Major v. Baton Rouge Gen. Med. Ctr., 2010 CA 1876

MONICA A. MAJOR AND CEDRIC ALLEN

v.BATON ROUGE GENERAL MEDICAL CENTER, ET AL.

2010 CA 1876

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Judgment Rendered: May 6, 2011

NOT DESIGNATED FOR PUBLICATION

On Appeal from the 19th Judicial District Court

In and For the Parish of East Baton Rouge

Trial Court No. 566,590, Division "C", Section 25

Honorable Wilson E. Fields, Judge Presiding

Herbert J. Mang, Jr.

Counsel for Defendant/Appellant

Tara S. Bourgeois

Dr. Leland C. Lenahan, III

Lauren Byrd Reed

Garrett S. Callaway

Baton Rouge, Louisiana

Sumpter B. Davis, III

Counsel for Plaintiffs/Appellees

Baton Rouge, Louisiana

Monica A. Major and Cedric Allen

BEFORE: PARRO, GUIDRY, AND HUGHES, JJ.

HUGHES, J.

This is an appeal of the portion of a judgment¹ that granted a partial summary judgment in favor of plaintiffs, Monica A. Major and Cedric Allen, holding that defendant, Leland C. Lenahan, M.D., breached the standard of care applicable to the treatment of their mother, Julia Allen. For the following reasons, we reverse that portion of the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

On August 7, 2005 Ms. Julia Allen, plaintiffs' mother, sought treatment at the Baton Rouge General Medical Center's emergency room for pain caused by an abscess in her abdomen. Dr. Leland C. Lenahan was the emergency room physician who treated Ms. Allen. The lab work that was ordered during Ms. Allen's treatment revealed that she had a low serum potassium level of 2.9.² According to Dr. Lenahan, he ordered oral potassium to be administered to Ms. Allen. Whether the potassium was ordered or administered is disputed. It is undisputed that no follow-up lab work was performed to recheck Ms. Allen's potassium level before she was discharged from the emergency room that same evening. Within an hour after returning home, Ms. Allen awoke with shortness of breath and difficulty breathing. An ambulance was called, Ms. Allen was transported to River West Medical Center, and she was pronounced dead at 6:43 a.m. on August 8, 2005.

On May 1, 2008 the plaintiffs filed suit against Baton Rouge General Medical Center and Dr. Lenahan for the wrongful death of their mother and damages arising therefrom. Because Baton Rouge General Medical Center and Dr. Lenahan are qualified healthcare providers, plaintiffs were required to seek theopinion of a medical review panel prior to filing suit. The medical review panel was convened and met on December 3, 2007. The panel found that Dr. Lenahan breached the standard of care regarding the treatment of Ms. Allen's hypokylemia (low potassium level), but it could not render an opinion regarding whether that caused or contributed to Ms. Allen's death.

On June 11, 2010 plaintiffs filed a motion for partial summary judgment on the issues of fault and causation, claiming that there were no genuine issues of material fact regarding the appropriate standard of care, whether Dr. Lenahan breached that standard of care, and whether that breach caused their mother's death. In support of their motion, plaintiffs relied on four exhibits: 1.) the opinion of the medical review panel, 2.) an affidavit of Wesley Blocker, M.D., stating that he found that Dr. Lenahan had breached the applicable standard of care, 3.) excerpts from the deposition of Jonathan Marmur, M.D., and 4.) excerpts from the deposition of Monica Major.

Dr. Lenahan filed an opposition to the partial motion for summary judgment and attached to his opposition an affidavit wherein he attested:

That he was and is a medical doctor, licensed to practice medicine in the State of Louisiana, both in August of 2005 and at the present time.

That he practices the medical specialty of emergency medicine.

That affiant is well aware of the standard of care applicable to physicians who practice in the medical specialty of emergency medicine.

That it is affiant's expert medical opinion that the treatment of Julia Allen was at all times appropriate and well within the standard of care applicable to the medical specialty of emergency medicine.

That it is affiant's expert medical opinion that a potassium level of 2.9 is not indicative of life-threatening hypokalemia and is not a sufficiently low level of potassium to cause a cardiac arrhythmia.

That affiant did order that KC1 (potassium chloride) 40 be administered to Julia Allen by mouth.

That it is affiant's expert medical opinion that administration of KC1 (potassium chloride) 40 by mouth, as was ordered by affiant, is a reasonable and appropriate treatment for Julia Allen's potassium level of 2.9 under the circumstances then presented.

That it is affiant's expert medical opinion that, contrary to the opinion of the medical review panel, affiant did not fail to properly monitor Julia Allen's response to his intervention.

That it is affiant's expert medical opinion that, contrary to the opinion of the medical review panel, the standard of care applicable to physicians practicing the medical specialty of emergency medicine does not, and did not at the time, require that the potassium level of a patient with a potassium level of 2.9 be rechecked to measure the effectiveness of the original intervention or to determine whether further treatment or observation was necessary prior to discharge under the circumstances then presented.

That no autopsy was performed to determine the cause of Julia Allen's death.

That it is affiant's expert medical opinion that, judging from Julia Allen's symptoms as described in the depositions of Monica Major and Brione Major, hypokalemia (low potassium level) did not cause or contribute to Julia Allen's death, but, instead, that Julia Allen's death was the result of her long history of uncontrolled diabetes mellitus, hypertension, hyperlipidemia and congestive heart failure rather than her potassium level.

That the death certificate and Dr. Antonio Edwards' statement regarding Mrs. Allen's death further confirm that her death was the result of her long history of uncontrolled diabetes mellitus, hypertension, and hyperlipidemia rather than her potassium level.

After a hearing, the trial court granted plaintiffs' motion for partial summary judgment on the issue of fault, finding that there was no genuine issue of material fact concerning whether Dr. Lenahan breached the applicable standard of care. Dr. Lenahan appeals.

LAW AND ANALYSIS

I. Summary Judgment

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969; the procedure is favored and shall be construed to accomplish these ends.LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate. Samaha v. Rau, 2007-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La. 4/9/03), 842 So.2d 373, 377; Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La. App. 1 Cir. 8/11/08), 993 So.2d 725, 729-30. In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett, 2004-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765.

A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue 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. Id., 2004-0806 at p. 1, 876 So.2d at 765-66. On motion for summary judgment, the burden of proof is with the movant. If the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact remains on the party bringing the motion. See LSA-C.C.P. art. 966(C)(2). Buck's Run Enterprises, Inc. v. Mapp Const., Inc., 1999-3054, p. 4 (La. App. 1 Cir. 2/16/01), 808 So.2d 428, 431.

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). See alsoBoard of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107, p. 9 (La. App. 1 Cir. 2/8/08), 984 So.2d 72, 79-80; Cressionnie v. Intrepid, Inc., 2003-1714, p. 3 (La. App. 1 Cir. 5/14/04), 879 So.2d 736, 738. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 2003-1488, p. 5 (La. 4/23/04), 874 So.2d 131, 137; Dyess v. American National Property and Casualty Company, 20031971, p. 4 (La. App. 1 Cir. 6/25/04), 886 So.2d 448, 451, writ denied. 2004-1858 (La. 10/29/04), 885 So.2d 592; Cressionnie, 2003-1714 at p. 3, 879 So.2d at 73839.

To succeed in a medical malpractice claim, LSA-R.S. 9:2794 provides that the plaintiff must prove three elements by a preponderance of the evidence....