Farooqui v. BRFHH Shreveport

374 So.3d 364

Faizan FAROOQUI and Farhat Farooqui, Individually and on Behalf of the Estate of Azra Farhat (D), Respondents

v.BRFHH SHREVEPORT, LLC, Brijesh M. Patel, M.D., Edwin W. Herron, M.D., and The State of Louisiana, Applicant

No. 55,081-CW

Court of Appeal of Louisiana, Second Circuit.

Judgment Rendered November 15, 2023

On Application for Writs from the First Judicial District Court for the Parish of Caddo, Louisiana, Trial Court No. 600,602-A, Honorable Ramon Lafitte, Judge

JEFF LANDRY, Attorney General, JABRINA CLAYTON EDWARDS, PHYLLIS E. GLAZER, ELIZABETH P. GROZINGER, Assistant Attorneys General, Counsel for Defendant Applicant, State of Louisiana

J. KYLE MCCOTTER, Bossier City, PATRICK R. JACKSON, APEC, Shreveport, By: Ryan O. Goodwin, Counsel for Respondents

Before STONE, STEPHENS, and ELLENDER, JJ.

STONE, J.

FACTS AND PROCEDURAL HISTORY

₂This writ arises from the First Judicial District Court, the Honorable Ramon Lafitte presiding. Ms. Azra Farhat, presented at the hospital complaining of chest pain; she was admitted to the hospital, and. approximately 6 days later underwent coronary bypass surgery. Her heart stopped beating and could not be revived, and thus she died. After a medical review panel ("MRP") proceeding, Ms. Farhat’s family brought suit claiming damages for medical malpractice. The defendants filed a motion for summary judgment ("MSJ") asserting that the plaintiffs could not produce prima facie evidence of causation (of a compensable injury). The trial court denied the MSJ. The defendant sought supervisory writs with this court, and we granted the writ to docket. The matter is now before this court for resolution.

The summary judgment evidence around which the dispute centers is the following deposition testimony of Dr. Tommy Brown:

Q So is it best or is there — a better, way to put it is you believe there’s a possible better outcome but you don’t know whether there would be a probable better outcome?

A In this patient, yes.¹ If you look at the statistics it’s a lot better to do bypass urgently ₃if you have ongoing angina. On this specific individual with the description of the arteries that Dr. Hiller described, I don’t know if it would have been any better.

Q Now you had hit on earlier just to kind of stick with the same topic, some of those issues about Plavix and waiting the five to seven days, which I think is the American College of Surgeons recommendation as well, correct?

A Correct.

Q The American College of Surgeons also talks about not waiting if surgery is urgent or emergent. You’re saying that the profile that this patient is presenting with, two instances on the 17th, presented an urgent or emergent condition?

A An urgent —

Q An urgent condition?

A Right.

Q Okay. And your basis for the two instances reported overnight being an urgent condition is what?

A Recurrent angina post-MI [i.e., post-myocardial-infarction], known triple-vessel coronary disease, normal LV [i.e., left ventricular] pump. That’s a pretty class Ia indication.

Summary judgment

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). A fact is "material" when its existence or ₄nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery. Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d 791, 814. A genuine issue is one regarding which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So. 2d 764.

[1] Furthermore, "[i]n determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence." Marioneaux v. Marioneaux, 52,212 (La. App. 2 Cir. 8/15/18), 254 So. 3d 13, 20-21. The prohibition on making credibility determinations on summary judgment extends to expert affidavits admitted without objection. Aziz v. Burnell, 21-187 (La. App. 3 Cir. 11/3/21), 329 So. 3d 963, writ denied, 21-01790 (La. 2/15/22), 332 So. 3d 1177; Thompson v. Center for Pediatric and Adolescent Med., LLC, 17-1088 (La. App. 1 Cir. 3/15/18), 244 So. 3d 441, writ denied, 18-0583 (La. 6/1/18), 243 So. 3d 1062. Finally, the court must draw those reasonable inferences from the undisputed facts which are most favorable to the party opposing the motion; likewise, all doubt must be resolved in the opposing party’s favor. Wyrick v. Golden Nugget Lake Charles, LLC, 20-0665 (La. App. 1 Cir. 12/30/20), 317 So. 3d 708.

