DeHart v. Jones

310 So.3d 658

Allen DEHART, et al.

v.Bruce A. JONES, M.D., et al.

19-789

Court of Appeal of Louisiana, Third Circuit.

December 16, 2020

Samuel David Abraham, 5040 Ambassador Caffery Parkway, Lafayette, LA 70508, (337) 234-4524, COUNSEL FOR PLAINTIFFS/APPELLANTS: Allen Dehart Adrienne Dehart Ashley Dehart Anissa Dehart

Nicholas Gachassin, III, Brandon M. Rhodes, Julie Savoy, Gachassin Law Firm, P. O. Box 80369, Lafayette, LA 70598-0369, (337) 235-4576, COUNSEL FOR DEFENDANTS/APPELLEES: Lafayette General Medical Center Amy Falconer

Alan K. Breaud, Breaud & Meyers, P. O. Drawer 3448, Lafayette, LA 70502, (337) 266-2200, COUNSEL FOR DEFENDANT/APPELLEE: Bruce A. Jones, M.D.

Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar, Judges.

KYZAR, Judge.

In plaintiffs, Allen, Adrienne, Ashley, and Annisa DeHart, appeal from a trial court judgment in favor of the defendants, Lafayette General Medical Center and Amy Falconer, finding no genuine issue of material fact as to the defendants’ breaches of the standard of care or causation, on issues of excessive bleeding and negligent advertising/informed consent and dismissing their claims against the defendants with prejudice. For the following reasons, we vacate in part and render judgment, affirm in part, and remand.

DISCUSSION OF THE RECORD

The facts of this matter were addressed in our prior opinion, DeHart v. Jones , 18-764, pp. 2-3 (La.App. 3 Cir. 3/27/19), 269 So.3d 801, 803-04, as follows:

This medical malpractice action arises out of surgical complications during a robotically-assisted heart valve repair surgery performed on Arlene DeHart by Dr. Bruce Jones at LGMC. Ms. Falconer acted as perfusionist. During the procedure, Mrs. DeHart bled profusely from her femoral artery. Plaintiffs, Mrs. DeHart's husband and children, alleged this excessive bleeding and inadequate perfusion flow led to the eventual failure of Mrs. DeHart's kidneys, which contributed to her death within a month of surgery on October 27, 2008. After timely submitting the matter to a medical review panel, Plaintiffs filed suit on June 26, 2012, against LGMC and Ms. Falconer, among other defendants.

As to LGMC and Ms. Falconer, Plaintiffs alleged that the surgical staff breached the applicable standard of care in failing to communicate to Dr. Jones the source, extent, significance, and magnitude of the bleed and its adverse impact on Mrs. DeHart's hemodynamics. Plaintiffs further alleged that LGMC was negligent in its advertising and marketing of the robotic surgery and in obtaining Mrs. DeHart's informed consent for the procedure.

On May 15, 2018, LGMC and Ms. Falconer filed their motion for partial summary judgment on the ground that Plaintiffs could not carry their burden of proof as to breach or causation in their claims regarding the bleeding issue. LGMC and Ms. Falconer then filed a second motion for partial summary judgment on May 23, 2018, arguing that Plaintiffs could not carry their burden of proof as to duty or causation relating to their negligent advertising/informed consent claims. Both motions were set for hearing on June 18, 2018. The Lafayette Parish Sheriff's Office served Plaintiffs with notice of the June 18, 2018 hearing date on May 29, 2018. Thereafter on June 1, 2018, Plaintiffs filed a motion to strike both motions because they were not served with notice of the court date thirty days before the hearing as mandated by La.Code Civ.P. art. 966(C)(1)(b). On June 18, 2018, the trial court denied the motion to strike and continued the hearing on the partial summary judgment motions to June 27, 2018. In response, Plaintiffs filed another motion to strike, again for lack of timely notice of the hearing date. The trial court denied the motion to strike and ultimately granted LGMC's and Ms. Falconer's motions, dismissing them "entirely from this lawsuit with prejudice on summary judgment."

The DeHarts appealed the trial court's July 16, 2018 judgment in favor of Lafayette General Medical Center (LGMC) and Amy Falconer (Ms. Falconer or "the perfusionist") (referred to collectively as "the defendants"). On appeal, we vacated the judgment because the defendants’ motions "were granted without the thirty-day notice required by La.Code Civ.P. art. 966(C)(1)(b)," granted the DeHarts’ motions to strike the motions, and remanded the matter for further proceedings. Id. at 805.

