circuit.

Feb. 12, 2010.

COPYRIGHT MATERIAL OMITTED

Joel P. Loeffelholz, New Orleans, LA, for Plaintiffs/Appellants, Joanna Bozarth, Phyllis Garcia, Cynthia Berges, Stephanie Rosales, Mary Owen, and Rachel Curtis.

James D. “Buddy” Caldwell, Attorney General, Katherine Wheeler, Assistant Attorney General, Baton Rouge, LA, for Defendants/Appellees, State of Louisiana on behalf of Leonard J. Chabert Medical Center, Dr. Jonah Ezieme and Dr. Joe Johnson.

Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.

GUIDRY, J.

This appeal stems from the dismissal of a medical malpractice action by summary judgment. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 17, 1999, Joanna Bozarth, Phyllis Garcia, Cynthia Berges, Stephanie Rosales, Mary Owen and Rachel Curtis, the wife and daughters of James Philmore Bozarth (collectively “plaintiffs”), filed a petition for damages against the State of Louisiana through the Louisiana State University, Health Care Services Division, Leonard J. Chabert Regional Medical Center, and several doctors employed by the medical center, alleging that Mr. Bozarth died as a result of the named defendants' failure to properly diagnose and treat Mr. Bozarth and for negligently prescribing medications and discharging Mr. Bozarth under the circumstances. The named defendants filed a dilatory exception raising the objection of prematurity in response to the plaintiffs' petition, asserting that the petition raised claims of medical malpractice, and as state healthcare providers, the claims had to first be presented to a Medical Review Panel, as required by La. R.S. 40:1299.39, before suit could be instituted. The trial judge sustained the exception, and the plaintiffs' petition was dismissed without prejudice.

A Medical Review Panel was convened that determined that only the “State of Louisiana, LSU Medical Center, Health Care Services Division” and two of the named physicians, Dr. Jonah Ezieme and Dr. Joe Johnson (hereinafter collectively “LSUMC”), failed to meet the applicable standard of care as charged in the plaintiffs' petition; however, the Medical Review Panel further determined that “[t]he conduct complained of was not a factor of the resultant damages” claimed by plaintiffs. Following issuance of the Medical Review Panel's opinion, plaintiffs re-filed their petition for damages on December 2, 2000, and LSUMC filed an answer generally denying liability for plaintiffs' claims.

Following a period of discovery, LSUMC filed a motion for summary judgment asserting that the plaintiffs would not be able to meet their burden to prove that the established breach of the standard of care caused the damages claimed by the plaintiffs, namely the death of Mr. Bozarth. On July 26, 2005, the trial judge granted the motion in part to dismiss the plaintiffs' claims against the “Chabert Medical Center” and all of the named physician defendants except Drs. Johnson and Ezieme. The trial judge denied the motion for summary judgment as to LSUMC.¹ LSUMC applied for writs to this court and the Louisiana Supreme Court, but writs were denied by both courts.

Approximately a year and a half following the Louisiana Supreme Court's denial of writs, plaintiffs filed a motion to reset the matter for trial. LSUMC, in turn, filed a motion in limine seeking to exclude the live or affidavit testimony of Cheryl Crochet. In the same pleading, LSUMC also requested that the previously-filed motion for summary judgment be renewed in the event the motion in limine was granted. A hearing on the motion in limine and renewed motion for summary judgment was initially set for September 15, 2008, but because the court was closed until that date due to Hurricane Gustav, the matter was continued and a subsequent date set for the hearing was also continued at the request of the parties.

On November 14, 2008, LSUMC filed a motion to reset the motions for a contradictory hearing, and on November 19, 2008, the trial judge signed an order setting the matter for January 16, 2009, at 9:00 a.m. The order included instructions to serve counsel for the plaintiffs with the order.

On January 16, 2009, counsel for the plaintiffs did not appear at the hearing, and the trial judge noted that plaintiffs' counsel had been personally served with notice of the hearing on December 10, 2008. The trial judge then proceeded to consider the evidence and arguments presented by LSUMC in favor of the motions filed. By a judgment signed January 30, 2009, the trial judge rendered judgment granting the motions and dismissed the plaintiffs' claims against LSUMC. It is from this judgment that the plaintiffs appeal.