₅La. C.C.P. art. 966(D)(1) allocates the burden of proof on a motion for summary judgment as follows:

The burden of proof rests with the mover. Nevertheless, 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. The burden is on 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.

Only certain types of documents may be offered in support of or in opposition to the MSJ. La. C.C.P. art. 966(A)(4). Likewise, the court may consider only those documents filed or referenced in support of or in opposition to the MSJ. La. C.C.P. art. 966(D)(2).

Medical malpractice

La. R.S. 9:2794(A) sets forth the essential elements of a medical malpractice action; they follow the traditional formulation of negligence – duty, breach, causation, and injury:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians… licensed to practice in the state ₆of Louisiana and actively practicing in a similar community or locale and under similar circumstances…²

(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.

(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

The plaintiff must establish these elements by a preponderance of the evidence. Id.

The Louisiana courts have deemed any lost chance of a better outcome a compensable injury in a medical malpractice action. The seminal case from the Louisiana supreme court is Smith v. State, Dept. of Health and Hospitals, 95-0038 (La. 6/25/96), 676 So. 2d 543; the opinion explains that any lost chance is a compensable injury:

The issues in loss of a chance of survival cases are whether the tort victim lost any chance of survival because of the defendant’s negligence and the value of that loss…Allowing recovery for the loss of a chance of survival is not…a change or a relaxation of the usual burden of proof by a preponderance of the evidence. Rather, allowing such recovery is a recognition of the loss of a chance of survival as a distinct compensable injury caused by the defendant’s negligence, to be distinguished from the loss of life in wrongful death cases, and there is no variance from the usual burden in proving that distinct loss. (Emphasis in original).

Id.

₇Finally, Smith, supra, retained the requirement that the plaintiff prove that the patient had some chance—any chance—of survival at the time of encountering the medical negligence in question:

Thus, in a medical malpractice case seeking damages for the loss of a less-than-even chance of survival because of negligent treatment of a pre-existing condition, the plaintiff must prove by a preponderance of the evidence that the tort victim had a chance of survival at the time of the professional negligence and that the tortfeasor's action or inaction deprived the victim of all or part of that chance (Emphasis added).

More recently, however, lost chance of a better outcome (distinct from lost chance of survival) became a compensable injury in the Louisiana jurisprudence. Thus, the Louisiana Supreme Court in Burchfield v. Wright, 17-1488 (La. 6/27/18), 275 So. 3d 855, 863, explained:

The loss of a chance of a better outcome is a theory of recovery recognized in…[Louisiana jurisprudence]. It is not a separate cause of action distinct from a statutory malpractice claim…[A] plaintiff may carry his burden of proof by showing that the defendant’s negligence was a substantial factor in depriving the patient of some chance of life, recovery, or, as in the instant case, a better outcome.…Consequently, the plaintiff does not have to shoulder the burden of proving the patient would have survived if properly treated; he need only demonstrate the decedent had a chance of survival or recovery that was denied him as a result of the defendant’s negligence. (Emphasis added).

[2] Accordingly, in this case, the dispositive issue is whether a reasonable juror could conclude that Dr. Brown’s ₈aforementioned testimony established (by a preponderance of the evidence) that the delay in performing surgery caused Ms. Farhat to lose any chance of a better outcome. At the beginning of the deposition excerpt quoted above, Dr. Brown testified affirmatively to the existence of a chance of a better outcome, i.e., a "possible better outcome." His subsequent admission that he could not say it was a probable better outcome does not contradict his prior affirmation of a chance—any chance—of a better outcome. Reading the deposition in its entirety reveals that Dr. Brown did not elsewhere...