Once the matter was back in the trial court, the defendants again moved for partial summary judgment on the excessive bleeding and negligent advertising/informed consent issues. The DeHarts opposed both motions with supporting documents, including opinion evidence by Dr. Jeffery A. Green, an anesthesiologist, and Alfred H. Stammers, a perfusionist. The defendants objected to these exhibits and moved to strike them in their reply memorandum.

At the July 1, 2019 hearing, the trial court sustained the defendants’ objection and granted their motion to strike Dr. Green's opinion evidence but overruled their objection as to Mr. Stammers. Next, the trial court granted judgment in favor of the defendants on both the excessive bleeding and negligent advertising/informed consent issues, finding no genuine issue of material fact as to the defendants’ breach of the standard of care or causation on either issue. Written judgment was rendered on July 22, 2019. It is from this judgment that the DeHarts appeal.

On appeal, the DeHarts raise four assignments of error:

1. Whether the trial court erred in not allowing Plaintiffs/Appellants [e]xpert testimony of Jeffery Green into evidence[.]

2. Whether the trial court erred in granting Motions for Summary Judgment when genuine issues of material fact existed.

a. Did Lafayette General Medical Center, its Nurses, Perfusionist and staff seek help outside of the Operating Room as Mrs. DeHart continued to bleed out, as the standard of care required.

b. Was Communication among the team adequate and did the communication level comply with the standard of care.

3. Did LGMC [sic] comply with their duty to make sure the informed consent form was properly completed and filled out as required by CMS and the Joint Commission for [A]ccreditation in order to participate in their programs[.]

4. Material facts exist concerning whether the breaches of the standards of care caused Mrs. DeHart to suffer injuries[.]

"[S]ummary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant." Murphy v. Savannah , 18-991, p. 6 (La. 5/8/19), 282 So.3d 1034, 1038; La.Code Civ.P. art. 966(A). Appellate courts review summary judgment de novo using the same criteria that governs the trial court's determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Wright v. La. Power & Light , 06-1181 (La. 3/9/07), 951 So.2d 1058 ; La.Code Civ.P. art. 966(A)(3).

A material fact is one that "potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute." Hines v. Garrett , 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). "A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate."

Smitko v. Gulf S. Shrimp, Inc. , 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755.

If the mover will not bear the burden of proof at trial, it need only point out "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La.Code Civ.P. art. 966(D)(1). Once this occurs, the burden shifts to "the adverse party to produce factual support 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. "Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is ‘material’ for summary judgment purposes can be seen only in light of the substantive law applicable to the case." Jackson v. City of New Orleans , 12-2742, 12-2743, p. 6 (La. 1/28/14), 144 So.3d 876, 882, cert. denied , 574 U.S. 869, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014).

In order to establish their medical malpractice claim, the DeHarts must prove by a preponderance of the evidence: (1) the standard of care applicable to the medical provider; (2) that the medical provider breached the standard of care; and (3) a causal connection between the breach and the resulting injury. La.R.S. 9:2794(A). Nurses and medical technicians performing medical services are subject to the same standard of care as physicians. Belmon v. St. Frances Cabrini Hosp. , 427 So.2d 541 (La.App. 3 Cir. 1983). The standard of care, as provided by La.R.S. 9:2794(A)(1), is that "degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances." The standard of care for a physician or nurse practicing in a particular specialty is that degree of care ordinarily practiced by physicians or nurses within that specialty. La.R.S. 9:2794(A)(1).

The standard of care applicable to a hospital was discussed in Lewis v. Cornerstone Hospital of Bossier City, LLC , 53,056, pp. 9-10 (La.App. 2 Cir. 9/25/19), 280 So.3d 1262, 1269 :

In a malpractice claim against a hospital, the plaintiff must prove, as in any negligence action, that the defendant owed the plaintiff a duty to protect against the risk involved, the defendant breached that duty, the plaintiff suffered an injury, and the defendant's actions were a substantial cause in fact of the injury. McGlothlin v. Christus St. Patrick Hosp. , 2010-2775 (La. 7/1/11), 65 So. 3d 1218 ; Little v. Pou , 42,872 (La.

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