Moore v. Bd. of Supervisors of La. State Univ.

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GENEVIEVE MOORE v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURE AND MECHANICAL COLLEGE O/B/O LSU HEALTH SCIENCES CENTER-NEW ORLEANS AND SANJAY KAMBOJ, MD

No. 2023-C-0041

Court of Appeals of Louisiana, Fourth Circuit

May 4, 2023

ON SUPERVISORY WRIT FROM THE CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-01576, DIVISION "J" Honorable D Nicole Sheppard.

Richard T. Gallagher, Jr. GALLAGHER, WESTHOLZ & POTTER LLC COUNSEL FOR PLANTIFF/RESPONDENT

Jeff Landry Attorney General Phyllis E. Glazer Assistant Attorney General Appellate Counsel LOUISIANA DEPARTMENT OF JUSTICE

Renee C. McKay Assistant Attorney General Trial Counsel LOUISIANA DEPARTMENT OF JUSTICE COUNSEL FOR DEFENDANTS/RELATORS

(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Karen K. Herman)

KAREN K. HERMAN JUDGE

Richard T. Gallagher, Jr. GALLAGHER, WESTHOLZ &POTTER, LLC 111 Veterans Blvd., Suite 1400 Metairie, Louisiana 70005 COUNSEL FOR PLANTIFF/RESPONDENT Jeff Landry Attorney General Phyllis E. Glazer Assistant Attorney General Appellate Counsel LOUISIANA DEPARTMENT OF JUSTICE 1885 North Third St 3^rd Floor Baton Rouge, Louisiana 70802 Renee C McKay Assistant Attorney General Trial Counsel LOUISIANA DEPARTMENT OF JUSTICE 1450 Poydras St., Suite 900 New Orleans, Louisiana 70112 COUNSEL FOR DEFENDANTS/RELATORS Relators-Defendants, the Board of Supervisors of Louisiana State University and Agricultural Mechanical College and Sanjay Kamboj, M.D. (collectively, "Relators"), seek supervisory review of the trial court's October 26, 2022, judgment, which denied their motion for summary judgment. For the following reasons, we grant the writ application, reverse the trial court's judgment, and grant summary judgment in favor of Relators.

FACTS AND PROCEDURAL HISTORY

On February 17, 2020, Respondent-Plaintiff, Genevieve Moore ("Respondent"), filed a petition against Relators, alleging that on March 2, 2016, she presented to LSU and Sanjay Kamboj, M.D., ("Dr. Kamboj") "for treatment of nasal congestion, mucus, aches, cough, fever and trouble breathing." She was diagnosed with influenza, asthma, and acute upper respiratory infection. Respondent alleged that Dr. Kamboj ordered that she receive several injections, including a "solumedrol injection" to be administered by a nurse. According to Respondent, she experienced "sharp and substantial pain in her shoulder," when the solumedrol was administered. Respondent asserted that the medical staff was immediately notified, after which, she was given Tylenol and allowed to remain "in the clinic for 20 minutes after the injections." Respondent claimed she continually sought treatment for shoulder pain and prior to filing the petition obtained an MRI, which revealed a rotator cuff tear for which she will undergo surgery. Respondent alleged that Relators breached the applicable standard of care by failing to train and supervise the nurse, by failing to adequately perform the injection, and by failing to properly obtain consent from Respondent.

Before filing suit, the medical review panel ("MPR") initiated by Respondent's complaint unanimously rendered an opinion finding that, "[t]he evidence does not support the conclusion that Dr. Sanjay Kamboj failed to meet the applicable standard of care as charged in the complaint." The MPR further concluded that "[t]he steroid shot was indicated for [Respondent's] asthma flare."

On February 8, 2022, almost two years after Respondent filed her petition, Relators filed a motion for summary judgment supported by the medical review panel's opinion, asserting that Respondent has not identified an expert that will provide testimony on Respondent's behalf to establish the necessary elements of her claim, pursuant to La. R.S. 9:2794; and that this is not a matter wherein a layperson can infer negligence without expert testimony. Relators also noted that in January 2015, a year prior to the steroid injection, Respondent had injured her right shoulder when she fell against a dresser.