ASSIGNMENTS OF ERROR

On appeal, plaintiffs specify the following actions by the trial court as error:

1) Under the circumstances exigent on January 16, 2009, [the trial judge] erred in going forward with the summary judgment hearing.

2) Under the circumstances exigent on January 16, 2009, [the trial judge] erred in allowing any testimony at all, much less that of Dr. Mary Eschete[,] a former defendant herself in the matter and [the trial judge's] admitted childhood friend who he qualified as an expert and whose testimony was filled with hearsay that went to the merits of the claim far outside the scope of a summary judgment.

3) Under the circumstances exigent on January 16, 2009, [the trial judge] erred in even entertaining [the] second motion for summary judgment as [the trial judge's] decision of July 25, 2005 denying this exact same motion, which was affirmed by the denial of writs from that decision to [the Louisiana First Circuit Court of Appeal and the Louisiana Supreme Court], was res judicata.

4) Under the circumstances exigent on January 16, 2009, [the trial judge] erred in granting summary judgment.

DISCUSSION

Plaintiffs' first challenge to the summary judgment is the assertion that the trial judge erred in holding the hearing without the attendance of counsel for the plaintiffs. In their brief, counsel for the plaintiffs asserts that on the date of the hearing, the trial judge's clerk contacted counsel's office to inquire if he would be appearing for the hearing. Counsel was meeting with a client from California at the time, and on reviewing his calendar, realized he had scheduled the hearing for the wrong date. Counsel then asked to speak with the trial judge and was allegedly told that the judge was unavailable, but would call counsel back. When counsel did not hear from the judge, he called the court and allegedly was told the judge was on the bench, and on calling a second time, counsel was told that the judge had ruled on the motions and left for the day. Plaintiffs assert that the trial judge unfairly prejudiced them by going forward with the hearing.

We construe plaintiffs' account of their counsel's attempt to contact the trial judge as indicating that an attempt was made to have the hearing on the motions continued, although a continuance was not expressly requested. See Perkins v. Willie, 01-0821, p. 2 (La.App. 1st Cir.2/27/02), 818 So.2d 167, 169. Since none of the peremptory grounds for granting a continuance listed under La. C.C.P. art. 1602 ² exists, we must consider whether the trial judge abused the discretion granted him under La. C.C.P. art. 1601 in not finding that good grounds existed for continuing the hearing.

At the hearing on the motion in limine and the renewed motion for summary judgment, the following colloquy occurred regarding proceeding with the hearing in the absence of plaintiffs' counsel:

MS. WHEELER:

Your Honor, Ms. Bergeron did get in touch with [counsel for the plaintiffs] and he was under the impression that the hearing in this matter was set for the 21st.

I don't know whether the docket reflects that he was served notice of today's hearing date; but this is the second or third continuance of this case.

I have Dr. Eschete here, away from the hospital, to put on evidence. Even if he thought that the hearing was set for the 21st, I don't believe that I've received an opposition to the motion for summary judgment [that] was filed at least eight days prior to the hearing date.

The only concern I would have is whether he got legitimate notice of today's hearing.

THE COURT:

December 10th, 2008, correct? That's the service, huh, for today, January 16th.

MINUTE CLERK:

Uh-huh.

THE COURT:

Let's proceed. I mean, this case has gone on long-This case is from what, 1999? It's time to finish it up.

...

THE COURT:

And let's just show: This is Docket No. 124974. The record reflects that the plaintiff was served with notice of reassignment of this motion for limine and motion for summary judgment. And he was served December 10th. No opposition has been filed by the plaintiff's attorney. The Court will proceed with the hearing.

A trial court's ruling regarding a continuance will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. Appellate courts interfere in matters such as control of a trial court's docket, case management, and determining whether a motion for continuance should be granted only with reluctance and in extreme cases. Perkins, 01-0821 at 2-3, 818 So.2d at 169.

In Porter v. Fulton, 99-1351 (La.App. 5th Cir.6/27/00), 762 So.2d 1272, none of the parties appeared at the hearing on the motion for summary judgment because of a mistaken belief that a motion for continuance filed by the defendants, who were also the movants for summary judgment, had been granted. When the trial court contacted plaintiff's counsel...