In opposition to Relators' motion for summary judgment, Respondent argued that expert testimony is not required because this is not a complicated medical case requiring expert testimony. She also argued that the doctrine of res ipsa loquitur is applicable to prove Relators' negligence because following a "simple injection" Respondent had immediate and unusual pain, required Tylenol, and was instructed to sit in the clinic for twenty minutes. Respondent thus claims these facts give "rise to an inference that someone was negligent." She further argued there was causation because she complained of pain immediately after injection.

The motion came for hearing before the trial court on October 13, 2022. The trial court denied the motion for summary judgment from the bench. Judgment to that effect was executed on October 26, 2022. This writ application followed.

DISCUSSION

Standard of Review

Appellate courts review the grant or denial of a motion for summary judgment de novo. In re Medical Review Complaint by Downing, 2021-0698, p. 8 (La.App. 4 Cir. 5/26/22) 341 So.3d 863, 869 (citing Indep. Fire Ins. Co. v. Sunbeam Corp., 1999-2181, 1999-2257, p. 7 (La. 2/29/00), 755 So.2d 226, 230). "Because [this Court] review[s] a motion for summary judgment de novo, [this Court] look[s] at the facts and evidence in the record [on review], inspecting it without regard or deference to the judgment of the trial court or its reasons for judgment." Cusimano v. Port Esplanade Condominium Ass'n, Inc., 2010-0477, p. 4 (La.App. 4 Cir. 1/12/11), 55 So.3d 931, 934.

In Mapes v. State through Bd. of Supervisors of Louisiana State Univ. Agric. &Mech. Coll., 2021-0166 (La.App. 4 Cir. 3/2/22), 336 So.3d 494, this Court summarized the law on summary judgment, stating:

"The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." La. C.C.P. art. 966(A)(2). "The procedure is favored and shall be construed to accomplish these ends." Id. "[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). "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La. C.C.P. art. 966(A)(4).

"The burden of proof rests with the mover." La. C.C.P. art. 966(D)(1). However, "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 ... does not require him to negate all essential elements of the adverse party's claim, action, or defense." Id. Instead, the moving party must "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." Id. Then, "[t]he 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." Id.

"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." Maddox v. Howard Hughes Corp., 19-0135, p. 5 (La.App. 4 Cir. 4/17/19), 268 So.3d 333, 337." 'A fact is material when its existence or nonexistence may be essential to the plaintiffs [sic] cause of action under the applicable theory of recovery; 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." Id. (quoting Chapital v. Harry Kelleher &Co., Inc., 131606, p. 5 (La.App. 4 Cir. 6/4/14), 144 So.3d 75, 81). "Whether a fact is material is a determination that must be made based on the applicable substantive law." Maddox, 19-0135, p. 5, 268 So.3d at 337.

Mapes, 2021-0166, pp. 4-5, 336 So.3d at 497.

Burden of Proof/Medical Malpractice

"A plaintiff must prove the following three elements by a preponderance of the evidence to prevail in a medical malpractice action: (1) the applicable standard of care expected of physicians in his/her medical specialty, (2) a violation of that standard of care, and (3) a causal connection between the alleged negligent treatment and the plaintiff's injuries." In re Med. Rev. Complaint by Downing, 2021-0698, p. 9, 341 So.3d at 870 (citing Deruise-Pierce v. Univ. Healthcare Sys L.C., 2018-0160, pp. 7-8, (La.App. 4 Cir. 10/24/18), 258 So.3d 150, 15455 (citations omitted)).

"Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony." Schultz v. Guoth, 2010-0343, p. 7 (La.1/19/11), 57 So.3d 1002, 1006-1007 (citing Samaha v. Rau, 2007-1726, pp. 5-6, 977 So.2d 880, 883; and Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643 So.2d 1228).

In Pfiffner, the Supreme Court stated:

The jurisprudence has also recognized that there are situations in which expert testimony is not necessary. 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 lay person can infer negligence.

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